The Descendants Project Versus St. John the Baptist Parish and St. John the Baptist Parish Council

THE DESCENDANTS PROJECT NO. 23-C-478

VERSUS FIFTH CIRCUIT

COURT OF APPEAL
ST. JOHN THE BAPTIST PARISH AND
ST. JOHN THE BAPTIST PARISH COUNCIL STATE OF LOUISIANA

November 21, 2023

Linda Wiseman
First Deputy Clerk

IN RE ST. JOHN THE BAPTIST PARISH

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST
JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NGHANA LEWIS, DIVISION "B",
NUMBER 80,394

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Scott U. Schlegel

WRIT GRANTED

Defendants, St. John the Baptist Parish (“SJBP”) and St. John the Baptist Parish

Council (“Parish Council”), seek supervisory review of the trial court’s order granting in

part and denying in part their Motion to Quash Notices and Subpoenas and for Protective

Order. For the following reasons, we grant the writ and reverse the judgment of the trial

court.

BACKGROUND

On August 21, 2023, plaintiff, The Descendants Project, filed the pending lawsuit

for injunctive relief and a temporary restraining order, seeking, inter alia, to enjoin

defendants from considering a resolution regarding the re-zoning of a tract of land. The

trial court issued an ex parte temporary restraining order on that day preventing the

Parish Council from affirming or acting upon an ordinance regarding the rezoning.1 In a

meeting the following day, the Parish Council considered and passed Resolution #23-

161. During the meeting, councilmembers, Kurt Becnel and Lennix Madere, Jr.,

discussed Resolution #23-161. The minutes from the meeting were transcribed.

On August 24, 2023, following the Parish Council’s action on the resolution,

Descendants Project filed a Motion for Contempt of Temporary Restraining Order,

claiming the Parish Council’s actions, and its six members who voted in favor of the

resolution, violated the temporary restraining order.2 Defendants filed a Motion to Quash

Notices and Subpoenas and for Protective Order seeking to quash the depositions of the

councilmembers on the grounds of legislative privilege.

On September 14, 2023, the trial court heard argument on the motion to quash and

issued an order granting in part and denying in part the motion. The trial court entered an

Order With Reasons requiring that Mr. Becnel and Mr. Madere make themselves

available for a deposition on the limited issue of whether defendants acted in constructive

contempt of the temporary restraining order, and that they testify on Descendants

Project’s motion for contempt at a hearing scheduled for October 6, 2023. The trial

court’s order required the depositions to be completed no later than September 29, 2023.

That portion of the order and further proceedings in the case were stayed pending this

Court’s ruling on the writ application.

DISCUSSION

In ruling on discovery matters, the trial court is vested with broad discretion and,

upon review, an appellate court should not disturb such rulings absent a clear abuse of

discretion. Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C., 16-506 (La. App. 5 Cir.

3/29/17), 216 So.3d 287, 303, writ denied, 17-0893 (La. 9/29/17), 227 So.3d 288.

1
The Order With Reasons entered by the trial court on September 14, 2023, refers to the “August 22, 2023 temporary
restraining order”. However, the temporary restraining order attached to the writ application was signed on August 21, 2023.
2
Among the remedies that Descendants Project seeks is an order that the six councilmembers who voted in favor of the
resolution “pay penalties to the Court for their unlawful conduct”. The individual councilmembers are not defendants in the
case.

However, where the trial court’s decision is based on an erroneous interpretation or

application of law, rather than a valid exercise of discretion, such an incorrect decision is

not entitled to deference by the reviewing court. Yorsch v. Morel, 16-662 (La. App. 5

Cir. 7/26/17), 223 So.3d 1274, 1281, writ denied, 2017-1475 (La. 11/13/17), 230 So.3d

207.

Defendants agree with the trial court’s framing of the issue to be determined as

“whether or not defendant Parish Council is entitled to entry of an order quashing

subpoenas directed to Kurt Becnel and Lennix Madere, Jr., both of whom are St. John the

Baptist Parish Councilpersons.”

In its assignment of error, defendants argue that the trial court abused its discretion

in ordering council members Mr. Becnel and Mr. Madere to provide deposition and trial

testimony regarding their reasons for voting in favor of Resolution #23-161. Defendants

argue that the councilmembers are protected from testifying by legislative immunity.

Descendants Project responds that the legislative privilege does not apply because

(1) the legislative privilege does not apply to administrative acts such as the one at issue;

(2) contempt of a court order is outside the “legitimate legislative sphere” protected by

legislative immunity; and (3) even if the legislative privilege attaches, it was waived

when defendants raised the councilmembers’ subjective intent as their defense.

The legislative privilege contained in Article III, § 8 of the Louisiana Constitution

of 1974 provides:

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 Court has recognized that this constitutional privilege applies to local legislators.

Waste Mgmt. of Louisiana, L.L.C. v. Consol. Garbage Dist. No. 1 of Par. of Jefferson,

12-444 (La. App. 5 Cir. 3/13/13), 113 So.3d 243, 250.

This Court addressed similar issues to those raised in the case at bar in Falcon v.

Parish of Jefferson, 22-185 (La. App. 5 Cir. 5/20/22), 2022 WL 1598023 (unpublished

writ disposition). In Falcon, the plaintiffs appealed to the trial court, the Jefferson Parish

Council’s denial of their application to re-subdivide their property. In anticipation of the

trial, the plaintiffs sought the issuance of a subpoena to one of the members of the council

who was not a party to the action. As in the instant case, the trial court denied the

councilman’s motion to quash the subpoena, and limited his testimony to “matters

deemed relevant by the Court.” This Court reversed and held:

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.

Falcon v. Parish of Jefferson, 22-185 at 2.

As to the legislative privilege contained in Article III, § 8 of the Louisiana

Constitution, we further held in Falcon:

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.

Id.

Although Falcon involved the approval or disapproval of a subdivision plat, and

the pending case involves the passing of a resolution, the analysis in Falcon applies

equally to the case at bar.

The subpoenas at issue seek to inquire into the councilmembers’ motivations for

voting for Resolution #23-161. The statements made by Mr. Becnel and Mr. Madere

were made in connection with Resolution #23-161 at a Parish Council meeting. Mr.

Becnel’s and Mr. Madere’s actions in passing Resolution #23-161 were made while

performing legislative acts. The legislative privilege contained in Article III, § 8 of the

Louisiana Constitution applies. The first argument of Descendants Project that the

councilmembers’ actions were administrative acts is unavailing.

Descendants Project next asserts that actions considered contempt of court are

outside the “legitimate legislative sphere” protected by legislative immunity. This

argument is also unpersuasive. Descendants Project relies upon In re Arnold, 07-2342

(La. App. 1 Cir. 5/23/08), 991 So.2d 531, 541, which barred the Louisiana Board of

Ethics from investigating, questioning, or punishing legislators for any actions by them

within the “legitimate legislative sphere.” The Louisiana First Circuit Court of Appeal

found that when legislators’ actions fall “within the legislative sphere,” Article III, § 8 of

the Louisiana Constitution “bars any questioning of their action ‘elsewhere,’ other than in

the House of Representatives”. In re Arnold, 991 So.2d at 543. Descendants Project also

cites Jefferson Community Health Care Centers, Inc. v. Jefferson Parish Government,

849 F.3d 615, 624 (5th Cir. 2017), as requiring a restrictive application of the legislative

privilege. However, in that case, the issues arose under 42 U.S.C. § 1983 and involved

application of the legislative privilege under Rule 501 of the Federal Rules of Evidence,

and not the legislative privilege under Article III, § 8 of the Louisiana Constitution.

Descendants Project’s final argument that Mr. Becnel and Mr. Madere waived the

legislative privilege by raising their subjective intent is also without merit. Again,

Descendants Project cites to federal cases involving the legislative privilege under federal

common law, as applied through Rule 501 of the Federal Rules of Evidence. See, e.g.,

Hall v. Louisiana, No. 12-657, 2014 WL 1652791, at *8 (M.D. La. Apr. 23, 2014). As

discussed supra, the legislative privilege under Article III, § 8 of the Louisiana

Constitution, at issue herein, prohibits inquiry into the acts that occur in the regular

course of the legislative process and into the motivation for those acts. The

councilmembers’ actions in voting in favor of Resolution #23-161 go to the core of their

legislative function. As in Falcon, the legislative privilege is an absolute bar to

interference when councilmembers are acting within the legislative sphere.

CONCLUSION

Upon review of the writ application by St. John the Baptist Parish and St. John the

Baptist Parish Council, we find that the trial court legally erred in failing to quash the

notice and subpoenas issued by Descendants Project. We find the Parish Council’s

decision to pass Resolution #23-161 was a legislative one, and that the legislative

privilege set forth in Article III, § 8 of the Louisiana Constitution applies. We therefore

grant this writ application, reverse the trial court’s Order of September 14, 2023, and

order that the motion to quash notices and subpoenas is granted.

Gretna, Louisiana, this 21st day of November, 2023.

SUS
SMC
FHW

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL
FIFTH CIRCUIT
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