Edward K. Johnson v. James E. Stewart

Judgment rendered July 17, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,631-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

EDWARD K. JOHNSON Plaintiff-Appellant

versus

JAMES E. STEWART Defendant-Appellee

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 641,775

Honorable Michael A. Pitman, Judge

*****

EDWARD K. JOHNSON Pro Se

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

TOMMY J. JOHNSON
Assistant District Attorney

*****

Before COX, STEPHENS, and ELLENDER, JJ.

COX, J.

This case comes before us from the First Judicial District Court, Caddo

Parish, Louisiana. Edward Johnson’s writ of mandamus for injunctive or

declaratory relief against Caddo Parish District Attorney James E. Stewart was

denied by the district court. Johnson now appeals that ruling. For the

following reasons, we affirm the district court.

FACTS

On January 24, 2023, Johnson, a previously convicted defendant, filed

his writ of mandamus for injunctive or declaratory relief against the Caddo

Parish District Attorney, Stewart, in which he stated that he attempted to obtain

Stewart’s file in his criminal case through a public records request. Johnson

attached a copy of an order from the U.S. Middle District of Louisiana, which

ordered the District Attorney of Caddo Parish to file a response to Johnson’s

writ of habeas corpus in federal court. Johnson also attached a certified mail

receipt and an “offender’s request for legal/indigent mail” form from the

prison. On January 30, 2023, the district court drew a line through Johnson’s

proposed order to show cause and stamped “MOTION DENIED.”

Johnson sought review of the district court’s ruling through a writ to this

Court. On May 11, 2023, this Court determined that the January 30, 2023

ruling was a final and appealable judgment pursuant to La. R.S. 44:35(C), and

converted Johnson’s writ to an appeal.1 On July 5, 2023, Johnson filed an

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On September 8, 2023, this Court recalled the May 11, 2023 order, noting that it
inadvertently referred to the docket number in Johnson’s criminal proceeding, No. 331,421
instead of the document number in Johnson’s civil proceeding, No. 641,775. On the same
day, this Court issued a revised order granting Johnson’s writ and remanding the matter for
perfection of an appeal. Neither writ order appears in the record lodged on appeal.
On January 31, 2024, this Court allowed Stewart to supplement the record with
additional proceedings which occurred after the matter was ordered to be perfected to an
appeal.

“appeal and designation of record,” arguing the district court erred in not

holding a contradictory hearing on his writ of mandamus. Johnson’s motion

for appeal included a copy of this Court’s May 11, 2023 Order. Johnson also

included a proposed order to set the matter for a contradictory hearing. The

district court set the matter for a contradictory hearing on September 20, 2023.

On August 17, 2023, Stewart filed a declinatory exception of

insufficiency of service of process and failure to serve. He argued that the

record does not include a notice to seek a supervisory writ, motion for new

trial, or motion for appeal. He asserted that the January 30, 2023 Order was the

only judgment in the litigation, and it did not dismiss him from the suit;

therefore, the district court retains jurisdiction over the case. Stewart also

argued that Johnson did not request service on him within the time prescribed

in La. C.C.P. art. 1201(C).

On September 20, 2023, a hearing on Johnson’s writ of mandamus and

Stewart’s exceptions was held, and Johnson appeared via telephone. The

district court noted that the docket number for this civil case has been

frequently confused with Johnson’s criminal docket number. The district court

stated that it granted Stewart’s exception for lack of service and dismissed the

case without prejudice. The district court also granted Johnson’s appeal of the

January 30, 2023 Judgment.

Both the appeal granted by this Court and the appeal later granted by the

district court involve only the January 30, 2023 Judgment. Therefore, our

review is limited to the January 30, 2023 Judgment.

DISCUSSION

Johnson argues that the district court erred in denying his writ of

mandamus. He states the burden is on the custodian of the records to prove it
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lawfully withheld the requested information and a contradictory hearing is

required on public records requests. Johnson requests that Stewart be ordered

to produce the records in his criminal case.

An appellate court reviews a district court’s judgment denying a writ of

mandamus under an abuse of discretion standard. Lewis v. Morrell, 16-1055

(La. App. 4 Cir. 4/5/17), 215 So. 3d 737. Louisiana Revised Statutes 44:1, et

seq. provide for certain procedures that enable a person to obtain access to

various public records. State v. Jones, 53,044 (La. App. 2 Cir. 9/25/19), 280

So. 3d 1272, writ denied, 19-01726 (La. 1/28/20), 291 So. 3d 1055. A person

may seek a writ of mandamus against a public office that has denied the right

of the person to obtain access to such public records. Id. La. R.S. 44:35(A)

states the following:

Any person who has been denied the right to inspect, copy,
reproduce, or obtain a copy or reproduction of a record under the
provisions of this Chapter, either by a determination of the
custodian or by the passage of five days, exclusive of Saturdays,
Sundays, and legal public holidays, from the date of his in-person,
written, or electronic request without receiving a determination in
writing by the custodian or an estimate of the time reasonably
necessary for collection, segregation, redaction, examination, or
review of a records request, may institute proceedings for the
issuance of a writ of mandamus, injunctive or declaratory relief,
together with attorney fees, costs and damages as provided for by
this Section, in the district court for the parish in which the office
of the custodian is located.

The six requirements for invoking the mandamus remedy under the

Public Records Act are: (1) a request must be made, La. R.S. 44:32(A); (2) the

requester must be a “person,” La. R.S. 44:31; (3) the request must be made to a

“custodian,” La. R.S. 44:1(A)(3); (4) the document requested must be a “public

record,” La. R.S. 44:1(A)(2); (5) the document requested must exist, La. R.S.

4:35 (see also Lewis, supra); and (6) there must be a failure by the custodian to

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respond to the request, La. R.S. 44:35(A). Labranche v. Landry, 22-0461 (La.

App. 1 Cir. 12/15/22), 357 So. 3d 395.

Regarding the second element, the requestor must be a “person.” The

general rule set forth in La. R.S. 44:31 is that “any person of the age of

majority” may make a public records request. La. R.S. 44:31.1 excludes

certain individuals from the definition of a “person” under the Public Records

Law. Under this statutory exception, a “person,” for purposes of the Public

Records Law, is defined to exclude an individual: (1) who is a convicted felon;

(2) who is in custody pursuant to the sentence for that felony; (3) who has

exhausted his appellate remedies; and (4) who is not limiting the grounds for

his request to those items to be used to file for post-conviction relief under La.

C. Cr. P. Art. 930.3. Muhammad v. Office of the DA for St. James, 16-9 (La.

App. 5 Cir. 4/27/16), 191 So. 3d 1149.

Generally, a “mandamus action for production of a public record

requires a contradictory hearing.” Lewis, supra; Lens v. Landrieu, 16-0639

(La. App. 4 Cir. 12/14/16), 206 So. 3d 1245. However, when the requirements

for invoking the mandamus remedy under La. R.S. 44:35 are not met, such a

hearing has not been required. Lewis, supra.

An appellate court cannot review evidence that is not in the record on

appeal and cannot receive new evidence. McKoin Starter & Generator, Inc. v.

Snap-On Credit Corp., 37,210 (La. App. 2 Cir. 6/25/03), 850 So. 2d 924, writ

denied, 03-2605 (La. 12/12/03), 860 So. 2d 1156. Johnson included additional

factual allegations and attachments in his brief that do not appear in the record;

therefore, those documents cannot be considered on review. As stated above,

our review is limited to the January 30, 2023 Judgment, denying Johnson’s

request.
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Johnson’s civil pleading states that he requested the “District Attorney

file in State of Louisiana v. Edward K. Johnson, Criminal Docket No.

331,421.” Although Johnson included a receipt that certified mail was sent to

Stewart, he did not include a copy of the request he sent to Stewart. There is

no way to determine the scope of the request—what documents he sought in

the request, if the requested documents exist, and if the documents are public

record. Johnson also failed to include Stewart’s response to the request, if any.

Without a showing that a request was made, that the documents

requested exist and are public record, and that Stewart failed to respond to the

request, Johnson has not met the requirements for invoking a mandamus

remedy. The evidentiary hearing was not required because the requirements

for invoking the writ of mandamus for public records had not been met. The

district court was not erroneous in denying Johnson’s writ of mandamus.

We note that Johnson’s writ of mandamus was denied without prejudice;

therefore, he may file his writ of mandamus again and include all the necessary

information, including a showing that he does not fall under the person

exception in La. R.S. 44:31.1.

CONCLUSION

For the reasons stated above, we affirm the district court’s denial of

Johnson’s writ of mandamus. Costs associated with this appeal are cast on

Johnson.

AFFIRMED.

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