Opinion
2015 CA 0271
02-25-2016
PARISH COUNCIL OF THE PARISH OF LIVINGSTON v. LAYTON RICKS IN HIS CAPACITY AS PRESIDENT OF THE PARISH OF LIVINGSTON
Rodney S. Barnes, Jr. Harold J. Adkins Baton Rouge, LA Attorneys for Plaintiff/Appellee-Parish Council of the Parish of Livingston Mark D. Boyer Brian K. Abels Denham Springs, LA Attorneys for Defendant/Appellant-Layton Ricks, President of the Parish of Livingston
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 146432 The Honorable Brenda Bedsole Ricks, Judge Presiding Rodney S. Barnes, Jr.
Harold J. Adkins
Baton Rouge, LA Attorneys for Plaintiff/Appellee-
Parish Council of the Parish of
Livingston Mark D. Boyer
Brian K. Abels
Denham Springs, LA Attorneys for Defendant/Appellant-
Layton Ricks, President of the Parish
of Livingston BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.,
Defendant/Appellant, Livingston Parish President Layton Ricks (Ricks), appeals a trial court judgment granting a writ of mandamus and ordering him to pay legal bills as directed by a resolution passed by Plaintiff/Appellee, the Parish Council of the Parish of Livingston (Council). For the reasons that follow, we reverse the trial court judgment and recall the writ.
FACTS AND PROCEDURAL HISTORY
Livingston Parish (Parish) adopted a home rule charter (Charter), which provides for a "president-council" form of government. Under the terms of the Charter, the president serves as the head of the Parish's executive branch, while the nine-member Council serves as its legislative branch.
In March 2013, two members of the Council, Marshall Harris and Cindy Wale (collectively, the Members), were named as defendants in a defamation suit filed by Alvin Fairburn & Associates, LLC (Fairburn). Later that month, Mary Kistler also filed a defamation suit against the Members. It is undisputed that, in both suits, the Members were sued solely in their individual capacities, and no claims were asserted against the Parish. The Members retained attorney Charles Schutte, Jr., to represent them.
At its June 13, 2013 meeting, the Council adopted three notable resolutions pertaining to the defamation suits. First, the Council adopted Resolution No. 13-172, which declared that, insofar as the Council was concerned, the Members had acted in their official capacity when they allegedly defamed Fairburn and Ms. Kistler. Second, the Council adopted Resolution No. 13-173 resolving to pay the Members' legal fees based on its conclusion that they had acted in their official capacity. Lastly, the Council adopted Resolution No. 13-174, which declared that the Council would request an opinion from the Attorney General as to whether the Council could "opt" to pay for the Members' legal fees prior to judgment being rendered in the suits.
On October 7, 2013, the Attorney General issued Opinion No. 13-0132 suggesting that, if necessary to shield the Parish from potential liability, it would be appropriate to furnish the Members with legal counsel provided that they were acting in their official capacity when the disputed statements were made. However, the Attorney General advised that the issue of capacity was ultimately one for the trier of fact to decide. Therefore, the opinion cautioned that if there was "any doubt" as to whether the Members were acting in their official capacity, the Parish should refrain from paying their legal fees until a favorable judgment was rendered. Then, the Parish could (but was not obligated to) reimburse the Members for their legal fees. Ultimately, the Attorney General opined that the best course of action would be for the Parish to wait and reimburse the Members for their legal expenses if and when a final judgment was rendered in their favor. According to the opinion, such an approach would obviate the Parish's risk of potentially violating La. Const. art. VII, § 14(A), which prohibits public funds from being loaned, pledged, or donated to or on behalf of any person, public or private.
Attorney general opinions are merely advisory and are not binding; nevertheless, they are considered persuasive authority. See Born v. City of Slidell, 2015-0136 (La. 10/14/15), ___ So.3d ___, ___, n.1.
According to the Louisiana Supreme Court, § 14(A) is violated when public funds are gratuitously alienated. Bd. of Directors of Indus. Dev. Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Prop. Owners, Citizens of City of Gonzales, 2005-2298 (La. 9/6/06), 938 So.2d 11, 23.
While the defamation suits were still pending, on July 24, 2014, the Council passed Resolution No. 14-226 instructing Ricks "to carry out his duty in paying Special Legal Counsel Charles Schutte" within seven days. Presumably relying on the Attorney General's recommendation, Ricks refused to pay any legal fees before a judgment was rendered.
The resolution did not specify the reason for the payment to Mr. Schutte nor did it specify the actual amount to be paid to him. Notably, the resolution did refer to Mr. Schutte as "Special Legal Counsel." According to Section 4-02(B) of the Charter: "No special legal counsel shall be retained by the [Parish] except by written contract for a specific purpose.... [The Council's] authorization shall specify the compensation, if any, to be paid for such services." However, according to the record, Mr. Schutte had no contract with the Parish and did not serve as the Parish's special legal counsel. Rather, the parties agree that the payment to Mr. Schutte was for legal fees incurred by the Members as a result of the pending defamation suits.
According to the former Chairman of the Council, Ricky Goff, the Council likewise relied on the Attorney General's opinion, believing that it authorized the Council's immediate payment of the Members' legal fees in defending the defamation suits prior to any judgment.
As a result, the Council filed a petition for a writ of mandamus alleging that Ricks had improperly failed to follow and execute Resolution No. 14-226. The Council attached several documents to its petition, including a copy of the Charter. According to the Council, the Charter does not grant the president any discretion in carrying out a resolution passed by the Council. In support of its assertion, the Council cited various sections of the Charter, including Section 2-11 which provides that "[t]he president's veto authority shall not apply to resolutions." The Council argued that mandamus was appropriate because, under the Charter, Ricks has a ministerial duty to carry out the Council's resolution by paying the Members' legal fees. Significantly, the Council did not allege or argue that it was unable to obtain relief through ordinary process, nor did it contend that any delay in pursuing such relief would result in injustice.
Following the hearing on the Council's petition for mandamus, the trial court allowed both parties to submit post-hearing briefs. In his post-hearing brief, Ricks asserted that he could refuse to pay the Members' legal fees because, according to the Charter, a Council resolution is simply a formal expression of the Council's desire and is not a binding law that he must follow. In addition, Ricks urged that mandamus was inappropriate because the Council could pursue relief through ordinary means and had failed to show that any delay in obtaining such relief would result in injustice.
On October 29, 2014, the trial court issued its written reasons for judgment indicating its belief that "the issue [in] this case is whether the Parish President has a ministerial duty under the [Charter] to follow resolutions passed by the ... Council, or may those resolutions be selectively enforced or ignored." Ultimately, the trial court adopted the Council's arguments as its reasons for judgment and concluded that Ricks had a duty to pay the legal bills in accordance with Resolution No. 14-226. Based on its finding of a duty, the trial court further concluded that the issuance of a writ of mandamus was "proper." On November 19, 2014, the trial court signed a judgment granting the Council's petition for a writ of mandamus and ordering Ricks to pay the Members' legal fees as directed by Resolution No. 14-226. From this judgment, Ricks now appeals.
LAW AND DISCUSSION
Mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief. Aberta, Inc. v. Atkins, 2012-0061 (La. 5/25/12), 89 So.3d 1161, 1163; Bd. of Trustees of Sheriff's Pension and Relief Fund v. City of New Orleans, 2002-0640 (La. 5/24/02), 819 So.2d 290, 292; Louisiana Assessors' Ret. Fund v. City of New Orleans, 2001-0735 (La. 2/26/02), 809 So.2d 955, 956. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La. C.C.P. art. 3863. Nevertheless, a writ of mandamus should be issued only in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862; Bd. of Trustees of Sheriff's Pension and Relief Fund, 819 So.2d at 292
Therefore, to prevail in its mandamus action against Ricks, a public officer, the Council must show that: (1) the law clearly requires Ricks to perform a non-discretionary, ministerial duty in this matter; and (2) mandamus is the Council's only available remedy or that the delay occasioned by the use of any other remedy would cause injustice. See La. C.C.P. arts 3862 and 3863. See also Aberta, Inc., 89 So.3d at 1162-63; Cent. Cmty. Sch. Bd. v. E. Baton Rouge Par. Sch. Bd., 2008-0036 (La.App. 1 Cir. 6/6/08), 991 So.2d 1102, 1107, writs denied, 2008-1480, 2008-1538 (La. 12/12/08), 997 So.2d 561. Based on our review of the record, it is readily apparent that the Council has failed to satisfy its burden of showing that the extraordinary remedy of mandamus is warranted in this case.
The law clearly affords the Council the ability to seek relief by ordinary means, such as declaratory judgment or a mandatory injunction. Moreover, the Council has failed to demonstrate, much less allege or argue, that any delay in obtaining ordinary relief would cause injustice sufficient to support the issuance of a writ of mandamus. See La. C.C.P. art. 3862; Louisiana Assessors' Ret. Fund, 809 So.2d at 956. Similarly, the written reasons for judgment fail to reveal a specific finding by the trial court that ordinary means of relief were unavailable or that the delay in obtaining such relief would result in injustice; on the contrary, the reasons suggest that the trial court simply concluded that a duty existed and issued the writ without conducting a proper analysis to determine whether mandamus was warranted. See Louisiana Assessors' Ret. Fund, 809 So.2d at 956.
Consequently, we find that the trial court's judgment must be reversed and the writ of mandamus recalled. Because the Council failed to meet its burden of showing that it was unable to pursue relief by ordinary means or that a delay in obtaining such relief would cause injustice, it is not entitled to mandamus relief. Id. Consequently, we need not address, nor do we express any opinion on, the parties' respective arguments regarding the existence of a ministerial duty in this case.
The bulk of the parties' arguments, both in the trial court and this court, have focused on the nature of the president's duty vis-a-vis a Council resolution.
Having found that the judgment must be reversed, we pretermit any discussion of Ricks' remaining assignments of error. --------
CONCLUSION
For all of the foregoing reasons, we reverse the November 19, 2014 judgment of the trial court and recall the writ of mandamus. Appeal costs in the amount of $931.00 are assessed to the Parish Council of the Parish of Livingston.
REVERSED; WRIT OF MANDAMUS RECALLED.