Opinion
NO. 2018CA1345
04-12-2019
JIM AND BRENDA O'BROCK, ET AL v. JOHN WHITE & LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION
John Milkovich Shreveport, Louisiana Counsel for Plaintiff/Appellant Jim & Brenda O'Brock, et al Joan E. Hunt R. Christopher Fruge' Baton Rouge, Louisiana Counsel for Defendant/Appellee Louisiana State Superintendent of Education Patricia H. Wilton Baton Rouge, Louisiana Counsel for Defendant/Appellee Louisiana Board of Elementary and Secondary Education
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket No. C661,721 The Honorable Todd Hernandez, Judge Presiding John Milkovich
Shreveport, Louisiana Counsel for Plaintiff/Appellant
Jim & Brenda O'Brock, et al Joan E. Hunt
R. Christopher Fruge'
Baton Rouge, Louisiana Counsel for Defendant/Appellee
Louisiana State Superintendent of
Education Patricia H. Wilton
Baton Rouge, Louisiana Counsel for Defendant/Appellee
Louisiana Board of Elementary and
Secondary Education BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
DISPOSITION: AFFIRMED
LANIER, J.
In this case, plaintiffs appeal from a trial court judgment sustaining defendants' exception raising the objection of no right of action and dismissing, with prejudice, plaintiffs' claims. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On September 21, 2017, plaintiffs (Jim and Brenda O'Brock, Luke and Vickie Roark, A.G. Crowe, Constance Diane Long, Mike Deshotel, Dennis Burks, Caryn Jenkins, Virginia Trahan, Jimmy Willoughby, and Earl Randolph Pinkley) filed an action entitled "Petition For Declaratory Judgment" against defendants, John White, in his capacity as the Superintendent of the Louisiana Department of Education ("Department"), the Department, and the Louisiana Board of Elementary and Secondary Education. Plaintiffs alleged that White had been appointed as the Superintendent of the Department in 2012 and had not been reconfirmed by the Louisiana Senate as required by Louisiana law. Thus, plaintiffs maintained, White was "hold[ing] office in the absence of legal authority to do so," and was not entitled to the continued payment of his salary while he "illegally remains in office." Plaintiffs' petition contained the following prayer for relief:
WHEREFORE PLAINTIFFS PRAY that this Honorable Court enter Declaratory Judgment that the applicable Louisiana Law required that [White] had to have been reconfirmed by the Louisiana Senate by June 9, 2017, or the Office of the Superintendent of the [Department] would and/or will be declared, decreed and adjudged to be vacant, and/or the Office of Louisiana Superintendent of Education would be vacant by operation of law, and/or as a matter of law, and the current Superintendent, [White], would no longer be deemed to be, nor be legally entitled to serve as, the Superintendent of the [Department].
In response to plaintiffs' petition, defendants filed an exception raising the objection of no right of action. Defendants argued that Louisiana law is clear that individual citizens do not have a right of action to bring an intrusion-into-office suit. Citing La. R.S. 42:76, La. R.S. 42:77, and La. R.S. 24:14, defendants asserted that there is an exclusive list of five people who would have a right of action to bring such an action in the instant case: (1) the attorney general; (2) a district attorney; (3) the governor; (4) someone who claims the office allegedly being intruded upon; and, (5) the Senate, through its president. Following a hearing on the exception, the trial court took the matter under advisement. On April 18, 2018, the trial court rendered judgment sustaining defendants' no right of action objection and dismissing plaintiffs' suit, with prejudice. In maintaining defendants' exception, the trial court found "that regardless of the title of the petition or cause of action asserted ..., [La.] R.S. 42:76, et seq. is controlling and the plaintiffs are not members of a class of persons lawfully permitted to bring this action." It is from this judgment that plaintiffs have appealed, arguing that the trial court erred in granting defendants' exception raising the objection of no right of action and in failing to permit plaintiffs an opportunity to amend their petition.
Defendants also pointed out that "a different group of ordinary citizens" had previously filed a "virtually identical" petition, which was dismissed by another division of the trial court, without prejudice, on a no right of action objection based on these same statutes.
DISCUSSION
On appeal, plaintiffs argue that their petition is a declaratory action based on its literal terms, its function, and the relief requested and that it was legal error for the trial court to dismiss their action. Plaintiffs assert that their petition did not request an order removing White from office, did not seek a mandamus, and was not a quo warranto proceeding. To the contrary, plaintiffs maintain that their petition sought a judicial declaration of whether it was legal for White to remain in office. Plaintiffs contend further that the trial court erred by not permitting them to amend their petition to state a valid right of action.
Defendants counter that the right of action to bring a suit to challenge White's right to hold office belongs exclusively to the individuals listed in La. R.S. 42:76, La. R.S. 42:77, and La. R.S. 24:14(H)(1)(b). Moreover, defendants argue that regardless of how plaintiffs have chosen to style their suit, the provisions of the above listed statutes apply to plaintiffs' suit as they are challenging White's right to hold the office of Superintendent of the Department. We agree with defendants.
A plaintiff must have a "real and actual interest" in the action he asserts before the courts will entertain his suit. See La. Code Civ. P. art. 681; Ramsey River Rd. Prop. Owners Ass'n, Inc. v. Reeves, 396 So.2d 873, 874 (La. 1981). The objection of no right of action tests whether the plaintiff, who seeks relief, is a person in whose favor the law extends a remedy. See Howard v. Administrators of Tulane Educational Fund, 2007-2224 (La. 7/1/08), 986 So.2d 47, 59. A peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. La. Code Civ. P. art. 927(A)(6). Louisiana State Bar Ass'n v. Carr and Associates, Inc., 2008-2114 (La. App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 2009-1627 (La. 10/30/09), 21 So.3d 292. The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic Development, 2009-1349 (La. App. 1 Cir. 4/8/10), 37 So.3d 1029, 1033, writ denied, 2010-1501 (La. 10/1/10), 45 So.3d 1102.
The exception does not raise the question of the plaintiff's ability to prevail on the merits nor the question of whether the defendant may have a valid defense. To prevail on an objection of no right of action, the defendant must show the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Whether a plaintiff has a right of action is ultimately a question of law; therefore, it is reviewed de novo on appeal. Hill v. Jindal, 2014- 1757 (La. App. 1 Cir. 6/17/15), 175 So.3d 988, 1000, writ denied, 2015-1394 (La. 10/23/15), 179 So.3d 600.
Actions to challenge a public officer's right to office are governed by La. R.S. 42:76, which states, in pertinent part, as follows:
An action shall be brought in the name of the state in any of the following cases:Further, La. R.S. 42:77 states that "[i]n the cases provided in R.S. 42:76(1) and 42:76(2), the action may be brought by any person demanding possession of the office against any person claiming or exercising the functions of the office."
(1) When any person usurps, intrudes into, or unlawfully holds or exercises or attempts to remain in possession of any public office or franchise within this state.
(2) When any public officer has done, or suffered to be done, an act which under the laws of this state constitutes a forfeiture of his office.
. . . .
This action shall be brought by the attorney general of the state or by the parish district attorney of the parish in which the case arises against the offender, and the suit shall be filed in the district court of that parish.
The action may also be brought by the governor appearing in proper person or through the attorney general of the state or other counsel he may select.
With regard to the language of statutes, La. R.S. 1:3 provides, in pertinent part, as follows: "Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. ... The word 'shall' is mandatory and the word 'may' is permissive." --------
Together, La. R.S. 42:76 and La. R.S. 42:77 provide that only the attorney general of the state, a district attorney of the parish in which the case arises against the offender, the governor, or a person demanding possession of the office may bring an action to challenge a public officer or employee's right to office. Jones v. Board of Ethics for Elected Officials, 97-2854 (La. App. 1 Cir. 2/20/98), 709 So.2d 841, 847, writs denied, 98-0750 (La. 5/8/98), 718 So.2d 433, 98-0782 (La. 5/8/98), 719 So.2d 51. Moreover, La. R.S. 24:14(H) provides as follows:
H. (1)(a) In the event a person is not submitted to or is not confirmed by the Senate, or is submitted to the Senate for reconfirmation but not reconfirmed by the Senate pursuant to Subsection K of this Section, and the person attempts to remain in office after being advised by the Senate, through its president, by certified mail, return receipt requested, of his lack of confirmation or reconfirmation, and acts in his official capacity, any action taken by a public body in which such person participates shall be null and void. The Senate, through its president, shall notify any person not submitted to the Senate for confirmation or not confirmed by the Senate and any person submitted to the Senate for reconfirmation but not reconfirmed by the Senate no later than thirty days after the Senate considers confirmations.
(b) The Senate, through its president, may bring an action to remove the person from office. Notwithstanding any other law to the contrary, the venue for any such action shall be East Baton Rouge Parish.
We note there is no language in La. R.S. 42:76, La. R.S. 42:77, or La. R.S. 24:14 that distinguishes a declaratory action from any other action that is brought challenging a person's right to hold public office. Nor does it appear that the list of people who have the right to bring such an action pursuant to these statutes is affected by the type of action brought.
Pursuant to La. Code Civ. P. art. 865, we are required to construe every pleading so as to do substantial justice. Woodard v. Upp, 2013-0999 (La. App. 1 Cir. 2/18/14), 142 So.3d 14, 20. Our courts consistently look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding; thus, a pleading is construed for what it really is, not for what it is erroneously called. Bernard v. Hildebrand, 2008-0268 (La. App. 1 Cir. 8/6/08), 993 So.2d 678, 684 n.6.
Although plaintiffs' petition in the instant case was captioned a "Petition For Declaratory Judgment," the characterization of a pleading by the litigant is not controlling. Rather, courts should look through the caption of pleadings in order to ascertain their substance. Greene v. Succession of Alvarado, 2015-1960, 2015-1961 (La. App. 1 Cir. 12/27/16), 210 So.3d 321, 339. Accordingly, plaintiffs' petition will be treated as a suit challenging White's right to hold office. And because plaintiffs do not fit into any of the statutorily prescribed categories, they do not have a right of action herein. See Jones, 709 So.2d at 847. The trial court's judgment sustaining defendants' exception raising the objection of no right of action was not in error.
We now address plaintiffs' second assignment of error concerning whether the trial court erred in not affording them an opportunity to amend their petition before dismissing their suit with prejudice. Under La. Code Civ. P. art. 934, when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment. However, if the grounds of the objection cannot be removed, the action, claim, demand, issue, or theory shall be dismissed. La. Code Civ. P. art. 934. See Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La. App. 1 Cir. 3/27/97), 691 So.2d 751, 755, writ denied, 97-1066 (La. 6/13/97), 695 So.2d 982. Thus, the right to amend a petition is qualified by the restriction that the objection be curable. Hennig v. Alltel Communications, Inc., 2005-96 (La. App. 5 Cir. 5/31/05), 903 So.2d 1137, 1140. Where the amendment would be a vain and useless act, such an amendment is not required by Article 934. In re Succession of Russo, 2012-32 (La. App. 5 Cir. 5/22/12), 96 So.3d 1231, 1235.
Our de novo review of plaintiffs' petition and the applicable law reveals no reason to order an amendment of the petition in this case. Plaintiffs cannot remove the grounds of the objections raised under La. R.S. 42:76, La. R.S. 42:77, and La. R.S. 24:14. The law does not provide plaintiffs with any legal remedy, and plaintiffs cannot cure the defect by amending the petition.
CONCLUSION
For the above and foregoing reasons, we affirm the April 18, 2018 judgment of the trial court. We assess all costs associated with this appeal against plaintiffs-appellants, Jim and Brenda O'Brock, Luke and Vickie Roark, A.G. Crowe, Constance Diane Long, Mike Deshotel, Dennis Burks, Caryn Jenkins, Virginia Trahan, Jimmy Willoughby, and Earl Randolph Pinkley.