Opinion
2023 CA 0667
01-09-2024
Ernest L. JOHNSON v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. and Derrick Johnson
Arthur R. Thomas, Ernest L. Johnson, Robert Moseley Schmidt, Pamela T. Johnson, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Ernest L. Johnson Kim M. Boyle, Rebecca S. Sha, New Orleans, Louisiana, Counsel for Defendants/Appellees, National Association for the Advancement of Colored People, Inc. and Derrick Johnson
On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana, Trial Court Docket Number C-711703, Section 22, Hon. Timothy E. Kelley, Judge Presiding
Judge Timothy E. Kelley presided over the evidentiary hearing on the merits of appellant’s petition for writ of quo warranto and signed the judgment at issue in this appeal. However, Judge Beau Higginbotham now presides over Section 22 of the 19th Judicial District Court.
Arthur R. Thomas, Ernest L. Johnson, Robert Moseley Schmidt, Pamela T. Johnson, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Ernest L. Johnson
Kim M. Boyle, Rebecca S. Sha, New Orleans, Louisiana, Counsel for Defendants/Appellees, National Association for the Advancement of Colored People, Inc. and Derrick Johnson
BEFORE: THERIOT, PENZATO, AND GREENE, JJ. PENZATO, J.
2Plaintiff/appellant, Ernest L. Johnson, appeals a December 15, 2022 judgment dismissing his petition for writ of quo warranto in favor of defendants/appellees, National Association for the Advancement of Colored People, Inc. and Derrick Johnson. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The National Association for the Advancement of Colored People, Inc. was originally incorporated in 1911 in New York as a non-profit organization pursuant to Section 501(c)(3) of the Internal Revenue Code. On March 6, 2019, a certificate of amendment was filed, changing the organization’s name to "NAACP Empowerment Programs, Inc." Derrick Johnson, as president of the organization, signed the certificate of amendment. We refer to the New York entity as "the 501(c)(3)."
A certificate of incorporation was also filed on March 6, 2019, registering the "National Association for the Advancement of Colored People" as a Delaware corporation, organized and incorporated pursuant to Section 501(c)(4) of the Internal Revenue Code. Derrick Johnson signed this certificate of incorporation as "Incorporator." We refer to the Delaware entity as "the 501(c)(4)." We refer to the organization generally, without making a distinction between the 501(c)(3) and the 501(c)(4), as the "NAACP."
Ernest Johnson ("Mr. Johnson") is a lifetime member of the NAACP and served on the National Board of Directors from 2007 to February 2019, In a letter dated September 25, 202Q, the NAACP advised Mr. Johnson that his membership in the organization was suspended pending a hearing pursuant to Article X, Section 4 of the NAACP’s Bylaws for Units. The letter stated that, on September 19, 32020, Mr. Johnson prepared and issued a press statement "falsely suggest[ing]" that Derrick Johnson, in his individual capacity, took and used the name "NAACP" to incorporate a new 501(c)(4) entity in Delaware without authorization and without informing the NAACP Board of Directors. According to the letter, Mr. Johnson was present at various meetings of the NAACP Board of Directors wherein the restructuring of the organization was discussed and approved prior to March 2019, which specifically included forming a 501(c)(4) to serve as the NAACP’s parent entity. Therefore, the NAACP maintained that Mr. Johnson knowingly disseminated false information, and the Board of Director’s Executive Committee had determined that his continued membership in the NAACP presented a danger of harm to the organization.
As set forth in the 501(c)(4)’s Constitution, the term "Units" collectively refers to the state conferences and various branches and councils that form part of the NAACP
At Mr. Johnson’s request, a hearing was held before a panel of three NAACP board members. Mr. Johnson was present and participated in the hearing. Following the hearing and the panel’s deliberations, the panel submitted its findings and recommendations to the Committee on Membership and Units of the NAACP Board of Directors concerning Mr. Johnson’s suspension. The Committee then made recommendations to the full board. On February 20, 2021, the NAACP Board of Directors voted to suspend Mr. Johnson’s membership in the NAACP for five years. Mr. Johnson was advised of this decision by letter dated June 23, 2021.
Mr. Johnson filed the instant petition for writ of quo warranto on September 24, 2021, naming the 501(c)(4) and Derrick Johnson, as president and chief executive officer of the 501(c)(4) as defendants. Mr. Johnson sought a writ of quo warranto (1) directing Derrick Johnson to show by what authority he holds his office as president and chief executive officer of the 504(c)(4); (2) directing both defendants to show by what authority they suspended his membership in either the 501(c)(3) or the 501(c)(4); and (3) directing the 501(c)(4) to show what authority, if any, it has to transfer assets and/or members from the 501(c)(3) to the 501(c)(4) 4or other organization.
After filing an answer and opposition to the petition, the defendants raised a peremptory exception of prescription. See La. C.C.P. art. 927(A)(1). The defendants asserted that two of Mr. Johnson’s requests for relief - quo warranto directing Derrick Johnson to show by what authority he holds his office as president and CEO of the 501(c)(4) and quo warranto directing the 501(c)(4) to show what authority, if any, it has to transfer assets and/or members from the 501(c)(3) to the 501(c)(4) or other organization — were prescribed. Mr. Johnson did not file an opposition to the exception.
The trial court considered the exception of prescription as well as the merits of Mr. Johnson’s petition for writ of quo warranto on November 30, 2022. At the start of the hearing, Mr. Johnson’s counsel confirmed he had no objection to the defendants’ exception of prescription; therefore, the exception was granted, dismissing Mr.
Johnson’s demand for writ of quo warranto directing Derrick Johnson to show by what authority he holds his office as president and CEO of the 501(c)(4) and for writ of quo warranto directing the 501(c)(4) to show what authority, if any, it has to transfer assets and/or members from the 501(c)(3) to the 501(c)(4) or other organization. The evidentiary hearing proceeded on the only remaining issue, i.e., Mr. Johnson’s demand for writ of quo warranto directing both defendants to show by what authority they suspended his membership in the 501(c)(3) or the 501(c)(4).
Mr. Johnson, Derrick Johnson, and Leon Russell, Chairman of the Board of Directors for the NAACP, testified at the hearing. The parties also filed documentary evidence into the record. At the conclusion of the hearing, the trial court denied Mr. Johnson’s demand for writ of quo warranto, concluding that the defendants had the authority to suspend his membership pursuant to the NAACP’s Bylaws. The trial court signed a judgment, dismissing Mr. Johnson’s petition for 5writ of quo warranto with prejudice, on December 15, 2022.
On December 16, 2022, the trial court signed a second judgment granting the defendants’ peremptory exception of prescription. However, because the judgment signed on December 15, 2022, dismissed the petition for quo warranto in its entirety, the December 16, 2022 judgment is without effect. See La. C.C.P. art. 1951; Adam v. State ex rel. Department of Transportation and Development, 2008-1134 (La. App. 1st Cir. 2/13/09), 5 So.3d 941, 949, writ denied, 2009-0558 (La. 5/15/09), 8 So.3d 584. As noted, Mr. Johnson does not dispute that the two demands for quo warranto relief at issue in the defendants' exception are prescribed, and the issues presented in those demands were not before the trial court during the hearing on Mr. Johnson's remaining demand for quo warranto relief. Therefore, we do not consider the merits of these issues, which are not raised in Mr. Johnson’s appeal. See La. C.C.P. art. 2085 (An appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in a judgment rendered against him.)
This appeal by Mr. Johnson followed.
APPLICABLE LAW AND STANDARD OF REVIEW
[1, 2] Louisiana Code of Civil Procedure Article 3901 pertinently provides that a quo warranto is a writ directing a corpo- ration or limited liability company to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers. Unlike a mandamus, a writ of quo warranto is not an order directing the defendant to perform (or to cease performing) a certain act; rather, it is an order directing the defendant to show by what authority he is acting. La. C.C.P. art. 3901, Official Revision Comments - Comment (e); Billiot v. Wiltz, 2016-1047 (La. App. 3d Cir. 5/24/17), 222 So.3d 964, 967; Phi Iota Alpha Fraternity, Inc. v. Schedler, 2014-1620 (La. App. 1st Cir. 9/21/15), 182 So.3d 998, 1003. The writ of quo warranto, although required to be instituted by petition, is an extraordinary remedy, which may be tried summarily. See La. C.C.P. art. 3781. The trial court’s factual findings in a quo warranto proceeding are reviewed on appeal under the manifest error/clearly erroneous standard of review. Metro City Redevelopment Coal., Inc. v. Brockman, 2013-1615 (La. App. 1st Cir. 3/21/14), 143 So.3d 495, 498. Where the trial court’s factual findings are reasonable and adequately supported by the record, the trial court’s judgment is not manifestly erroneous. See Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993); 6 Goings v. State Through Department of Public Safety & Corrections, 94-1386 (La. 1/17/95), 648 So.2d 884, 888.
ISSUES ON APPEAL
In his first assignment of error, Mr. Johnson asserts that the trial court manifestly erred by dismissing his petition for writ of quo warranto with prejudice. In assignments of error two and three, Mr. Johnson argues that the trial court manifestly erred by finding that Mr. Johnson judicially confessed that his membership in the 501(c)(3) transferred to the 501(c)(4) and by concluding that his memberships in the 501(c)(3) "are in" the 501(c)(4).
As noted, Mr. Johnson’s demand for writ of quo warranto directing the 501(c)(4) to show what authority it had to transfer assets and/or memberships from the 501(c)(3) to the 501(c)(4) was dismissed on the defendants’ unopposed exception of prescription. We agree with the defendants, Derrick Johnson and the 501(c)(4), that assignments of error two and three concern issues that were part of this dismissed claim. During the evidentiary hearing on Mr. Johnson’s petition for writ of quo warranto, the trial court repeatedly recognized that issues concerning the alleged transfer of assets and memberships were dismissed on the exception of prescription and were "no longer in contest."
[3] Consequently, we do not consider whether the 501(c)(4) had the authority to transfer Mr. Johnson’s NAACP membership nor do we address how the transfer was accomplished. To the extent it is pertinent to the narrow, sole remaining issue on appeal, i.e., the authority to suspend Mr. Johnson’s membership, we conclude that the trial court’s finding that Mr. Johnson’s membership was, in fact, transferred is supported by the record. Mr. Russell and Derrick Johnson testified that, since the NAACP’s corporate restructuring in 2019, all NAACP memberships are held in the 501(c)(4). The governing documents for both entities reflect that all provisions related to membership were removed from the 501(c)(3) as of March 6, 2019 and 7are now contained in the Constitution and Bylaws for the 501(c)(4).
[4] Therefore, the issue is not whether Derrick Johnson and the 501(c)(4) had the authority to suspend Mr. Johnson’s membership in the 501(c)(3), as Mr. Johnson argues. Rather, the only remaining issue is whether the 501(c)(4) had the authority to suspend Mr. Johnson’s membership in the 501(c)(4). Again, we find the trial court’s factual conclusion on this issue is supported by the record.
The 501(c)(4)’s Bylaws for Units in effect at the time of Mr. Johnson’s suspension specifically set forth the grounds for suspension or other disciplinary action. Article X, Section 2, provides:
When an individual becomes a member of the NAACP, that individual pledges to abide by the rules and policies of the Association and the decisions of the Board of Directors. The Board of Directors, upon satisfactory evidence that an officer or member of the Association, or of a subsidiary Unit of the Association is guilty of conduct not in accord with the principles, aims and purposes of the National Association for the Advancement of Colored People, as set forth in its Constitution, and as defined by the Board or Convention, or guilty of conduct inimical to the best interests of the National Association for the Advancement of Colored People, may order suspension, expulsion or other disciplinary action against such officer or member, after a full hearing if requested by the respondent in accord with the provisions of this Constitution.
Mr. Johnson does not dispute that he issued the press statement, which the NAACP found contained false information, nor does he argue that the NAACP erroneously concluded that his conduct was inimical to the best interests of the NAACP. He likewise does not challenge the procedure used by Derrick Johnson and the 501(c)(4) (through its Board of Directors) to accomplish the suspension.
Testimony from Mr. Russell and Derrick Johnson established that Mr. Johnson’s suspension was carried out in accordance with the NAACP’s Bylaws for Units. An emergency meeting of the NAACP’s Executive Committee was called on September 24, 2020 to discuss Mr. Johnson’s press release. The Executive Committee voted to authorize Derrick Johnson to immediately suspend Mr. Johnson’s membership and provide him with the opportunity to have a hearing 8according to the "NAACP’s due process," A hearing was held following Mr. Johnson’s interim suspension. The hearing panel then submitted its findings and recommendations to the Committee on Membership and Units, the Committee’s recommendations were presented to the NAACP Board of Directors, and, finally, the Board of Directors voted to suspend Mr. Johnson’s membership for five years. Mr. Johnson offered nothing to dispute this evidence. Therefore, we find the trial court properly dismissed Mr. Johnson’s petition for writ of quo warranto with prejudice.
DECREE
We affirm the December 15, 2022 judgment dismissing Ernest L. Johnson’s petition for writ of quo warranto in favor of National Association for the Advancement of Colored People, Inc. and Derrick Johnson. All costs of this appeal are assessed against Ernest L. Johnson.
AFFIRMED.