Hebert v. Louisiana Licensed Professional Vocational Rehabilitation Counselors

974 So. 2d 824, 7 La.App. 3 Cir. 610, 2008 La. App. LEXIS 46, 2008 WL 183081
CourtLouisiana Court of Appeal
DecidedJanuary 23, 2008
DocketNo. 2007-610
StatusPublished
Cited by2 cases

This text of 974 So. 2d 824 (Hebert v. Louisiana Licensed Professional Vocational Rehabilitation Counselors) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hebert v. Louisiana Licensed Professional Vocational Rehabilitation Counselors, 974 So. 2d 824, 7 La.App. 3 Cir. 610, 2008 La. App. LEXIS 46, 2008 WL 183081 (La. Ct. App. 2008).

Opinion

COOKS, Judge.

I ■! STATEMENT OF THE FACTS

Julius Jeansonne was injured while engaged in the course and scope of his employment. His employer hired Sy Ar-ceneaux to provide Mr. Jeansonne with vocational rehabilitation services. Mr. Jeansonne then hired Glenn M. Hebert, another vocational rehabilitation counsel- or, to assess the rehabilitation work which had been performed thus far by Mr. Arceneaux and to identify additional work opportunities. Mr. Hebert found the rehabilitation work performed by Mr. Arceneaux below acceptable standards and dubbed it “sham rehabilitation” as that term was used by this court in Maxie v. Brown Industries, 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/98), 661 So.2d 469. Mr. Hebert communicated his assessment to Mr. Jeansonne in two separate letters.

Mr. Arceneaux “took offense to the opinions expressed by Mr. Hebert” concerning his work and sought redress for his grievance by bringing his complaint before the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners (the Board). Mr. Arceneaux appeared before the Board and testified with respect to his complaint against Mr. Hebert. The Board found Mr. Hebert violated § 1604, Canon 4(A)(7) which provides:1

Licensed rehabilitation counselors will not discuss the competency of other rehabilitation counselors or agencies (including judgments made, methods used or quality of rehabilitation plans) in a disparaging way with their clients.

The Board issued an official reprimand to Mr. Hebert and required him to complete a pre-approved course of study in ethics. The Board directed that the course of study must be submitted for prior approval and must be completed within six [2months of the final decision of the Board. The Board warned Mr. Hebert that failure to complete the course of study would result in further sanctions.

Mr. Hebert then filed suit in district court for mandamus and damages against Mr. Arceneaux and the Board. The petition alleged Mr. Arceneaux and the Board “conspired through an abuse of process to obtain ethical action by way of an ethical complaint.” The petition sought damages for libel and a dismissal of the ethical complaint. The Board filed exceptions of improper venue, failure to exhaust administrative remedies, lack of subject matter jurisdiction, failure to state a cause of action and res judicata. Mr. Arceneaux filed a special motion to strike under La.Code Civ.P. art. 971.

On December 4, 2006, the trial court granted Mr. Arceneaux’s motion to strike under La.Code Civ.P. art. 971 and dismissed Mr. Hebert’s claim against him. The trial court also awarded $5,000 in attorney’s fees as mandated under the statute. The Board’s exceptions were set for hearing on January 29, 2007. Prior to the [827]*827hearing, the trial court determined that venue in Lafayette Parish for a claim against the Board was only proper if Mr. Arceneaux was a defendant. Since Mr. Arceneaux was dismissed from the suit, the trial court signed a judgment dismissing “without prejudice” Mr. Hebert’s petition against the Board on the basis of improper venue. The other pending exceptions filed by the Board were not addressed. Mr. Hebert filed this appeal. For the reasons assigned below, we reverse the judgment of the trial court dismissing the Board and Mr. Arceneaux and remand for amendment of the pleadings and further proceedings consistent with this opinion.

Applicability of Motion to Strike under La.Code Civ.P. art. 971

Mr. Hebert filed suit against the Board and Mr. Arceneaux seeking damages for libel and “abuse of process.” We have examined Mr. Hebert’s petition and find he | Shas articulated, though inartfully, sufficient facts to allege the Board and Mr. Arceneaux acted in concert to infringe on his constitutional right. The facts as pled clearly evidences Mr. Hebert is claiming that the Defendants violated his right to freely communicate with Mr. Jeansonne without reprisal or public reprimand. In response, Mr. Arceneaux filed a Motion to Strike under La.Code Civ.P. art. 971 which provides, in relevant part:

(A)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
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(B) In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney’s fees and costs.
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(F) As used in this Article, the following term shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech of the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

Mr. Arceneaux correctly asserts the intent of this statute is to encourage an open exchange of information and ideas and to insure that an individual’s right to speak out on a public issue will not be chilled by frivolous lawsuits. Lamz v. Wells, 05-1497 (La.App. 1 Cir. 6/9/06), 938 So.2d 792; Stern v. Doe, 01-914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98; Davis v. Benton, 03-851 (La.App. 1 Cir. 2/23/04), 874 So.2d 185. Mr. Arceneaux contends he was ethically bound to report any alleged violations of the Code of Ethics to the Board and Mr. Hebert’s lawsuit suppresses his right to speak out on a public issue. Mr. Arceneaux admits he “took [828]*828offense to the opinions expressed by Mr. Hebert” regarding his work. He sought redress for his grievance by using the Board process to vindicate his personal grievance against Mr. Hebert.

Mr. Hebert alleges the Board and Mr. Arceneaux acted in concert to suppress his right to voice his opinion. The Constitution protects individuals from governmental interference with their First Amendment rights and creates a cause of action against those individuals acting “under color of any statute, ordinance, regulation, custom, or usage, of any State” to accomplish this end. See 42 U.S.C. § 1983. Private individuals are subject to liability in situations when the individual acts as a “willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980).

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974 So. 2d 824, 7 La.App. 3 Cir. 610, 2008 La. App. LEXIS 46, 2008 WL 183081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-louisiana-licensed-professional-vocational-rehabilitation-lactapp-2008.