KERRY MOTICHEK v. GONZALES POLICE DEPARTMENT AND THE GONZALES MUNICIPAL FIRE POLICE CIVIL SERVICE BOARD (2025)

Plaintiff, Kerry Motichek, appeals from a judgment of the district court, which affirms a decision of the Gonzales Municipal Fire and Police Civil Service Board upholding the termination of Mr. Motichek's employment with the Gonzales Police Department. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Kerry Motichek was employed as a police officer by the City of Gonzales Gonzales Police Department (“the Department”). Following an administrative investigation concerning multiple instances of possible violations of the Department's Standard Operating Policies and Civil Service Laws, and subsequent pre-disciplinary hearing, Mr. Motichek was permanently removed from service on June 21, 2022, for reasons set forth in a “Notice of Disciplinary Action” by Chief of Police Sherman D. Jackson. Pursuant to La. R.S. 33:2561, Mr. Motichek appealed the Department's decision to terminate his employment to the Gonzales Municipal Fire and Police Civil Service Board (“the Board”). Following a hearing, the Board issued a decision on September 27, 2022, affirming the decision of the Gonzales Police Department to terminate Mr. Motichek.

Mr. Motichek then appealed the Board's decision to the Twenty-Third Judicial District Court pursuant to La. R.S. 33:2501(E) and La. R.S. 33:2561(E). On May 2, 2024, the appeal was argued before the district court and taken under advisement. Thereafter, on June 11, 2024, the district court rendered a judgment, accompanied by written reasons, finding that the Board's decision to uphold the Department's termination of Mr. Motichek was made in good faith for just cause, which cannot be disturbed on judicial review. The district court thus denied Mr. Motichek's appeal of the Board's decision and affirmed his termination by the Department.

It is from this judgment that Mr. Motichek now appeals to this court.

JURISDICTION

This court has a duty to examine its subject matter jurisdiction on its own motion, even when the issue is not raised by the parties. Kistler v. City of Denham Springs, 2018-0249 (La. App. 1st Cir. 2/7/19), 2019 WL 480117, *1 (unpublished). Pursuant to this duty, following the lodging of this appeal, this court, ex proprio motu, issued a rule to show cause order noting that the June 11, 2024 judgment of the district court appears to be a non-appealable ruling and ordering the parties to show cause by briefs why the appeal should not be dismissed. In response, the Department and the Board agree that the judgment is non-appealable and that this court lacks jurisdiction. Mr. Moticheck, however, contends that the June 11, 2024 judgment is a final judgment over which this court has jurisdiction.

Appellate review of decisions by Municipal Fire and Police Civil Service Boards is specifically authorized by La. R.S. 33:2501(E)¹ and La. R.S. 33:2561 (E),² which directly vest the district court with appellate jurisdiction. White v. City of Mandeville, 2023-0880 (La. App. 1st Cir. 2/23/24), 387 So. 3d 612, 615.

The Louisiana Supreme Court has recognized that when the legislature vests appellate jurisdiction in the district court, as in this case, a court of appeal lacks appellate jurisdiction, and the matter may be reviewed by converting the appeal to an application for supervisory writs. See Miazza v. City of Mandeville, 2010-0304 (La. 5/21/10), 34 So. 3d 849 (per curiam).³ The Court issued similar directives in Meiners v. St. Tammany Fire Protection District #4 Board of Commissioners, 2010-0912 (La. 6/25/10), 38 So. 3d 359 and Monroe Municipal Fire and Police Civil Service Board v. Brown, 2023-00907 (La. 10/17/23), 3 71 So. 3d 448 (per curiam). In line with this directive, this court has, on numerous occasions, followed this procedure and converted appeals of this nature to applications for supervisory writs. See White, 387 So. 3d at 615; Kistler, 2019 WL 480117 at *1; Sanders v. City of Mandeville Municipal Police Department, 2018-0125 (La. App. 1st Cir. 11/2/18), 2018 WL 5792011, *3 (unpublished); In re McDermitt, 2022-1331 (La. App. 1st Cir. 6/2/23), 370 So. 3d 79, 84-85; and In re Jackson, 2019-0164 (La. App. 1st Cir. 1/2/20), 393 So. 3d 934, 936 n.2, writ denied, 2020-00202 (La. 4/27/20), 295 So. 3d 403.

An appellate court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs when the motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs of review under Rule 4-3 of the Uniform Rules, Courts of Appeal. Reverse Mortgage Solutions, Inc. v. Conerly, 2022-1054 (La. App. 1st Cir. 5/19/23), 2023 WL 3595359, *5 (unpublished); In re McDermitt, 370 So. 3d at 85 n.7. In the instant case, however, notice of the June 11, 2024 judgment was mailed on June 12, 2024, and Mr. Motichek's motion for a devolutive appeal was filed via facsimile on August 19, 2024. Thus, because Mr. Motichek's motion for appeal was not filed within thirty days from the date of the notice of judgment, the motion for appeal cannot be considered a timely filed application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.⁴ Accordingly, we are precluded from converting this appeal to an application for supervisory writs. See Uniform Rules, Courts of Appeal - Rule 4-3; Belleview Estates, LLC v. Knoll & Dufour Lands, LLC, 2019-1394 (La. App. 1st Cir. 9/21/20), 315 So. 3d 252, 259.

CONCLUSION

Based on the foregoing reasons, this appeal of the June 11, 2024 judgment is dismissed.

APPEAL DISMISSED.

FOOTNOTES

1.   Louisiana Revised Statutes 33:2501(E), found in Part II of Chapter 5 of Title 33, applies to municipalities between 13,000 and 250,000 and provides as follows:(1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. [Emphasis added.](2) The appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of the appeal, stating the grounds thereof and demanding that a certified transcript of the record, or written findings of facts, and all papers on file in the office of the board affecting or relating to such decision, be filed with the designated court. The board shall, within ten days, after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court shall thereupon proceed to hear and determine the appeal in a summary manner.(3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and except as provided in Subsection D of this Section.

2.   Louisiana Revised Statutes 33:2561(E), found in Part III of Chapter 5 of Title 33, applies to small municipalities and for parishes and fire protection districts and provides as follows:Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. This appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of appeal stating the grounds thereof and demanding that a certified transcript of the record or written findings of fact and all papers on file in the office of the board affecting or relating to such decisions be filed with the designated court. The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court thereupon shall proceed to hear and determine the appeal in a summary manner. This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part or to whether a board member should have or failed to recuse himself in accordance with Subsection D of this Section. No appeal to the court shall be taken except upon these grounds. [Emphasis added.]

3.   In doing so, the Court cited Caire v. Stassi, 379 So. 2d 1056, 1057 (La. 1980) (holding that a statute granting appellate jurisdiction to the district court divests the court of appeal of appellate jurisdiction). Miazza, 34 So. 3d at 849.

4.   To the extent that Mr. Motichek relies on In re McDermitt and Beck v. City of Baker, 2011-0803 (La. App. 1st Cir. 9/10/12), 102 So. 3d 887, writ denied, 2012-2455 (La. 1/11/13), 107 So. 3d 617, we note that although a devolutive appeal was taken in Beck, there is no indication that it was filed outside the thirty-day delay for filing an application for supervisory writs, and further, the court in In re McDermitt expressly acknowledged there was no dispute “that McDermitt's motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.” See In re McDermitt, 370 So. 3d at 85 n.7.

MILLER, J.