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Capital City Press, L.L.C. v. Louisiana State Univ. Sys. Bd. of Supervisors

Court of Appeal of Louisiana, First Circuit

December 30, 2014

CAPITAL CITY PRESS, L.L.C. D/B/A THE ADVOCATE & KORAN ADDO
v.
LOUISIANA STATE UNIVERSITY SYSTEM BOARD OF SUPERVISORS & HANK DANOS, CHAIRMAN THE TIMES-PICAYUNE, L.L.C. & QUINCY HODGES
v.
LOUISIANA STATE UNIVERSITY SYSTEM BOARD OF SUPERVISORS & HANK DANOS, CHAIRMAN

On Appeal from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge State of Louisiana. Nos. 620353 c/w 620553. Honorable Janice Clark, Judge Presiding.

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[Copyrighted Material Omitted]

Page 729

Loretta G. Mince, Alysson Mills, New Orleans, Louisiana, Counsel for Plaintiffs/Appellees, Capital City Press, L.L.c. d/b/a The Advocate and Koran Addo, The Times-Picayune, LLC and Quincy Hodges.

Jimmy R. Faircloth, Jr., Barbara Bell Mellon, Alexandria, Louisiana, Counsel for Defendants/Appellants, Louisiana State University System Board of Supervisors and Hank Danos, Chairman.

BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.

OPINION

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[2013 2000 La.App. 1 Cir. 2] McCLENDON, J.

The defendants challenge the district court's judgment declaring that certain documents requested by the plaintiffs are public records under Louisiana's Public Records Act. The defendants also appeal a later district court judgment that awarded the plaintiffs civil penalties and attorney fees, contending that the amounts awarded are excessive. For the reasons that follow, we reverse in part, amend in part, and affirm, as amended.[1]

FACTUAL AND PROCEDURAL HISTORY

This matter began with multiple public records requests to and lawsuits against the Louisiana State University Board of Supervisors and its former chairman, Hank Danos (the defendants), relating to the 2012-2013 search by LSU to fill the position of President/Chancellor of the LSU system. On April 1, 2013, Capital City Press, L.L.c. d/b/a The Advocate and Koran Addo filed a Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Pursuant to the Louisiana Public Records Act, in the 19th Judicial District Court, Docket Number 620,353, which matter was assigned to Division " D" (The Advocate case).[2] Also, on April 1, 2013, Andrea Gallo, editor of " The Daily Reveille," LSU's student newspaper, filed a similar suit, in the 19th Judicial District Court, Docket Number 620, 364, which was allotted to Division " F" (The Daily Reveille case). On April 8, 2013, The Times-Picayune, L.L.C. and Quincy Hodges filed their similar Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Pursuant to the Louisiana Public Records Act, in the 19th Judicial District Court, Docket Number 620, 553, which was allotted to Division " O" (The Times-Picayune

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case). By agreement of the parties, The Times-Picayune case was consolidated with The Advocate case in Division " D" and [2013 2000 La.App. 1 Cir. 3] scheduled for trial on April 25. The Daily Reveille case was not joined due to the unavailability of counsel at that time, and The Advocate, The Times-Picayune, and LSU requested that the consolidated cases be transferred into The Daily Reveille case so that the, three cases could proceed together to trial on April 30. However, Judge Janice Clark in Division " D" denied the request to transfer the consolidated cases to Division " F." Thus, the trial in the present matter was held on April 25, 2013, after which the district court held that the requested records were public records in accordance with Louisiana's Public Records Act and ordered that the defendants produce the requested records. A judgment was signed on April 30, 2013, ordering the defendants to immediately produce the following:

o all resumes, CVs, or other records reviewed (online or otherwise) by one or more members of the Board or the " Presidential Search Committee" reflecting the qualifications of the 35 " active" applicants to which Mr. Chatelain referred during the Board's March 18, 2013, regular meeting;
o all resumes, CVs, or other records reviewed (online or otherwise) by one or more members of the Board or the " Presidential Search Committee" reflecting the qualifications of the 6 or 7 applicants who, according to Mr. Chatelain, were selected by the " Presidential Search Committee" for additional interviews or consideration;
o all documents reflecting the dates, times, and locations of all interviews of applicants conducted by any member of the Board and/or the " Presidential Search Committee" ; and
o the names of each applicant for the position of president, the qualifications of each such applicant related to such position, and any relevant employment history or experience of such an applicant, as required by La. Rev. Stat. § 44:12.1.

The judgment also reserved the issue of damages, court costs, and attorney fees for full briefing and adjudication by the district court.[3]

On May 10, 2013, the defendants filed a notice of suspensive appeal that was opposed by The Advocate and The Times-Picayune (the plaintiffs). On May 14, 2013, the district court denied the request for a suspensive appeal on the [2013 2000 La.App. 1 Cir. 4] basis that the April 30, 2013 judgment was not a final judgment. Meanwhile, on May 13, 2013, the plaintiffs filed a rule for contempt, contending that despite the April 30, 2013 judgment that ordered the defendants to " immediately produce" the records and information described in the judgment, the defendants had failed to do so. In response, on May 20, 2013, the defendants filed an Alternative Motion to Stay and Request for Expedited Consideration of Motion. In the motion, the defendants asserted that if the district court should find that the April 30, 2013 judgment was not final and immediately appealable, then they were seeking an order staying the execution of the judgment pending a writ application to this court. Because of the pending rule for contempt, the defendants also requested expedited consideration. On May 23, 2013, the district court granted

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the request for expedited consideration and stayed the matter for fourteen days. Also on May 20, 2013, the defendants filed an Alternative Motion to Certify Judgment as Final, which was denied as moot by the district court on May 23, 2013, and an Alternative Notice of Intent to Apply for Supervisory Writ, which was also denied as moot on May 23, 2013. Thereafter, on May 28, 2013, the court granted an order allowing the defendants to proceed with their application for supervisory writs, giving them until June 6, 2013, to file their application with the court of appeal, and granting a stay until June 6, 2013.

On June 6, 2013, the defendants filed their application for supervisory writs with this court and also requested a stay of the proceedings. On July 19, 2013, a three-judge panel of this court denied the defendants' writ application.[4]

After that, on July 25, 2013, the defendants filed an Expedited Motion to Set Trial on Remaining Issues, and the district court issued an order setting the remaining issues for trial on September 9, 2013. The plaintiffs also filed a Motion for Expedited Hearing on Supplemental Rule for Contempt, which was set [2013 2000 La.App. 1 Cir. 5] for August 14, 2013. On August 6, 2013, the defendants filed a Renewed Motion to Certify Judgment as Final, which was also set for August 14, 2013.

At the August 14 hearing on the rule for contempt, the defendants maintained that they could not produce the requested records without risking the loss of the right to appeal the April 30, 2013 judgment. The district court disagreed and held LSU in contempt, imposing a $500.00 per day sanction, retroactive to the April 30, 2013 judgment.[5] The court also denied the defendants' renewed motion to certify the underlying judgment as final. A judgment in conformity with the ruling was signed by the district court on August 21, 2013.

On August 15, 2013, the defendants filed a Notice of Suspensive Appeal of the contempt judgment, which, on August 23, 2013, was denied by the district court as not being a final judgment. Also on August 15, 2013, the defendants filed an Alternative Notice of Intent to Apply for Supervisory Writ and filed a Motion to Certify Judgment as Final. On August 21, 2013, the district court denied the motion to certify the contempt judgment as final. On August 28, 2013, the defendants applied for writs to this court from the denial of the suspensive appeal of the contempt judgment.

In the meantime, the defendants filed an application for writs with the Louisiana Supreme Court regarding the underlying judgment. On August 28, 2013, the supreme court denied the writ application and the request to stay the underlying judgment, but stated:

Stay denied; writ denied. Insofar as relator is aggrieved by the August 14, 2013 judgment imposing sanctions for contempt, it has an adequate remedy by suspensive appeal. See La. Code Civ. P. art. 1915(A)(6); In re: Jones, 10-0066 (La.App. 5 Cir. 11/9/10), 54 So.3d 54.[6]

Page 733

[2013 2000 La.App. 1 Cir. 6] Thereafter, on September 19, 2013, this court granted the defendants' writ application from the district court's denial of a suspensive appeal from the contempt judgment. Referencing the supreme court action of August 28, 2013, we remanded the case to the district court with instructions to grant the defendants a suspensive appeal.[7]

On September 9, 2013, the scheduled date of the trial on the remaining issues, the district court again ordered the defendants to produce the documents immediately and recessed the matter until September 10, 2013, to revisit the issue of additional sanctions. On September 10, 2013, the district court ordered that an instanter subpoena issue to the sheriff commanding him to seize all public documents in accordance with its April 30, 2013 judgment, in the place and stead of the defendants, and that the defendants immediately produce the requested documents to the sheriff. No further documents were produced. Thereafter, after conferring with the court in chambers, the parties agreed to try to resolve the issue of production through in-camera production without publication.

On September 16, 2013, the parties entered into a Joint Agreement and Stipulation, wherein the defendants stated that they requested R. William Funk, the consultant holding the documents at issue, to produce the requested records for production under seal during the appeal of the underlying judgment. The agreement also provided that upon delivery of the documents to the court, the accrual of the daily sanction would be suspended. Mr. Funk agreed to produce the records, which were delivered to the court under the terms of the agreement.[8]

After the production of the documents under seal, the trial of the remaining issues was held on September 26, 2013. A judgment was signed on October 23, 2013, ordering the defendants to pay the plaintiffs $61,617.50 in attorney fees and $7,074.99 in costs, pursuant to LSA-R.S. 44:35D. The district court further ordered, pursuant to LSA-R.S. 44:35E(1), that the defendants pay each of the plaintiffs a civil penalty in the amount of $100 per day, exclusive of Saturdays, Sundays, and legal public holidays, beginning March 27, 2013, and ending September 30, 2013.

The defendants filed a suspensive appeal of the April 30, 2013, and October 23, 2013 judgments, assigning the following as error:

1. The district court erred in declaring information on a private consultant's website to be " public records" notwithstanding the provisions of LSA-R.S. 44: 12.1 and the defendants' lack of custody and control.
2. The district court erred in awarding civil penalties in excess of the limitations of LSA-R.S. 44:35E.
3. The district court erred in awarding attorney fees at a rate in excess of the limitation provided by LSA-R.S. 44:35F.
4. Alternatively, the district court erred in denying a suspensive appeal from the judgment granting the request for declaratory judgment and writ of mandamus.

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5. Alternatively, the district court erred in not certifying as final the judgment granting the request for declaratory ...

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