Vs. C : PARISH OF JEFFERSON DAVIS JACOB COLBY PERRY : STATE OF LOUISIANA FILED: : DEPUTY CLERK OF COURT

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1 CAROLYN LOUVIERE : 31 st JUDICIAL DISTRICT COURT Vs. C : PARISH OF JEFFERSON DAVIS JACOB COLBY PERRY : STATE OF LOUISIANA FILED: : DEPUTY CLERK OF COURT OPPOSITION TO THE MOTION TO STRIKE OF JACOB COLBY PERRY, WITH INCORPORATED MEMORANDUM NOW INTO COURT, through undersigned counsel, comes Plaintiff, CAROLYN LOUVIERE (hereinafter, Plaintiff ), who respectfully oppose the Special Motion to Strike Pursuant to LSA-C.C.P. Art. 971 (hereinafter Motion to Strike ) filed in the above matter by JACOB COLBY PERRY (hereinafter, Defendant ). For the reasons assigned in this Opposition and the incorporated Memorandum, this Honorable Court should deny the subject motion. Opposition to the Motion to Strike and Summary of Argument. The Motion to Strike filed by Defendant is a house of cards of two levels. The burdens of the Motion to Strike will fall if either level cannot support the weight of the associated burdens. The primary support offered to dismiss the claims of Plaintiff falls within the requirements of the Motion to Strike. However, within the requirements of the Motion to Strike, Plaintiff must rely on a second level to support the heavy burdens of that motion. Plaintiff exclusively relies on a single argument to accomplish this: the alleged immunity of La. R.S. 9: This Honorable Court must deny this motion if either level fails to support the argument of Defendant. Defendant may not rely half-heartedly on parts of one velle and parts of the other to manufacture an argument. Defendant first must prove that the statutory immunity of La. R.S. 9: shields Defendant from the allegations of the subject petition. If Defendant cannot argue this, then the Motion to Strike fails as there is no argument against the likelihood of success of Plaintiff s claims. Secondly, even if this immunity can be shown, which Plaintiff furiously denies is possible, Defendant still must meet the other associated burdens of the Motion to Strike. The legislative immunity granted by La. R.S. 9: is not absolute. Subsection (C)(2) of this statute clearly states that this immunity does not apply To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. To make a long story short: the allegations of Plaintiff are that Defendant engaged in criminal, fraudulent, malicious, intentional, and outrageous behavior. If this Honorable Court finds that any allegation of Plaintiff falls within the exclusions of subsection (C)(2), then there is

2 no immunity of Defendant. If there is no immunity, then the Motion to Strike fails. Legal Argument. 1. Defamation in Louisiana. Defamation is a tort involving the [I]nvasion of a person's interest in his or her reputation and good name. Trentecosta v. Beck, 703 So. 2d 552, 559 ( La. 10/21/97), quoting Sassone v. Elder, 626 So. 2d 345, 350 (La. 1993). There are four elements to a defamation claim: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Id. Louisiana separates defamation into two types: (1) defamation per se and (2) words of defamatory meaning. Costello v. Hardy, 864 So. 2d 129, 140 (La. 01/21/04). Defamation per se involves communications [Which] expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, even without considering extrinsic facts or surrounding circumstances Id. Falsity and malice (or fault) are presumed with defamation per se, and injury can be presumed. Each presumed element can be rebutted by the defendant. Id. Accordingly, falsity, malice, and injury should be presumed herein. The alleged defamation in the subject action is defamation per se. Each allegation of Plaintiff in her petition involves allegations that either allege criminal behavior or are intended to injure the professional reputation of Plaintiff. The alleged communications of Defendant involve his allegations that Plaintiff has violated numerous regulatory and statutory laws. Defendant s letter specifically alleged that Plaintiff violated various laws (please see paragraph 5 of Plaintiff s original and/or First Supplemental and Amending Petition for Damages). In addition, Defendant s allegations, if true, would subject Plaintiff to possible criminal sanctions. These alleged criminal violations include, but are not limited to, violations of (1) nepotism laws found in La. R.S. 42:1119, (2) and laws prohibiting malfeasance in office La. R.S. 14:134. Defendant did not simply offer an opinion that could be construed as negative and possibly hurt the reputation of Plaintiff. Defendant systematically and across multiple mediums, communicated false, misleading, and hostile statements related to Plaintiff. Defendant s behavior is clearly fraudulent, intentional, and is a clear example of flagrant misconduct for a legislator representing a public body of the State of Louisiana. Defendant has accused Plaintiff of conspiring to illegally recall Defendant from office. Defendant has alleged Plaintiff violated numerous regulations and criminal laws by using her position in office to aid her family. Defendant s

3 behaviors are absurd and the very type of behaviors that defamation per se is meant to regulate. In addition to the complaint filed by Defendant, he has continued to communicate similar statements to third parties through social media. These statements are also defamatory per se and show the systematic and tenacious pattern of behavior that Defendant continues to use in order to defame his political counterparts. 2. Statutory Immunity. a. The exclusions of La. R.S. 9: The alleged immunity of Defendant is based in La. R.S. 9: Section B of the statute limits liability against Louisiana public entities (or their officers), [W]hen such acts are within the course and scope of their lawful powers and duties. La. R.S. 9: Further, section (C) of this statutes excludes immunity in the following instances: (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. Id Applying the statute to the claims at hand, the statutory immunity of La. R.S. 9: does not apply to any statements of Defendant that are not reasonably related to his governmental objective related to his policymaking power and to any statements made by Defendant that are any of the following: criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct Id. c. Defendant s limitless interpretation of the statutory immunity is absurd. Defendant is trying to twist the statutory immunity for legislators into a legal shield for him to maliciously lie about his political opponents to the point of falsely alleging illegal behavior. The twist involves an attempt by Defendant to link his mistruths to an alleged policy goal. Defendant s position is that as long as there is any tangential relation of a possible interpretation of his tortious behavior to an allege policy goal, then he is free to say anything he wants. On top of this, Defendant is alleging that his interpretation of his false words should be the binding requirement of this interpretation. The argument of Plaintiff is an absurd one without any rational limits. For example, under the standards that Defendant alleges, Plaintiff would have no issues falsely accusing a political opponent of being a homosexual to tarnish his or her political career. If sued, Plaintiff can fall back on the public issue and policy argument and claim that her favored policy (whether it s legally

4 possible or not) is that homosexuals should not hold office in Louisiana, so the statutory immunity therefore applies and she is free to falsely accuse people of being a sexual orientation that they are not. That is patently absurd. d. The exclusions of La. R.S. 9:2798.1(C) allow Louisiana courts to balance the concerns of protecting speech related to public concern and defamatory statements. The instant case displays the policy issue of dealing with defamatory statements and alleged policy statements of public bodies and representatives. On one hand, we do need to insulate our public bodies from civil actions for unpopular policies, as sometimes change is necessary in society. On the other hand, there have to be limits on just how far public bodies and representatives can go in promoting their policies. This is why the exclusions of La. R.S. 9:2798.1(C) exist. Louisiana courts have ruled that the argument of a limitless statutory immunity is not proper. In Sommer v. Department of Transp. & Dev., the 4 th Circuit dealt with the public policy issue of policy statements within the excluded categories. of LA R.S.. 9:2798.1(C). The court concluded, Even if defendants argue that the decisions were somehow policy based, the activities of which plaintiff and which the trial court found come within the provisions of La. R.S. 9: C(1) and (2). The defendants' actions were malicious and intentional, thus denying them the benefit of the discretionary acts doctrine. Sommer v. Department of Transp. & Dev., 758 So. 2d 923, , (La.App. 4 Cir. 03/29/00); There is no one singular blanket protection offered by the statutory immunity. This Honorable Court must examine first (1) that the speech was policy based or in connection with a public issue and then (2) whether or not this speech falls within the excluded categories of La. R.S. 9:2798.1(C). Even if this Honorable Court finds that the speech made by Defendant is based in a public concern or in connection with a public policy, Defendant is still bound to offer this speech in a manner that is not, criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. La. R.S. 9:2798.1(C)(2). e. The complaint to the Board of Ethics was published to third parties, dissolving any potential conditional privilege. Defendant has no alleged conditional privilege of his Board of Ethics complaint. Even if such a privilege exists, which is denied, Defendant waived this privilege by providing this complaint to third parties. Publication to third parties negates any privilege that may have at one time existed (but is denied nonetheless).

5 3. Plaintiff specifically pled Injury and Misrepresentation. Plaintiff specifically pled her injuries in her original petition. Paragraph 10 discusses the intentional and malicious misrepresentations of Defendant, which describe a summary of his behavior. Paragraphs 6-9 describe the specific allegations of Plaintiff. Plaintiff further expanded these allegations in her First Supplemental and Amending Petition. Plaintiff listed her injuries specifically in paragraph 11 of her original petition. She has suffered harm to her reputation, mental anguish, and other possible damages that cannot be pled at this time but will be revealed during the litigation of this matter when the full history of Defendant is revealed. Conclusion. Defendant s use of Motion to Strike requires that he show that Plaintiff cannot display a probability of success. He relies exclusively on the alleged immunity and privilege of Louisiana legislators in order to claim that Plaintiff does not have a probability of success of proving her claims. Plaintiff has shown that this immunity does not apply to the behavior of Plaintiff, as the immunity statue specifically excludes the very fraudulent, malicious, and intentional behavior that Plaintiff claims occurred to form the basis of her claim. If Defendant cannot rely on the statutory immunity, then he cannot show that Plaintiff lacks the probability of success in this matter. If he cannot do this, then his motion should be denied with prejudice. Respectfully Submitted: RICHARD LAW FIRM, LLC RONALD C. RICHARD Bar Roll No: One Lakeshore Drive, Ste. 120 Lake Charles, Louisiana Telephone: Facsimile: EM: ron@richardlawfim.com ATTORNEY FOR PLAINTIFF Certificate of Service I hereby certify that I have delivered a copy of the foregoing pleading to all counsel of record on this day of October 2017 via fax and/or . Ronald C. Richard