APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 762-382, DIVISION
"K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
PLAINTIFF/APPELLEE, PARISH OF JEFFERSON Michael J. Power
Loren C. Marino P. Hanlon deVerges, Jr. Brad M. Richard
DEFENDANT/APPELLANT, JOSEPH FENNIDY Robert T. Garrity, Jr.
composed of Judges Susan M. Chehardy, Jude G. Gravois, and
Robert A. Chaisson
A. CHAISSON JUDGE.
case involves a dispute regarding the correct dates of the
terms of office for the nine commissioners of the Housing
Authority of Jefferson Parish (hereinafter "the Housing
Authority") and a dispute regarding who, of two
individuals, is the duly appointed commissioner representing
Council At-Large Division "B" (hereinafter
"Seat Four") of the Housing
Authority. One of those individuals, Joseph Fennidy,
appeals the judgment of the trial court that declared David
Martinez the duly appointed commissioner for Seat Four and
permanently enjoined Mr. Fennidy from acting as a member of
the Housing Authority, and further permanently enjoined James
E. Lawson, Jr., the chairman of the Housing Authority, from
seating Mr. Fennidy at meetings of the Housing Authority. For
the reasons that follow, we vacate that portion of the trial
court's judgment that declared Mr. Martinez the duly
appointed commissioner for Seat Four and render judgment
declaring Mr. Fennidy the duly appointed commissioner for
Seat Four. We further vacate that portion of the trial
court's judgment that issued permanent injunctions
against Mr. Fennidy and Mr. Lawson.
AND PROCEDURAL HISTORY
March 13, 2013, the Jefferson Parish Council adopted a
resolution appointing Reverend James Brown, Jr. as
commissioner for Seat Four of the Housing Authority. This
resolution did not indicate the dates of the term of office
to which Reverend Brown was appointed. Two weeks later, on
March 27, 2013, the Council adopted a resolution appointing
Joseph Fennidy as commissioner for the same seat to which it
had appointed Reverend Brown. This resolution, like the one
appointing Reverend Brown, did not indicate the dates of the
term of office to which Mr. Fennidy was appointed.
Furthermore, although it did indicate that Mr. Fennidy was
replacing Reverend Brown, it did not indicate the reason why
Reverend Brown was being replaced after only two weeks.
Reverend Brown never qualified for the office by taking the
oath of office pursuant to La. R.S. 42:141(A). Mr. Fennidy
took the oath of office and served as commissioner for Seat
Four during the next three years, with apparently no
questions having been raised as to the validity of his
appointment or his authority to act as a commissioner of the
8, 2016, the Jefferson Parish Council adopted a resolution
appointing David Martinez as commissioner for Seat Four of
the Housing Authority. Like the resolutions appointing his
two predecessors, this resolution did not indicate the dates
of the term of office to which Mr. Martinez was appointed.
Furthermore, although it did indicate that Mr. Martinez was
replacing Mr. Fennidy, it did not indicate the reason why Mr.
Fennidy was being replaced at that particular point in time.
Subsequent to the adoption of this resolution, James E.
Lawson, Jr., the chairman of the Housing Authority, noticed a
meeting of the Housing Authority. Mr. Lawson, taking the
position that Mr. Fennidy's term of office had not
expired, that Mr. Fennidy had not been removed from his
position, and that Mr. Martinez was therefore not properly
appointed, provided notice of the meeting to Mr. Fennidy, but
failed to provide notice of the meeting to Mr. Martinez. Due
to this impasse regarding the competing claims of Mr. Fennidy
and Mr. Martinez as the duly appointed commissioner for Seat
Four, and the apparent disagreement and confusion regarding
the correct dates of the terms of office for all nine
commissioners of the Housing Authority, the Parish of
Jefferson (hereinafter "the Parish") filed a
Petition for Preliminary Injunction, Permanent Injunction,
and Declaratory Judgment on June 28, 2016.
petition, the Parish alleged that Mr. Fennidy was appointed
to finish the unexpired term of Reverend Brown, and that the
term expired on July 16, 2013. The Parish further alleged
that, pursuant to La. R.S. 40:532(A), Mr. Fennidy was merely
continuing to serve until his successor was duly appointed,
which occurred over three years later on June 8, 2016, when
the Parish appointed Mr. Martinez.After subsequent research,
the Parish determined that the term of office to which Mr.
Fennidy was appointed commenced on February 10, 2013, and
will end on February 10, 2018. Therefore, at the trial of the
Permanent Injunction and Declaratory Judgment, the Parish
abandoned its position that Mr. Fennidy's term of office
had expired on July 16, 2013, as alleged in its petition.
Instead, the Parish took the position that Mr. Fennidy was
never validly appointed to the Housing Authority because Seat
Four was not vacant at the time of Mr. Fennidy's
purported appointment, Reverend Brown having been appointed
to the seat two weeks earlier. The Parish reasoned that after
the appointment of Reverend Brown on March 13, 2013, the seat
was occupied by Reverend Brown, and thus not vacant, and that
the earliest date upon which Seat Four could have again
become vacant due to Reverend Brown's failure to take his
oath of office, was April 12, 2013, which was the end of the
thirty-day period that the law allows a public officer, after
receipt of his commission, to qualify for his office by
taking the oath of office. The Parish argues therefore that Mr.
Fennidy's appointment on March 27, 2013, was not valid
because Seat Four was occupied by Reverend Brown on that date
and thus was not a vacant seat available for a new
support of its argument that Seat Four was not vacant at the
time of Mr. Fennidy's purported appointment, the Parish,
over the objection of Mr. Fennidy, called attorney Rubye
Noble, a Parish employee, as an expert witness "in
legislative analysis inclusive of state and municipal
legislation." The trial court accepted Ms. Noble as an
expert in the field of legislative analysis and allowed her
to testify. Subsequent to the trial of the Permanent
Injunction and Declaratory Judgment, the trial court rendered
judgment that declared the correct terms of office for all
nine seats of the Housing Authority, as per the stipulation
of the parties; declared Mr. Martinez the duly appointed
commissioner for Seat Four; and permanently enjoined Mr.
Fennidy from acting as a member of the Housing Authority, and
further permanently enjoined Mr. Lawson from seating Mr.
Fennidy at meetings of the Housing Authority. Mr. Fennidy now
appeals that portion of the judgment that declares Mr.
Martinez the duly appointed commissioner for Seat Four, and
further appeals the injunctions issued against him and Mr.
appeal, Mr. Fennidy states his sole assignment of error as
follows: "Whether the trial court abused its discretion
by admitting into evidence the expert testimony of Rubye
Noble, an attorney employed by the Parish of Jefferson, if
her legal interpretation was based on insufficient facts and
her interpretation of law was incorrect."
R.S. 40:534 provides that "[a] certificate of
appointment . . . shall be conclusive evidence of the proper
appointment of such commissioner." The Parish relies
upon this provision to support its appointment of Mr.
Martinez as the last valid appointment made to Seat Four. We
agree with the trial court's interpretation of this
provision, and its analysis that the certificate of
appointment being conclusive evidence of a proper
appointment, does not render the certificate unassailable,
but rather creates a presumption of its validity that may be
rebutted by an opponent of the certificate. In order to rebut
the presumption of the validity of the certificate of
appointment of Mr. Martinez, Mr. Fennidy produced the
certificate of appointment whereby he was appointed to the
same seat during the same term of office prior to
the appointment of Mr. Martinez. The certificate of authority
appointing Mr. Fennidy is entitled to the same presumption of
validity, and thus the burden was on the Parish to rebut the
presumption of validity of the prior certificate
appointing Mr. Fennidy. The Parish argues that the
certificate of appointment of Mr. Fennidy is not valid
because Seat Four was occupied by Reverend Brown on the date
that the resolution appointing Mr. Fennidy was adopted, and
that none of the circumstances that would create a vacancy in
the seat had occurred as of that date. In order to support
its argument and meet its burden, the Parish called Ms. Noble
as "an expert in legislative analysis inclusive of state
and municipal legislation." The Parish specifically
questioned Ms. Noble regarding interpretation of state
statutes regarding how a vacancy is created by failure of the
appointee to take the oath of office and regarding how a
vacancy is created by resignation of a
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (1) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (2) the testimony is based on sufficient facts or
data; (3) the testimony is the product of reliable principles
and methods; and (4) the expert has reliably applied the
principles and methods to the facts of the case. La. C.E.
art. 702. Like other evidentiary matters, the trial court is
afforded great discretion regarding the decision to allow
expert testimony, and that decision will not be overturned on
appeal absent an abuse of that discretion. Aaron v.
McGowan Working Partners, 16-696 (La.App. 5 Cir.
6/15/17), 223 So.3d 714, 732. However, where an attorney is
proffered to the trial court as an expert in a particular
area of law, various Louisiana Courts of Appeal, including
this Circuit, have adopted a jurisprudential rule that
experts may not provide opinions regarding domestic
(i.e., Louisiana) law. See, Normand v.
Cox Communs. La., LLC, 14-563 (La.App. 5 Cir. 12/23/14),
167 So.3d 156, 163, writ denied, 15-158 (La.
4/10/15), 163 So.3d 815; Henderson v. Ruffino,
17-158 (La.App. 5 Cir. 10/25/17), 2017 La. App. LEXIS 2046;
Crowe v. Bio-Medical in re La., LLC, 14-0917
(La.App. 1 Cir. 6/03/16), 208 So.3d 473, 482-3; UTELCOM,
Inc. v. Bridges, 10-0654 (La.App. 1 Cir. 9/12/11), 77
So.3d 39, 54; Martello v. City of Ferriday, 01-1240
(La.App. 3 Cir. 3/06/02), 813 So.2d 467, 475; Boone v.
Boone, 39, 544 (La.App. 2 Cir. 4/06/05), 899 So.2d 823,
829. The rationale for this rule is that the judge, being
trained in the law, is the ultimate arbiter of what the law
is, and that to consider other legal opinions as to an
interpretation of the law would be, if not in actuality, at
least in perception, an abrogation of the judge's
case before us, Mr. Fennidy objected to Ms. Noble's
testimony based upon the fact that Ms. Noble, an attorney,
was testifying as an expert as to her interpretation of
Louisiana law, the ultimate determination of which is the
function of the judge. Mr. Fennidy further objected based
upon the fact that Ms. Noble, as a Parish employee, had a
conflict of interest in testifying on behalf of the
Parish.Our review of the record reveals that Ms.
Noble did in fact testify as to her interpretation of
Louisiana law regarding the appointment of commissioners and
the circumstances which create a vacancy in the office of
commissioner. We conclude that the trial court erred in
allowing Ms. Noble to testify as an expert regarding her
interpretation of Louisiana law. However, we further conclude
that this error was harmless. We first note that this was a
bench trial, not a jury trial, so there was no potential for
jury confusion by having an expert opine upon her
interpretation of the law, which, in a jury trial, might
conflict with the instructions on the law given by the
judge. Furthermore, in overruling Mr.
Fennidy's objection, the trial court acknowledged the
possible perception that Ms. Noble was usurping the role of