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Washington v. Cannizzaro

Court of Appeals of Louisiana, Fourth Circuit

November 7, 2018

EMILY WASHINGTON
v.
LEON CANNIZZARO

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04581, DIVISION "C" Honorable Sidney H. Cates, Judge

          Katie Schwartzmann James W. Craig RODERICK & SOLANGE MACARTHUR JUSTICE CENTER COUNSEL FOR PLAINTIFF/APPELLANT

          David M. Fink THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Paula A. Brown, Judge Tiffany G. Chase

          JUDGE TERRI F. LOVE

         Emily 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.

         PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         On May 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."[1]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 public records.

         On June 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."

         The 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.

         Instead, 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 Morrell.

         In a 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.

         Nearly 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."

         On May 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 so."[2]

         On June 30, 2017, the District Attorney filed exceptions of unauthorized use of ordinary proceeding, no cause of action, and nonjoinder of a party.[3] 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.

         STANDARD OF REVIEW

         The 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 ...


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