972854 La.App. 1 Cir. 2/20/98, Jones v. Board of Ethics for Elected Officials

Decision Date20 February 1998
Citation709 So.2d 841
PartiesCir
CourtCourt of Appeal of Louisiana — District of US

Lewis O. Unglesby, Baton Rouge, for Plaintiff-Appellee-Respondent Charles D. Jones.

R. Gray Sexton, Maris L. McCrory, Jennifer G. Magness, Baton Rouge, for Defendant-Appellant-Relator Board of Ethics for Elected Officials.

Ernest L. Johnson, Baton Rouge, for Louisiana Legislative Black Caucus and Louisiana State Conference NAACP Amicus Curiae.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

[972854 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

The defendant, Board of Ethics 1, appeals the grant of a preliminary injunction in favor of plaintiff, Charles D. Jones, "enjoining and restraining Defendant--Board of Ethics from taking any action adverse to Petitioner or proceeding in any matter involving Petitioner." (Docket No. 97 CA 2854). Further, the Board of Ethics, as relator, has applied for a supervisory writ seeking to review the trial court's failure to grant relator's declinatory exception raising the objection of lack of subject matter jurisdiction and the peremptory exception raising the objections of no cause of action, nonjoinder of an indispensable party and res judicata. Relator also seeks review of the failure of the trial court to allow relator to introduce affidavits at the preliminary injunction hearing, and the grant of the preliminary injunction. (Docket No. 97 CW 2686).

PROCEDURAL HISTORY

Plaintiff filed suit on July 18, 1996, against the Board of Ethics seeking injunctive relief and a restraining order. In his petition, plaintiff alleged: that he is a state senator and that the Board of Ethics has jurisdiction over him pursuant to La.R.S. 42:1132, et seq.; that the Board scheduled a hearing for August 1 and 2, 1996, to be held in Baton Rouge, and as required by La.R.S. 42:1141(C) no hearing can be held in Baton Rouge without his consent; that the procedure to be employed by the Board is unconstitutional and denies him fundamental due process and procedural due process; that the Board sent out subpoenas through its counsel of record, who also serves as administrative aide to the Board, attorney to the Board, investigator for the Board, prosecutor of the complaint, and advisor to the Board on the form and substance of its judgments; that the complaint that gave rise to the investigation against the plaintiff has been withdrawn, but upon advice from counsel to the Board, the hearing date and evidence regarding the complaint have been maintained; that in the absence of the original complaining witness or any complaining witnesses, the Board is proceeding in this matter in violation of procedural due process; that the Board is proceeding with charges that, even assuming the allegations were true, do not constitute violations of the Ethics Code; that plaintiff can and will prove his allegations as [972854 La.App. 1 Cir. 3] contained in the petition; that if plaintiff is denied the opportunity to prove the allegations as set forth in his petition and to stay the Board's proceedings he will suffer irreparable harm, but in any event the Board is proceeding in violation of law and no showing of irreparable harm is required; that the administrative counsel/prosecutor/assistant attorney general/legal advisor to the Board has conducted the investigation, drawn up the charges, and advised the Board as to the sufficiency of cause to conduct the hearing; that the Board intends to present this evidence at the hearing and that the Board has acted with the counsel/prosecutor/assistant attorney general/legal advisor to the Board in the investigation and charging/prosecutorial phases and will serve as judge and jury at the hearing; that the above procedure is in conflict with In re Georgia Gulf Corporation, 95-1694 (La.App. 1 Cir. 6/28/96); 676 So.2d 1187, that the facts of this case are covered by Georgia Gulf; and if prevented from doing so, the Board will go forward with the hearing on August 1, 1996; and that the Board is acting in violation of La.R.S. 49:960 A.

Plaintiff concludes that "it is the intention of the Board of Ethics to go forward against him in spite of its knowledge of the holding in the Georgia Gulf Corporation case, in direct contravention of the holding of the First Circuit Court of Appeal which is the controlling appellate court for the Board of Ethics, R.S. 42:1142, and in direct contravention of the requirements of procedural due process." Plaintiff prayed for a temporary restraining order and preliminary and permanent injunction.

On the same date, the trial court issued a temporary restraining order and set a hearing date for the preliminary injunction.

The Board applied to this court for supervisory writs to the trial court, and in Charles D. Jones v. Board of Ethics for Elected Officials, 96-1547 (La.App. 1st Cir. 7/30/96), this court held that the trial court lacked subject matter jurisdiction. Plaintiff herein then applied to the Louisiana Supreme Court for a writ of certiorari, which was granted on October 4, 1996. Ultimately the supreme court in Charles D. Jones v. Board of Ethics for Elected Officials, 96-2005 (La.5/9/97); 694 So.2d 171, reversed this court on the issue of subject matter jurisdiction, holding:

Even though in the present case we are faced with a constitutional challenge to the procedure of the Board of Ethics, unlike Midboe's [Midboe v. Commission on Ethics for Public Employees, 94-2270 (La.11/30/940); 646 So.2d 351] challenge to the constitutionality of a statute, we find the district court under these circumstances is vested with subject matter jurisdiction to [972854 La.App. 1 Cir. 4] decide a due process challenge to the procedure which the Board of Ethics utilizes to determine an alleged violation of the Code of Governmental Ethics. La. Const. art. 5 § 1; La. Const. 5 § 16. Accordingly, in the present case we conclude that the district court had subject matter jurisdiction to hold a hearing on Jones' petition for injunctive relief and a restraining order.

96-2005 p. 4, 694 So.2d at 173. The supreme court remanded the case to the district court for further proceedings consistent with the views expressed in its opinion and in Georgia Gulf.

The Board applied to the supreme court for a rehearing, conceding the district court had subject matter jurisdiction and suggesting that it was not necessary to remand to the district court because there had been no hearing to review, and any hearing would be conducted in accordance with the dictates of Georgia Gulf. The supreme court agreed Jones v. Board of Ethics for Elected Officials, 96-2005 (LA.6/20/97); 696 So.2d 549, on rehearing, and held:

In view of our Georgia Gulf decision, the procedure of the Board must change to comport with the views expressed therein; hence it is no longer necessary to adjudicate the constitutionality of the procedures formerly employed by the Board. Relator [Jones] will be fully protected in the future hearing by the right to assert on appeal any due process violations or other complaints about the hearing procedure used by the Board, or to otherwise seek any appropriate review of rulings and procedures before, during or after the hearing.

96-2005, p. 2, 696 So.2d at 550.

On October 7, 1997, plaintiff filed a "Supplemental Petition" in the original trial court proceeding alleging: that the Board of Ethics had replaced the Board of Ethics for Elected Officials; that the Board of Ethics shall consist of eleven members who shall be representative of the state's population as near as practicable; that of the eleven members, only one is a woman, representing 9% of the Board's membership and two are black, representing 18% of the Board's membership; that according to the 1990 census, 51.86% of the population is female, 48.14% is male, and 30.8% is black; that the Board's membership is violative of the statute because it is not representative of the state's population as near as practicable and thus the Board is illegally constituted; that these issues cannot be presented to the Board because it lacks jurisdiction thereof; that the Board had scheduled a hearing for November 19, 1997; and that plaintiff will suffer irreparable harm unless a temporary restraining issued herein.

[972854 La.App. 1 Cir. 5] TRIAL COURT

A hearing on the preliminary injunction, to dismiss, declinatory exception raising the objection of lack of subject matter jurisdiction and the peremptory exception raising the objections of no cause of action, nonjoinder of an indispensable party, and res judicata was held on October 17, 1997. The motion to dismiss was argued and denied. The exceptions were argued and referred to the merits. Evidence was introduced on the preliminary injunction, and the matter was submitted and taken under advisement.

On November 5, 1997, the trial court assigned extensive oral reasons for judgment. The objections of lack of subject matter jurisdiction, nonjoinder and res judicata were overruled, and the preliminary injunction was granted. The objection of no cause of action was not specifically denied by the trial judge, but inasmuch as the trial court granted the preliminary injunction, the objection was denied by implication. Judgment was signed on November 11, 1997.

The trial court determined that the makeup of the Board did not comply with legislative intent and a preliminary injunction should issue. In so ruling the trial judge said:

Moreover, the phraseology "which shall be representative of the state's population as near as practicable" was purposefully inserted in the law for legislative and gubernatorial appointees and which essentially means "generally reflects the diversity of the state." (See committee on senate and governmental affairs, verbatim transcript, page 24, meeting of March 27, 1996, Senator Jay Darden[ne] chairing.)

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