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Parish of Jefferson v. Housing Authority of Jefferson Parish

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

PARISH OF JEFFERSON
v.
HOUSING AUTHORITY OF JEFFERSON PARISH AND JAMES LAWSON, JR., CHAIRMAN OF THE BOARD OF COMMISSIONERS OF HOUSING AUTHORITY OF JEFFERSON, AND JOSEPH FENNIDY

         ON 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

          FOR 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.

          Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE.

         This 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.[1] 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.

         FACTS AND PROCEDURAL HISTORY

         On 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 Housing Authority.

         On June 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.[2]

         In its 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.[3]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.[4] 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 appointment.

         In 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. Lawson.

         In his 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."[5]

         DISCUSSION

         La. 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.[6] 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 commissioner.[7]

         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 responsibility.[8]

         In the 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.[9]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.[10] Furthermore, in overruling Mr. Fennidy's objection, the trial court acknowledged the possible perception that Ms. Noble was usurping the role of ...


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