FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04581,
DIVISION "C" Honorable Sidney H. Cates, Judge
Schwartzmann James W. Craig RODERICK & SOLANGE MACARTHUR
JUSTICE CENTER COUNSEL FOR PLAINTIFF/APPELLANT
M. Fink THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A
PROFESSIONAL LAW CORPORATION COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Edwin A. Lombard, Judge Paula A. Brown, Judge
Tiffany G. Chase
TERRI F. LOVE
Washington ("Ms. Washington") appeals the trial
court's granting of the Orleans Parish District
Attorney's dilatory exception of unauthorized use of
ordinary proceeding and peremptory exception of no cause of
action. The petition is absent of any evidence that Ms.
Washington intended to employ ordinary proceedings and not
summary proceedings in this case. Further, we find Ms.
Washington has set forth sufficient facts in her petition
that if proved at trial would entitle her to relief under the
law. Accordingly, we reverse the trial court's judgment
granting the exceptions of unauthorized use of ordinary
proceeding and no cause of action. The matter is remanded for
further proceedings in line with this opinion.
HISTORY AND FACTUAL BACKGROUND
7, 2015, Ms. Washington, an attorney with Roderick and
Solange MacArthur Justice Center ("MJC") in New
Orleans, submitted to Leon A. Cannizzaro, Jr., in his
official capacity as Orleans Parish District Attorney
("District Attorney"), a public records request
pursuant to the Public Records Law, La. R.S. 44:1 et
seq. The request sought "all records of any
subpoenas and subpoenas duces tecum sought by the Orleans
Parish District Attorney pursuant to the power granted by
Article 66 of the Louisiana Code of Criminal Procedure."
In a June 10, 2015 letter that Ms. Washington sent the
District Attorney's Office, Ms. Washington indicated that
she was informed by letter dated May 11, 2015, that "the
Orleans Parish District Attorney does not maintain any
database or case management system by which such records
could be isolated for [her] review."Believing the
District Attorney's response to be a violation of public
records law, Ms. Washington made additional attempts via
telephone and letter correspondence to obtain the requested
24, 2015, the District Attorney's Office responded,
indicating that production of the requested records would be
unduly burdensome because it would require the review of
thousands of closed files, many of which are stored off-site.
The District Attorney stated that compliance with the request
would require his office to "manually review thousands
of files stored on premises and off-site, the retrieval fee
for which is $8.10 per file." The District Attorney
further directed Ms. Washington to the Orleans Parish
Criminal District Court's Clerk of Court, stating:
"the subpoenas/subpoenas duces tecum issued at the
request of the Orleans Parish District Attorney's Office
are part of the criminal record, and therefore, the Clerk of
Court of the Orleans Parish Criminal District Court is the
proper custodian of these records."
District Attorney's letter did not assert that the
records do not exist, nor did his office indicate that they
did not have possession of any records responsive to Ms.
Washington's request. The letter stated instead that it
would be burdensome to search for them, and the Clerk of
Court would have records in the official court files. Thus,
despite Ms. Washington's multiple attempts, the District
Attorney did not provide Ms. Washington access to the
requested information in his office's possession.
Ms. Washington was informed that any subpoena would be
located at the courthouse, as a judge would have signed it
and the clerk would retain a copy as custodian of criminal
court records. Consequently, Ms. Washington also served
public records requests on every section of Orleans Parish
Criminal District Court as well as the Clerk of Court, Arthur
letter, the Judicial Administrator of Criminal District Court
responded on behalf of the judges, collectively, stating that
the "these records are not in our custody." Clerk
of Court Arthur Morrell responded that his office had no way
to identify subpoenas issued pursuant to Article 66 and that
15, 000 annual cases would need to be reviewed.
two years later, Ms. Washington learned through media reports
that the District Attorney's Office "has or had a
practice of completing Article 66 subpoenas and serving them
upon witnesses without securing a judge's
signature." Ms. Washington alleges that because they
were never authorized by a judge, the Clerk of Court would
not have ever come into possession of at least some of the
requested documents. Ms. Washington also learned through
media reporting that the District Attorney has or had no
records maintenance policy with regard to these subpoenas.
The District Attorney's Office publicly stated, the
subpoenas "were issued by individual prosecutors who
decided on their own whether to put them in case files."
12, 2017, Ms. Washington filed a petition for writ of
mandamus, seeking a trial court order directing the District
Attorney "to disclose the records requested, including
all subpoenas issued pursuant to Article 66-both real and
fraudulent-or show cause why he should not be ordered to do
30, 2017, the District Attorney filed exceptions of
unauthorized use of ordinary proceeding, no cause of action,
and nonjoinder of a party. Ms. Washington filed her opposition and
a hearing on the exceptions was held in October 2017. The
trial court granted the District Attorney's exceptions of
unauthorized use of ordinary proceeding and no cause of
action, dismissing Ms. Washington's petition for writ of
mandamus with prejudice. Ms. Washington timely appeals the
trial court's ruling.
appellate court applies de novo review to the trial
court's grant of dilatory exception of unauthorized use
of ordinary proceeding because the issue involves a question
of law. Wooley v. Lucksinger, 09-0571, p. 49 (La.
4/01/11), 61 So.3d 507, 554; Bossier v. Garber,
17-349 (La.App. 3 Cir. 1/10/18), 235 So.3d 1200, 1202.
Similarly, we review judgments sustaining a peremptory
exception of no cause of action de novo.
O'Dwyer v. Edwards, 08-1492, p. 3 (La.App. 4