Timothy and Jewell Falcon Versus The Parish of Jefferson and the Jefferson Parish Council

TIMOTHY AND JEWELL FALCON NO. 22-C-185

VERSUS FIFTH CIRCUIT

THE PARISH OF JEFFERSON AND THE COURT OF APPEAL

JEFFERSON PARISH COUNCIL STATE OF LOUISIANA

May 20, 2022

Susan Buchholz
First Deputy Clerk

IN RE COUNCILMAN BYRON LEE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
DONALD L. FORET, DIVISION "H", NUMBER 821-019

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Robert A. Chaisson

WRIT GRANTED

In Timothy and Jewel Falcon’s suit against the Jefferson Parish Council for

denying their application for re-subdivision of their property, Councilman Byron

Lee seeks supervisory review of the trial court’s denial of his motion to quash a

subpoena filed by the Falcons seeking Councilman Lee’s testimony at trial. For

the following reasons, we grant relator’s writ and reverse the judgment of the trial

court.

BACKGROUND

On August 25, 2021, at a meeting of the Jefferson Parish Council, the

Council, upon motion by Councilman Lee, voted to deny approval for a Plat

Proposal submitted for consideration by the Falcons. Prior to the vote, the Council

heard a presentation from counsel for the Falcons outlining the proposal as well as

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opposition from local residents who were concerned about the proposed

subdivision’s impact on traffic in the neighborhood.

Following the vote of the Council, the Falcons filed an appeal with the

Twenty Fourth Judicial District Court naming as defendants the Parish of Jefferson

and the Jefferson Parish Council. The appeal requests that the court vacate the

Council’s decision and issue an injunction ordering the approval of the Falcons’

plat proposal.

In anticipation of the trial on the petition, the Falcons requested the trial

court to issue a subpoena to Councilman Lee, who is not a party to this litigation,

to compel his testimony at trial. In response, Councilman Lee filed a motion to

quash the subpoena on the basis that legislative privilege precludes him from

testifying as to any decisions made in his capacity as Councilman for the Parish of

Jefferson. In response, the Falcons argued that Councilman Lee was acting in an

administrative capacity rather than a legislative capacity at the time of the council

meeting, and therefore is not entitled to the protection of legislative privilege.

Following a hearing on the motion, the trial court rendered judgment denying the

motion to quash the subpoena and further ordering that the questioning of

Councilman Lee shall be limited to matters deemed relevant by the Court pursuant

to Louisiana Code of Evidence Article 401. Councilman Lee seeks expedited

supervisory review of this judgment.

DISCUSSION

Trial courts have broad discretion in ruling on discovery matters that are

presented during the course of litigation, including the scope of discovery, and

such discretion will not be disturbed on appeal absent a clear showing of abuse.

Wells v. Fandal, 13-620 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87, writ denied,

14-511 (La. 4/25/14), 138 So.3d 645. However, where the trial court’s decision is

based on an erroneous interpretation or application of law, rather than a valid

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exercise of discretion, such an incorrect decision is not entitled to deference by the

reviewing court and a de novo review is warranted. Yorsh v. Morel, 16-662 (La.

App. 5 Cir. 7/26/17), 223 So.3d 1274, 1281, writ denied, 17-1475 (La. 11/13/17),

230 So.3d 207.

The Falcons argue that the Council’s decision to deny their application for

re-subdivision is an administrative act and therefore the Council members are not

entitled to legislative privilege and can be compelled to testify. In support of this

argument, they cite numerous cases from federal courts including Angelicare, LLC

v. St. Bernard Par., 17-7360 (E.D. La. 3/6/18), 2018 WL 1172947, a case which

cites the United States Supreme Court’s decision in Bogan v. Scott-Harris, 523

U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), wherein the Supreme Court set

forth the criteria for determining whether an act is legislative in nature.

Relator in turn argues that the Council’s decision denying the application for

re-subdivision is a legislative act rather than an administrative act, and further, that

the legislative privilege granted to Council members in the Louisiana Constitution

is applicable regardless of how the act is characterized.

The approval or disapproval of a subdivision plat is a legislative function

involving the exercise of legislative discretion by the governing authority of a

parish or municipality. Inv. Mgmt. Servs., Inc. v. Vill. of Folsom, 00-0832 (La.

App. 1 Cir. 5/11/01), 808 So.2d 597, 604; see also La. R.S. 33:101.1 (“[T]he act

of approving or disapproving a subdivision plat is hereby declared a legislative

function involving the exercise of legislative discretion by the planning

commission …”). Accordingly, we find that the Falcons’ argument that the

Council’s decision to disprove the re-subdivision plan was an administrative one to

be without merit.

We turn next to the legislative privilege raised by Councilman Lee. Article

III, § 8 of the Louisiana Constitution provides that:

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A member of the legislature shall be privileged from arrest, except for
felony, during his attendance at sessions and committee meetings of
his house and while going to and from them. No member shall be
questioned elsewhere for any speech in either house.

This article has been held to constitute “an absolute bar to interference when

members are acting within the legislative sphere.” Parish of Jefferson v. SFS

Construction Group, Inc., 01-1118 (La. App. 5 Cir. 2/13/02), 812 So.2d 103, 105,

writ denied, 02-791 (La. 5/31/02), 817 So.2d 95, citing Copsey v. Baer, 593 So.2d

685 (La. App. 1st Cir.1991). In Copsey, the First Circuit examined the origin of

the legislative privilege in Article III, § 8 and concluded that inquiries into the

motivation for legislative actions ran afoul of Article III, citing an opinion by the

United States Supreme Court, which held in United States v. Gillock, 445 U.S. 360,

366-67, 100 S.Ct. 1185, 1190, 63 L.Ed.2d 454 (1980), that “the Clause protects

against inquiry into the acts that occur in the regular course of the legislative

process and into the motivation for those acts.” Copsey, supra, 593 So.2d at 688.

The prohibition extends not only to the Louisiana legislature but also other

legislative bodies such as the legislative bodies of parish and city governments.

Ruffino v. Tangipahoa Par. Council, 06-2073 (La. App. 1 Cir. 6/8/07), 965 So.2d

414, 417. Because the subpoena complained of specifically involves inquiry into

the motivation for a legislative action, it is clearly in violation of Article III, § 8.

Thus, the trial court erred as a matter of law when it failed to recognize

Councilman Lee’s legislative privilege and failed to quash the Falcons’ subpoena.

CONCLUSION

Upon review of Councilman Lee’s writ application, we find that the trial

court legally erred in finding that the Council’s August 25, 2021 decision to

disapprove the Falcons’ proposed re-subdivision was an administrative one. We

find the Council’s decision to be a legislative one, in accordance with La. R.S.

33:101.1, and that the legislative privilege set forth in Article III, § 8 of the

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Louisiana Constitution is applicable. We therefore grant this writ application,

reverse the trial court’s April 1, 2022 judgment, and order that Councilman Lee’s

motion to quash the Falcons’ subpoena is granted.

Gretna, Louisiana, this 20th day of May, 2022.

RAC
SMC
FHW

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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22-C-185
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald L. Foret (DISTRICT JUDGE)
Jacob K. Best (Relator) Guice A. Giambrone, III (Relator)
Michael L. Vincenzo (Respondent) Ivana Dillas (Relator)
Patrick T. Isacks (Respondent)

MAILED
Timothy S. Madden (Respondent)
Attorney at Law
201 St. Charles Avenue
Suite 4500
New Orleans, LA 70170

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Tunothy S. Madden•
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