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Johnson v. Montero

Court of Appeals of Louisiana, Fourth Circuit

March 29, 2017

RACHAEL JOHNSON
v.
M. SUZANNE "SUZY" MONTERO

         ON APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-02651, DIVISION "C" Honorable Sidney H. Cates, Judge

          Scott R. Bickford Spencer R. Doody MARTZELL, BICKFORD AND CENTOLA, COUNSEL FOR RELATOR

          James M. Williams CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM, & HAYES, LLP COUNSEL FOR RESPONDENT

          (Court composed of Judge Madeleine M. Landrieu, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)

          Madeleine M. Landrieu Judge

         The relator, Ms. Montero, seeks review of the trial court's March 24, 2017 granting of a preliminary injunction enjoining her from 'publishing, posting, distributing or any way making the false statements currently contained in her campaign materials." For the reasons that follow, we grant the writ application and vacate the trial court's judgment.

         The granting of a preliminary injunction is reviewable by appeal. See La. C.C.P. art. 3612 B. This court rarely, if ever, considers a writ application taken from a final, appealable judgment. However, given the exigent circumstances posed by the pending election in this matter, we exercise our discretionary, supervisory jurisdiction to consider the issue at this time even though we would also have appellate jurisdiction. As this court has stated:

Although the granting of the preliminary injunction is an appealable judgment, it does not preclude a litigant's timely and proper resort to our discretionary plenary supervisory power. See La. Const. art. V, § 10; La. C.C.P. art. 2201.

First Bank & Trust v. Duwell, 2011-0104, p. 3, n.5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18.[1] We note that, in this matter, which involved a single hearing in the district court, the entire record that would be before us on appeal has been submitted with the writ application. Additionally, the writ application was filed within the fifteen-day time period allowed for taking an appeal of a preliminary injunction. See La. C.C.P. art. 3612; First Bank & Trust v. Duwell, supra.

         The trial court's injunction operates as a prior restraint on political speech. Therefore, the injunction must not only comply with the applicable Louisiana statutes, but also must not infringe upon the constitutional protection afforded to such speech. In State v. Burgess, 543 So.2d 1332 (La. 1989), the Louisiana Supreme Court held:

The standard for constitutionally protected false speech in the context of public figures was given in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In that case, the Court held the Constitution prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct "unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Although this standard was applied in the context of civil defamation suits, it is clear the standard defines the parameters of protected speech involving public figures.

Id. at 1335 (Emphasis supplied).

         Here, there are two applicable statutes. La. 42:1130.4 provides:

No candidate in an election shall, with the intent to mislead the voters, distribute or cause to be distributed any oral, visual, or written material containing any statement which he knows makes a false ...

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