Ocean Jasmine Manning v. State of Louisiana

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-698

OCEAN JASMINE MANNING

VERSUS

STATE OF LOUISIANA

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APPEAL FROM
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2018-6455
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders, Billy H. Ezell, Candyce G.
Perret, and Jonathan W. Perry, Judges.

AFFIRMED.

Cooks, J., dissents with written reasons.
Saunders, J., dissents.

Richard Ducote
318 E. Boston Street, 2nd Floor
Covington, LA 70433
(985) 898-2755
Attorney for Appellant/Plaintiff
Ocean Jasmine Manning

Paul D. Gibson
Thomas M. Long
412 Travis Street, Suite C
Lafayette, LA 70503
(337) 233-9600
Attorneys for Appellee
Keith A. Stutes, District Attorney, 15th Judicial District

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PERRET, Judge.

In this case, we consider whether the trial court erred in denying a

declaratory judgment decreeing Plaintiff Ocean Jasmine Manning (“Ms.

Manning”) factually innocent of crimes for which she was arrested in 2015.

FACTS AND PROCEDURAL HISTORY:

Ms. Manning, an Oklahoma resident, has two children, a nine-year-old and a

seven-year-old, who live in Lafayette, Louisiana, with their father pursuant to an

Oklahoma custody decree. Ms. Manning was arrested on June 22 or June 23, 2015

in Lafayette Parish after being extradited from Oklahoma. Ms. Manning was

charged with three counts of abuse of children/false reports, violations of La.R.S.

14:403(A)(3); two counts of criminal mischief/false report or complaint, violations

of La.R.S. 14:59(A)(5), and three counts of cruelty to juveniles, violations of

La.R.S. 14:93(A)(1), involving her children.

No Bill of Information or Indictment was filed in connection with these

charges. The Fifteenth Judicial District, Parish of Lafayette’s District Attorney’s

Office indicated at a trial court hearing that it “has no intent to prosecute” Ms.

Manning for these charges. The District Attorney’s Office reiterated this fact in its

brief to this court.

Thereafter, Ms. Manning filed a Petition for Declaratory Judgment in civil

court, asserting that her arrest and the publicity stemming from her arrest has

prejudiced her Oklahoma child custody proceedings. Additionally, she asserts that

she “never committed any of these alleged crimes and is factually innocent.” Ms.

Manning sought a declaratory judgment of her factual innocence because she “has

no adequate remedy to clear her name and to rectify these false charges of criminal

conduct” and that such judgment is appropriate under La.Code Civ.P. arts. 1871–

1888. Ms. Manning named the State of Louisiana (“the State”) as a Defendant and

served the State through the District Attorney for the Parish of Lafayette, 15th

Judicial District, Hon. Keith Stutes (“the District Attorney”).

The District Attorney filed Declinatory Exceptions of Improper Citation and

Insufficiency of Service of Process, and Lack of Subject Matter Jurisdiction;

Dilatory Exceptions of Prematurity, and Improper Joinder of Parties; and

Peremptory Exceptions of Prescription, No Cause of Action, and No Right of

Action. First, the District Attorney argued that serving the District Attorney was

improper and insufficient service on the State, as the District Attorney’s Office is

not a state agency. Second, the District Attorney argued that the district court in its

civil capacity lacked subject matter jurisdiction over criminal matters. Third, the

District Attorney argued that this suit is premature because the District Attorney

has not taken any steps towards the prosecution of Ms. Manning and there have

been no adverse actions, no “judiciable controversy” exists for the court to decide.

Fourth, the District Attorney argued that the District Attorney’s Office was

improperly joined because it was not named as a defendant and is not an agency of

the State. Fifth, the District Attorney alleged that Ms. Manning’s claims arising

from her 2015 arrest sound in tort and are prescribed. Lastly, the District Attorney

claims there is no cause of action and no right of action as an adequate remedy

exists under the court’s criminal jurisdiction (expungement) and because there is

currently no justiciable controversy.

The trial court sustained all exceptions and dismissed Ms. Manning’s

petition. On appeal, Ms. Manning assigns eight assignments of error, which

together allege that the trial court erred in sustaining the District Attorney’s

exceptions.

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ANALYSIS:

After reviewing the record on appeal, we agree with the trial court in

sustaining the exceptions of prematurity and no cause of action. As these findings

ultimately affirm the dismissal of Ms. Manning’s petition, a discussion of the trial

court’s error in sustaining the remaining exceptions would be superfluous.

Dilatory exception of prematurity:

“The dilatory exception of prematurity provided in La.Code Civ.Proc. art.

926 questions whether the cause of action has matured to the point where it is ripe

for judicial determination.” Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-

451, p. 4 (La. 12/1/04), 888 So.2d 782, 785. “An action is premature when it is

brought before the right to enforce it has accrued.” Id. The party raising the

exception carries the burden of proving prematurity. Id. On appeal, a judgment

granting an exception of prematurity is reviewed under the “manifest error

standard of review unless it involves a question of law.” Barlow v. Garber, 17-

401, p. 2 (La.App. 3 Cir. 11/2/17), 230 So.3d 1002, 1004.

Ms. Manning seeks a declaration that she is innocent of the crimes for which

she was arrested. However, Ms. Manning has not been prosecuted for those

crimes. Therefore, Ms. Manning “is presumed innocent until proven guilty[.]”

La.Const. art. 1, §16; see generally U.S. Const. amends. V and XIV. The United

States Supreme Court has stated, “The principle that there is a presumption of

innocence in favor of the accused is the undoubted law, axiomatic and elementary,

and its enforcement lies at the foundation of the administration of our criminal

law.” Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403 (1895). Thus,

as Appellee notes, there is no adversity between Ms. Manning and the District

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Attorney as no charges have been filed and Ms. Manning remains legally innocent

under the law. There is no dispute for the court to resolve.

Additionally, the possibility of prosecution being instituted is unlikely given

the time restraints in La.Code Crim.P. art. 572. Louisiana Code of Criminal

Procedure Article 572 provides the time limitations for prosecution of noncapital

offenses:

A. Except as provided in Articles 571 and 571.1, no person
shall be prosecuted, tried, or punished for an offense not punishable
by death or life imprisonment, unless the prosecution is instituted
within the following periods of time after the offense has been
committed:

....

(2) Four years, for a felony not necessarily punishable by
imprisonment at hard labor.

(3) Two years, for a misdemeanor punishable by a fine, or
imprisonment, or both.

If Ms. Manning wants to remove the arrest from her record, our law provides

avenues to accomplish those actions, for example, expungement, motions to quash,

or unlawful arrest. However, as far as adjudicating her factually innocent, there is

no controversy ripe for judicial determination at this time. We find no legal error

in the trial court’s grant of Appellee’s exception of prematurity.

Peremptory exception of no cause of action:

An exception of no cause of action tests “the legal sufficiency of the petition

by determining whether the law affords a remedy on the facts alleged in the

pleading.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d

1234, 1235 (La.1993). Whether a cause of action exists is a question of law that is

reviewed de novo on appeal. Noel v. Noel, 15-37 (La.App. 3 Cir. 5/27/15), 165

So.3d 401, writ denied, 15-1121 (La. 9/18/15), 178 So.3d 147.

4

Ms. Manning seeks a declaration of innocence in her petition for declaratory

judgment.

A party is entitled to relief by declaratory judgment when “his
rights are uncertain or disputed in an immediate and genuine situation,
and the declaratory judgment will remove the uncertainty or terminate
the dispute.” Spicer v. Spicer, 2010-1577 (La. App. 1 Cir. 3/25/11), 62
So.3d 798, 800.

Greene v. Greene, 19-37, p. 14 (La.App. 5 Cir. 12/11/19), 286 So.3d 1103, 1114–

15. This court has also noted:

The codal articles authorizing declaratory judgment are
declared remedial and should be liberally construed and administered.
La.C.C.P. Art. 1881; Stoddard v. City of New Orleans, 246 La. 417,
165 So.2d 9 (1964). Nevertheless, there is no right or cause of
action when there is no justiciable controversy. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971). . . .

In Abbott, 249 So.2d 908 at 918 the Supreme Court defined
“justiciable controversy”:
A “justiciable controversy” connotes, in the
present sense, an existing actual and substantial dispute,
as distinguished from one that is merely hypothetical or
abstract, and a dispute which involves the legal relation
of the parties who have real adverse interests, and upon
which the judgment of the court may effectively operate
through a decree of conclusive character. Further, the
plaintiff should have a legally protectable and tangible
interest at stake, and the dispute presented should be of
sufficient immediacy and reality to warrant the issuance
of a declaratory judgment.

Desselle v. Dresser Indus. Valve, 96-374, pp. 3-4 (La.App. 3 Cir. 2/5/97), 689

So.2d 549, 551-52, writ denied, 97-618 (La. 4/25/97), 692 So.2d 1086 (quoting

Ricard v. State, 544 So.2d 1310, 1312 (La.App. 4 Cir. 1989)) (emphasis added).

As previously discussed, no justiciable controversy exists in this case and

Ms. Manning’s rights are certain and undisputed. Ms. Manning is innocent until

proven guilty. She has not been proven guilty and, based on the minimal record

before us, it appears that the time limitations on instituting prosecution on those

5

charges for which she was arrested have now expired. Thus, Ms. Manning is

already innocent.

Furthermore, the supreme court in Board of Commissioners of Orleans

Levee District v. Connick, 94-3161 (La. 3/9/95), 654 So.2d 1073, similarly found

no cause of action for a declaratory judgment wherein the plaintiff sought a

determination of criminal culpability in civil court. The supreme court reviewed

whether a preliminary injunction could be granted to prevent the district attorney

from investigating certain gambling crimes and also whether a declaratory

judgment that the district attorney has no power to prosecute a person operating

under a license to conduct riverboat gaming activities could be issued. The

supreme court found that both a preliminary injunction and declaratory judgment

in this case would threaten “the district attorney’s authority to investigate and

prosecute state criminal offenses[.]” Id. at 1077. The plaintiffs failed to

demonstrate an exceptional circumstance which would permit the preemption of a

criminal prosecution by civil relief. The supreme court explained:

Our jurisprudence admits of only a limited number of instances
in which a state criminal prosecution may be enjoined prior to the
institution of criminal proceedings in a court exercising criminal
jurisdiction, i.e., prior to the filing of a misdemeanor affidavit or bill
of information by the district attorney or the issuance of an indictment
by a legally constituted granted jury. See La. Const. Art. I, § 15;
LSA-C.Cr.P. Art. 382. These limitations upon the power of a court
exercising civil jurisdiction arise from a respect for the constitutional
prerogative of the district attorney, as well as an appreciation of the
different purposes served by a trial court’s exercise of civil, as
opposed to criminal, jurisdiction.

Id. The supreme court concluded:

If the district attorney is incorrect in his appreciation of the criminality
of a given defendant’s course of conduct, the remedy is a fair trial or
any of the pretrial remedies, such as a motion to quash, afforded by
our Code of Criminal Procedure. Id. The district attorney . . . has the
right and the duty to ferret out wrongdoers wherever he perceives

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them to be lurking, and then to bring them before a tribunal exercising
criminal jurisdiction so that their guilt or innocence may be
determined from the facts and the law adduced in that forum. A
preliminary injunction in this case . . . would deny that right and
undermine that duty. . . .

Furthermore, the same principles which militate against the
issuance of the preliminary injunction also instruct us that the
declaratory judgment action below should not be maintained. The
root of our holding today is that a criminal prosecution may be
preempted by recourse to civil relief only in exceptional
circumstances—those of constitutional significance—which the
appellants here have failed to demonstrate. This determination is a
result of the balancing of the plaintiff’s interest in obtaining civil
relief against the district attorney’s right to investigate and prosecute
state crimes, a balancing which is weighted towards the district
attorney because of the singular interest of the sovereign in criminal
matters and the way in which that interest is vindicated in the criminal
justice system.

The lawsuit for a declaratory judgment filed by the Levee
Board is an attempt to bypass this system by obtaining a preliminary
judicial determination of lack of criminal culpability in a forum which
is not intended nor designed for the resolution of criminal
matters, i.e. it is an attempt to bypass the criminal justice process.
However, the Levee Board has failed to demonstrate any of the
extraordinary and overriding constitutional concerns which might
permit such a circumvention of this process. Thus, for the same
reasons posited in the preceding subsection of this opinion, we
conclude that the Levee Board’s petition fails to state a cause of
action sufficient to maintain a declaratory judgment action
seeking a preliminary determination of the merits of a prospective
criminal prosecution.

Id. at 1081 (emphasis added).

A declaratory judgment of factual innocence as requested in this case would

have the effect explained in Connick—issues of “direct interest to the sovereign”

would not be resolved according to the criminal procedural rules. Id. at 1080.

Additionally, it would “bypass” the criminal justice system by “obtaining a

preliminary judicial determination of lack of criminal culpability in a forum which

is not intended nor designed for the resolution of criminal matters.” Id. at 1081.

Furthermore, Ms. Manning’s petition does not assert a justiciable controversy to be

7

resolved via a declaratory judgment. Thus, we agree with the trial court that Ms.

Manning’s petition does not state a cause of action.

DECREE:

For the foregoing reasons, we find no error in the trial court’s grant of the

District Attorney’s exception of prematurity and exception of no cause of action.

The remaining exceptions are rendered moot upon this finding. The trial court’s

judgment is affirmed at Appellant’s cost.

AFFIRMED.

8

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-698

OCEAN JASMINE MANNING

VERSUS

STATE OF LOUISIANA

Cooks, J. dissents.

Ocean Jasmine Manning (Plaintiff) asserts she is factually innocent of the

spurious charges filed against her by her ex-husband in Louisiana. After becoming

involved in the matter, the District Attorney said on the record, and again in this

court, that he will not prosecute her for this, or any other offense, based on these

allegations. The majority says it is sufficient for Plaintiff that the law presumes her

innocent until proven guilty. However, this presumption has not prevented the court

in her home state of Oklahoma from using the fact of her arrest in Louisiana in

making its adverse determinations in the custody battle over her children who were

the subjects of her arrest in Louisiana. Her attorney has proceeded along the only

procedural avenue available for Plaintiff to procure a Louisiana judicial

determination that she is indeed factually innocent of the spurious charges which

were the basis of her arrest in Louisiana and subjected her to the embarrassment of

an amber alert regarding her children. Contrary to the majority’s ruling, a

declaratory judgment action is not only the proper vehicle for Plaintiff to pursue

relief in a court of competent jurisdiction, it is her only means to right this public

stain and invasion of her right to privacy. This right to privacy forms the foundation

of the Innocence Compensation Fund provisions set forth in the Louisiana

Administrative Code, Part III, Subpart 8. There, in 22 La. Admin. Code Pt III, §301,

(emphasis added) the legislature sets forth the purpose and scope of the Innocence
1

Compensation Fund and ground it in the State’s belief that an individual’s right

to privacy is dramatically affected by false conviction and the records created

thereby. The referenced codal provisions state:

A. In keeping with congressional findings that the privacy of an
individual is directly affected by the collection, maintenance, use
and dissemination of personal information;

B. recognizing that to the extent that the maintenance of personal
information is necessary for the efficient functioning of the
government, it is the moral and legal obligation of the government to
assure that the personal information maintained is, to the maximum
extent feasible, complete and accurate;

B. being convinced that it is of utmost importance that the integrity of
personal information records be zealously protected;

D. recognizing that the increasing use of computers and sophisticated
information technology, while essential to the operations of
government, has greatly magnified the harm to individual privacy that
can occur from any collection, maintenance, use, or dissemination of
personal information;

E. realizing that opportunities for an individual to secure
employment, insurance, credit, and his right to due process, and other
legal protections are endangered by the misuse of certain information
systems;

F. acknowledging that the right to privacy is a personal and
fundamental right protected by the constitution of the United States;

G. responding to the authority granted in 42 United States Code 3701,
et seq.; 28 United States Code 534; 28 Code of Federal Regulations,
Chapter 1, Section 20; R.S. 15:575 et seq.; 49:951 et seq.; and
Executive Designation dated November 14,1975; and

H. acting with the intent of protecting and furthering the interests of the
citizens of the state of Louisiana, the Privacy and Security Committee
of the Criminal Justice Information System Division of the Louisiana
Commission on Law Enforcement and Administration of Criminal
Justice (LCLE) does hereby issue these privacy and security regulations
for the following purposes, and with the following scope and
limitations:

I. it is the purpose of these regulations to provide safeguards for an
individual against an invasion of his personal privacy, and to
promote, to the maximum extent feasible, the adoption of
procedures to ensure the completeness, accuracy, and integrity of
criminal history record information collected, maintained, and
disseminated by criminal justice agencies. This will be accomplished
by requiring those agencies affected to permit an individual to

2

determine what criminal history record information pertaining to him
is collected, maintained, used, or disseminated by such agencies; permit
an individual to gain access to criminal history record information
pertaining to him in the records of affected agencies, to have a copy
made of all or any portion thereof, and to correct or amend such records;
and collect, maintain, use, or disseminate any record of criminal history
information in a manner that assures that such action is for a lawful
purpose, that the information is current and accurate for its intended
use, and that adequate safeguards are provided to prevent the misuse or
unauthorized alteration or destruction of such information.

In the definitions section of these provisions the term factual innocence “is

defined as the petitioner did not commit the crime for which he was convicted and

incarcerated nor did he commit any crime based upon the same set of facts used in

his original conviction.” 22 La. Admin. Code Pt. III, §8103. Unfortunately for

Plaintiff, she is not protected by these regulations because they do not cover an

arrest without a conviction. For the purpose of these regulations a petitioner

entitled to relief under these provisions is defined as one who “did not commit the

crime for which he was convicted and incarcerated nor did he commit any crime

based upon the same set of facts used in his original conviction.” Id. But the same

principle underpinning the referenced administrative regulations holds true for

Plaintiff’s arrest record which she says is without any factual basis.

Plaintiff, a resident of Oklahoma, was arrested in that state on June 22, 2015,

and extradited to Lafayette, Louisiana. Plaintiff was charged with three counts of

abuse of children/false reports, violations of La.R.S. 14:403(A)(3); two counts of

criminal mischief/false report or complaint, violations of La.R.S. 14:59(A)(5), and

three counts of cruelty to juveniles, violations of La.R.S. 14:93(A)(1). This record

does not contain any information regarding the alleged factual basis for these

charges. All counts involved her seven-year old son and nine-year old daughter who

reside with their father in Louisiana as provided in an Oklahoma custody decree.

The District Attorney for the Fifteenth Judicial District, Parish of Lafayette,

(District Attorney) indicated in the hearing before the trial court that its office

3

“has no intent to prosecute” Plaintiff for these offenses. In its brief to this court,

the District Attorney states it “has already closed its file, having determined that

it will not prosecute Plaintiff/Appellant for this arrest” (emphasis added).

Plaintiff filed a Petition for Declaratory Judgment seeking a judgment of factual

innocence concerning these charges as the “[only] remedy to clear her name and to

rectify these false charges of criminal conduct against or otherwise involving her

children.”

Plaintiff asserts her arrest was “widely publicized both in Louisiana and

Oklahoma,” including the issuance of an amber alert. She maintains that “no bill of

information or indictment was ever filed in connection with these arrests, and

Plaintiff has not been in any way prosecuted.” Plaintiff also asserts she has “never

committed any of these alleged crimes and is factually innocent.” According to

Plaintiff’s allegations her arrest on these charges has “gravely prejudiced” her in the

ongoing custody litigation in Oklahoma.

The District Attorney filed exceptions of improper citation and insufficiency

of service of process, lack of subject matter jurisdiction, prematurity, improper

joinder, prescription, no cause of action and no right of action. The District Attorney

maintains there is no “legal or procedural vehicle under Louisiana law by which a

‘declaration of factual innocence’ may be made.” After a hearing on these

exceptions the trial court granted all the District Attorney’s exceptions and dismissed

Plaintiff’s petition.

Louisiana Code of Civil Procedure Article 1811 empowers our courts to

render declaratory judgments and instructs that these provisions are “remedial [and

are to be] liberally construed and administered” (emphasis added).

A declaratory judgment is a form of relief, the purpose of which
is to alleviate uncertainty and insecurity with respect to rights, status,
and other legal relations. La. C.C.P. art. 1881. Declaratory judgments
may function to express the opinion of the court on a legal question
without ordering anything to be done.

4

Williams v. City of Baton Rouge, 020339 (La. App. 1 Cir. 2/14/03), 84
8 So.2d 9, 13.

A party is entitled to relief by declaratory judgment when “his
rights are uncertain or disputed in an immediate and genuine situation,
and the declaratory judgment will remove the uncertainty or terminate
the dispute.” Spicer v. Spicer, 2010-1577 (La. App. 1 Cir. 3/25/11), 62
So.3d 798, 800.

Greene v. Greene, 19-37, p. 14 (La.App. 5 Cir. 12/11/19), 286 So.3d 1103, 1114–

15.

Louisiana Code of Civil Procedure Article 1876 (emphasis added) provides:

Courts of record within their respective jurisdictions
may declare rights, status, and other legal relations whether or not
further relief is or could be claimed. No action or proceeding shall
be open to objection on the ground that a declaratory judgment or
decree is prayed for; and the existence of another adequate remedy
does not preclude a judgment for declaratory relief in cases where
it is appropriate. The declaration shall have the force and effect of a
final judgment or decree.

Contrary to the District Attorney’s assertion, Plaintiff’s action for declaratory

judgment is not a criminal matter. Louisiana Code of Civil Procedure Article 1879

provides, when the proceeding in which a declaratory judgment is sought involves

an issue of fact the “issue may be tried and determined in the same manner as issues

of fact are tried and determined in other civil actions in the court in which the

proceeding is pending.” This article also empowers courts to “refuse to render a

declaratory judgment or decree where such judgment or decree, if rendered, would

not terminate the uncertainty or controversy giving rise to the proceeding.” Id. This

proceeding brought by Plaintiff seeks to have the court determine whether she is

factually innocent of the charges for which she was arrested. It is axiomatic in the

United States, and this state, that every person accused of a criminal offense is

presumed innocent until proven guilty. But, contrary to the majority’s view, that

presumption offers no resolution to Plaintiff who asserts that she was arrested

without justification and that there is no factual basis for the arrest, i.e., she is

5

factually innocent. Such a determination would establish more than a presumption.

Moreover, that presumption has not impeded the Oklahoma court’s consideration of

Plaintiff’s arrest in Louisiana which allegedly involved her children at issue in the

custody matter.

In Jefferson Par. Hosp. Serv. Dist. No. 2, Par. of Jefferson v. Hosp. Serv.

Dist. No. 1 of Par. of St. Charles, 16-702 p. 9-10 (La.App. 5 Cir. 4/12/17), 218 So.3d

696, 704, writ denied, 17-960 (La. 10/9/17), 227 So. 3d 832 (citations

omitted)(quoting Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (La. 1971)), the

fifth circuit, after a thorough examination of our state supreme court jurisprudence

on the subject of what constitutes a justiciable controversy, summed it up as follows:

A “justiciable controversy” connotes, in the present sense, an
existing actual and substantial dispute, as distinguished from one that
is merely hypothetical or abstract, and a dispute which involves the
legal relations of the parties who have real adverse interests, and upon
which the judgment of the court may effectively operate through a
decree of a conclusive character. Further, the plaintiff should have a
legally protectable and tangible interest at stake, and the dispute
presented should be of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.
Id.

There is no question Plaintiff presents a justiciable controversy that begs for

immediate resolution in a court of competent jurisdiction. She alleges that the mere

fact of her arrest record has been, and is being used, against her in an ongoing

custody dispute in the courts of her home state of Oklahoma. The District Attorney

claims he can do no more than tell Plaintiff that the case is closed and that he will

not prosecute her for the alleged offenses. Plaintiff’s situation is not hypothetical or

abstract, it is quite real and exposes her to devastating consequences. Her claim of

factual innocence is adverse to the District Attorney’s position that he can only say

he will not prosecute. But his bare bones statement is of no use to Plaintiff as it has

no evidentiary value in the Oklahoma courts. As noted above, Plaintiff has a

6

“legally protectable and tangible interest at stake,” Id., her right to privacy

recognized by both the U.S. and Louisiana Constitutions.

The District Attorney asserts that there is “no procedure in Louisiana law for

a determination of factual innocence.” The District Attorney further asserts that

Plaintiff’s sole remedy is provided in the expungement provisions found in La.Code

Crim.P. arts. 973-76 and La.R.S. 15:572.8. The majority agrees with that erroneous

proposition. The limited remedy provided in these laws offers no solution to

Plaintiff’s situation because even if she may avail herself of expungement of arrest

provided in La.Code Crim P. art. 976(A)(2)1 the record of her arrest may be used

for numerous purposes and in numerous circumstances 2 including the ongoing

1
“A person may file a motion to expunge a record of his arrest for a felony or misdemeanor
offense that did not result in a conviction if any of the following apply:

(2) The district attorney for any reason declined to prosecute any offense arising out of that arrest.”

La.Code Crim P. art. 976(A)(2).
2

A. An expunged record of arrest or conviction shall be confidential and no longer
considered to be a public record and shall not be made available to any person or
other entity except for the following:

(1) To a member of a law enforcement or criminal justice agency or prosecutor who
shall request that information in writing, certifying that the request is for the
purpose of investigating, prosecuting, or enforcing criminal law, for the purpose
of any other statutorily defined law enforcement or administrative duties, or for
the purposes of the requirements of sex offender registration and notification
pursuant to the provisions of R.S. 15:540 et seq.

(2) On order of a court of competent jurisdiction and after a contradictory hearing
for good cause shown.

(3) To the person whose record has been expunged or his counsel.

(4) To a member of a law enforcement or criminal justice agency, prosecutor, or
judge, who requests that information in writing, certifying that the request is for
the purpose of defending a law enforcement, criminal justice agency, or
prosecutor in a civil suit for damages resulting from wrongful arrest or other
civil litigation and the expunged record is necessary to provide a proper defense.

B. Upon written request therefor and on a confidential basis, the information
contained in an expunged record may be released to the following entities that shall
maintain the confidentiality of such record: the Office of Financial Institutions, the
Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing,
the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of
Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of
Social Work Examiners, the Emergency Medical Services Certification
7

custody action in Oklahoma. Without a declaration of her factual innocence

Plaintiff is powerless to convince the court in Oklahoma, or for example a licensing

board in Louisiana, or obtaining a gun permit, that there was no basis for the arrest.

Even with an expungement, the reasons as to why the District Attorney decided not

to prosecute remain unknown and are left to speculation. Presently, the mere fact

of the arrest, coupled with the fact that the time to prosecute her has not

expired, can be, and she alleges is being, used against her in the custody action

involving her minor children. And this is so despite the representations by the

Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary
Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the
Louisiana Department of Insurance, the Louisiana Licensed Professional
Counselors Board of Examiners, the Louisiana State Board of Chiropractic
Examiners, or any person or entity requesting a record of all criminal arrests and
convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.

....

E. Nothing in this Article shall be construed to limit or impair in any way the
subsequent use of any expunged record of any arrests or convictions by a law
enforcement agency, criminal justice agency, or prosecutor including its use as a
predicate offense, for the purposes of the Habitual Offender Law, or as otherwise
authorized by law.

F. Nothing in this Article shall be construed to limit or impair the authority of a law
enforcement official to use an expunged record of any arrests or convictions in
conducting an investigation to ascertain or confirm the qualifications of any person
for any privilege or license as required or authorized by law.

G. Nothing in this Article shall be construed to limit or impair in any way the
subsequent use of any expunged record of any arrests or convictions by a “news-
gathering organization”. For the purposes of this Title, “news-gathering
organization” means all of the following:

(1) A newspaper, or news publication, printed or electronic, of current news and
intelligence of varied, broad, and general public interest, having been published
for a minimum of one year and that can provide documentation of membership
in a statewide or national press association, as represented by an employee
thereof who can provide documentation of his employment with the newspaper,
wire service, or news publication.

(2) A radio broadcast station, television broadcast station, cable television operator,
or wire service as represented by an employee thereof who can provide
documentation of his employment.
H. Nothing in this Article shall be construed to relieve a person who is required to
register and provide notice as a child predator or sex offender of any obligations
and responsibilities provided in R.S. 15:541 et seq.

La. Code Crim. Proc. Ann. art. 973.

8

District Attorney to the trial court and this court that it has “closed the case” and

“will not prosecute Plaintiff” on these charges. Plaintiff’s constitutional right to

privacy demands that she is afforded an opportunity to seek remedial relief by

maintaining this declaratory judgment action.

I am bolstered in this conclusion by the fact that our law does provide for a

determination of factual innocence when an arrest leads to a faulty conviction.

In tandem with the regulations set forth above concerning the Innocence

Compensation Fund, La.Code Crim.P. art. 976 A(4) provides for the filing of a

motion to expunge a record of arrest and conviction for a felony or misdemeanor

offense if “[t]he person was judicially determined to be factually innocent and

entitled to compensation for a wrongful conviction pursuant to the provisions of

[La.]R.S. 15:572.8.” Under such a circumstance the person’s arrest and conviction

are expunged “without the limitations or time delays imposed by the provisions of

this Article or any other provisions of law to the contrary.” Id. (emphasis added).

That is to say that when the arrest leads to an unlawful conviction and the person

successfully sues the state and is found factually innocent, the record of the arrest is

truly removed and cannot be used for the myriad of uses allowed otherwise in

expungements. Plaintiff’s only remedy is to bring a declaratory judgment

action. Her injury is real and ever-present, and if she succeeds in establishing that

she is factually innocent of the charges the declaration will “have the force and effect

of a final judgment or decree” and it will “settle and afford relief from [the]

uncertainty and insecurity with respect to [her] rights, status, and other legal

relations.” La.Code Civ.P. arts. 1871, 1881. And as I have already said, the law

instructs that this procedure is to be “liberally construed and administered”

(emphasis added). Id.

Louisiana Code of Civil Procedure Article 1880 mandates that “When

declaratory relief is sought, all persons shall be made parties who have or claim any

9

interest which would be affected by the declaration, and no declaration shall

prejudice the rights of persons not parties to the proceeding…” Plaintiff named as

“defendant” in her declaratory judgment action “The State of Louisiana.” In her

petition she further states: “Defendant State of Louisiana is a political entity

authorized to prosecute crimes, and is sued herein through the District Attorney for

the Parish of Lafayette, 15th Judicial District.” Plaintiff directs the trial court to “cite

and serve [the] Hon. Keith Stutes, District Attorney, 15th JDC, 800 South Buchanan

St., Lafayette, LA 70501.” She did not request service on the Louisiana State

Attorney General.

Plaintiff has sued the State of Louisiana because it is the State that would

prosecute her, and it is through the District Attorney for the Fifteenth Judicial

District Court that such prosecution is ordinarily determined. Plaintiff has included

both the State and its authorized prosecutor in her action and has timely served the

District Attorney. Under Louisiana Constitution Article V, §26(B) (1974) “[the]

District Attorney, or his designated assistant, shall have charge of every criminal

prosecution by the state in his district.” The District Attorney is also designated in

this constitutional provision as “the representative of the state before the grand jury

in his district, and [is designated as] the legal adviser to the grand jury.” Id.

Louisiana Revised Statutes 13:5107 provides specific instructions regarding

citation and service for all suits filed against the state of Louisiana and its political

subdivisions, departments, offices, boards, commissions, agencies or

instrumentalities, though not without some ambiguities:

In all suits filed against the state of Louisiana or a state agency,
citation and service may be obtained by citation and service on the
attorney general of Louisiana, or on any employee in his office above
the age of sixteen years, or any other proper officer or person,
depending upon the identity of the named defendant and in accordance
with the laws of this state, and on the department, board, commission,
or agency head or person, depending upon the identity of the named
defendant and in accordance with the laws of this state, and on the
department, board, commission, or agency head or person, depending

10

upon the identity of the named defendant and the identity of the named
board, commission, department, agency, or officer through which or
through whom suit is to be filed against.

Service shall be requested upon the attorney general within
ninety days of filing suit. This shall be sufficient to comply with the
requirements of Subsection D of this Section and also Code of Civil
Procedure Article 1201(C). However, the duty of the defendant served
through the attorney general to answer the suit or file other responsive
pleadings does not commence to run until the additional service
required upon the department, board, commission, or agency head has
been made.

In all suits filed against a political subdivision of the state, or any
of its departments, offices, boards, commissions, agencies or
instrumentalities, citation and service may be obtained on any proper
agent or agents designated by the local governing authority and in
accordance with the laws of the state provided that the authority has
filed notice of the designation of agent for service of process with and
paid a fee of ten dollars to the secretary of state, who shall maintain
such information with the information on agents for service of process
for corporations. If no agent or agents are designated for service of
process, as shown by the lack of such designation in the records of the
secretary of state, citation and service may be obtained on the district
attorney, parish attorney, city attorney, or any other proper officer or
person, depending upon the identity of the named defendant and in
accordance with the laws of the state, and on the department, board,
commission, or agency head or person, depending upon the identity of
the named defendant and the identity of the named board, commission,
department, agency, or officer through which or through whom suit is
to be filed against.

Thus, service in any suit against the State and any of its officers, agents, its

political subdivisions or instrumentalities depends “on the identity of the named

defendant and the identity of the named board, commission, department, agency, or

officer through which or through whom suit is [] filed against.” La.R.S. 13:5107(A)

and (B) (emphasis added). Plaintiff sued the State through the District Attorney as

the proper entity designated by the State with the primary responsibility for deciding

whether to prosecute her for the offenses for which she was initially arrested. The

Louisiana Supreme Court in Knapper v. Connick, 96-434, p. 3 (La. 10/15/96), 681

So.2d 944, 946 reiterated its earlier holding in Diaz v. Allstate Insurance Co., 433

So.2d 699 (La.1983), “that state prosecuting attorneys are constitutional officers

who serve in the judicial branch of the government.” In Foster v. Powdrill, 463

11

So.2d 891, 893 (La.App. 2 Cir. 1985) (emphasis added) the second circuit, also

relying on Diaz, held:

A district attorney “. . . is a constitutional officer who serves in the
judicial branch and exercises a portion of the sovereign power of the
state within the district of his office.” Diaz v. Allstate Ins. Co., 433
So.2d 699 (La.1983) at p. 701. The office, duties, and powers of the
district attorney are governed by the legislature and constitution and are
not subject to local control. The office of the district attorney is an office
of the state rather than of the local government. Diaz v. Allstate Ins.
Co., supra.

Additionally, the Louisiana Code of Criminal Procedure includes two articles

concerning the power and authority of the District Attorney and its relationship to

the state and the attorney general:

Subject to the supervision of the attorney general, as provided in
Article 62, the district attorney has entire charge and control of every
criminal prosecution instituted or pending in his district, and determines
whom, when, and how he shall prosecute.

La.Code Crim.P. art. 61.

The attorney general shall exercise supervision over all district
attorneys in the state.

The attorney general has authority to institute and prosecute, or
to intervene in any proceeding, as he may deem necessary for the
assertion or protection of the rights and interests of the state.

La.Code Crim.P. art. 62.

In Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr.

Mech. Coll., 11-40, p. 18 (La. 7/1/11), 66 So.3d 470, 481, the supreme court held:

Considering the legislature’s use of the permissive word “may”
in LSA–R.S. 13:5107, we find that multiple requests for service by the
plaintiff within the 90–day period are not mandatory. Therefore, timely
request for service on one of the listed entities/persons was sufficient.

Thus, under Whitley, service on the District Attorney in this suit would be

sufficient. But, after the decision in Whitley, the statute was amended in 2012. In a

recent case before the second circuit, Lathan Co., Inc. v. Div. of Admin., 17-396

(La.App. 1 Cir. 1/24/19), 272 So.3d 1, writ denied, 19-331 (La. 4/29/19), 268 So.3d

1036, the appellate court considered a case in which the plaintiff filed suit, based on

12

breach of contract, naming the State of Louisiana as a defendant. There the plaintiff

requested service on “the State of Louisiana, Department of Administration, Office

of Planning and Control,” Id. at 2, much as Plaintiff here requested service on the

“District Attorney for the Fifteenth Judicial District Court.” The plaintiff in Latahn,

like Plaintiff here, did not name the attorney general as a defendant and did not ask

that it be served. In Lathan “[t]he State filed a declinatory exception of insufficiency

of service of process asserting that Lathan failed to request service of the petition

[on the attorney general] within ninety days of commencement of the action, as

prescribed by La. Code Civ. P. art. 1201(C) and La. R.S. 13:5107(D)(1).” Id. at 3.

In this case the District Attorney filed the same exception based on the same

assertion along with several other exceptions. The trial court denied the exception

in Lathan. Here it granted the exception. In its opinion in Lathan, affirming the

trial court, the second circuit gave a thorough discussion of whether and to what

extent Whitley is still the law and the consequences under the current law for failure

to serve the attorney general.

The appellate court first set forth the standard of review for such cases

challenging a ruling on the exception:

A district court’s ruling on an exception of insufficiency of
service of process is reviewed under the manifest error standard. In Re
Professional Liability Claim of Snavely, 2015-207 (La. App. 3rd Cir.
11/4/15), 178 So.3d 614, 619; Davis v. Caraway, 2014-264 (La. App.
5th Cir. 10/29/14), 164 So.3d 223, 225. However, when the facts are
not disputed and the issue before this court is whether the district court
properly interpreted and applied the law, the standard of review for
questions of law is simply a review of whether the district court was
legally correct or incorrect. See Babcock v. Martin, 2016-0073 (La.
App. 1st Cir. 9/16/16), 2016 WL 4973229 (unpublished).

Id. at 4.

In Lathan, as here, the defendant asserted that service on the attorney general

is mandatory according to the express provision of La.R.S. 13:5107(A)(2) as

13

amended in 2012. Prefacing its discussion of the post Whitley changes in the statute

the appellate court noted, and we too, note here:

The supreme court in Whitley, 66 So.3d at 478, also pointed out
that the consequences for dismissal are harsh and there is a policy in
favor of maintaining actions. The Whitley court concluded that if the
legislature’s word choice makes La. R.S. 13:5107(A) susceptible to two
possible constructions, the statute should be construed in favor of
maintaining the plaintiff’s claim.

Lathan, 272 So. 3d at 9 (emphasis added).

Continuing in its analysis, the first circuit examined the change in the statute

after Whitley and concluded that under the new language added in 2012, service on

the attorney general is mandatory, but the failure to serve it does not require

dismissal.

After the supreme court’s decision in Whitley, the statute was
amended by the addition of subsection (A)(2), effective on June 12
2012, but subsection (A)(1) was not changed. Thus, subsection (A)(1)
as pointed out in Whitley uses the permissive “may” giving three
persons who can be served, but subsection (A)(2) uses the mandatory
“shall” stating that the attorney general “shall” be served within ninety
days. See La. Code Civ. P. art. 5053 (The word “shall” is mandatory,
and the word “may” is permissive.) A review of the legislative history
from the 2012 House Legislative Services digest states that the
“proposed law [La. R.S. 13:5107 presented as SB 308 and enacted as
Act. No. 770] retains prior law and adds that service shall be requested
upon the attorney general within 90 days of filing suit” and in the
summary of house amendments to the senate bill specifies “that service
‘shall’ not ‘must’, be requested on the attorney general within 90 days
of filing suit.” Louisiana Resume Digest, S.B. 308, 2012 Reg. Sess.
(La. 2012). (The language of the original bill which stated “must” was
changed to “shall” by the house committee on civil law and procedure.)

Under well-established rules of statutory interpretation, a more
detailed provision prevails over a more general provision addressing
the same subject matter, and the latest prevails over previously enacted
conflicting provisions. See Black v. St. Tammany Parish Hospital,
2008-2670 (La. 11/6/09), 25 So.3d 711, 717; see also Malone v.
Shyne, 2006-2190 (La. 9/13/06), 937 So.2d 343, 352. To the extent that
section (A)(1) may be construed to conflict with section (A)(2), the
latter, a more recent and more specific provision, prevails. State ex rel.
Moreau v. Castillo, 2007-1865 (La. App. 1st Cir. 9/24/07), 971 So.2d
1081, 1083, (per curiam), writ denied, 2007-1900 (La. 9/28/07), 964
So.2d 349, cert. denied, 552 U.S. 1110, 128 S.Ct. 896, 169 L.Ed.2d 748
(2008).

14

Furthermore, the last sentence of subsection (A)(2) points out
that “the duty of the defendant served through the attorney general to
answer the suit or file responsive pleadings does not commence to run
until the additional service required upon the department, board,
commission, or agency head has been made.” This language clearly
contemplates that service upon the attorney general as well as an
additional service is required in suits against the State or a state
agency.

However, while we agree with the State that service upon the
attorney general is mandatory, the statute thereafter becomes unclear
about what effect the failure to timely request service on the attorney
general has on plaintiff’s suit. The language mandating service on the
attorney general is in subsection (A)(2), but the consequence for the
failure to timely request service is in subsection (D)(2) and provides the
result of the failure to serve a party only under subsection (D).
Subsection (D)(2) states “[i]f service is not requested by the party filing
the action within the period required in Paragraph (1) of this
Subsection, the action shall be dismissed without prejudice, after
contradictory motion as provided in Code of Civil Procedure Article
1672(C), as to the state, state agency, or political subdivision, or any
officer or employee thereof, upon whom service was not requested
within the period required by Paragraph (1) of this Subsection.”
(Emphasis added.) Furthermore, the general provision regarding
service of process requires service on “all named defendants within
ninety days of commencement of the action” and the attorney general
is not a “named defendant” in Lathan’s petition. See La. Code Civ. P.
art. 1201(C).

Considering the harsh consequence of dismissal and the policy
favoring maintaining actions, we conclude that the legislature’s
addition of (A)(2) mandating service on the attorney general without
providing the consequences for failure to timely request service on the
attorney general creates a gap in the law and this gap should be
construed in favor of maintaining Lathan’s claim. See Whitley, 66
So.3d at 478. Cf. Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992)
(holding that of two possible constructions of a prescription statute, one
barring the action and one maintaining it, the statute will be read in such
manner as to maintain the claim). Having determined that the law is
unclear regarding what the consequences are for Lathan’s failure to
serve the attorney general, we conclude that dismissal under La. R.S.
13:5107 is not mandatory. . .

Lathan, 272 So. 3d at 9-10 (emphasis in original and added).

Likewise, in this case, I acknowledge that under the current language of

La.R.S. 13:5107, Plaintiff must serve her petition on the attorney general, but her

failure to do so does not result in the dismissal of her action at this stage of the

proceeding.

15

The only mechanism available to Plaintiff to remove the taint of her arrest on

charges for which she may well be factually innocent is the declaratory judgment

action. The majority leaves Plaintiff without a remedy to fill the gap left in Louisiana

legislation meant to protect everyone’s constitutional right to privacy infringed upon

by unlawful arrests and convictions. Our law and jurisprudence, however, affords

Plaintiff a means to fill the gap and enjoy her constitutional right thus far infringed

upon by her ex-husband to foster his position in a custody fight.

16