Judgment rendered July 17, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,631-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
EDWARD K. JOHNSON Plaintiff-Appellant
versus
JAMES E. STEWART Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 641,775
Honorable Michael A. Pitman, Judge
EDWARD K. JOHNSON Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
TOMMY J. JOHNSON Assistant District Attorney
Before COX, STEPHENS, and ELLENDER, JJ. COX, J.
This case comes before us from the First Judicial District Court, Caddo
Parish, Louisiana. Edward Johnson’s writ of mandamus for injunctive or
declaratory relief against Caddo Parish District Attorney James E. Stewart was
denied by the district court. Johnson now appeals that ruling. For the
following reasons, we affirm the district court.
FACTS
On January 24, 2023, Johnson, a previously convicted defendant, filed
his writ of mandamus for injunctive or declaratory relief against the Caddo
Parish District Attorney, Stewart, in which he stated that he attempted to obtain
Stewart’s file in his criminal case through a public records request. Johnson
attached a copy of an order from the U.S. Middle District of Louisiana, which
ordered the District Attorney of Caddo Parish to file a response to Johnson’s
writ of habeas corpus in federal court. Johnson also attached a certified mail
receipt and an “offender’s request for legal/indigent mail” form from the
prison. On January 30, 2023, the district court drew a line through Johnson’s
proposed order to show cause and stamped “MOTION DENIED.”
Johnson sought review of the district court’s ruling through a writ to this
Court. On May 11, 2023, this Court determined that the January 30, 2023
ruling was a final and appealable judgment pursuant to La. R.S. 44:35(C), and
converted Johnson’s writ to an appeal.1 On July 5, 2023, Johnson filed an
1 On September 8, 2023, this Court recalled the May 11, 2023 order, noting that it inadvertently referred to the docket number in Johnson’s criminal proceeding, No. 331,421 instead of the document number in Johnson’s civil proceeding, No. 641,775. On the same day, this Court issued a revised order granting Johnson’s writ and remanding the matter for perfection of an appeal. Neither writ order appears in the record lodged on appeal. On January 31, 2024, this Court allowed Stewart to supplement the record with additional proceedings which occurred after the matter was ordered to be perfected to an appeal. “appeal and designation of record,” arguing the district court erred in not
holding a contradictory hearing on his writ of mandamus. Johnson’s motion
for appeal included a copy of this Court’s May 11, 2023 Order. Johnson also
included a proposed order to set the matter for a contradictory hearing. The
district court set the matter for a contradictory hearing on September 20, 2023.
On August 17, 2023, Stewart filed a declinatory exception of
insufficiency of service of process and failure to serve. He argued that the
record does not include a notice to seek a supervisory writ, motion for new
trial, or motion for appeal. He asserted that the January 30, 2023 Order was the
only judgment in the litigation, and it did not dismiss him from the suit;
therefore, the district court retains jurisdiction over the case. Stewart also
argued that Johnson did not request service on him within the time prescribed
in La. C.C.P. art. 1201(C).
On September 20, 2023, a hearing on Johnson’s writ of mandamus and
Stewart’s exceptions was held, and Johnson appeared via telephone. The
district court noted that the docket number for this civil case has been
frequently confused with Johnson’s criminal docket number. The district court
stated that it granted Stewart’s exception for lack of service and dismissed the
case without prejudice. The district court also granted Johnson’s appeal of the
January 30, 2023 Judgment.
Both the appeal granted by this Court and the appeal later granted by the
district court involve only the January 30, 2023 Judgment. Therefore, our
review is limited to the January 30, 2023 Judgment.
DISCUSSION
Johnson argues that the district court erred in denying his writ of
mandamus. He states the burden is on the custodian of the records to prove it 2 lawfully withheld the requested information and a contradictory hearing is
required on public records requests. Johnson requests that Stewart be ordered
to produce the records in his criminal case.
An appellate court reviews a district court’s judgment denying a writ of
mandamus under an abuse of discretion standard. Lewis v. Morrell, 16-1055
(La. App. 4 Cir. 4/5/17), 215 So. 3d 737. Louisiana Revised Statutes 44:1, et
seq. provide for certain procedures that enable a person to obtain access to
various public records. State v. Jones, 53,044 (La. App. 2 Cir. 9/25/19), 280
So. 3d 1272, writ denied, 19-01726 (La. 1/28/20), 291 So. 3d 1055. A person
may seek a writ of mandamus against a public office that has denied the right
of the person to obtain access to such public records. Id. La. R.S. 44:35(A)
states the following:
Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
The six requirements for invoking the mandamus remedy under the
Public Records Act are: (1) a request must be made, La. R.S. 44:32(A); (2) the
requester must be a “person,” La. R.S. 44:31; (3) the request must be made to a
“custodian,” La. R.S. 44:1(A)(3); (4) the document requested must be a “public
record,” La. R.S. 44:1(A)(2); (5) the document requested must exist, La. R.S.
4:35 (see also Lewis, supra); and (6) there must be a failure by the custodian to
3 respond to the request, La. R.S. 44:35(A). Labranche v. Landry, 22-0461 (La.
App. 1 Cir. 12/15/22), 357 So. 3d 395.
Regarding the second element, the requestor must be a “person.” The
general rule set forth in La. R.S. 44:31 is that “any person of the age of
majority” may make a public records request. La. R.S. 44:31.1 excludes
certain individuals from the definition of a “person” under the Public Records
Law. Under this statutory exception, a “person,” for purposes of the Public
Records Law, is defined to exclude an individual: (1) who is a convicted felon;
(2) who is in custody pursuant to the sentence for that felony; (3) who has
exhausted his appellate remedies; and (4) who is not limiting the grounds for
his request to those items to be used to file for post-conviction relief under La.
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Judgment rendered July 17, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,631-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
EDWARD K. JOHNSON Plaintiff-Appellant
versus
JAMES E. STEWART Defendant-Appellee
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 641,775
Honorable Michael A. Pitman, Judge
EDWARD K. JOHNSON Pro Se
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
TOMMY J. JOHNSON Assistant District Attorney
Before COX, STEPHENS, and ELLENDER, JJ. COX, J.
This case comes before us from the First Judicial District Court, Caddo
Parish, Louisiana. Edward Johnson’s writ of mandamus for injunctive or
declaratory relief against Caddo Parish District Attorney James E. Stewart was
denied by the district court. Johnson now appeals that ruling. For the
following reasons, we affirm the district court.
FACTS
On January 24, 2023, Johnson, a previously convicted defendant, filed
his writ of mandamus for injunctive or declaratory relief against the Caddo
Parish District Attorney, Stewart, in which he stated that he attempted to obtain
Stewart’s file in his criminal case through a public records request. Johnson
attached a copy of an order from the U.S. Middle District of Louisiana, which
ordered the District Attorney of Caddo Parish to file a response to Johnson’s
writ of habeas corpus in federal court. Johnson also attached a certified mail
receipt and an “offender’s request for legal/indigent mail” form from the
prison. On January 30, 2023, the district court drew a line through Johnson’s
proposed order to show cause and stamped “MOTION DENIED.”
Johnson sought review of the district court’s ruling through a writ to this
Court. On May 11, 2023, this Court determined that the January 30, 2023
ruling was a final and appealable judgment pursuant to La. R.S. 44:35(C), and
converted Johnson’s writ to an appeal.1 On July 5, 2023, Johnson filed an
1 On September 8, 2023, this Court recalled the May 11, 2023 order, noting that it inadvertently referred to the docket number in Johnson’s criminal proceeding, No. 331,421 instead of the document number in Johnson’s civil proceeding, No. 641,775. On the same day, this Court issued a revised order granting Johnson’s writ and remanding the matter for perfection of an appeal. Neither writ order appears in the record lodged on appeal. On January 31, 2024, this Court allowed Stewart to supplement the record with additional proceedings which occurred after the matter was ordered to be perfected to an appeal. “appeal and designation of record,” arguing the district court erred in not
holding a contradictory hearing on his writ of mandamus. Johnson’s motion
for appeal included a copy of this Court’s May 11, 2023 Order. Johnson also
included a proposed order to set the matter for a contradictory hearing. The
district court set the matter for a contradictory hearing on September 20, 2023.
On August 17, 2023, Stewart filed a declinatory exception of
insufficiency of service of process and failure to serve. He argued that the
record does not include a notice to seek a supervisory writ, motion for new
trial, or motion for appeal. He asserted that the January 30, 2023 Order was the
only judgment in the litigation, and it did not dismiss him from the suit;
therefore, the district court retains jurisdiction over the case. Stewart also
argued that Johnson did not request service on him within the time prescribed
in La. C.C.P. art. 1201(C).
On September 20, 2023, a hearing on Johnson’s writ of mandamus and
Stewart’s exceptions was held, and Johnson appeared via telephone. The
district court noted that the docket number for this civil case has been
frequently confused with Johnson’s criminal docket number. The district court
stated that it granted Stewart’s exception for lack of service and dismissed the
case without prejudice. The district court also granted Johnson’s appeal of the
January 30, 2023 Judgment.
Both the appeal granted by this Court and the appeal later granted by the
district court involve only the January 30, 2023 Judgment. Therefore, our
review is limited to the January 30, 2023 Judgment.
DISCUSSION
Johnson argues that the district court erred in denying his writ of
mandamus. He states the burden is on the custodian of the records to prove it 2 lawfully withheld the requested information and a contradictory hearing is
required on public records requests. Johnson requests that Stewart be ordered
to produce the records in his criminal case.
An appellate court reviews a district court’s judgment denying a writ of
mandamus under an abuse of discretion standard. Lewis v. Morrell, 16-1055
(La. App. 4 Cir. 4/5/17), 215 So. 3d 737. Louisiana Revised Statutes 44:1, et
seq. provide for certain procedures that enable a person to obtain access to
various public records. State v. Jones, 53,044 (La. App. 2 Cir. 9/25/19), 280
So. 3d 1272, writ denied, 19-01726 (La. 1/28/20), 291 So. 3d 1055. A person
may seek a writ of mandamus against a public office that has denied the right
of the person to obtain access to such public records. Id. La. R.S. 44:35(A)
states the following:
Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
The six requirements for invoking the mandamus remedy under the
Public Records Act are: (1) a request must be made, La. R.S. 44:32(A); (2) the
requester must be a “person,” La. R.S. 44:31; (3) the request must be made to a
“custodian,” La. R.S. 44:1(A)(3); (4) the document requested must be a “public
record,” La. R.S. 44:1(A)(2); (5) the document requested must exist, La. R.S.
4:35 (see also Lewis, supra); and (6) there must be a failure by the custodian to
3 respond to the request, La. R.S. 44:35(A). Labranche v. Landry, 22-0461 (La.
App. 1 Cir. 12/15/22), 357 So. 3d 395.
Regarding the second element, the requestor must be a “person.” The
general rule set forth in La. R.S. 44:31 is that “any person of the age of
majority” may make a public records request. La. R.S. 44:31.1 excludes
certain individuals from the definition of a “person” under the Public Records
Law. Under this statutory exception, a “person,” for purposes of the Public
Records Law, is defined to exclude an individual: (1) who is a convicted felon;
(2) who is in custody pursuant to the sentence for that felony; (3) who has
exhausted his appellate remedies; and (4) who is not limiting the grounds for
his request to those items to be used to file for post-conviction relief under La.
C. Cr. P. Art. 930.3. Muhammad v. Office of the DA for St. James, 16-9 (La.
App. 5 Cir. 4/27/16), 191 So. 3d 1149.
Generally, a “mandamus action for production of a public record
requires a contradictory hearing.” Lewis, supra; Lens v. Landrieu, 16-0639
(La. App. 4 Cir. 12/14/16), 206 So. 3d 1245. However, when the requirements
for invoking the mandamus remedy under La. R.S. 44:35 are not met, such a
hearing has not been required. Lewis, supra.
An appellate court cannot review evidence that is not in the record on
appeal and cannot receive new evidence. McKoin Starter & Generator, Inc. v.
Snap-On Credit Corp., 37,210 (La. App. 2 Cir. 6/25/03), 850 So. 2d 924, writ
denied, 03-2605 (La. 12/12/03), 860 So. 2d 1156. Johnson included additional
factual allegations and attachments in his brief that do not appear in the record;
therefore, those documents cannot be considered on review. As stated above,
our review is limited to the January 30, 2023 Judgment, denying Johnson’s
request. 4 Johnson’s civil pleading states that he requested the “District Attorney
file in State of Louisiana v. Edward K. Johnson, Criminal Docket No.
331,421.” Although Johnson included a receipt that certified mail was sent to
Stewart, he did not include a copy of the request he sent to Stewart. There is
no way to determine the scope of the request—what documents he sought in
the request, if the requested documents exist, and if the documents are public
record. Johnson also failed to include Stewart’s response to the request, if any.
Without a showing that a request was made, that the documents
requested exist and are public record, and that Stewart failed to respond to the
request, Johnson has not met the requirements for invoking a mandamus
remedy. The evidentiary hearing was not required because the requirements
for invoking the writ of mandamus for public records had not been met. The
district court was not erroneous in denying Johnson’s writ of mandamus.
We note that Johnson’s writ of mandamus was denied without prejudice;
therefore, he may file his writ of mandamus again and include all the necessary
information, including a showing that he does not fall under the person
exception in La. R.S. 44:31.1.
CONCLUSION
For the reasons stated above, we affirm the district court’s denial of
Johnson’s writ of mandamus. Costs associated with this appeal are cast on
Johnson.
AFFIRMED.