Hebert v. Lic. Profess. Voc. Rehab. Couns.

• Decision Date: 23 January 2008
• Docket Number: No. 2007-610.,2007-610.
• Citation: 974 So.2d 824
• Parties: Glenn M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS and Sy Arceneaux.
• Court: Court of Appeal of Louisiana — District of US

974 So.2d 824

Glenn M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS and Sy Arceneaux.

No. 2007-610.

Court of Appeal of Louisiana, Third Circuit.

January 23, 2008.

R. Scott Iles, Lafayette, LA, for Plaintiff/Appellant, Glenn M. Hebert.

David A. Hurlburt, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellee, Sy Arceneaux.

Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendants/Appellees, Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners.

Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, BILLY H. EZELL, Judges.

COOKS, Judge.

STATEMENT OF THE FACTS

Julius Jeansonne was injured while engaged in the course and scope of his employment. His employer hired Sy Arceneaux to provide Mr. Jeansonne with vocational rehabilitation services. Mr. Jeansonne then hired Glenn M. Hebert, another vocational rehabilitation counselor, to assess the rehabilitation work which had been performed thus far by Mr. Arceneaux and to identify additional work opportunities. Mr. Hebert found the rehabilitation work performed by Mr. Arceneaux below acceptable standards and dubbed it "sham rehabilitation" as that term was used by this court in Maxie v. Brown Industries, 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/98), 661 So.2d 469. Mr. Hebert communicated his assessment to Mr. Jeansonne in two separate letters.

Mr. Arceneaux "took offense to the opinions expressed by Mr. Hebert" concerning his work and sought redress for his grievance by bringing his complaint before the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners (the Board). Mr. Arceneaux appeared before the Board and testified with respect to his complaint against Mr. Hebert. The Board found Mr. Hebert violated § 1604, Canon 4(A)(7) which provides:¹

Licensed rehabilitation counselors will not discuss the competency of other rehabilitation counselors or agencies (including judgments made, methods used or quality of rehabilitation plans) in a disparaging way with their clients.

The Board issued an official reprimand to Mr. Hebert and required him to complete a pre-approved course of study in ethics. The Board directed that the course of study must be submitted for prior approval and must be completed within six months of the final decision of the Board. The Board warned Mr. Hebert that failure to complete the course of study would result in further sanctions.

Mr. Hebert then filed suit in district court for mandamus and damages against Mr. Arceneaux and the Board. The petition alleged Mr. Arceneaux and the Board "conspired through an abuse of process to obtain ethical action by way of an ethical complaint." The petition sought damages for libel and a dismissal of the ethical complaint. The Board filed exceptions of improper venue, failure to exhaust administrative remedies, lack of subject matter jurisdiction, failure to state a cause of action and res judicata. Mr. Arceneaux filed a special motion to strike under La.Code Civ.P. art. 971.

On December 4, 2006, the trial court granted Mr. Arceneaux's motion to strike under La.Code Civ.P. art. 971 and dismissed Mr. Hebert's claim against him. The trial court also awarded $5,000 in attorney's fees as mandated under the statute. The Board's exceptions were set for hearing on January 29, 2007. Prior to the hearing, the trial court determined that venue in Lafayette Parish for a claim against the Board was only proper if Mr. Arceneaux was a defendant. Since Mr. Arceneaux was dismissed from the suit, the trial court signed a judgment dismissing "without prejudice" Mr. Hebert's petition against the Board on the basis of improper venue. The other pending exceptions filed by the Board were not addressed. Mr. Hebert filed this appeal. For the reasons assigned below, we reverse the judgment of the trial court dismissing the Board and Mr. Arceneaux and remand for amendment of the pleadings and further proceedings consistent with this opinion.

Applicability of Motion to Strike under La.Code Civ.P. art. 971

Mr. Hebert filed suit against the Board and Mr. Arceneaux seeking damages for libel and "abuse of process." We have examined Mr. Hebert's petition and find he has articulated, though inartfully, sufficient facts to allege the Board and Mr. Arceneaux acted in concert to infringe on his constitutional right. The facts as pled clearly evidences Mr. Hebert is claiming that the Defendants violated his right to freely communicate with Mr. Jeansonne without reprisal or public reprimand. In response, Mr. Arceneaux filed a Motion to Strike under La.Code Civ.P. art. 971 which provides, in relevant part:

(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.

.....

(B) In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney's fees and costs.

....

(F) As used in this Article, the following term shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:

(1) "Act in furtherance of, a person's right of petition or free speech of the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:

(a) Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law.

(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

Mr. Arceneaux correctly asserts the intent of this statute is to encourage an open exchange of information and ideas and to insure that an individual's right to speak out on a public issue will not be chilled by frivolous lawsuits. Lamz v. Wells, 05-1497 (La.App. 1 Cir. 6/9/06), 938 So.2d 792; Stern v. Doe, 01-914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98; Davis v. Benton, 03-851 (La.App. 1 Cir. 2/23/04), 874 So.2d 185. Mr. Arceneaux contends he was ethically bound to report any alleged violations of the Code of Ethics to the Board and Mr. Hebert's lawsuit suppresses his right to speak out on a public issue. Mr. Arceneaux admits he "took offense to the opinions expressed by Mr. Hebert" regarding his work. He sought redress for his grievance by using the Board process to vindicate his personal grievance against Mr. Hebert.

Mr. Hebert alleges the Board and Mr. Arceneaux acted in concert to suppress his right to voice his opinion. The Constitution protects individuals from governmental interference with their First Amendment rights and creates a cause of action against those individuals acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" to accomplish this end. See 42 U.S.C. § 1983. Private individuals are subject to liability in situations when the individual acts as a "willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). "A conspiracy between the private individual and state actors to achieve a common goal of depriving an individual of [constitutional] rights will suffice to establish that the private defendants acted under color of state law. Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435 (7 Cir.1986). Mr. Arceneaux does not deny he brought his complaint to the Board and was a willing participant along with the Board in the process which sanctioned Mr. Hebert for expressing his opinion regarding the work performed by Mr. Arceneaux. Mr. Arceneaux urges, however, he is immune from suit and is entitled to rely on La.Code Civ.P. art. 971 in seeking to strike Mr. Hebert's petition.

First, we find Mr. Arceneaux's reliance on La.Code Civ.P. art. 971 is misplaced. This statute was intended to remedy abuses in the legal system and to prevent individuals from using a judicial proceeding or administrative process to "chill the valid exercise of constitutional rights of freedom of speech." We do not believe the legislature in enacting La.Code Civ.P. art. 971 intended to bar parties seeking redress for violations of their First Amendment rights by the State, and others acting in concert with the State, from filing legitimate civil rights suits. In addition, La.Code Civ.P. art. 971 is unavailable to strike a plaintiffs petition when there is a probability of success on the claim raised in the pleadings. Mr. Hebert's complaint attacks the Board's authority on the behest of Mr. Arceneaux and under "color of state law" to sanction him for commenting on the substandard quality of Mr. Arceneaux's services. The Board insists that it acted in conformity with the authority granted to it by the State of Louisiana and the national standards applicable to vocational rehabilitation counselors.

Authority of the Board

The Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of. Examiners was created under the Department of Health and Hospitals. La. R.S. 37:3441-3452. The legislature determined "that activities of those persons who render service to the public in the rehabilitation counseling area and use the title `licensed professional vocational rehabilitation counselor' should be regulated for the protection of public health, safety, and welfare." La.R.S. 37:3442. The primary obligation of the vocational...