Giordano v. Tullier

Decision Date12 March 1962
Docket NumberNo. 236,236
Citation139 So.2d 15,96 A.L.R.2d 365
PartiesFrank GIORDANO v. Albert J. TULLIER, Sr.
CourtCourt of Appeal of Louisiana — District of US

Cahn & Provensal, Sidney W. Provensal, Jr., New Orleans, for plaintiff-appellee.

Martin & Slater, Emile E. Martin, III, Beji. R. Slater, Jr., Port Sulphur, and Jerry A. Brown, New Orleans, for defendant-appellant.

Before REGAN, YARRUT and HALL, JJ.

LUTHER E. HALL, Judge pro tem.

The instant suit was filed on April 30, 1959 in the Twenty-fifth Judicial District Court for the Parish of Plaquemines by Frank Giordano, a former Registrar of Voters of said parish, against the defendant, Albert J. Tullier, Sr. In it Giordano seeks damages for malicious prosecution by Tullier of a civil suit which Tullier had filed against him individually and as Registrar of Voters for Plaquemines Parish in the United States Court for the Eastern District of Louisiana, and for alleged libellous matter contained in the pleadings thereof.

The defendant, Tullier, filed exceptions of no cause of action and of prescription which were overruled by the trial court and after a hearing on the merits judgment was rendered in favor of plaintiff, Giordano, in the sum of $17,914.74 plus interest and costs. The defendant, Tullier, prosecutes this appeal from that judgment. Plaintiff answered the appeal and prayed that the amount of the judgment be increased to $38,189.74 and as thus amended it be affirmed.

The suit in the Federal Court which is the basis of the controversy here was filed by Tullier under the Civil Rights Act (42 U.S.C.A. § 1983) on December 15, 1955. In this suit he prayed that Giordano as Registrar of Voters be ordered to register him as a voter in Plaquemines Parish. He also prayed for $5,000.00 damages against Giordano personally.

In his complaint in the Federal Court, Tullier alleged that he appeared at Giordano's office on September 12, 1955 for the purpose of registering to vote. The following averments inter alia were made in his complaint which he signed and swore to '5.

'b) Complainant entered the office of defendant during proper office hours, was handed a printed application blank in the form required by law which he filled out adequately and correctly in every detail and returned to defendant.

'7.

'b) Defendant informed complainant that this was a 'New Law', and that he could not register unless he complied literally therewith. Thereupon complainant being confused and dismayed by the turn of events left the office and returned to his home. Defendant's attitude was designed to and did induce the belief that some great and novel change had been made in the registration and electoral laws of the State which would render it difficult if not impossible for a person of complainant's education and standing to qualify to vote. Complainant was given no reasonable opportunity to interpret said clauses or sections though he would have been able to do so if accorded a reasonable opportunity.

'8.

'Complainant further avers that defendant, Frank Giordano, has been Registrar of Voters for the Parish of Plaquemines since about 1950. Said defendant and, in fact, his predecessors in office for over two decades, have never pursued the procedure of requiring the reading of any section or clause of the Constitutions of Louisiana or of the United States by any voters of the race, type and circumstances of complainant (he being of the Caucasian or White race); or requiring of them a reasonable interpretation thereof. Likewise, in the case of voters unable to read or write said defendant and his predecessors in office for over two decades have never read any section or clause of the State or Federal Constitutions and required the giving of a reasonable interpretation thereof.

'9.

'Complainant now shows that within the last six months or year defendant, Frank Giordano, adopted the policy of propounding a written questionnaire on the Constitutions of Louisiana or of the United States to voters who were either politically opposed to him or whom he suspected of being hostile to the political faction with which he is aligned and which has controlled the politics and public affairs of the Parish of Plaquemines for over two decades. Within the past six months or year defendant registrar adopted a definite and deliberate policy of attempting to disqualify, disfranchise and keep from voting any and all persons whom he felt would vote contrary to his wishes or those of the political faction with which he is aligned; and in said period of time, said defendant registrar has required applicants who were suspect by him to read various clauses of the Constitutions of the United States and of Louisiana and to write out their interpretations of said clauses even though written answers are not required by law. In the case of illiterates i.e., those unable to read or write, defendant registrar required them to give a reasonable interpretation and exhibit an understanding of various sections of the Constitutions of Louisiana or of the United States when read to them.

'10.

'Despite the fact that defendant registrar has propounded written questionnaires to a large number of voters whom he considered or believed to be opposed to him or his political faction, said defendant has never hesitated to register without any constitutional interpretations or readings those voters of his own political faction, party or alignment. In fact he has assisted them. Such policy and practice on the part of defendant was and is discriminatory and utterly null and void and complainant so pleads. Complainant annexes hereto for illustrative purposes a list of only a small number of those so registered and marks same Exhibit 'A'. All of them are on the registration rolls and are in a position to vote in the January 17, 1956 Democratic Primary Election.

'14.

'Complainant further avers that defendant has adopted a system calculated to dominate and overawe prospective registrants in that he does not open his office to the public but takes each registrant at a time into a small office and there proceeds to frighten and disconcert them by demanding an interpretation of clauses or sections of the Constitutions of Louisiana and the United States at his whim and caprice.

'15.

'Complainant alleges that the above described practices and actions of defendant in discriminating against him while permitting others to register who were unable to pass any constitutional test has had the effect of depriving him of his right to vote not only for candidates in primary elections but also in federal elections, i.e., for Congress, United States Senator and President. Furthermore, complainant alleges that the nomination of candidates in Democratic primaries is equivalent to election of said candidates due to the dominant position of the Democratic Party in Louisiana. Plaquemines Parish has adopted the Permanent Registration Law.'

Trial on the merits of this complaint was concluded in the Federal District Court on January 28, 1958. Judgment in favor of the defendant, Giordano, was rendered therein on February 8, 1958. The findings of the trial judge were that the evidence adduced did not substantiate the allegations of complainant, and that the actions of Giordano were not discriminatory so as to result in a denial of Tullier's constitutional rights. Tullier appealed and the appellate court affirmed the decision of the trial judge on March 24, 1959. (See 5 Cir., 265 F.2d 1).

Appellant's first assignment of error is that the District Judge erred in overruling his exception of prescription based on LSA-C.C. arts. 3536, 3537. Appellant concedes that in a suit for libel based upon allegations contained in judicial proceeding, the cause of action does not accrue until a trial has been had and there has been an opportunity to prove the truth or falsity of the alleged libellous allegations. See Manuel v. Deshotels, 160 La. 652, 107 So. 478; Howard v. Coyle, 163 La. 257, 111 So. 697; Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708. But appellant argues that the cause of action in the instant case accrued at the close of testimony in the Federal suit or in any event on the date the case was decided by the Federal District Judge since at that time the truth or falsity of Tullier's charges in the Federal suit were known to Giordano; and that this is especially so since one of the averments of Giordano's petition in the instant suit was to the effect that Tullier had admitted during the Federal Court trial that the charges made by him were untrue in whole or in part. Appellant also seems to concede that his argument would not apply to a suit for malicious prosecution, and attempts to draw a distinction as to when the cause of action accrues between a suit for libel based on judicial allegations in another suit, and a suit for malicious prosecution of that suit.

As we have pointed out this is both a suit for libel and for malicious prosecution. Moreover, our courts have never made the...

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