Opinion Number

Dear Mr. Mitchell:

Your request for an Attorney General Opinion was forwarded to me for research and reply. In particular, you have asked the following question:

Is it within the authority of a Town Magistrate to place someone in contempt of court, then refuse to sign an arrest warrant to enforce that ruling?

La. R.S. 33:441 is one of the provisions which govern municipal courts, and states, in pertinent part:

B. Notwithstanding any other provision of law to the contrary, the board of aldermen in its discretion may, upon request of the mayor, appoint an attorney who shall be designated as court magistrate and who shall serve at the pleasure of the mayor and may from time to time be designated by the mayor to serve in his stead as the presiding official over the mayor's court. Whenever the magistrate is so designated by the mayor to preside over the mayor's court, he shall exercise the power and authority of the mayor over said court
(emphasis added).

Thus, since the magistrate, when presiding over court, has the same authority as the mayor, we must examine what powers a mayor possesses with reference to criminal proceedings. Paragraph A of La. R.S. 33:441 indicates that the mayor has discretion in prosecuting criminal violations: "The mayor may try all breaches of the ordinances and impose fines or imprisonment, or both, provided for the infraction thereof" (emphasis added). Further, in Attorney General Opinion No. 93-541, this office held that in a Lawrason Act municipality, the prosecuting authority (e.g., the mayor's court) has the discretion to proceed with or dismiss prosecution for violations of criminal ordinances.

The power to punish for contempt of court, however, is one which is expressly granted to courts under La. C.Cr.P. art. 16 et seq. La. C.Cr.P. art. 22 sets forth that the court has discretion whether or not to punish for direct contempt (such as a contumacious failure to appear in court): "A person who has committed a direct contempt of court may be found guilty and punished therefor by the court . . ." (emphasis added). This language clearly indicates that it is at the sole discretion of the court whether or not to issue arrest warrants for those persons who have committed contempt of court.

Therefore, it is the opinion of this office that it is within the authority of a Town Magistrate, when presiding over the mayor's court, to refuse to sign arrest warrants for criminal defendants who have committed contempt of court by failing to appear in court.

I hope this opinion has adequately addressed your question. If this office may be of further assistance, please do not hesitate to contact us. With warmest regards, I remain

Sincerely,

RICHARD P. IEYOUB Attorney General

BY: __________________________ FREDERICK A. DUHY, JR. Assistant Attorney General

Office of the Attorney General State of Louisiana Opinion No. 93-541 September 14, 1993
71 MUNICIPALITIES R.S. 33:321, et seq.; R.S. 33:423 (A); R.S. 14:134; R.S. 14:134 (1); R.S. 33:441

In a Lawrason Act municipality, the Chief of Police is charged with the responsibility of enforcing a municipal ordinance, until such time as the board of aldermen repeal the law, or it is invalidated by the judiciary. Failure to perform this duty may constitute malfeasance in office. The prosecuting authority (i.e. the mayor's court, or the district attorney, who exercises concurrent jurisdiction) has the discretion to proceed with or dismiss prosecution for violation of a criminal ordinance.

Mr. Joe Swafford Chief of Police Town of Colfax P.O. Box 310 Colfax, LA 71417

Dear Chief Swafford:

This office is in receipt of your opinion request, in which you raise several questions concerning a municipal ordinance restricting the sale of alcoholic beverages. You do not inquire as to the validity of the ordinance; we understand your question requires this office to determine which official(s) are charged by state law with the responsibility of enforcing the ordinance.

The Town of Colfax is a Lawrason Act municipality, governed by the provisions of LSA-R.S. 33:321, et seq. The chief of police has "general responsibility for law enforcement in the municipality, and shall be charged with the enforcement of all ordinances within the municipality and all applicable state laws . . .". LSA-R.S. 33:423 (A). Pursuant to statute, as chief of police of Colfax, you are charged with the responsibility to enforce the ordinance in question, until such time as the board of aldermen see fit to repeal this local law.

Further, note that LSA-R.S. 14:134 defines as malfeasance in office those actions of public officers or public employees where that individual "intentionally refuse[s] or fail[s] to perform any duty lawfully required of him, as such officer or employee". LSA-R.S. 14:134 (1). Failure to perform your duty to enforce municipal ordinances may constitute malfeasance in office.

This office is of the opinion that an elected alderman is powerless to "give his permission" to an individual to violate a municipal ordinance. A validly enacted ordinance has the force and effect of law, and the local citizenry, including that aldermen, is constrained to follow its provisions as dictated, until such time as the ordinance is repealed by the legislative body which enacted it, or it is declared invalid by the judiciary.

You also ask who is responsible for prosecuting those individuals you arrest for violation of the ordinance. Note that pursuant to LSA-R.S. 33:441, a mayor's court has jurisdiction over all violations of municipal ordinances. The mayor may try all breaches of the ordinances and impose fines or imprisonment, or both, provided for the infraction of the ordinance.

The district attorney exercises concurrent jurisdiction with other prosecutors within the parish for violation of a municipal ordinance. However, the district attorney may legally decide not to prosecute the individuals in question. The district attorney has broad discretionary power in both the institution and the handling of all criminal prosecutions. State v. Kibodeaux, 435 So.2d 1128 (La.App. 1st Cir. 1983).

We hope the foregoing is responsive to the issues raised. Should you have further questions, please contact this office.

Very truly yours,

Richard P. Ieyoub Attorney General

By: Kerry L. Kilpatrick Assistant Attorney General