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Jones v. Louisiana Board of Ethics

Court of Appeals of Louisiana, First Circuit

September 24, 2018

CHARLES R. JONES
v.
LOUISIANA BOARD OF ETHICS

          APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER C652138 HONORABLE TIMOTHY E. KELLEY, JUDGE

          Danny D. Russell Baton Rouge, Louisiana Attorney for Plaintiff/Appellant Charles R. Jones

          Charles R. Jones Metairie, Louisiana Pro Se

          Kathleen Allen Tracy Barker David M. Bordelon Baton Rouge, Louisiana Attorneys for Defendant/Appellee Louisiana Board of Ethics

          BEFORE: MCDONALD, CRAIN, AND HOLDRIDGE, JJ.

          MCDONALD, J.

         In this case the issue is whether an elected judge who also serves as a state commission member must file a financial disclosure statement with the Louisiana Board of Ethics (BOE) in accordance with the Louisiana Code of Governmental Ethics (Code of Ethics) that applies to commission members in addition to filing a financial disclosure statement with the Louisiana Supreme Court in accordance with Louisiana Supreme Court Rule XXXIX, which applies to elected judges. After review, we find that an elected judge serving as a commission member must file the financial disclosure statement with the BOE that is required for commission members by the Code of Ethics.

         FACTS AND PROCEDURAL HISTORY

         In a previous opinion of this court, Charles R. Jones, a retired state appellate judge, challenged a decision by the Louisiana Ethics Adjudicatory Board (EAB), affirming the BOE's assessment of a $1, 500.00 late fee against him for his failure to file a financial disclosure statement as a former member of the Louisiana Commission on Law Enforcement and the Administration of Criminal Justice (Commission). This court dismissed the appeal, finding that because the basis of Judge Jones's challenge to the EAB's decision was constitutional, he had to first assert his claim in the district court, and that the issue was not in the proper procedural posture for this court's review. In the Matter of Jones, 2015-1352 (La.App. 1 Cir. 9/16/16), 2016 WL 4942355 (unpublished).

         Thereafter, Judge Jones filed a petition for declaratory judgment and injunctive relief in the district court, alleging that he had timely filed his financial disclosure statement with the Louisiana Supreme Court, he had paid the BOE's $1, 500.00 late fee under protest, and that the application of La. R.S. 42:1124.2.1 against him was unconstitutional. He asked for judgment in his favor declaring the application of La. R.S. 42:1124.2.1 to him as a sitting judge was unconstitutional, and that all actions taken against him be declared null; that the BOE be ordered to show why a preliminary injunction should not be issued restraining the BOE from enforcing the provisions of La. R.S. 42:1124.2.1 against him, and all parties similarly situated, and from the collection of related costs for the failure to timely file a financial disclosure statement until a final judgment was rendered herein; for recovery of the $1, 500.00 under the theory of unjust enrichment; for damages to his personal and professional reputation from violation of his privacy and the disclosure of private facts; and for judgment in his favor and against the BOE for costs, general and equitable relief, and judicial interest.

         The BOE raised peremptory exceptions of no cause of action and no right of action, asserting that Judge Jones was no longer a member of the Commission, that he had filed all required financial disclosure statements and paid all outstanding late fees, and that he had not alleged any irreparable injury, loss or damage that would result to him. The BOE also raised declinatory exceptions of insufficient service of process and citation, asserting that neither the BOE nor the Attorney General's Office had been properly served with the citation and petition.

         After a hearing, the district court ruled in favor of the BOE and against Judge Jones. By judgment dated March 7, 2017, the district court granted the BOE's peremptory exception to the petition for preliminary injunction, dismissing the petition for preliminary injunction with prejudice, denied the BOE's peremptory and declinatory exceptions to the petition for declaratory judgment, denied the petition for declaratory judgment, dismissed the petition for declaratory judgment with prejudice, and ruled that the application of La. R.S. 42:1124.2.1 to Judge Jones as a member of the Commission was not unconstitutional. Judge Jones appealed that judgment.

         THE APPEAL

         In his assignments of error, Judge Jones asserts that:

1. The trial court erred, as a matter of law, in denying [his] petition for declaratory relief.
2. The trial court erred, as a matter of law, in finding that Jones had to file a financial disclosure form pursuant to [La. R.S.] 42:1124.2.1 A when he was excluded from doing so under that statute since he was already required to file a financial disclosure form pursuant to [La. R.S.] 42:1124.2 and [Rule XXXIX] of the Rules of the Supreme Court of Louisiana.
3. The trial court erred, as a matter of law, in finding that Jones, as an elected member of the judiciary, was not exempt from the [Code of Ethics] pursuant to [La. R.S.] 42:1167 and Section 3 (C) of Rule XXXIX of the Rules of the Supreme Court of Louisiana.

         The BOE asserts that Judge Jones failed to present a justiciable controversy over which a declaratory judgment can be rendered. The Ethics Board notes that Judge Jones resigned as a member of the Commission on December 31, 2012, upon his resignation as a member of the Court of Appeal, Fourth Circuit. Thus, the BOE maintains that Judge Jones no longer falls within the scope and jurisdiction of the Code of Ethics. Additionally, the BOE notes that Judge Jones submitted a compliant financial disclosure statement on September 17, 2014, and on March 9, 2015, and paid the $1, 500.00 late fee assessed by the BOE pursuant to La. R.S. 42:1124.2.1, satisfying his obligation under the Code of Ethics. The BOE asserts that Judge Jones did not seek a waiver of the late fee assessment, or seek subsequent reconsideration by the BOE, thus the late fee order is final, and no justiciable controversy exists.

In Abbott v. Parker, 249 So.2d 908, 918 (La. 1971), the court stated:
A "justiciable controversy" connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

         As Judge Jones is asserting his right to compensation for the damages he sustained, resulting from what he maintains is the unconstitutional application of La. R.S. 42:1124.2.1 and the declaratory judgment against him, we find that there is a justiciable controversy.

         APPLICABLE LAW

         Louisiana Revised Statute 42:1167 provides that:

All judges, as defined by the Code of Judicial Conduct, shall be governed exclusively by the provisions of the Code of Judicial Conduct, which shall be administered by the Judiciary Commission provided for in ...

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