TIMOTHY AND JEWELL FALCON NO. 22-C-185
VERSUS FIFTH CIRCUIT
THE PARISH OF JEFFERSON AND THE COURT OF APPEAL
JEFFERSON PARISH COUNCIL STATE OF LOUISIANA
May 20, 2022
Susan Buchholz First Deputy Clerk
IN RE COUNCILMAN BYRON LEE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET, DIVISION "H", NUMBER 821-019
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
WRIT GRANTED
In Timothy and Jewel Falcon’s suit against the Jefferson Parish Council for
denying their application for re-subdivision of their property, Councilman Byron
Lee seeks supervisory review of the trial court’s denial of his motion to quash a
subpoena filed by the Falcons seeking Councilman Lee’s testimony at trial. For
the following reasons, we grant relator’s writ and reverse the judgment of the trial
court.
BACKGROUND
On August 25, 2021, at a meeting of the Jefferson Parish Council, the
Council, upon motion by Councilman Lee, voted to deny approval for a Plat
Proposal submitted for consideration by the Falcons. Prior to the vote, the Council
heard a presentation from counsel for the Falcons outlining the proposal as well as
22-C-185 opposition from local residents who were concerned about the proposed
subdivision’s impact on traffic in the neighborhood.
Following the vote of the Council, the Falcons filed an appeal with the
Twenty Fourth Judicial District Court naming as defendants the Parish of Jefferson
and the Jefferson Parish Council. The appeal requests that the court vacate the
Council’s decision and issue an injunction ordering the approval of the Falcons’
plat proposal.
In anticipation of the trial on the petition, the Falcons requested the trial
court to issue a subpoena to Councilman Lee, who is not a party to this litigation,
to compel his testimony at trial. In response, Councilman Lee filed a motion to
quash the subpoena on the basis that legislative privilege precludes him from
testifying as to any decisions made in his capacity as Councilman for the Parish of
Jefferson. In response, the Falcons argued that Councilman Lee was acting in an
administrative capacity rather than a legislative capacity at the time of the council
meeting, and therefore is not entitled to the protection of legislative privilege.
Following a hearing on the motion, the trial court rendered judgment denying the
motion to quash the subpoena and further ordering that the questioning of
Councilman Lee shall be limited to matters deemed relevant by the Court pursuant
to Louisiana Code of Evidence Article 401. Councilman Lee seeks expedited
supervisory review of this judgment.
DISCUSSION
Trial courts have broad discretion in ruling on discovery matters that are
presented during the course of litigation, including the scope of discovery, and
such discretion will not be disturbed on appeal absent a clear showing of abuse.
Wells v. Fandal, 13-620 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87, writ denied,
14-511 (La. 4/25/14), 138 So.3d 645. However, where the trial court’s decision is
based on an erroneous interpretation or application of law, rather than a valid
2 exercise of discretion, such an incorrect decision is not entitled to deference by the
reviewing court and a de novo review is warranted. Yorsh v. Morel, 16-662 (La.
App. 5 Cir. 7/26/17), 223 So.3d 1274, 1281, writ denied, 17-1475 (La. 11/13/17),
230 So.3d 207.
The Falcons argue that the Council’s decision to deny their application for
re-subdivision is an administrative act and therefore the Council members are not
entitled to legislative privilege and can be compelled to testify. In support of this
argument, they cite numerous cases from federal courts including Angelicare, LLC
v. St. Bernard Par., 17-7360 (E.D. La. 3/6/18), 2018 WL 1172947, a case which
cites the United States Supreme Court’s decision in Bogan v. Scott-Harris, 523
U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), wherein the Supreme Court set
forth the criteria for determining whether an act is legislative in nature.
Relator in turn argues that the Council’s decision denying the application for
re-subdivision is a legislative act rather than an administrative act, and further, that
the legislative privilege granted to Council members in the Louisiana Constitution
is applicable regardless of how the act is characterized.
The approval or disapproval of a subdivision plat is a legislative function
involving the exercise of legislative discretion by the governing authority of a
parish or municipality. Inv. Mgmt. Servs., Inc. v. Vill. of Folsom, 00-0832 (La.
App. 1 Cir. 5/11/01), 808 So.2d 597, 604; see also La. R.S. 33:101.1 (“[T]he act
of approving or disapproving a subdivision plat is hereby declared a legislative
function involving the exercise of legislative discretion by the planning
commission …”). Accordingly, we find that the Falcons’ argument that the
Council’s decision to disprove the re-subdivision plan was an administrative one to
be without merit.
We turn next to the legislative privilege raised by Councilman Lee. Article
III, § 8 of the Louisiana Constitution provides that:
3 A member of the legislature shall be privileged from arrest, except for felony, during his attendance at sessions and committee meetings of his house and while going to and from them. No member shall be questioned elsewhere for any speech in either house.
This article has been held to constitute “an absolute bar to interference when
members are acting within the legislative sphere.” Parish of Jefferson v. SFS
Construction Group, Inc., 01-1118 (La. App. 5 Cir. 2/13/02), 812 So.2d 103, 105,
writ denied, 02-791 (La. 5/31/02), 817 So.2d 95, citing Copsey v. Baer, 593 So.2d
685 (La. App. 1st Cir.1991). In Copsey, the First Circuit examined the origin of
the legislative privilege in Article III, § 8 and concluded that inquiries into the
motivation for legislative actions ran afoul of Article III, citing an opinion by the
United States Supreme Court, which held in United States v. Gillock, 445 U.S. 360,
366-67, 100 S.Ct. 1185, 1190, 63 L.Ed.2d 454 (1980), that “the Clause protects
against inquiry into the acts that occur in the regular course of the legislative
process and into the motivation for those acts.” Copsey, supra, 593 So.2d at 688.
The prohibition extends not only to the Louisiana legislature but also other
legislative bodies such as the legislative bodies of parish and city governments.
Ruffino v. Tangipahoa Par. Council, 06-2073 (La. App. 1 Cir. 6/8/07), 965 So.2d
414, 417. Because the subpoena complained of specifically involves inquiry into
the motivation for a legislative action, it is clearly in violation of Article III, § 8.
Thus, the trial court erred as a matter of law when it failed to recognize
Councilman Lee’s legislative privilege and failed to quash the Falcons’ subpoena.
CONCLUSION
Upon review of Councilman Lee’s writ application, we find that the trial
court legally erred in finding that the Council’s August 25, 2021 decision to
disapprove the Falcons’ proposed re-subdivision was an administrative one. We
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TIMOTHY AND JEWELL FALCON NO. 22-C-185
VERSUS FIFTH CIRCUIT
THE PARISH OF JEFFERSON AND THE COURT OF APPEAL
JEFFERSON PARISH COUNCIL STATE OF LOUISIANA
May 20, 2022
Susan Buchholz First Deputy Clerk
IN RE COUNCILMAN BYRON LEE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET, DIVISION "H", NUMBER 821-019
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
WRIT GRANTED
In Timothy and Jewel Falcon’s suit against the Jefferson Parish Council for
denying their application for re-subdivision of their property, Councilman Byron
Lee seeks supervisory review of the trial court’s denial of his motion to quash a
subpoena filed by the Falcons seeking Councilman Lee’s testimony at trial. For
the following reasons, we grant relator’s writ and reverse the judgment of the trial
court.
BACKGROUND
On August 25, 2021, at a meeting of the Jefferson Parish Council, the
Council, upon motion by Councilman Lee, voted to deny approval for a Plat
Proposal submitted for consideration by the Falcons. Prior to the vote, the Council
heard a presentation from counsel for the Falcons outlining the proposal as well as
22-C-185 opposition from local residents who were concerned about the proposed
subdivision’s impact on traffic in the neighborhood.
Following the vote of the Council, the Falcons filed an appeal with the
Twenty Fourth Judicial District Court naming as defendants the Parish of Jefferson
and the Jefferson Parish Council. The appeal requests that the court vacate the
Council’s decision and issue an injunction ordering the approval of the Falcons’
plat proposal.
In anticipation of the trial on the petition, the Falcons requested the trial
court to issue a subpoena to Councilman Lee, who is not a party to this litigation,
to compel his testimony at trial. In response, Councilman Lee filed a motion to
quash the subpoena on the basis that legislative privilege precludes him from
testifying as to any decisions made in his capacity as Councilman for the Parish of
Jefferson. In response, the Falcons argued that Councilman Lee was acting in an
administrative capacity rather than a legislative capacity at the time of the council
meeting, and therefore is not entitled to the protection of legislative privilege.
Following a hearing on the motion, the trial court rendered judgment denying the
motion to quash the subpoena and further ordering that the questioning of
Councilman Lee shall be limited to matters deemed relevant by the Court pursuant
to Louisiana Code of Evidence Article 401. Councilman Lee seeks expedited
supervisory review of this judgment.
DISCUSSION
Trial courts have broad discretion in ruling on discovery matters that are
presented during the course of litigation, including the scope of discovery, and
such discretion will not be disturbed on appeal absent a clear showing of abuse.
Wells v. Fandal, 13-620 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87, writ denied,
14-511 (La. 4/25/14), 138 So.3d 645. However, where the trial court’s decision is
based on an erroneous interpretation or application of law, rather than a valid
2 exercise of discretion, such an incorrect decision is not entitled to deference by the
reviewing court and a de novo review is warranted. Yorsh v. Morel, 16-662 (La.
App. 5 Cir. 7/26/17), 223 So.3d 1274, 1281, writ denied, 17-1475 (La. 11/13/17),
230 So.3d 207.
The Falcons argue that the Council’s decision to deny their application for
re-subdivision is an administrative act and therefore the Council members are not
entitled to legislative privilege and can be compelled to testify. In support of this
argument, they cite numerous cases from federal courts including Angelicare, LLC
v. St. Bernard Par., 17-7360 (E.D. La. 3/6/18), 2018 WL 1172947, a case which
cites the United States Supreme Court’s decision in Bogan v. Scott-Harris, 523
U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), wherein the Supreme Court set
forth the criteria for determining whether an act is legislative in nature.
Relator in turn argues that the Council’s decision denying the application for
re-subdivision is a legislative act rather than an administrative act, and further, that
the legislative privilege granted to Council members in the Louisiana Constitution
is applicable regardless of how the act is characterized.
The approval or disapproval of a subdivision plat is a legislative function
involving the exercise of legislative discretion by the governing authority of a
parish or municipality. Inv. Mgmt. Servs., Inc. v. Vill. of Folsom, 00-0832 (La.
App. 1 Cir. 5/11/01), 808 So.2d 597, 604; see also La. R.S. 33:101.1 (“[T]he act
of approving or disapproving a subdivision plat is hereby declared a legislative
function involving the exercise of legislative discretion by the planning
commission …”). Accordingly, we find that the Falcons’ argument that the
Council’s decision to disprove the re-subdivision plan was an administrative one to
be without merit.
We turn next to the legislative privilege raised by Councilman Lee. Article
III, § 8 of the Louisiana Constitution provides that:
3 A member of the legislature shall be privileged from arrest, except for felony, during his attendance at sessions and committee meetings of his house and while going to and from them. No member shall be questioned elsewhere for any speech in either house.
This article has been held to constitute “an absolute bar to interference when
members are acting within the legislative sphere.” Parish of Jefferson v. SFS
Construction Group, Inc., 01-1118 (La. App. 5 Cir. 2/13/02), 812 So.2d 103, 105,
writ denied, 02-791 (La. 5/31/02), 817 So.2d 95, citing Copsey v. Baer, 593 So.2d
685 (La. App. 1st Cir.1991). In Copsey, the First Circuit examined the origin of
the legislative privilege in Article III, § 8 and concluded that inquiries into the
motivation for legislative actions ran afoul of Article III, citing an opinion by the
United States Supreme Court, which held in United States v. Gillock, 445 U.S. 360,
366-67, 100 S.Ct. 1185, 1190, 63 L.Ed.2d 454 (1980), that “the Clause protects
against inquiry into the acts that occur in the regular course of the legislative
process and into the motivation for those acts.” Copsey, supra, 593 So.2d at 688.
The prohibition extends not only to the Louisiana legislature but also other
legislative bodies such as the legislative bodies of parish and city governments.
Ruffino v. Tangipahoa Par. Council, 06-2073 (La. App. 1 Cir. 6/8/07), 965 So.2d
414, 417. Because the subpoena complained of specifically involves inquiry into
the motivation for a legislative action, it is clearly in violation of Article III, § 8.
Thus, the trial court erred as a matter of law when it failed to recognize
Councilman Lee’s legislative privilege and failed to quash the Falcons’ subpoena.
CONCLUSION
Upon review of Councilman Lee’s writ application, we find that the trial
court legally erred in finding that the Council’s August 25, 2021 decision to
disapprove the Falcons’ proposed re-subdivision was an administrative one. We
find the Council’s decision to be a legislative one, in accordance with La. R.S.
33:101.1, and that the legislative privilege set forth in Article III, § 8 of the
4 Louisiana Constitution is applicable. We therefore grant this writ application,
reverse the trial court’s April 1, 2022 judgment, and order that Councilman Lee’s
motion to quash the Falcons’ subpoena is granted.
Gretna, Louisiana, this 20th day of May, 2022.
RAC SMC FHW
5 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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22-C-185 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald L. Foret (DISTRICT JUDGE) Jacob K. Best (Relator) Guice A. Giambrone, III (Relator) Michael L. Vincenzo (Respondent) Ivana Dillas (Relator) Patrick T. Isacks (Respondent)
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