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Kocher v. Truth In Politics, Inc.

Court of Appeals of Louisiana, Fourth Circuit

November 15, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-11867, DIVISION "C" Honorable Sidney H. Cates, Judge

          Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown


         The Appellants, Truth in Politics, Inc., and Causeway Connection PAC, seek review of the November 13, 2019 judgment of the district court, granting a temporary restraining order in favor of Plaintiff, Linda Kocher. Finding that the district court erred in failing to render a temporary restraining order compliant with La. Code Civ. Proc. art. 3605, we reverse the judgment and remand this matter to the district court for reissuance of an appropriate order.

         Facts and Procedural History

         The instant election suit involves a temporary restraining order issued by the district court, pursuant to La. Rev. Stat. 18:1463, enjoining allegedly false political advertisements of the Appellants in the Louisiana gubernatorial election, to be held on November 16, 2019, between incumbent Governor John Bel Edwards and candidate Eddie Rispone.

         On November 13, 2019, Ms. Kocher filed an "Emergency Petition for Injunctive Relief with Request for Expedited Consideration for Issuance of a Temporary Restraining Order," as well as a Motion for Issuance of Temporary Restraining Order. Ms. Kocher, an Orleans Parish resident and registered voter in the state of Louisiana, pleaded that as an affected voter in the upcoming run-off election she seeks a permanent injunction under La. Rev. Stat. 18:1463 and La. Code Civ. Proc. art. 3601, prohibiting the Appellants from "running, distributing or transmitting" two political advertisements in the New Orleans area allegedly disseminating false information about Governor Edwards and Lieutenant Colonel (Retired) Murray Starkel. Ms. Kocher pleaded that she viewed these advertisements on television.

         Specifically, she pleaded that in the first advertisement, Appellants' stated that projects to save Louisiana's coast are a "front for" the friends of Governor Edwards to get rich. The alleged advertisement: identifies Lt. Col. Starkel; alleges that once Governor Edwards was elected "backroom deals began;" and shows pictures of Governor Edwards and Lt. Col. Starkel side-by-side. In the same advertisement, Appellant Truth in Politics, Inc., claims that Lt. Col. Starkel landed a state contract worth up to $65, 000, 000 and that his company received a "lucrative coast contract." Ms. Kocher pleaded that this advertisement has been aired on, or will shortly be aired on, several television stations in the New Orleans area.

         The second television advertisement of the Appellants, she avers, claimed Lt. Col. Starkel has "scored big" and was poised to cash-in up to $65, 000, 000 and that his company had a lucrative deal. This advertisement has been aired on several television stations in the New Orleans area. She contends that the statements and advertisements outlined are patently and demonstrably false and that the Appellants knew or reasonably should have been expected to know the falsity of the statements. Attached to her petition are the affidavits of Lt. Col. Starkel and Lawrence B. Haase, the executive director of the Coastal Protection and Restoration Authority (CPRA), both of which attesting to the fact that CPRA does not have contracts with nor ever issued a contract to Lt. Col. Ret. Starkel or to the company that he serves as the Managing Partner of, Ecological Service Partners, LLC ("ESP"). The affidavits of Mr. Haase and Lt. Colonel Starkel, respectively, she avers, corroborate that although ESP responded to CPRA's Request for Statements of Interest and Qualifications and thereafter, a Request for Proposals, no contract was ever awarded by CPRA to any entity or proposers. This is evidenced by CPRA issued correspondence dated August 12, 2019, to all four proposers, attached to Mr. Haase's affidavit as an exhibit.

         As an affected voter, Ms. Kocher further requested the issuance of a temporary restraining order, stating that she will be immediately and irreparably harmed, if in the final days of the Louisiana Gubernatorial runoff election, paid advertisements containing these allegedly false accusations are allowed to be aired. Such ads, she maintains, interfere with and impede her rights as a voter- including the right to have a runoff election for the Governor of Louisiana held in a fair, free and ethical manner- and that her right, as well as the rights of other voters, to receive truthful and accurate information in order to be fully informed to exercise her constitutional right to vote for the candidate of her choosing, pursuant to La. Rev. Stat. 18:1463, was adversely affected.

         The district court, on the same date that the petition was filed, issued an order granting a temporary restraining order and setting security in the amount of $5, 000.00.[1] Moreover the district court further enjoined the Appellants from "running, distributing, or transmitting" the afore-mentioned advertisements, and to "ensure that any person or entity currently running the advertisements do not run the advertisements." The order provided that it is effective "until the Court orders otherwise and will expire on its own terms on November 17, 2019." Lastly, the order set a November 15, 2019 hearing date for the Appellants to show cause as to why a preliminary injunction should not issue.

         The Appellants timely filed the instant appeal.[2] They raise three assignments of error:

1. The district court failed to comply with La. Code Civ. Proc. art. 3605, because the temporary restraining order does not describe the act or acts sought to be restrained in reasonable detail, rather it merely referenced the petition;
2. The district court failed to identify which advertisement and what statements within said advertisement(s), purportedly violate La. Rev. Stat. 18:1463, and in failing to recognize that one of the two advertisements at issue does not ...

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