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O'Brock v. White

Court of Appeals of Louisiana, First Circuit

April 12, 2019

JIM AND BRENDA O'BROCK, ET AL
v.
JOHN WHITE & LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION

          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

          John Milkovich Shreveport, Louisiana Counsel for Plaintiff/Appellant Jim & Brenda O' Brock, et al

          Joan E. Hunt R. Christopher Fruge Baton Rouge, Louisiana Counsel for Defendant/Appellee Louisiana State Superintendent of Education

          Patricia H. Wilton Baton Rouge, Louisiana Counsel for Defendant/Appellee Louisiana Board of Elementary and Secondary Education

          BEFORE: WELCH, CHUTZ, AND LANIER, JJ.

          LAMER, J.

         In this 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 affirm.

         FACTS AND PROCEDURAL HISTORY

         On 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].

         In 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.[1] 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.

         DISCUSSION

         On 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.

         Defendants 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 ...


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