Appealed from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Docket No.
C661, 721 The Honorable Todd Hernandez, Judge Presiding
Milkovich Shreveport, Louisiana Counsel for
Plaintiff/Appellant Jim & Brenda O' Brock, et al
E. Hunt R. Christopher Fruge Baton Rouge, Louisiana Counsel
for Defendant/Appellee Louisiana State Superintendent of
Patricia H. Wilton Baton Rouge, Louisiana Counsel for
Defendant/Appellee Louisiana Board of Elementary and
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
case, plaintiffs appeal from a trial court judgment
sustaining defendants' exception raising the objection of
no right of action and dismissing, with prejudice,
plaintiffs' claims. For the reasons that follow, we
AND PROCEDURAL HISTORY
September 21, 2017, plaintiffs (Jim and Brenda O'Brock,
Luke and Vickie Roark, A.G. Crowe, Constance Diane Long, Mike
Deshotel, Dennis Burks, Caryn Jenkins, Virginia Trahan, Jimmy
Willoughby, and Earl Randolph Pinkley) filed an action
entitled "Petition For Declaratory Judgment"
against defendants, John White, in his capacity as the
Superintendent of the Louisiana Department of Education
("Department"), the Department, and the Louisiana
Board of Elementary and Secondary Education. Plaintiffs
alleged that White had been appointed as the Superintendent
of the Department in 2012 and had not been reconfirmed by the
Louisiana Senate as required by Louisiana law. Thus,
plaintiffs maintained, White was "hold[ing] office in
the absence of legal authority to do so," and was not
entitled to the continued payment of his salary while he
"illegally remains in office." Plaintiffs'
petition contained the following prayer for relief:
WHEREFORE PLAINTIFFS PRAY that this Honorable Court enter
Declaratory Judgment that the applicable Louisiana Law
required that [White] had to have been reconfirmed by the
Louisiana Senate by June 9, 2017, or the Office of the
Superintendent of the [Department] would and/or will be
declared, decreed and adjudged to be vacant, and/or the
Office of Louisiana Superintendent of Education would be
vacant by operation of law, and/or as a matter of law, and
the current Superintendent, [White], would no longer be
deemed to be, nor be legally entitled to serve as, the
Superintendent of the [Department].
response to plaintiffs' petition, defendants filed an
exception raising the objection of no right of action.
Defendants argued that Louisiana law is clear that individual
citizens do not have a right of action to bring an
intrusion-into-office suit. Citing La. R.S. 42:76, La. R.S.
42:77, and La. R.S. 24:14, defendants asserted that there is
an exclusive list of five people who would have a right of
action to bring such an action in the instant case: (1) the
attorney general; (2) a district attorney; (3) the governor;
(4) someone who claims the office allegedly being intruded
upon; and, (5) the Senate, through its
president. Following a hearing on the exception, the
trial court took the matter under advisement. On April 18,
2018, the trial court rendered judgment sustaining
defendants' no right of action objection and dismissing
plaintiffs' suit, with prejudice. In maintaining
defendants' exception, the trial court found "that
regardless of the title of the petition or cause of action
asserted ..., [La.] R.S. 42:76, et seq. is controlling and
the plaintiffs are not members of a class of persons lawfully
permitted to bring this action." It is from this
judgment that plaintiffs have appealed, arguing that the
trial court erred in granting defendants' exception
raising the objection of no right of action and in failing to
permit plaintiffs an opportunity to amend their petition.
appeal, plaintiffs argue that their petition is a declaratory
action based on its literal terms, its function, and the
relief requested and that it was legal error for the trial
court to dismiss their action. Plaintiffs assert that their
petition did not request an order removing White from office,
did not seek a mandamus, and was not a quo warranto
proceeding. To the contrary, plaintiffs maintain that their
petition sought a judicial declaration of whether it was
legal for White to remain in office. Plaintiffs contend
further that the trial court erred by not permitting them to
amend their petition to state a valid right of action.
counter that the right of action to bring a suit to challenge
White's right to hold office belongs exclusively to the
individuals listed in La. R.S. 42:76, La. R.S. 42:77, and La.
R.S. 24:14(H)(1)(b). Moreover, defendants argue that
regardless of how plaintiffs have chosen to style their suit,
the provisions of the above listed statutes apply to
plaintiffs' suit as they are ...