Lacerte v. State

• Decision Date: 04 January 2021
• Docket Number: 2019 CA 1401
• Citation: 317 So.3d 763
• Court: Court of Appeal of Louisiana — District of US
• Parties: David LACERTE v. STATE of Louisiana, Daryl Purpera, Individually and in His Official Capacity as Louisiana Legislative Auditor, Stephen Street, Jr., Individually and in his Official Capacity as State Inspector General

317 So.3d 763

David LACERTE

v.STATE of Louisiana, Daryl Purpera, Individually and in His Official Capacity as Louisiana Legislative Auditor, Stephen Street, Jr., Individually and in his Official Capacity as State Inspector General

2019 CA 1401

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JANUARY 04, 2021

Jill L. Craft, W. Brett Conrad, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, David LaCerte

Jeff Landry, Louisiana Attorney General, Baton Rouge, Louisiana /and/ Andre Charles Castaing, David G. Sanders, Baton Rouge, Louisiana /and Thomas M. Flanagan, Camille E. Gauthier, New Orleans, Louisiana, Counsel for Defendants/Appellees, State of Louisiana & Daryl G. Purpera, individually & in his official capacity as Louisiana Legislative Auditor

Jeff Landry, Louisiana Attorney General, Baton Rouge, Louisiana /and/ Preston J. Castille, Jr., Vicki M. Crochet, Ne'Shira Millender, Katia D. Bowman, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Stephen Street, Jr., individually & in his official capacity as State Inspector General

BEFORE: WHIPPLE, C.J., GUIDRY, WELCH, THERIOT AND WOLFE, JJ.

WOLFE, J.

This appeal primarily concerns whether the State of Louisiana, the Louisiana Legislative Auditor and the State Inspector General have constitutionally protected rights to freedom of speech such that these defendants can satisfy their initial burden of proof under La. Code Civ. P. Art. 971, Louisiana's special motion to strike.

For the foregoing reasons, we find these defendants cannot, as a matter of law, demonstrate that their speech was constitutionally protected and, thus, cannot satisfy the threshold requirements of Article 971. We reverse the trial court's judgment that granted the defendants’ Article 971 motion and denied the plaintiff's "Expedited Motion to Strike" the defendants’ Article 971 motion. We likewise deny the relief sought by the defendants in their answer to the appeal.

FACTS AND PROCEDURAL HISTORY

David LaCerte, a former United States Marine, served as Secretary of the Louisiana Department of Veterans Affairs from June 2014 to October 2015. Prior to this, Mr. LaCerte served as Interim Secretary and Deputy Secretary of the Department.

On January 31, 2017, Mr. LaCerte filed a defamation suit against Daryl Purpera, individually and in his official capacity as Louisiana Legislative Auditor; Stephen Street, Jr., individually and in his official capacity as State Inspector General; and the State of Louisiana. Mr. LaCerte's defamation cause of action arises out of a joint investigation conducted by the Legislative Auditor and the Inspector General that culminated in a report published by the defendants, via a press release, on February 1, 2016. Mr. LaCerte alleges that the report and press release wrongfully accused him of criminal conduct, including falsifying public records by providing an inaccurate military biography on the Department's website and engaging in "questionable" hiring, spending, travel and organizational practices during his tenure with the Department.

After answering the petition, Mr. Purpera, individually and in his official capacity, filed an exception of no cause of action based on legislative immunity. The exception was granted as to the claim for defamation arising out of the joint investigation report but was denied as to claims arising out of the press release. Mr. Purpera's writ application to this court was denied on May 14, 2018. David LaCerte v. State of Louisiana, Daryl Purpera, individually and in his official capacity as Louisiana Legislative Auditor, Stephen Street, Jr., individually and in his official capacity as State Inspector General, 2017-1727 (La. App. 1st Cir. 5/14/18), (unpublished writ action) 2018 WL 2202302. The Louisiana Supreme Court likewise denied Mr. Purpera's writ application on October 8, 2018. David LaCerte v. State of Louisiana, Daryl Purpera, individually and in his official capacity as Louisiana Legislative Auditor, Stephen Street, Jr., individually and in his official capacity as State Inspector General, 2018-0966 (La. 10/8/18), 253 So.3d 792.

Shortly thereafter, on October 30, 2018, the defendants filed a joint special motion to strike pursuant to La. Code Civ. P. Art. 971. The defendants moved to dismiss Mr. LaCerte's suit for defamation in its entirety, against all defendants in their individual and official capacities, asserting that he cannot meet his burden of proving a likelihood of success on the merits of his defamation claim. As an alternative to their request for complete dismissal, the defendants asserted an exception raising the objection of no cause of action to dismiss Mr. LaCerte's claims against Mr. Street and Mr. Purpera in their individual capacities.¹

Mr. LaCerte opposed the defendants’ Article 971 motion and filed an "Expedited Motion to Strike." Mr. LaCerte argued that the defendants’ motion, filed more than twenty months from the date of service of the petition, was untimely per Article 971(C)(1), which provides, in part, that a motion may be filed within ninety days of service of the petition. Mr. LaCerte further argued that the State as well as Mr. Street and Mr. Purpera in their official capacities have no constitutional rights and, thus, are not "persons" for purposes of Article 971. Accordingly, Mr. LaCerte maintained that these defendants are not entitled to relief on their special motion to strike.

A hearing on the defendants’ Article 971 motion as well as Mr. LaCerte's motion to strike was held on April 29, 2019. After first hearing argument on Mr. LaCerte's motion, the trial court ruled in favor of the defendants, finding the special motion to strike was timely filed in light of the case's procedural history and rejecting Mr. LaCerte's argument that the State and official capacity defendants are not "persons" for purposes of Article 971. The court thereafter heard argument on the defendants’ Article 971 motion before granting the motion from the bench and providing oral reasons for ruling.

A written judgment was signed in conformity with the trial court's rulings, and this appeal by Mr. LaCerte followed. Mr. LaCerte maintains that the trial court erred by denying his motion to strike and by granting the defendants’ Article 971 motion.² The defendants answered the appeal, seeking an award of attorney's fees pursuant to Article 971(B) for the work done in connection with the appeal.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure Article 971 provides, in pertinent 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.

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C. (1) The special motion may be filed within ninety days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper.

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D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

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F. As used in this Article, the following terms 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 under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:

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(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.

(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

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A shifting burden of proof applies to an Article 971 motion. First, the mover must establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. If the mover satisfies this initial burden of proof, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Regan v. Caldwell, 2016-0659 (La. App. 1st Cir. 4/7/17), 218 So.3d 121, 126, writ denied , 2017-0963 (La. 4/6/18), 239 So.3d 827. The granting of a special motion to strike presents a question of law. Appellate review regarding questions of law requires a de novo review to determine whether the trial court was legally correct or incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Id.

Both parties attached exhibits to their memoranda in support of and in opposition to the defendants’ Article 971 motion; however, the transcript and minutes from the April 2019 hearing reflect that neither party introduced those exhibits into evidence during the hearing. Evidence attached to memoranda but not properly and officially offered and introduced cannot be considered on appeal, even if it is physically placed in the record. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Landis Construction Company, L.L.C. v. State, 2015-1167 (La. App. 1st...