Lee v. Pennington

• Citation: 830 So.2d 1037
• Decision Date: 16 October 2002
• Docket Number: No. 2002-CA-0381.,2002-CA-0381.
• Parties: George LEE, III, v. Richard PENNINGTON, New Orleans Police Chief, in his Official and Individual capacity, Mayor Marc Morial, in his Official and Individual Capacity, ABC Insurance Co. and EFJ Insurance Co. Insuring Mayor Morial and Richard Pennington, et al.
• Court: Court of Appeal of Louisiana (US)

830 So.2d 1037

George LEE, III, v. Richard PENNINGTON, New Orleans Police Chief, in his Official and Individual capacity, Mayor Marc Morial, in his Official and Individual Capacity, ABC Insurance Co. and EFJ Insurance Co. Insuring Mayor Morial and Richard Pennington, et al.

No. 2002-CA-0381.

Court of Appeal of Louisiana, Fourth Circuit.

October 16, 2002.

COPYRIGHT MATERIAL OMITTED

Kenneth M. Plaisance, New Orleans, LA, Counsel for Plaintiff/Appellant.

Mary Ellen Roy, Sheryl A. Odems, Phelps Dunbar LLP, New Orleans, LA, Counsel for Defendant/Appellee, WWL-TV, Inc., Emmis Television Broadcasting, L.P., Tribune Television New Orleans, Inc. and New Orleans Hearst-Argyle Television, Inc.

James R. Swanson, Loretta G. Mince, Correro Fishman Haygood Phelps Walmsley & Casteix, New Orleans, LA, Counsel for Defendant/Appellee, The Times-Picayune Publishing Corporation.

(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).

LOVE, Judge.

George Lee (hereinafter "Plaintiff') appeals the judgment of the trial court denying his motion to consolidate, granting Defendant's motion to strike under La. C.C.P. art. 971 (hereinafter "Article 971"), and denying his motion to declare Article 971 unconstitutional. The Times-Picayune, WWL-TV, Inc., Emmis Television Broadcasting, L.P., Tribune Television, Inc., and New Orleans Hearst-Argyle Television, Inc. (hereinafter "Defendants" collectively) appeal the trial court's denial of attorney fees and costs under Article 971. For the following reasons, we affirm the trial court's denial of the motion to consolidate, denial of the motion to declare Article 971 unconstitutional, and grant of the motion to strike. We reverse the denial of attorney fees and costs, and remand to the trial court for determination in accordance with the findings of this Court.

FACTS AND PROCEDURAL HISTORY

On August 24, 1999, plaintiff George Lee, III, was arrested on two counts of aggravated rape and one count of forcible rape.¹ The New Orleans Police Department issued a news release detailing the arrest. Four New Orleans television stations aired segments regarding the Plaintiff's arrest that same evening, and the Times-Picayune published an article regarding the arrest the next day.

On February 23, 2000, Plaintiff filed a petition against Mayor Marc Morial, the City of New Orleans, Police Superintendent Richard Pennington, District Attorney Harry Connick, and their insurers claiming damages for defamation, violations of right to privacy, and contributing to and conspiring for malicious prosecution. The petition was amended on January 31, 2001, to add the Times-Picayune and several broadcast and news media channels for the aforementioned offenses. The petition was amended again on June 20, 2001, adding the tort of racial profiling in the media and violations of the abuse of right doctrine.²

Defendants filed a motion to strike under Article 971, and Plaintiff filed motions to declare Article 971 unconstitutional and to consolidate his case with those of Darryl Coulon and Donald Brooks. The trial court denied both of Plaintiff's motions. Defendants' motion to strike was granted. The trial court denied Defendants' request for attorney fees and costs. Plaintiff appeals the trial court's denial of his motions to consolidate and to declare Article 971 unconstitutional and the grant of Defendants' motion to strike. Defendants appeal the denial of attorney fees and costs.

LAW & DISCUSSION

The issues Plaintiff raises on appeal are whether: (1) Article 971 is unconstitutional; (2) the trial court erred by not consolidating his case with those of Darryl Coulon and Donald Brooks; (3) Defendants defamed him; (4) Defendants invaded his right to privacy and portrayed him in a false light; and (5) Defendants racially profiled him in the media. The only issue Defendants raise is whether the trial court erred by not awarding them reasonable attorney fees and costs pursuant to Article 971.

CONSTITUTIONALITY OF LA. C.C.P. ART. 971

Courts must construe statutes so as to preserve their constitutionality, when it is reasonable to do so. State v. Fleury, 2001-0871, p. 3 (La.10/16/01), 799 So.2d 468. In general, statutes are presumed to be constitutional and the party challenging the validity of the statute has the burden of proving it is unconstitutional. Soloco, Inc. v. Dupree, 97-1256, p. 3 (La.1/21/98), 707 So.2d 12, 14. Plaintiff challenges the constitutionality of Article 971 on the grounds that it violates the basic principles of statutory construction and equal protection, denies due process, and it violates the abuse of right doctrine. The provisions of the statute at issue provide as follows:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

* * *

E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor. (Emphasis added)

The first constitutional issue for us to consider is the constitutionality of the construction of Article 971. The Louisiana Supreme Court has emphasized, "the paramount consideration for statutory interpretation is the ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law." Fontentot v. Chevron U.S.A. Inc., 95-1425, p. 7 (La.7/2/96), 676 So.2d 557, 562, citing, Touchard v. Williams, 617 So.2d 885, 888 (La.1993). When Article 971 was enacted in 1999, the legislature found "there had been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances." La. C.C.P. art. 971. The intent of this statute is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process. Stern v. Doe, 2001-0914, p. 4 (La.App. 4 Cir. 12/27/01), 806 So.2d 98, 101.

Article 971 was enacted by the legislature as a procedural device to be used early in legal proceedings to screen meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press. Under Louisiana Civil Code article 9, "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." Our holding in Stern clearly articulates the standard to be applied in determining the "probability of success" as the standard and/or elements of the tort the plaintiff alleges the defendant committed, coupled with the legislative intent set forth when the statute was enacted. Therefore, we find no constitutional flaw with the construction of Article 971.

The second and most important constitutional issue before us is whether Article 971 violates the equal protection clause. Plaintiff argues that he is treated differently under this article from the State because enforcement actions brought by the State of Louisiana, attorney general, district attorney and city attorney are exempt from its application. "Generally, the guarantee of equal protection requires that state laws affect alike all persons and interests similarly situated." State v. Fleury, 2001-0871, p. 5 (La.10/16/01) 799 So.2d 468, 472, citing, State v. Petrovich, 396 So.2d 1318, 1322 (La.1981). The legislature has great latitude in making laws and in creating classifications under those laws, so long as those classifications can withstand constitutional muster. Id. In Sibley v. Board of Supervisors of La. State Univ. and Agric. and Mechanical College, 477 So.2d 1094 (La.1985), the court provided guidance when analyzing a legislative classification:

Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest.

Article 971 does not classify individuals by race or religious belief, nor does it use birth, age, sex, culture, physical condition, or political ideas as a basis for classification, therefore the legislature need only demonstrate the furtherance of an appropriate state interest by this article.

Under Article 971, the two classifications created are those who may or may not employ this article depending upon whether the plaintiff is a public entity exempt under this article.³ This article applies to the litigiousness of the public regarding First Amendment issues,...