2 HEARD: September 2, 1010 3 CIRCULATED: September 3, 1010 4 PANEL: BHE #1; SJG #2; JCP #3 5 RECOMMEND: Publish
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7
8 STATE OF LOUISIANA 9 COURT OF APPEAL, THIRD CIRCUIT
10 CA 10-280
11 RICHARD J. HEATH
12 VERSUS
13 CITY OF ALEXANDRIA, LOUISIANA
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15 APPEAL FROM THE 16 NINTH JUDICIAL DISTRICT COURT 17 PARISH OF RAPIDES, NO. 230,927 18 HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE
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20 BILLY HOWARD EZELL 21 JUDGE
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23 Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion, 24 Judges.
25 AFFIRMED.
26 27 Gregory R. Aymond 28 P. O. Box 5503 29 Alexandria, LA 71307-5503 30 (318) 445-3618 31 Counsel for Plaintiff/Appellant: 32 Richard J. Heath 1 Lewis Olivier Lauve, Jr. 2 Special Assistant Attorney General 3 P. O. Box 307 4 Alexandria, LA 71309-0307 5 (318) 449-1937 6 Counsel for Defendant/Appellee: 7 City of Alexandria 1 EZELL, JUDGE.
2 In this case, Richard Heath appeals the decision of the trial court issuing a
3 protective order limiting the scope of his judgment debtor examination against the
4 City of Alexandria (“the City”). For the following reasons, we hereby affirm the
5 decision of the trial court.
6 During the course of a suit against the City, Mr. Heath filed a separate suit
7 seeking documents connected with the original suit via Louisiana Public Records law.
8 Mr. Heath was awarded court costs and $2,500 in attorney fees by this court on May
9 6, 2009. The City paid Mr. Heath’s costs but did not allocate funds to pay his
10 attorney fees, causing Mr. Heath to file a motion to examine judgment debtor and a
11 motion for contempt of court, seeking to compel the City to pay the remainder of the
12 judgment. The City filed a motion to quash and, alternatively, a motion for a
13 protective order limiting the scope of Mr. Heath’s judgment debtor exam.
14 After a hearing on September 25, 2009, the trial court denied the City’s motion
15 to quash, but granted its protective order, limiting the scope of the judgment debtor
16 exam to the issue of whether the City had specifically allocated funds for the payment
17 of the judgment issued by this court. From that decision, Mr. Heath appeals.
18 On appeal, Mr. Heath asserts five assignments of error. He first claims that the
19 trial court erred “in ruling that the prohibitions contained within Louisiana
20 Constitution Article 12, § 10(C) against collecting a judgment by this Court for a
21 Public Records violation against a municipality ruled over this matter rather than
22 Louisiana Constitution Article 12, § 3.” He also asserts that the trial court erred in
23 granting the City a continuance ex parte, in quashing a subpoena duces tecum ex
24 parte, in allowing no testimony from witnesses, and in ruling that a La.Code Evid.
25 art. 508 hearing would be moot. For the following reasons, we hereby affirm the
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1 decision of the trial court.
2 Louisiana Constitution Article 12 §3 reads “No person shall be denied the right
3 to observe the deliberations of public bodies and examine public documents, except
4 in cases established by law.” The Louisiana Public Records Law goes on to state that
5 “any person of the age of majority may inspect, copy, or reproduce any public
6 record.” La.R.S. 44:31. Louisiana Revised Statutes 44:35 enforces that provision as
7 follows:
8 A. Any person who has been denied the right to inspect or copy 9 a record under the provisions of this Chapter . . . may institute 10 proceedings for the issuance of a writ of mandamus, injunctive or 11 declaratory relief, together with attorney’s fees, costs and damages as 12 provided for by this Section, in the district court for the parish in which 13 the office of the custodian is located.
14 ...
15 D. If a person seeking the right to inspect or to receive a copy of 16 a public record prevails in such suit, he shall be awarded reasonable 17 attorney’s fees and other costs of litigation. If such person prevails in 18 part, the court may in its discretion award him reasonable attorney’s fees 19 or an appropriate portion thereof.
20 However, La.Const. art. 12, § 10 (C) states that “No judgment against the state,
21 a state agency, or a political subdivision shall be exigible, payable, or paid except
22 from funds appropriated therefor by the legislature or by the political subdivision
23 against which the judgment is rendered.” The issue of enforcement of money
24 judgments against the state or its political subdivisions has been addressed several
25 times. The most recent discussion of this issue by our supreme court was in Newman
26 Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La. 4/8/08), 979 So.2d
27 1262. In Newman, the court explained:
28 The constitution allocates the judiciary some power over the other 29 branches through article XII, section 10(A), where it waives the State’s 30 immunity in suits in contract and tort. See Jones v. City of Baton Rouge, 31 388 So.2d 737, 740 (La.1980). Thus, the judicial branch is empowered 32 to render judgments against the state. Hoag, 2004-0857, pp. 4-5, 889
3
1 So.2d at 1022. However, the constitution does not provide the judiciary 2 with the ability to execute those judgments. The constitution reserves 3 that power to the legislature: 4 5 [The legislature] shall provide a procedure for suits against 6 the state, a state agency, or a political subdivision and 7 provide for the effect of a judgment, but no public property 8 or public funds shall be subject to seizure. The legislature 9 may provide that such limitations, procedures, and effects 10 of judgments shall be applicable to existing as well as 11 future claims. No judgment against the state, a state 12 agency, or a political subdivision shall be exigible, payable 13 or paid except from funds appropriated therefor by the 14 legislature or by the political subdivision against which the 15 judgment is rendered.” 16 17 La. Const. art. XII, § 10(C) (emphasis added). The legislature largely 18 parroted this language when it enacted LSA-R.S. 13:5109(B)(2): 19 20 Any judgment rendered in any suit filed against the state, 21 a state agency, or a political subdivision, or any 22 compromise reached in favor of the plaintiff or plaintiffs in 23 any such suit shall be exigible, payable, and paid only out 24 of funds appropriated for that purpose by the legislature, if 25 the suit was filed against the state or a state agency, or out 26 of funds appropriated for that purpose by the named 27 political subdivision, if the suit was filed against a political 28 subdivision. 29 30 (emphasis added). 31 32 Admittedly, article XII creates a frustrating dichotomy for the 33 state’s judgment creditors. As one commentator remarked, “the 34 apparent liberality of abolishing most immunity from suit was offset by 35 the continuation of a severe limitation on a private citizen’s ability to 36 enforce a judgment against the state, a state agency, or a local 37 governmental entity.” Lee Hargrave, “Statutory” and “Hortatory” 38 Provisions of the Louisiana Constitution of 1974, 43 La. L.Rev. 647, 39 653 (1983). Still, the combined effect of article XII, section 10(C) and 40 LSA-R.S. § 13:5109(B)(2) is clear. Judgments against a political 41 subdivision of the State may only be paid “out of funds appropriated for 42 that purpose by the named political subdivision,” LSA-R.S. 43 13:5109(B)(2); Hoag, 2004-0857, p. 5, 889 So.2d at 1023, and under no 44 circumstance shall “public property or public funds . . . be subject to 45 seizure,” La. Const. art. XII, § 10(C). 46 47 In Hoag v. State, we noted that Louisiana courts have repeatedly 48 held that judgment creditors cannot compel political subdivisions to 49 appropriate funds for the payment of a judgment rendered against that 50 subdivision through a writ of mandamus. 2004-0857, pp. 5-6, 889 So.2d
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1 at 1023 (citing Jones v. Traylor, 94-2520 (La.App. 4 Cir. 8/23/95), 660 2 So.2d 933; Landry v. City of Erath, 628 So.2d 1178 (La.App. 3 3 Cir.1993); Dep’t of Transp. & Dev. v. Sugarland Ventures, Inc., 476 4 So.2d 970 (La.App. 1 Cir.1985); Fontenot v. State, 358 So.2d 981 5 (La.App. 1 Cir.1978), rev’d on other grounds, 355 So.2d 1324 6 (La.1978)). The Hoag court observed that mandamus “is an 7 extraordinary remedy, to be applied where ordinary means fail to afford 8 adequate relief,” and that “the only circumstances under which courts 9 may cause a writ of mandamus to issue is where the actions sought to be 10 performed by the legislature are purely ministerial in nature.” Id. at p. 11 6, 889 So.2d at 1023 (citing La.Code Civ. Proc. art. 3863 et seq.). We 12 further stated that a “ministerial duty” is one in which “no element of 13 discretion is left to the public officer,” in other words, “a simple, definite 14 duty, arising under conditions admitted or proved to exist, and imposed 15 by law.” Id. at p.7, 889 So.2d at 1024 (citing Franklin v. Massachusetts, 16 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); Felix v. St. Paul 17 Fire & Marine Ins. Co., 477 So.2d 676, 682 (La.1985); further citations 18 omitted). In light of this standard, we concluded that the very act of 19 appropriating funds is discretionary, making a writ of mandamus in this 20 context an “impermissible usurpation of legislative power by the 21 judiciary.” Id. at pp. 7-8, 889 So.2d at 1024-25.
22 Newman, 979 So.2d at 1265-66 (footnote omitted)(alteration in original).
23 Mr. Heath makes a blanket assertion that La.Const. art. 12, § 10(C) would
24 render the Public Records Law useless, while providing no legal support for his
25 assertion and ignoring the clear pronouncements of the supreme court on the issue of
26 the enforcement of judgments against the State and its subdivisions. The admitted
27 “frustrating dichotomy” created by La.Const. art. 12, § 10(C) renders the Louisiana
28 Public Records Law no more useless than it renders tort or contract suits against the
29 State, and the trial court was correct in applying La.Const. art. 12, § 10(C) in this
30 case, in accordance with Newman. This assignment of error is devoid of any merit.
31 Our finding on this issue renders Mr. Heath’s other assignments of error moot,
32 as any prejudice he may have suffered as a result of the ex parte continuance is
33 rendered harmless by our ruling. Moreover, the matter before both the trial court and
34 this one is a strictly legal issue, and no witness testimony of any kind, nor any
35 documents produced or maintained by the City would affect our finding in any way.
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1 Accordingly, Mr. Heath’s remaining assignments of error need not be addressed.
2 For the above reasons, the decision of the trial court is hereby affirmed. Costs
3 of this appeal are hereby assessed against Mr. Heath.
4 AFFIRMED.