STATE OF LOUISIANA v. ANTOINETTE FRANK (2025)

Granted in part. Reversed in part. Remaining issues will be considered in due course. See per curiam.

JDH

WJC

JBM

CRC

Weimer, C.J., dissents in part for the reasons assigned by Guidry, J. and assigns additional reasons.

Supreme Court of Louisiana October 07, 2025

SUPREME COURT OF LOUISIANA

No. 2025-KD-00767

STATE OF LOUISIANA

VS.

ANTOINETTE FRANK

On Writ of Certiorari to the Criminal District Court, Parish of Orleans

PER CURIAM

This case involves the death penalty.¹ We grant, in part, both the attorney general's motion to expedite and writ application. On May 15, 2025, the trial court denied the Attorney General's motion to represent the State and ruled that “no provision in the law and Louisiana Constitution allows for the attorney general's participation in this case, and there is no cause for the attorney general to assume the duties of the district attorney.” We disagree.²

The attorney general seeks to represent the defendant, who was sued in her official capacity as Warden of the Louisiana Correctional Institute for Women. The attorney general's representation is with the agreement and written request of the Orleans Parish District Attorney. La. Const. art. IV, § 8(1) provides: “As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority to institute, prosecute, or intervene in any civil action or proceeding.” La. Const. art. IV, § 8(2) grants the attorney general the authority “upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case.” Thus, whether the proceeding is civil or the attorney general has been requested to enroll, the constitution provides for the attorney general's representation of the defendant.

We have stated that post conviction relief proceedings are “not criminal litigation per se” but “are designed to allow petitioners to challenge the legality of their confinement, are hybrid, unique, and have both criminal and civil legal characteristics.” State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So. 2d 1189, 1197, abrogated on other grounds by State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So. 2d 735.³ Considering the framework expressed in Act No. 393 of the Louisiana Legislature's 2025 Regular Session, the question of the state's representation falls on the civil side of the scale. See Lemmon v. Connick, 590 So.2d 574 (1991)(finding it civil for the purposes of the public records act); Browder v. Dir., Dep't of Corr. Of Illinois, 434 U.S. 257 (1978); Murray v. Giarranto, 492 U.S. 1 (1989). Further, the attorney general is fulfilling a statutory mandate because a suit against “ministerial officers of the state․which may be brought against him in his official capacity, or in which the state may be interested, directly or indirectly, or be in any wise a party․shall be instituted, maintained, defended, or prosecuted by the attorney general as provided by law.” La. R.S. 49:461.

The trial court failed to consider Paragraphs (1) and (2) of La. Const. art. IV, Sec. 8, and instead relied upon Paragraph (3) which provides that for “cause” the attorney general may supersede the district attorney. See e.g. Plaquemines Par. Comm'n Council v. Perez, 379 So.2d 1373, 1377 (La. 1980) (“The ‘cause’ requirement refers to a showing that the district attorney is not adequately asserting some right or interest of the state.”). While there are other circumstances where cause can be evaluated, the attorney general is authorized to represent the state, and any state officer defendants, in post conviction proceedings. There is no authority for the defendant or trial court to question the scope of that representation where the district attorney requested that the attorney general enroll and represent the state.

Effective August 1, 2025, Act No. 393 of 2025 also enacted stricter procedures and deadlines to advance long stagnant post-conviction applications, particularly in death penalty cases. Under Act 393 the attorney general is now provided an even more significant role in intervening to defend these actions.

We take notice that various defendants are advancing similar arguments in state and federal courts in the hope of preventing the attorney general from representing the state. While this is the only state court that has agreed, one federal court has denied the attorney general's motion to enroll.⁴ The U.S. Supreme Court has long recognized that “it is well settled that habeas corpus is a civil proceeding.” Browder, 434 U.S. at 269 ⁵ (emphasis added). It is beyond question that, as a matter of state law, the attorney general has the right and authority to represent the State of Louisiana, or a defendant state employee, in a federal civil proceeding, including one brought pursuant to 28 U.S.C. 2254. See La. Const. art. IV, § 8(1).

We also exercise our discretion in this important case to consider this application despite it being arguably untimely. The relief allowed is purely discretionary. Our rules expressly authorize relief for untimely filings “due to technical failure.” La. Sup. Ct. Rule XLII(6)(f). Here, it is undisputed that the Court's internal system shows the writ application itself was uploaded before midnight.⁶ Thus, we exercise our discretion under these particular facts to review the application.

The State's motion for relief pursuant to La. Sup. Ct. Rule XLII(6)(f) is granted. The petitioner's motion to dismiss the application is denied. The Attorney General is entitled to enroll on behalf of the Warden to represent the State in this matter. We retain this writ application and will consider the remaining issues raised in due course.

GRANTED IN PART, REVERSED IN PART.

The Attorney General is entitled by law to participate in a case when invited to do so by a District Attorney in accordance with La. Const. art. IV, § 8(2), which provides that “the attorney general shall have authority ․ upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case,” and when the warden is named as a defendant, in his or her official capacity, see La. Const art. IV, § 8(1) (which grants the Attorney General authority to “intervene in any civil action or proceeding”).¹ However, ultimately, this matter should not be considered because it was filed untimely pursuant to Supreme Court Rules, as applied to numerous other litigants previously.

For the reasons detailed by Justice Guidry in his dissent in this matter, I find that the state's writ application was not filed timely and thus should not be considered by this court. See Girod Titling Trust v. Pittman Assets, L.L.C., 25-0192 (La. 4/15/25), 406 So.3d 414 (citing La. S.Ct. Rules X, § 5 and XLII, § 6). I disagree with the exercise of discretion to have this untimely writ application “deemed” to be timely.

Filing timely is critical as it determines whether a ruling is final or not. See La. C.Cr.P. art. 922 and La. C.C.P. art. 2166, which define the finality of judgments. As noted by Justice Guidry, timeliness impacts whether this court has or does not have jurisdiction.

The per curiam opinion should be limited to resolving the timeliness issue. Unfortunately, the per curiam further engages in a discussion of recent revisions to the law on post-conviction relief, other cases, and a case in another jurisdiction. This discussion is, at best, dicta, but potentially more problematic because it could be construed as an advisory opinion on the legality of recently enacted laws which may well be challenged as going beyond the powers bestowed on the attorney general by our constitution. See, generally, State v. Lee, 22-01827, pp. 12-25 (La. 9/1/23), 370 So.3d 408, 424-432 (Weimer, C.J., dissenting). This court should not issue advisory opinions. See American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158, 162 (La. 1993).

Our system of justice was established based on the rule of law which in its essence means that the law applies to all exactly the same. Whether wealthy or impecunious, powerful or not, or having prestige or influence or not, all should stand before our system of justice as equals. A failure to apply the law consistently results in citizens questioning decisions of the judiciary and the rule of law itself.

The writ application of every other litigant who filed late, as occurred here, has been dismissed by this court as untimely. Accordingly, I would grant the respondent's motion to dismiss the state's writ application because it was filed untimely pursuant to a court rule previously consistently applied to all others who asked this court to address their case. For these reasons, I respectfully dissent from the per curiam opinion.

In my view, this Court's timeliness rules are discretionary. See, e.g., Terry v. Notre Dame Health Sys., 23-1582 (La. 2/6/24), 378 So. 3d 728; State of Louisiana ex rel. Brian Thomas, Doc # 195025 v. Bickham, 22-0331 (La. 8/9/23), 368 So. 3d 1106; State ex rel. Williams v. Vannoy, 22-0333 (La. 8/9/23), 368 So. 3d 1108. To the extent they may be considered jurisdictional, they relate to waivable personal jurisdiction as opposed to non-waivable subject matter jurisdiction – otherwise, the Court could not make exceptions in the above cases. See Citizens Against Multi-Chem v. Louisiana Dep't of Env't Quality, 13-1416, pp. 4-5 (La. App. 1 Cir. 5/22/14), 145 So. 3d 471, 474-75.

Further, three prior versions of the Louisiana Constitution made the thirty-day rule an explicit jurisdictional bar that could not be waived. See 1921 La. Const. art. 7, § 11; 1913 La. Const. art. 101; 1898 La. Const. art. 101; and Trimble v. Employers Mut. Casualty Co., 35 So.2d 416, 417 (La. 1948). The 1974 Louisiana Constitution explicitly abolished the rule and granted this Court its plenary rule making power. See La. Const. art. V § 5.

In this capital post-conviction matter, there is no dispute that the deadline for the state to file its writ application in this Court was June 16, 2025. This Court's rules do not allow for an extension of time to file a writ application. See La. S. Ct. R. X, § 5(a)(1) (providing a 30-day deadline for filing and “[n]o extension of time therefor will be granted”). Moreover, this Court has repeatedly explained that it “considers the rule jurisdictional in nature and enforces it strictly against counseled applicants.” State v. Chester, 15-2304, p. 19 (La. 12/16/16), 208 So. 3d 338, 352; see also, Caldwell Parish School Board v. Louisiana Mach. Co., L.L.C., 12-1383, p. 8 (La. 1/29/13), 110 So. 3d 993, 998 (finding this Court lacked jurisdiction to consider the validity of a lower court's decision where the writ application was “untimely”). Here, the state electronically filed the writ application at 12:21 a.m. on June 17, 2025. Thus, it was not timely filed and should not be considered by this Court.

I dissent because the majority has nevertheless deemed the state's application timely filed pursuant to Louisiana Supreme Court Rule XLII, § 6(f). See State v. Frank, 25-0767, p. 3, n.9 (La. 9/24/25), --- So. 3d ---. Section Six of Louisiana Supreme Court Rule XLII provides instructions relating to the timeliness of electronically filed documents.¹ Subsection (f) provides relief to an applicant “whose electronic filing is untimely due to technical failure.” Here, the state, through the Attorney General, filed a motion pursuant to this rule to have its untimely application deemed timely. Attached to the motion was an affidavit from a paralegal employed by the Office of Attorney General, who explained that “prior to the midnight filing deadline” she accessed this Court's electronic filing system. She “attempted to upload” the writ application documents. The “display indicated that the system was processing [her] upload request,” but after a delay, “presented a notification that the uploading process had ‘timed out.’ ” She attested this occurred at least twice. After the failed attempts, she was able to upload the application at 12:21 a.m. on June 17, 2025.  ² The paralegal asserted that, but for “the technical uploading failures [she] experienced,” she “would have successfully completed the electronic filing process before the 11:59 p.m. deadline.”

The Court's Information Technology Services confirmed that there was no service outage or any other network problem on that date. This means the electronic filing system was operating and available at the time the state was attempting to file its application. It appears that the user in this case may have had a slow internet connection or encountered an issue uploading a file. In any case, the problem was on the user's end and not attributable to the Court's filing system. Unfortunately, that is the sort of risk one takes when they commence the filing process only minutes before midnight on the filing deadline.

Recently, in another case, the Court was presented with a nearly identical circumstance: the applicant began the filing process minutes before midnight, encountered some technical issue while uploading documents, and did not complete the submission until minutes after midnight. As in this case, the error was not attributable to this Court's system. However, in that case, the Court denied the applicant relief for the alleged technical failure and correctly declined to consider the application as it was untimely filed. See Girod Titling Trust v. Pittman Assets, L.L.C., 25-0192 (La. 4/15/25), 406 So. 3d 414.

The rules of this Court must be applied equally to all counseled applicants, whether the case is civil or criminal, or high- or low- profile. Moreover, in capital cases such as this one, it is all the more important for courts to apply rules fastidiously. I believe the majority erred in treating this applicant differently than other similarly situated applicants and should have declined to consider the untimely filed application. For these reasons, I dissent.

FOOTNOTES

1.   A penalty imposed with the jury's unanimous agreement and previously affirmed by this Court. State v. Frank, 99-KA-553 (La. 5/22/07), 957 So.2d 724.

2.   Following amendment, La. C.Cr. P. art. 926(E) provides in relevant part the “petition and successive petitions shall be served upon both the attorney general and the district attorney”; La. C.Cr.P. art. 927(B) (the attorney general can file any exceptions if the district attorney fails to do so); La. C.Cr.P. art. 927.1(D) (deadline of July 1, 2026 for a trial court to rule on anything filed prior to July 1, 2023 and providing that “the district attorney or the attorney general shall have a right to seek mandamus to enforce this [deadline].”

3.   In Glover, 660 So.2d at 1194, we also observed that:This Court has long recognized that the “Supreme Court's decisions in MacCollom, Finley, and Murray convince us that the United States Constitution does not require states to provide post conviction remedies for persons convicted in state courts so long as the states have provided some avenue of direct review of the conviction.

4.   Blank v. Vannoy, Docket No. 3:16-cv-00366 (M.D.La. 9/15/25), (Doc. 156)

5.   Accord, Murray, 492 U.S. at 8 (“Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. States have no obligation to provide this avenue of relief․.”)(internal citations omitted).

6.   While there may be similarities to Girod Titling Trust v. Pittman Assets, LLC, 25-0192 (La. 4/15/25), 406 So. 3d 414, the reality is that there is little reason to exercise discretionary relief if a writ was going to be denied anyway.

1.   Post conviction relief proceedings have both criminal and civil legal characteristics. State v. Harris, 18-1012, pp. 10-11 (La. 7/9/20), 340 So.3d 845, 853.

1.   La. Sup. Ct. Rule XLII, § 6 provides,(a) Documents may be electronically filed at any time and shall be deemed filed with the Louisiana Supreme Court at the date and time of the electronic filing. However, documents electronically filed after 4:30 P.M. Central Time will be processed by the clerk of court beginning at 8:30 A.M. Central Time on the next day of business. [Amended effective June 28, 2023](b) Following the electronic filing of a document, the Louisiana Supreme Court's Data/Document Exchange will provide the Registered User with a Filing Number by electronic mail, documenting that the electronic filing has been received by the Louisiana Supreme Court's Data/Document Exchange.(c) Once processed by the clerk of court, the Louisiana Supreme Court's Data/Document Exchange will provide the Registered User, and those Registered Users designated by the electronically filing Registered User, with a Filing Confirmation by electronic mail, documenting the Filing Number previously assigned to the electronically filed document, the Docket Number of the case, the date and time of filing of the electronically filed document and whether the clerk of court has accepted or rejected the electronically filed document.(d) Once a document is electronically filed by the Registered User through the Louisiana Supreme Court's Data/Document Exchange, the Registered User is bound by the document as electronically filed.(e) An electronically filed document will be considered timely filed if electronic filing is completed at any time before 12:00 Midnight Central Time on or before the date on which the document is due unless another specific time is mandated by order, rule or statute.(f) A Registered User whose electronic filing is untimely due to technical failure may seek relief from the Louisiana Supreme Court.

2.   Consistent with her recollection, the Court's filing system shows the user had a draft created at 11:48 p.m., but the application was not submitted until 12:21 a.m.

Griffin, J., concurs in the result and assigns reasons. Guidry, J., dissents and assigns reasons.