Detraz v. Fontana, 81-C-3033

• Court: Supreme Court of Louisiana
• Citation: 416 So.2d 1291
• Docket Number: No. 81-C-3033,81-C-3033
• Parties: Mrs. Francois Maude DETRAZ et al. v. Anthony J. FONTANA, Jr. et al.
• Decision Date: 02 July 1982

Page 1291

416 So.2d 1291

Mrs. Francois Maude DETRAZ et al. v. Anthony J. FONTANA, Jr. et al.

No. 81-C-3033.

Supreme Court of Louisiana.

July 2, 1982.

Anthony J. Fontana, Jr. of Theall & Fontanna, Abbeville, for applicants.

Paul G. Moresi, Jr. of Broussard, Broussard & Moresi, Ltd., Abbeville, for respondents.

DIXON, Chief Justice.

In a third party demand to a libel suit third party defendants Hulin and the police jury filed a rule to require third party plaintiffs Fontana and Dore to furnish a bond for attorney's fees under R.S. 42:261 E. ¹ Fontana and Dore opposed the rule on the ground that the statute violates the equal protection clause of the state and federal constitutions, that Hulin and the police jury are not public officials, and that no attorney's fees were being incurred by the third party defendants because they were represented by the district attorney. On November 20, 1980 the trial court ordered Fontana and Dore to post bond in the amount of $15,000 before December 20, 1980, in default of which the third party demand would be dismissed. No bond was posted; on December 23, 1980 the third party claim was dismissed with prejudice.

The court of appeal upheld the constitutionality of R.S. 42:261 E. The trial court's ruling was reversed insofar as it applied the provision to the police jury, the court noting that the statute does not encompass public bodies; the court also ruled that the third party demand should have been dismissed without prejudice. 406 So.2d 248 (La.App.1981).

We granted certiorari to address the constitutional challenges raised by third party plaintiffs.

1. History

R.S. 42:261 E provides:

"Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter arising out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.

The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause." (Footnote omitted).

By Act 304 of 1960 the legislature added subsection D (now E) to R.S. 42:261; it was passed by a unanimous vote of each branch of the legislature and signed into law by Governor Jimmie Davis. Although the legislative history of this particular act is not available, a review of documents endorsed by the legislature during the 1960 Regular Session reveals the motivating force behind the passage of many of these bills. The legislature approved thirty-five acts and proposed four constitutional amendments which deal with interracial relations. ² Wollett Race Relations, 21 La.L.Rev. 85, n. 1 (1961). According to Professor Wollett:

"Many of these acts do not purport, on their face, to deal with segregation or any other aspect of race relations as such. It seems likely, however, on the basis of the facts set forth in legislative debates, discussions, and comments, that in operation they will affect primarily the Negro population of the state."

A joint resolution of the legislature evidences the contempt of state leaders for the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). ³ In the resolution the state legislature announced its determination to carry on the fight to "maintain segregation of the races in all phases of our life in accordance with the customs, traditions and laws of our State ..." ⁴ The statute now before us would further this purpose by making it extremely costly, if not prohibitive, for minority groups or individuals to bring suit against any public official (school board member, police officer, police juror) ⁵ for the redress of grievances suffered because of race. The statute classifies litigants as either public officials or those not public officials. Public officials can recover attorney's fees if the plaintiff is unsuccessful, and obtain a bond for attorney's fees before trial. Defendants who are not public officials can recover attorney's fees only in certain kinds of cases as provided by statute. ⁶

Wide discretion is normally afforded legislative classifications; the legislative judgment will be upheld "if any state of facts reasonably may be conceived to justify it." McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961). Racial classifications, however, must be considered in "light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. State of Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, 228 (1964). For this reason, racial classifications are suspect and subject to the "most rigid scrutiny." Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Brown v. Board of Education, supra. If viewed by this stringent test the statute could not pass constitutional muster (if it were established that racial reasons caused the classification, a fact not evident from the face of the statute). The purported purpose of protecting public officers from litigation brought solely for its harassment value would not satisfy the requirement of a "compelling governmental interest." Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

Other than suits for taxes or voter registration, the statute applies to suits, of whatever kind, brought by any person, including paupers, so long as the party defendant is a public official.

The appellate courts have fashioned various jurisprudential exceptions to the statute to avoid its harsh application. In Jones v. Anderson, 277 So.2d 697 (La.App.1973), writ denied 279 So.2d 697 (La.1973), the court held that a bond for attorney's fees could not be imposed on an indigent. The court examined the language in R.S. 42:261 E which states that the plaintiff may be required to furnish bond "as in the case of bond for costs" and analogized this provision to R.S. 13:4522, concluding that since no bond for costs can be required of an indigent under the latter statute, no bond could be demanded under R.S. 42:261 E.

In Cogswell v. Town of Logansport, 321 So.2d 769 (La.App.1975), writ denied, 322 So.2d 768 and 323 So.2d 479 (La.1975), a writ of mandamus was sought by a town to compel its police chief to put an abandoned trailer in the abandoned vehicles lot. The police chief asked that the town post bond. On original hearing, the court held that R.S. 42:261 E does not apply to mandamus actions where suit is brought to compel performance of an official duty. (On rehearing, the court decided a stipulation by the parties that the officer was sued on a matter arising out of the performance of his duties precluded a determination of whether mandamus was intended to be within the actions to which the statute applies).

In Collins v. Rozands, 385 So.2d 332 (La.App.1980), the court avoided the constitutional question by finding that the public officials were represented by insurance companies who were paying the expenses of defense, and, therefore, no attorney's fees were actually "incurred" by any official.

One appellate court has upheld the statute against constitutional attack. In Houston v. Brown, 292 So.2d 911, 915 (La.App.1974), an action was brought against the City of Shreveport and a police officer for personal injuries sustained during an arrest. The court held that the statute did not deny "a meaningful opportunity to be heard," and that the Fourteenth Amendment did "not demand access to the courts for all individuals in all circumstances." The bond requirement was considered a legitimate exercise of legislative control over litigation.

2. Equal Protection

The state and federal constitutional guarantees of equal protection mandate that state laws affect alike all persons and interests similarly situated. U.S.Const.Amend. XIV; La.Const. art. 1, § 3 (1974). The effect of the bond requirement is to create two classes of litigants indistinguishable from each other except that one is a private citizen and the other is an elected or appointed public official. As a result of this distinction the class composed of public officials is entitled to demand that a bond for attorney's fees be furnished before the litigation may proceed; no corresponding privilege is afforded members of the other class. Litigants generally are required to pay their own attorney's fees in Louisiana. Failure to post the bond will result in dismissal of the lawsuit. ⁷ This statutory scheme creates a classification which substantially burdens the right of some persons to be compensated for injuries suffered by them while not placing such a burden on other individuals. Such classifications are permissible only if they are:

"... reasonable, not arbitrary, and ... rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike...." Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed.2d 989, 990-991 (1920).

Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, 229 (1971); Dandridge v. Williams, 397 U.S. 471, 520-522, 90 S.Ct. 1153, 1179-1180, 25 L.Ed.2d 491, 522-523 (1970) (Marshall, J., dissenting).

It is argued that the bond requirement is a justifiable means to deter frivolous suits instituted against public officials for harassment. No support for the...