WILLIAM JOHNSON : 31 ST JUDICIAL DISTRICT COURT VS. NO. C-567-17 : PARISH OF JEFFERSON DAVIS JACOB COLBY PERRY : STATE OF LOUISIANA FILED: : DEPUTY CLERK OF COURT MAY IT PLEASE THE COURT: MEMORANDUM IN SUPPORT OF SPECIAL MOTION TO STRIKE PURSUANT TO LSA-C.C.P. ART. 971 The Plaintiff, William Johnson, is the son of the Mayor of the Town of Welsh, Carolyn Louviere, and Mr. Johnson is also the owner of property in the Town of Welsh. The Defendant, Jacob Colby Perry, is an elected Alderman for the Town of Welsh (the Town ). Mr. Perry is twenty-four years old and was elected to the office of Town Alderman in November of 2016. The Plaintiff has filed what purports to be a defamation lawsuit against Mr. Perry. Since all of the matters contained in Plaintiff s Petition, each of which are addressed below, are public matters for which Mr. Perry, as Town Alderman, was entitled to speak and write about as a public official, as well as do the same as a concerned private citizen, the matters of which the Plaintiff complains were constitutionally protected speech in connection with public issues. The Plaintiff s Petition thus clearly comes within the purview of LSA-C.C.P. art. 971 as protected speech, and as such, under the article s burden of proof switching regime, the Plaintiff has the burden to show a probability of success on the claim. The Plaintiff cannot satisfy that burden given the lack of Plaintiff s ability to prove the elements of a defamation claim, as well as the several immunities to which Mr. Perry is entitled. For the reasons more fully explained below, Plaintiff s suit should be dismissed with prejudice and costs and attorney s fees awarded to Mr. Perry. i) Special Motion to Dismiss under LSA-C.C.P. art. 971 LSA-C.C.P. art. 971 was enacted by the Louisiana legislature in 1999 as a response to the increasing number of law suits whose purpose was to chill citizens from exercising their right to free speech, and the right to petition. The purpose for the legislation was addressed very plainly in its promulgation: The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the
legislature that the Article enacted pursuant to this Act shall be construed broadly. See Section 2 of Acts 1999, No. 734. Article 971 is Louisiana s Anti-SLAPP statute. SLAPP is an acronym for Strategic Lawsuit Against Public Participation. Generally, SLAPP suits were brought by large interests to deter common citizens from speaking out on public issues, and the suits were usually in the form of a defamation suit, or a business tort suit. Examples of typical SLAPP suits are public officials and employees against their critics; landlords against tenants who reported intolerable conditions, businesses against consumers, and toxic waste, dump, or bar enterprises against their NIMBY ( Not-In-My-Backyard ) homeowner opponents. At their heart, SLAPP suits threaten a citizen s right to petition because the mere filing of the suit limits public participation in the political process. Yount v. Handshoe et al. 14-919 (La. App. 5 Cir. 5/28/2015), 171 So.3d 381, 387-388, writ denied, 2015-2302 (La. 2/19/2016), 187 So.3d 462. LSA-C.C.P. art. 971 provides in pertinent part: Art. 971 Special motion to Strike 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. (3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding. 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 fees and costs.. C. 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, may order that specified discovery be conducted. 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: (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 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. (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. See LSA-C.C. art. 971. In conformance with LSA-C.C. P. art. 971 A. (2), the Defendant has submitted an affidavit which has addressed each of the Plaintiff s contentions. Clearly, all of the Plaintiff s contentions fall within one or more of subsections (a), (b), (c), or (d), and Plaintiff cannot show a probability of success, as he has not alleged sufficient facts to prove the necessary elements of publication, malice or an injury in his defamation claim, and Louisiana law provides both absolute and conditional immunities to Mr. Perry. Defendant s Special Motion should thus be granted. ii) Factual Background and Plaintiff s Petition The Plaintiff s Petition has raised several different topics in the allegations of his Petition pertaining to acts or statements which were allegedly made by the Defendant, Mr. Perry, and which were allegedly defamatory. Some of the allegations in the Petition contain unsupported conclusory allegations which is insufficient to sustain the elements of a defamation claim. As will be shown below, each and every one of the alleged statements, and writings complained of by the Plaintiff, were protected speech which come within LSA-C.C.P. art. 971, and the Petition lacks the necessary allegations to show a probability of success on the merits. The first set of allegations presented in paragraphs 3, 4, and 5 of Mr. Johnson s Petition pertain to his ownership of property in close proximity to a local business and bar named the Southern Pub. At about the same time that Mayor Louviere, Mr. Jonson s mother, had attempted to introduce a new Town ordinance, which by the Mayor s own admission in meetings with the Town s Alderman was directed at least in part at the Southern Pub, Mr. Johnson had lodged complaints with local law enforcement against the Southern Pub. Mr. Perry s affidavit makes it
clear that much of what is alleged did not occur and is denied, but in any respect any alleged comments pertaining to Mr. Johnson were in relation to the proposed ordinance and in meetings for that purpose. Mr. Johnson s ownership of the property was also mentioned in Mr. Perry s May 1, 2017 correspondence to the Louisiana Board of Ethics. That correspondence was privileged as per LSA-R.S. 42:1141.4K. The second set of allegations in Mr. Johnson s Petition, paragraphs 6 and 7, pertain to the subject of an investigation that Mr. Perry had asked the Louisiana Board of Ethics to pursue regarding the use of public funds for the placement of power poles, and the delivery of city water to or near property owned by Mr. Johnson. That correspondence was privileged as per LSA-R.S. 42:1141.4K. (See Exh. 1- Affidavit of Jacob Colby Perry) Plaintiff s allegations of intentionally, maliciously, and with afterthought sic misrepresenting the truth (paragraph 9) are conclusory and without any factual basis. The same is true for the allegations in paragraph 10 which purport to relate to the plaintiff s damages of Harm to reputation, mental anguish, and All other damages to be proved at the trial of this matter. The affidavit of Mr. Perry makes it clear that Mr. Johnson s connection to the Mayor s proposed ordinance was properly raised in meetings for that purpose, or to the corresponding state officials who oversee ethical matters for the State of Louisiana. Further, Mr. Perry was well within his legislative duties to raise a suspected ethical issue regarding the use of public funds with respect to the power poles and deliver of city water to Mr. Johnson s property. iii) Legal Analysis and Application of Article 971 In order for the Defendant-Movant to succeed in his Article 971 motion, there must be a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right to petition, and in relation to a public issue. Article 971 is to be construed broadly. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Darden v. Smith, 2003-1144 (La. App. 3 Cir. 6/30/2004), 879, So. 2d 390, 397, writ denied, 2004-1955 (La. 11/15/2004), 887 So.2d 480, citing Thomas v. City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282, and Baxter v. Scott, 37,092 (La. App. 2 Cir. 5/16/03), 847 So.2d 225, vacated on other grds., 03-2013 (La. 11/14/03), 860 so.2d 535; Also see Aymond v. Dupree, 2005-1248 (La. App. 3 Cir. 4/12/06), 928 So.2d 721, 727-728, writ denied, 2006-1729 (La. 10/6/06), 938 So.2d 85.
Thus Article 971 employs a burden shifting application, in that once the Defendant satisfies the initial burden 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, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Roper v. Loupe 2015-1956 (La. App. 1 Cir. 10/28/16), 2016WL6330407, writ denied, 2017-0090 (La. 3/13/17), 216 So.3d 808, citing Thinkstream, Inc., v. Rubin, 2006-1595 (La. App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied 2007-2113 (La. 1/7/08), 973 So.2d 730. The affidavit of the Defendant, Mr. Perry, clearly sets forth the public nature of each topic for which the Plaintiff has complained. Mr. Johnson s familial relationship with the Mayor, who proposed an ordinance which would impact a locally licensed business immediately next to Mr. Johnson s property, is a public issue which was discussed in meetings with the Mayor. This was clearly within the legislative function 1 of Mr. Perry s duties as an Alderman and therefore clearly in connection with a public issue. The same is true with respect to the issue of whether public monies were used regarding the power poles and water infrastructure to which Mr. Perry made inquiry to the Louisiana Board of Ethics. These were all clearly public issues. Additionally, a legislator, or Alderman such as Mr. Perry, has an obligation to inquire and investigate the affairs of government as a general matter: It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and voice, and to embody the wisdom and will of its constituents The informing function of Congress should be preferred even to its legislative function. Roper, supra at **17 citing Tenney v. Brandhove, 341 U.S. 367, 377 n.6, 71 S. Ct. 783,788 n.6, 95 L. Ed. 1019 (1951) Mr. Perry has a right and duty to speak out as to the public concern for how public monies are spent, as well as petition the Legislative Auditor, or in this case the Louisiana Board of Ethics, when the public fisc is of concern. See LSA-R.S. 24:523 2. Mr. Perry is likewise clearly protected by the law in carrying out his legislative functions, as well as voicing his concerns publicly on a public issue, as is clearly the intent of Article 971. The alleged statements in the Plaintiff s complaint thus come within LSA-C.C.P. art. 971 F. (1)(a) as to any statements made at any meetings of the Aldermen concerning the proposed ordinance and Mr. Johnson s calls to the police or his ownership of property next to the bar; F.(1)(b) with regards to any writing sent by Mr. Perry to the Louisiana Board of Ethics regarding 1 See Roper, supra at **14-**15. 2 The term agency head in LSA-R.S. 24:523 is very expansive and includes all persons defined in LSA-R.S. 42:1102 which includes any member of a board, and elected officials of political subdivisions.
the same matters covered by paragraph LSA-C.C.P. art. 971 F. (1)(a) as they pertained to an ordinance under consideration, and/or F(1) (d) with regards to all of the Plaintiff s allegations being of public interest. Since all of the issues involved in the Plaintiff s Petition are of public concern and the acts complained of were in furtherance of the right of free speech or petition guaranteed in the United States and Louisiana Constitutions, the burden of proof shifts to the plaintiff to demonstrate the probability of success on each of the claims alleged by his petition. Darden, supra at 398. In order for a Plaintiff to prevail on a defamation claim, he or she must prove: (1) a false or 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. Darden, supra 397-398 citing Trentacosta v. Beck 96-2388, (La. 10/21/97), 703 So.2d 552, 559; Kidder v. Anderson 354 So.2d 1306, 1308 (La. 1978); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); St. Amant v. Thompson, 390 U.S. 727,731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) Defamation involves the invasion of a person s interest in his or her reputation and good name. Defamatory words are those which harm the reputation of another so as to lower him in the estimation of the community or to deter others from associating with him. Aymond, supra at 729. The burden for a Plaintiff in a defamation suit is lessened concerning the element of fault in the instance of a Plaintiff not being a public figure or public official. If a plaintiff is a private person, actual malice is not an element of the tort of defamation. The discussion in Trentacosta, supra at 560-563 is most enlightening on this point. Mr. Johnson is not a public official. The definition of a public figure is a non-public official who is intimately involved in the resolution of important public questions or who by reason of his fame shapes events in areas of concern to society at large. Id at ft. nt. 8 citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S. Ct. 1975, 1996, 18 L. Ed. 2d 1094 (1967) Since Mr. Johnson is not either a public figure or public official, actual malice is not required as an element of the claim, but the Louisiana Supreme Court has stated that if the matter discussed was a matter of public concern, a significant measure of fault with regard to falsity of the statement clearly is required. Trentacosta, supra at 561-562. In a case after Trentacosta, supra involving private figures and a private matter 3, the Louisiana Supreme Court still required the Plaintiff to prove malice, which was described as 3 See Costello v. Hardy 2003-1146 (La. 1/21/04), 864 So.2d 129, 144-145.
negligence with respect to the truth, or publication by one who (a) knows that the statement is false or (b) acts in reckless disregard of these matters, rather than an act motivated by spite or improper motive. Thus, it is abundantly clear that with respect to a matter of public concern, such as the issues raised by Mr. Perry, some semblance of malice, i.e. a high degree of fault, must be alleged by specific facts and proven by the Plaintiff, in this case Mr. Johnson. With regard to the Plaintiff s Petition, the Plaintiff is required to allege facts in the Petition which support the different elements of his defamation claim. This precept requires facts to prove publication, malice, as well as facts which show an injury to the Plaintiff. Id. at 729-730; Darden supra at 398; Williams v. Nexstar Broadcasting, Inc., 11-887 (La. 5 Cir. 4/10/12), 96 So.3d 1195. The Plaintiffs Petition has not alleged facts to support the elements of his cause of action as most of the Petition consists of conclusory allegations. iv) Plaintiff Cannot Show Probability of Success iva) The Element of Publication Cannot be Proven by Plaintiff as the alleged Communications were Privileged Plaintiff s allegations in paragraphs 3, 4, 5, 6, and 7, pertain to Mr. Perry s May 1, 2017 written correspondence to the Louisiana Ethics Board, and that correspondence enjoys a conditional privilege. The Court will note that nowhere in the Petition is a date or temporal reference made by the Plaintiff as to when the alleged statements were made by Mr. Perry. Mr. Perry s affidavit provides the context of when the topics were discussed by him. The statements concerning the Mayor s proposed ordinance, its connection to the Southern Pub Bar, Mr. Johnson s timely complaints to law enforcement and his property ownership close to the Bar, the issue of the possible use of public funds for power poles and what the Plaintiff described as water infrastructure, were all of public interest and made in good faith on a matter in which he [Mr. Perry] had an interest or a duty, and to another person with a corresponding interest or duty. See Davis v. Benton, 2003-0851 (La. App. 1 Cir. 2/23/04), 874 So.2d 185, 191. A statement is made in good faith if made with reasonable grounds for believing it to be true. Id. In the reported case, Mr. Benton sent a letter to the Baton Rouge City Police Department that criticized the conduct and actions of police officer Davis. Mr. Benton was a property owner who lived in the same neighborhood as Davis, and Mr. Benton eventually moved out and leased his former home to a tenant. The complaints stemmed from Davis alleged heavy handed manner of dealing with neighborhood residents, alleged harassment by Davis of Mr. Benton s tenant and visitors, and the alleged abuse of authority by Davis. Davis defamation suit was dismissed under
LSA-C.C.P. art 971, because Mr. Benton had an interest in curtailing the harassment of Officer Davis, his statements were based upon a belief in their accuracy, and the statements were made to Police Chief Englade, a person with authority and a corresponding duty to address matters regarding alleged police misconduct. Id. at 191-192. Clearly, Mr. Perry has a duty to interject himself into the spending of public money and ethical matters concerning the Town of Welsh. Both the other elected Alderman present at a Town meeting, and the Louisiana Board of Ethics had a corresponding duty to Mr. Perry s to investigate same. Any communication by Mr. Perry to the Board of Ethics has a conditional privilege, as well as any mention of Mr. Johnson at a Town meeting, which Mr. Perry has stated in his affidavit, was very limited. Thus, Plaintiff cannot prove the element of an unprivileged publication to a third party with respect to any of the allegations in the Petition. Further, any communication to the Louisiana Board of Ethics was also privileged. See LSA-R.S. 42:1141.4K. Defendant s Special Motion to Strike should be granted on this ground alone. ivb) Plaintiff s Petition Does Not State When Any Statement Was Made, Nor to Who, and contains only Conclusory Allegations as to Malice and Injury and Alleged No Facts In Support In Darden, supra, a police juror, Ms. Darden, filed a defamation suit against a business and individual who had sought to obtain, but was denied, the necessary approval from the Concordia Parish Police Jury for low income housing in Ferriday, Louisiana. The business, Ferriday Villa Partnership ( Villa ), and its general partner, Mr. Smith, filed a federal law suit against the Parish and the individual police jurors which alleged racial discrimination in various forms. Mr. Smith also filed a complaint with the Louisiana Ethics Board against Ms. Darden, because she was employed by a competitor of Villa at the time the issue was considered and rejected by the Parish. Though the Board of Ethics found no violations, and the federal suit was dismissed, Ms. Darden s suit was dismissed on a 971 Special Motion, because Mr. Smith s and the Villa s speech clearly relate to a public issue, and Plaintiff s response showed an absence of evidence indicating that the defendants statements were made with reckless disregard for the truth. The Court noted that Ms. Darden contested the accuracy of the statements and does not offer proof indicating that she would be able to satisfy this considerable burden. Id. 398-399. The undersigned would note that malice is an element, as discussed above, for which evidence must be shown in order for Plaintiff s claim to survive the Article 971 Special Motion to Strike.
In Aymond, supra, an attorney who had been the Defendant Water District s attorney for many years was removed as the attorney for the Water District. He sued the members of the Water District. His suit was dismissed on several bases, one of which was that the Court noted that Aymond has not shown any evidence of malice. Id, at 730; and Aymond has failed to show any malicious motivation on the part of Dupree for the statement regarding the reason for not renewing Aymond s contract. Id. at 731. While Mr. Johnson does not have to show a malicious motivation in this case, there still must be facts to support an allegation of heightened fault, malice as discussed above, as well as the other elements of a defamation claim. In the first instance, there is no factual allegations as to who or when any of these alleged defamatory statements were made. The conclusory allegations in paragraph 9 of intentionally, maliciously, and with afterthought sic Mr. Perry misrepresented the truth or spread false information, are devoid of any facts to support such allegations, and again there is no reference as to when this conduct occurred or to who the communications were made, or under what circumstances. Plaintiff may not simply make conclusory allegations with regard to when, where, and to who the communication was made, malice or intent, and state a cause of action or survive the 971 Special Motion. Specific facts must be stated or perhaps set forth in affidavits that support a plaintiff s claim, particularly the elements of malice or an intentional tort, or else there is no showing of a probability of success. See Williams, supra, Darden, supra 399 Similarly, the Plaintiff s Petition has alleged Plaintiff s injury as harm to reputation, mental anguish, and all other damages to be proven at a trial of this matter. (see paragraph 10) These are conclusory allegations with no facts to support them. In Aymond, supra, the Court stated that in response to the Article 971 Motion, Aymond has failed to show actual injury. Id. at 730 The same is true herein, in that there is no alleged fact to support any injury, or to show any probability of success on the merits. ivc) Mr. Perry is Entitled to an Absolute Privilege Pursuant to Louisiana Constitution Article III, 8 of the Legislative Privileges and Immunities Clause, members of the legislature are entitled to an absolute bar to interference when members are acting within the legislative sphere. Roper, supra at **13 The protection afforded state legislators has been extended to other legislative bodies such as the legislative bodies of parish and city governments. Id. citing Ruffino v. Tangipahoa Par. Council 2006-2073 (La. App.
1 Cir. 6/8/07), 965 So.2d 414, 417. The Absolute Privilege thus clearly applies to Mr. Perry, an Alderman for the Town of Welsh. The purpose of the legislative privilege is to protect elected officials from any inquiries into the motivation for legislative actions, as well any inquiry into the acts that occur in the regular course of the legislative process and into the motivation for those acts. Id. at **14 citing Copsey v. Baer, 593 So.2d 685, 687 (La. App. 1 Cir. 1991), writ denied, 594 So.2d 876 (La. 1992). The protection extends beyond speech and debate in the legislative chamber to include the process by which Members participate in committee and House proceedings. Id. In Roper, supra, the Court of Appeal discussed many different aspects of when the privilege may or may not be applicable, the different cases which delved into the subject, and determined that protection was afforded for any action which was undertaken within the legislative sphere. Id. **15-18. To provide guidance, the Court adopted a list of actions protected by the Absolute Privilege which were enumerated in Fields v. Off. of Eddie Bernice Johnson, 459 F.3d 1, 10-11 (D.C. Cir. 2006) quoting from Supreme Court cases. 4 They include acts that are an integral part of the deliberative and communicative processes by which Members participate in committee and legislative proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters within their jurisdiction. Further, the acts of delivering an opinion; uttering a speech; or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; authorizing investigations and issuing subpoenas; holding hearings; and introducing materials at Committee hearings. Id. at **18. In Roper, supra, the issue was comments Mr. Loupe, the City Metro Councilman, made questioning the actions and judgment of the then city attorney, Ms. Roper, during an investigative hearing on whether to fire Ms. Roper. Roper s suit was dismissed, because Mr. Loupe s actions were entirely within the legislative sphere. The same rationale is applicable to Mr. Perry s actions. Any comment Mr. Perry may have made during any Town meeting which discussed or were a part of deliberations pertaining to the Mayor s proposed ordinance, its effect on the Southern Pub or its license to operate are clearly protected. Likewise, any alleged statements made to the Louisiana Board of Ethics regarding possible public funds spent on power poles or water infrastructure all come within the investigations function of any legislator, as clearly set forth in the case law. 4 United States v. Brewster, 408 U.S. 501, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972); and Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed 2d 583 (1972)
Also see Parish of Jefferson v. SFS Construction Group, Inc., 01-1118 La. App. 5 Cir. 2/13/02), 812 So.2d 103, writ denied 2002-0791 (La. 5/31/02), 817 So.2d 95 (decision of police jurors to cancel contract entitled to absolute immunity, as well as immunity under LSA-R.S. 9: 2798.1) Mr. Perry was acting within the legislative sphere in participating in Town meetings, speaking on the topics raised therein, as well as his written communications to the Louisiana Board of Ethics. The Absolute Immunity of Louisiana Constitution Article III, 8 applies, and as such, the Plaintiff has no real possibility or probability of success on his claim. ivd) All of Mr Perry s alleged conduct comes within the Discretionary Immunity of LSA-R.S. 9:2798.1 LSA-R.S. 9:2798.1 provides n pertinent part: 2798.1 Policy making or discretionary acts or omissions of public entities or their officers or employees A. As used in this Section, public entity means and includes the state and any of its branches, officers, officials, employees, and political subdivisions and the officers, officials, and employees of such political subdivisions. B. Liability shall not be imposed on public entities or their officer or employees based upon the exercise or performance or the failure to exercise or perform their policy making or discretionary acts when such acts are within the course and scope of their lawful powers and duties. The Courts have established a two-part test to determine the application of immunity under LSA-R.S. 9: 2798.1: i) a court must determine whether a statute, regulation or policy specifically prescribes the course of action for the employee or agency to follow. If so, there is no discretion on the part of the employee or agency and therefore no immunity. ii) If a court determines that discretion is involved, the court must then determine whether that discretion is the kind which is shielded by the exception, that is one grounded in social, economic, or political policy. The immunity applies in the absence of gross negligence. Mercer v. Lowe, 51,333 (La. App. 2 Cir. 4/5/2017), 217 So.3d 1235, 1238-1239, citing Fowler v. Roberts, 556 So.2d 1 (La. 1989). The Plaintiff s petition complains of actions, communications, and statements that Mr. Perry has allegedly made/taken, after his becoming an Alderman for the Town of Welsh. There is no specific statute or regulation which could have possibly directed Mr. Perry to question the pros and cons of the Mayor s proposed ordinance, or Mr. Johnson s conduct and possible connection to the proposed ordinance and the Southern Pub Bar, or to question the propriety of, or ethical behavior of the Mayor and Mr. Johnson relative to the possible expenditure of public money for the benefit or property owned by Mr. Johnson. Mr. Perry s actions were clearly discretionary, and pertained to social, economic, or political policy decisions of Alderman Perry. Mr. Perry s
decisions to speak on the issues alleged in the Petition clearly involved social, economic or political concerns, and therefore are covered by LSA-R.S. 9: 2798.1, which immunity protects Mr. Perry from the Plaintiff s law suit. There are other cases which involved discretionary policy-making decisions or actions in which immunity applied, and the Court should observe that the immunity granted by this statute is wide ranging and meant to insulate public officials who carry out the functions of their elected or appointed offices. The cases involved: i) whether or not to investigate a criminal matter by law enforcement and child welfare personnel when there was some evidence of child abuse; 5 ii) various actions taken by officials of the Louisiana Department of Insurance in the approval of financial transactions by an insurance holding company which required regulatory approval; 6 iii) a town s decision to not issue a building permit and whether to recognize one of several competing plat maps for a proposed subdivision 7 ; iv) police jurors decision to cancel a fire training contract 8 ; v) police jurors decision to place a moratoria on moderate income housing which frustrated a company s efforts to build in St Bernard Parish. 9 Mr. Perry s actions have clearly been discretionary, and they involved social, economic, and political issues which pertain to the local Town government in the Town of Welsh. It is thus clear that the Plaintiff is not able to show any probability of success as to any aspect of his defamation claim. All of the communications complained of by the Plaintiff related to public issues protected by Article 971, and as pointed out above, the Petition is void of when or to who such statements were made. The writings to the Louisiana Board of Ethics were privileged, thus Plaintiff cannot prove publication as to those, nor are there any factual allegations to prove the requisite culpability of malice, or intentional conduct, or any injury. Lastly, Plaintiff cannot overcome the conditional privilege of Mr. Perry s good-faith inquiries to government officials that have his shared duty/interests, the Absolute Immunity of Louisiana Constitution Article III, 8, and the Discretionary Acts Immunity of LSA-R.S. 9: 2798.1, any of which individually defeats the Plaintiff s law suit. v) Plaintiff s Suit Should be Dismissed with Prejudice and the Defendant Must be Awarded Costs and Reasonable Attorney Fees 5 Mercer, supra. 6 State of Louisiana v. Public Investor s Inc., 35 F.3d 216 (5 Cir. 1994) 7 Investment Management Services, Inc. v. Village of Folsom, 2001-0832 (La. App. 1 Cir. 5/11/01), 808 So.2d 597 8 Parish of Jefferson, supra 9 Calhoun v. St. Bernard Parish, 937 F.2d 172 (5 Cir. 1991)
The Defendant s Special Motion to Strike should be granted since the evidence and law clearly establish that the communications complained of by the Plaintiff pertained to speech and acts of petition by Mr. Perry protected by the United States and Louisiana Constitution in connection with a public issue. Plaintiff cannot prove any probability of success on the elements of his defamation claim, and Mr. Johnson s suit must be dismissed with prejudice. In accord with LSA-C.C.P. art. 971, the Defendant is entitled to an award of reasonable attorney fees which must be awarded on a successful Article 971 Motion, See Williams, supra at 1203, citing Delta Chem. Corp., v. Lynch, 2007-0431, (La. App. 4 Cir. 2/27/08), 979 So.2d 579, 588, writ denied, 2008-0683 (La. 5/30/08), 983 So.2d 898 and 2008-0761 (La. 5/30/08), 983 So.2d 904. Defendant has submitted counsel s affidavit pertaining to attorney fees. Respectfully submitted, Michael H. Schwartzberg