Could Louisiana district judges designate the duty judge to sign wiretap orders?

Plain-English summary

Judges of Louisiana's 24th Judicial District Court asked whether they could designate the "duty judge" to sign orders authorizing electronic surveillance. The 1998 attorney general opinion said that designation did not appear to violate the statute if only one eligible judge served as duty judge and the court made the required designation by vote.

The office read the electronic surveillance definition of "judge" to include the district's senior judge or a judge designated by a majority vote of the court in writing beforehand. A rotating duty judge could fill the designated role if that person was an elected judge of a court with criminal jurisdiction. An appointed commissioner or magistrate could not. The office distinguished applications for a pen register or trap-and-trace device, which it said could go to a court of competent jurisdiction.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

District judges at the time

The opinion concluded that a vote designating the duty judge to sign interception orders did not seem to breach the statute if only one eligible judge occupied that duty role. It read the designation provision as requiring a majority vote in writing in advance.

Prosecutors at the time

The opinion quoted the rule that an application for interception of a wire or oral communication was made under oath to a judge in the district where interception would occur. It distinguished that order from a pen-register or trap-and-trace order.

Court administrators at the time

The office said "duty judge" in this setting had to mean an elected judge with criminal jurisdiction, serving on rotation or for a specified period. It excluded an appointed court commissioner or magistrate.

Common questions

Q: Could any person assigned magistrate duty sign the interception order?
A: No. The opinion said the designated duty judge had to be an elected judge of a court with criminal jurisdiction; an appointed commissioner or magistrate did not qualify.

Q: What kind of court designation did the opinion discuss?
A: The opinion described a majority vote of the court, made in writing in advance, designating a judge to consider the applications.

Q: Could several rotating duty judges hold this signing authority at once?
A: The AG said a vote designating the duty judge "does not seem to be a statutory violation" as long as only one judge serves as duty judge at a time.

Q: Did the opinion treat pen-register applications the same as wire-interception applications?
A: No. It contrasted the pen-register and trap-and-trace provision, allowing application to a court of competent jurisdiction, with the interception provision's judge definition.

Background and statutory framework

The office quoted LSA-R.S. 15:1310(A) on interception applications and LSA-R.S. 15:1302(13)'s definition of "judge." It compared those provisions with LSA-R.S. 15:1314's route for pen-register or trap-and-trace applications. Its conclusion concerned the district court's proposed duty-judge designation for electronic surveillance orders.

Citations and references

• LSA-R.S. 15:1310(A) (interception applications)
• LSA-R.S. 15:1302(13) (definition of judge)
• LSA-R.S. 15:1314 (pen-register and trap-and-trace applications)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/98-0295

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

P.O, BOX 94095
DEPARTMENT OF JUSTICE
BATON ROUGE, LA 70804-9095
CRIMINAL DIVISION
Telephone:
(504) 342-7SS2
FAX:
SEPIEMBER 1 6 I~|
(504) 342-7893

OPINION #98-295

Hon. Clarence E. McManus
Opinion No 98-295
24’h Judicial District
491
Telecommuntcations
Courthouse Annex
l.a RS 15 1302(13),La RS. 15.1310
200 Derbigny St.
CCr P. 931
We arc of the opinion that as long as only one judge scrve~ as
Gretna, LA 70053
duty judge, then a vote designating the "duty judge" as the
one with the authority to sign electronic surveillance orders does not seem to be a statutory violation Dear Judge McManus,

Your request for an Attorney General’s opinion concerning Revised Statute 15:1302(13) and whether or not the term "judge" may be defined as the "magistrate/duty judge", has been forwarded to me for research and reply. In particular, you asked the following:

May thc judgcs of tim 24"’ Judicial District Court designate the "duty judge" as the person with the authority to sign orders authorizing electronic surveillance?

LSA-R.S. 15:1310(A) mandates:

Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge in whose district such interception of wire or oral communication shall take place and shall state the applicant’s authority to make such application.

In defining the term ’judge", LSA-R.S. 15:1302(13) provides:

Judge means the senior judge of a judicial district court of the state, any judge of of the Orleans Parish Criminal District Court, or a judge designated by a majority vote of the court in writing in advance to consider the applications for warrants or orders under this Chapter.

In defining the term "court", C.Cr.P. 931 states:

Court means a court with criminal jurisdiction or its judge. It does not include a mayor’s court or a justice of the peace.

Therefore, for purposes of your question, the person designated as the "duty judge" must be an elected judge of a criminal jurisdiction who serves in that designated capacity on a rotating basis or for a specified period of time. The "duty judge" can not be a commissioner or magistrate appointed by the court to perform magistrate duties.

Page 2

Honorable Clarence E. McManus
OPINION 98-295
Page 2

Now, as to whether the judge designated as the "duty judge" has the capacity to sign surveillance orders, it is helpful to study the electronic surveillance application procedures. Chapter l0 of Title 15 Criminal Procedure deals exclusively with Electronic Surveillance. Within this chapter, only two application procedures are discussed:

(I) LSA-R.S. 15:1310- Procedure for interception of wire or oral communication.
(2) LSA-R.S. 15:1314- Application for an order for a pen register or trap or trace device.

A comparison of these two statutes is helpful in determining the proper response tbr this opinion.

L SA-R.S. 15:1314 states that an "application for an order..." may be made "to a court of competent jurisdiction." In other words, no one judge is saddled with the responsibility of authorizing or approving applications for orders. Any judge presiding in the proper district may serve in that capacity.

In contrast, except in the Orleans Parish Criminal District Court, LSA-R.S. 15:1310 requires _a judge to serve as the gatekeeper in approving or authorizing applications for orders. This judge may either be the senior judge of the judicial district or a judge designated by majority vote of the court in writing in advance to serve in that capacity.

Therefore, we are of the opinion that as long as only one judge serves as duty judge, then a vote designating the "duty judge" as the one with the authority to sign electronic surveillance orders does not seem to be a statutory violation.

I hope the foregoing has adequately answered your question. If our office can be of further assistance, please do not hesitate to contact us.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

ELLISON C. TRAVIS
ASSITANT ATTORNEY GENERAL