The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-0551
CONSOLIDATED WITH
CW05-0321
JOHN ANDERSON, ET AL.
VERSUS
THE STATE OF LOUISIANA, KATHLEEN BLANCO AS GOVERNOR, AND
THE LOUISIANA STATE LEGISLATURE
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APPEAL AND APPLICATION FOR SUPERVISORY WRITS FROM
THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 2004-5405
HONORABLE WILFORD CARTER, DISTRICT JUDGE
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JIMMIE C. PETERS
JUDGE
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Court composed of John D. Saunders, Jimmie C. Peters, and Billy H. Ezell, Judges.
REVERSED AND TRANSFERRED.
David G. Sanders
Assistant Attorney General
Louisiana Department of Justice
Litigation Division
P. O. Box 94005 Capitol Station
Baton Rouge, LA 70804-9005
(225) 326-6300
COUNSEL FOR DEFENDANTS/APPELLANTS/APPLICANTS:
Governor Kathleen Blanco and the Louisiana State Legislature
David L. Hoskins
Attorney at Law
P. O. Box 1370
Lake Charles, LA 70602-1370
COUNSEL FOR PLAINTIFFS/APPELLEES/RESPONDENTS:
John Anderson, Robin LeBlanc, Michael Guillory, Timothy Williams,
Ramon LeBlanc, Jason Leger, Carl Richard, Sr., Charlie Myers, and
Julian Solomon
PETERS, J.
The issue in this consolidated matter is whether the trial court erred in denying
the defendants’ declinatory exception of improper venue. Finding merit in the
defendants’ argument, we reverse the trial court’s judgment. Further, pursuant to
La.Code Civ.P. art. 121, we transfer this litigation to the Nineteenth Judicial District
Court, the court of proper venue, for further proceedings.
DISCUSSION OF THE RECORD
On September 28, 2004, John Anderson, Michael Guillory, Timothy Williams,
Ramon LeBlanc, Robin LeBlanc, Jason Leger, Carl Richard, Sr., Julian Solomon, and
Charlie Myers filed a pleading in the Fourteenth Judicial District Court in Calcasieu
Parish entitled “CLASS ACTION COMPLAINT.” In the pleading, the plaintiffs
named Governor Kathleen Blanco (Governor) and the Louisiana State Legislature
(Legislature) as defendants and described their action as “a civil rights class action
seeking to remedy fundamental defects in the system for providing lawyers to
indigent criminal defendants in Calcasieu Parish.”
In asserting the basis of the liability of the defendants, the plaintiffs stated the
following in their pleadings:
Lack of Oversight or Monitoring
27. Defendants the State of Louisiana and Kathleen Blanco and her
predecessors have failed to ensure that indigent criminal defendants in
the Fourteenth Judicial District of Calcasieu Parish receive
constitutionally mandated assistance of counsel.
28. Defendants the State of Louisiana and Kathleen Blanco and her
predecessors have failed properly to monitor or oversee Louisiana’s
indigent defense system.
29. Specifically, Blanco and her predecessors have failed:
a. to implement a mechanism for monitoring the performance of
Louisiana’s public defenders;
b. to adopt and enforce criteria for evaluating its public
defenders;
c. to establish a constitutionally adequate system for monitoring
and overseeing the assignment and reassignment of cases to
public defenders;
d. to establish a system to insure that public defenders have the
resources to investigate cases, prepare for trials, or communicate
with clients in a timely and adequate fashion.
Inadequate Funding
30. Blanco and her predecessors consistently have failed to provide
adequate funds to ensure that Louisiana’s indigent adult citizens who are
accused of crimes receive the constitutionally adequate legal
representation to which they are entitled.
31. The Louisiana State Legislature consistently has failed to fund
indigent defense adequately. Louisiana’s funding of its indigent defense
system has not kept pace with the demand for the services.
32. Because the State Legislature has consistently failed to allocate
necessary funds, the Named Plaintiffs and Members of the Plaintiff
Class have been denied their right to counsel.
Along with a prayer for certification of their action as a class action and for an award
of attorney fees, the plaintiffs requested the following relief:
131. A declaration that Defendants are depriving Class members of
their rights to the assistance of counsel pursuant to the Sixth and
Fourteenth Amendments to the United States Constitution and Article
I, Section 13 of the Louisiana Constitution of 1974 in providing indigent
defense services in Calcasieu Parish;
132. The issuance of a permanent injunction requiring the Defendants
to provide a Public Defender program in Calcasieu Parish that is
consistent with the Sixth and Fourteenth Amendments to the United
States Constitution, and Article I, Sections 2 and 13 of the Louisiana
Constitution of 1974.
The defendants responded to this pleading by filing a declinatory exception of
improper venue, which the trial court denied after a hearing. They then timely
perfected both a suspensive appeal and an application for supervisory writs, seeking
a reversal of the trial court’s ruling on the exception. Because the issue in both the
appeal and application for supervisory writs is the same, we consolidated both
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proceedings for consideration by this court.
OPINION
The right to assistance of counsel in a criminal proceeding is constitutionally
recognized in both federal and state law. United States Constitution Amendment VI
provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” Additionally, U.S.
Const. amend. XIV, § 1 provides in pertinent part that no state shall “deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” Louisiana Constitution
Article 1, § 2 provides that “[n]o person shall be deprived of life, liberty, or property,
except by due process of law,” and La.Const. art. 1, § 13 provides in pertinent part:
At each stage of the [criminal] proceedings, every person is entitled to
assistance of counsel of his choice, or appointed by the court if he is
indigent and charged with an offense punishable by imprisonment. The
legislature shall provide for a uniform system for securing and
compensating qualified counsel for indigents.
(Emphasis added.)
Thus, the Louisiana Constitution mandates that the Legislature, not the Governor,
enact legislation to provide indigent defendants with qualified legal counsel.
The Legislature has enacted statutes addressing its constitutional duty with
regard to the indigent defense requirement. Louisiana Revised Statutes 15:144
establishes indigent defendant boards in every judicial district of the state, and the
statutes that follow that provision not only address the composition, authority,
operation, and financing of those local boards, but also establish regional defense
service centers with which the local boards can contract for specialized services.
With regard to the issue of funding, La.R.S. 15:146(B) provides that each judicial
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district is authorized to impose a specific amount in court costs on those convicted
under certain criminal statutes and ordinances in that judicial district and that the
collected court costs be placed in a local indigent defender fund for the financial
support of that local board. Further, these funds are in addition to $10,000.00 per
year furnished by the State of Louisiana. La.R.S. 15:146(C).
Although the Governor has no constitutional mandate to be involved in the
process of providing indigent defender services, the Legislature has involved her
office in the process by establishing “in the office of the governor the Indigent
Defense Assistance Board” (Board). La.R.S. 15:151(A). With regard to its power,
La.R.S. 15:151.2(A) provides:
The board may provide supplemental funds, when appropriated
by the legislature for that purpose, to judicial district indigent defender
boards only as authorized herein for the purposes of complying with the
requirements of the Constitution of Louisiana and the Constitution of
the United States of America and specific statutory provisions affording
the right to counsel to indigent defendants in criminal cases.
Equally pertinent to this litigation, La.R.S. 15:151.2(D) provides that “[t]he board
shall adopt rules for providing supplemental assistance to the judicial district indigent
defender boards” and that those rules are to include guidelines to establish the
conditions under which indigent defender boards will be eligible for supplemental
assistance. Having been given oversight authority for supplemental assistance to
local boards, the Board is also required to report its activities to the Legislature
annually. La.R.S. 15:151.3.
The question before is not whether the plaintiffs’ claims have merit, but
whether venue is proper in Calcasieu Parish. Both the plaintiffs and the defendants
agree that venue should be determined under La.R.S. 13:5104(A), which provides
that “[a]ll suits filed against the state of Louisiana or any state agency may be
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instituted before the district court of the judicial district in which the state capitol is
located or in the district court having jurisdiction in the parish in which the cause of
action arises.”
The defendants assert that, because the state capitol is located in East Baton
Rouge Parish and because the cause of action arose in that parish, the exception of
venue should have been granted. The plaintiffs do not dispute that both the Governor
and the Legislature are domiciled in East Baton Rouge Parish, but assert that the
cause of action arose in Calcasieu Parish, not in East Baton Rouge Parish. Thus, the
plaintiffs argue, venue is proper in either East Baton Rouge Parish or Calcasieu
Parish. Therefore, the situs of the cause of action involved in this litigation is
determinative of the venue issue.
With regard to the question of what constitutes the situs of a cause of action,
the court in Avenal v. State, Department of Natural Resources, 95-836, 95-2421, pp.
2-3 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, 1151, writ denied, 96-198 (La.
1/26/96), 667 So.2d 524, stated:
The term “cause of action” in [La.R.S. 13:5104(A)] has been the source
of much consternation among the circuits and has eluded a precise
definition. See, e.g. Commercial Nat. Bank v. First Nat. Bank, 603
So.2d 270 (La.App. 2nd Cir. 1992), writ denied, 605 So.2d 1151
(La.1992); V.C. Nora, Jr. Bldg. and Remodeling v. State, 93-1469
(La.App. 3rd Cir. 3/30/94), 635 So.2d 466; and Abshire v. State, through
Dept. Of Ins., [93-923 (La.App. 3 Cir. 4/6/94), 636 So.2d 627, writ
denied, 94-1213 (La. 6/24/94), 640 So.2d 1332]. Despite the
definitional uncertainty, for purposes of applying the above cited statute,
we conclude that the place where the operative facts occurred which
support plaintiffs’ entitlement to recovery is where their cause of action
arose.
In arguing that Calcasieu Parish is the place where the operative facts arose in
this litigation, the plaintiffs rely on our decisions in V. C. Nora, Jr. Building &
Remodeling, Inc. v. State, through Department of Transportation & Development, 93-
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1469 (La.App. 3 Cir. 3/30/94), 635 So.2d 466, and Guaranty Bank of Mamou v. State,
through Office of Student Financial Assistance, 96-196 (La.App. 3 Cir. 7/17/96), 677
So.2d 1109, as well as the fifth circuit’s decision in Ehlinger & Associates v. State,
through Division of Administration, Department of Facility Planning & Control, 01-
52 (La.App. 5 Cir. 5/30/01), 788 So.2d 644.
In V. C. Nora, the Louisiana Department of Transportation and Development
(DOTD) had solicited bids for two construction projects in Natchitoches Parish. The
plaintiff mailed its bid to DOTD’s Baton Rouge office. DOTD rejected the plaintiff’s
bid as being submitted untimely, and the plaintiff filed suit in Natchitoches Parish,
seeking to enjoin DOTD from accepting the bid of a competitor. The matter was tried
in Natchitoches Parish, and, on appeal, one of the issues argued by DOTD was that
the trial court erred in rejecting its exception of improper venue as La.R.S.
13:5104(A) established East Baton Rouge Parish as the only appropriate venue. In
rejecting this argument, this court followed the rationale expressed in Commercial
National Bank in Shreveport v. First National Bank of Fairfield, Texas, 603 So.2d
270 (La.App. 2 Cir.), writ denied, 605 So.2d 1151 (La.1992), and in doing so, stated:
In Commercial Nat. Bank, the court was faced with a venue issue when
a Shreveport bank sued the Louisiana Housing Finance Agency (LHFA)
over a trust agreement in which the bank was trustee. At trial, the bank
had successfully defended venue in Caddo Parish. On appeal, LHFA
asserted that under 13:5104, East Baton Rouge Parish was the only
proper venue. The Second Circuit interpreted 13:5104 by reading that
provision in pari materia with the Code of Civil Procedure article
controlling venue in contract actions, LSA-C.C.P. Art. 76.1. This article
provides not only for the traditional venue of “where the contract was
executed”, but includes the more modern concept of venue where any
work “was performed or was to be performed”. Thus the Second Circuit
found venue was proper in Caddo Parish as well as in East Baton Rouge
Parish. We believe this is the most logical way to give definite
parameters to the nebulous term cause of action.
V. C. Nora, 635 So.2d at 469 (footnote omitted).
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This court went on to conclude that, “[u]nder this interpretation, there is no question
that venue is proper in Natchitoches Parish since this is the parish where the work
was to be performed.” Id.
In Guaranty Bank of Mamou, the bank brought suit in Evangeline Parish
against the State of Louisiana, through the Office of Student Financial Assistance
(OSFA), for its failure to honor its contract of guaranty on defaulted student loans
made by the bank pursuant to the guaranty. OSFA excepted to the venue based on
La.Code Civ.P. art. 42, the general venue provision, and under La.R.S. 13: 5104(A),
contending that both its domicile and the situs of the cause of action were East Baton
Rouge Parish. The trial court rejected the exception. We affirmed and, in doing so,
stated the following:
Thus, OSFA’s argument that venue would only be proper, under
La.Code Civ.P. art. 42, in the parish of its domicile, East Baton Rouge
Parish, is incorrect. Venue would also be proper, under La.Code Civ.P.
art. 76.1, in the parish where the contract of guaranty was executed, or
the parish where any work or service was performed or was to be
performed under the terms of the contract.
Venue, in this instance, would be proper in either Evangeline
Parish or East Baton Rouge Parish, since the contract was executed in
both parishes. Smith, the vice-president of Guaranty Bank, signed the
“Basic Agreement to Guaranty Loans” in Evangeline Parish and then
sent the agreement to Baton Rouge, where it was signed by the
executive director for the Governor’s Special Commission on Education
Services.
Guaranty Bank of Mamou, 677 So.2d at 1111-12.
After revisiting our decision in V.C. Nora, and considering the application of La.R.S.
13:5104(A), this court further concluded:
[V]enue in a suit against OSFA based on a contract of guaranty would
be proper in the parish where the State Capitol is located, East Baton
Rouge Parish; the parish where the contract was executed, Evangeline
and East Baton Rouge Parishes; and the parish where any work or
service was performed or was to be performed under the contract. Thus,
Evangeline Parish is a proper venue since work or services performed
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or to be performed under the contract occurred or would occur there.
Id. at 1112.
The Ehlinger case involved a dispute between a Jefferson Parish architectural
firm and the Louisiana Division of Administration. The architectural firm filed a suit
in Jefferson Parish against the Division of Administration, which is domiciled in East
Baton Rouge Parish, to recover the cost of additional work it had performed on a
project in Orleans Parish. The trial court transferred the litigation to Orleans Parish,
and the Division of Administration appealed, asserting that, because the decision not
to pay for the extra work was made in East Baton Rouge Parish, it was the only parish
of proper venue under La.R.S. 13:5104(A). Relying on the decision in Avenal, 668
So.2d 1150, the court stated:
It is clear that the operative facts supporting plaintiff’s claim all
occurred at the construction site. Ehlinger alleges that MAPP
improperly constructed the stair, thus requiring it to do extra supervision
at the site to have the work redone. Although Facility Planning my [sic]
well have decided in Baton Rouge that it would not pay for the extra
work, that is not germane to the question of where the operative facts
supporting the claim arose. We thus hold that the trial judge was correct
in ruling that venue was proper in Orleans Parish and transferring the
case there.
Ehlinger, 788 So.2d at 646.
In support of its position that East Baton Rouge Parish is the only parish of
proper venue, the defendants refer this court to its decision in Abshire v. State,
through Department of Insurance, 93-923 (La.App. 3 Cir. 4/6/94), 636 So.2d 627,
writ denied, 94-1213 (La. 6/24/94), 640 So.2d 1332, and to the first circuit’s decision
in Foster v. Board of Elementary & Secondary Education, 428 So.2d 890 (La.App.
1 Cir. 1983).
In Abshire, policyholders, annuity holders, and shareholders of certain
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affiliated insurers who sustained losses when the insurers became insolvent brought
suit in Rapides Parish against the Louisiana Department of Insurance and the
Louisiana Office of Financial Institutions, alleging gross negligence, incompetence,
mismanagement and fraud for their part in the collapse of the insurers. In finding that
the trial court erred in not granting the state agencies’ exception of improper venue,
this court stated:
We are mindful that LSA-R.S. 13:5104 A provides that venue would be
proper either in Baton Rouge or in the parish where the cause of action
arose; however, we conclude that when it is their ministerial actions that
are called into question, Baton Rouge offers the only appropriate forum.
The language and intendment of LSA-R.S. 13:5104 A permits of no
other interpretation. Although LSA-R.S. 1[3]:5104 A nominally
provides for some choice of venue, the facts of this case effectively rules
[sic] out venue anywhere besides the Parish of East Baton Rouge.
State entities frequently may be sued in parishes other than that
of the domicile of their headquarters, but the language contained in
LSA-R.S. 13:5104 A would render exceptionally rare the circumstances
under which a state entity who opposes litigation away from home might
be required to litigate issues of great import statewide, as opposed to
causes of action whose immediate consequences merely reverberate
locally. See, e.g., Ferrington v. Van Sickle, 545 So.2d 719 (La.App. 2d
Cir.1989); Wall v. American Employers Insurance Co., 250 So.2d 172
(La.App. 1st Cir.1971). See also DeVillier v. State, 590 So.2d 1184
(La.1991) (Parties challenging constitutionality of statute and seeking
to enjoin its enforcement in St. Martin Parish required to be brought in
East Baton Rouge Parish). “Causes of action” arising from ministerial
actions or inactions seldom arise anywhere but in the district court in
which the state capitol is located. Demolle v. Dept. Of Wildlife &
Fisheries, 580 So.2d 1083, 1084 (La.App. [4] Cir.), writ denied, 586
So.2d 534 (La.1991).
Abshire, 636 So.2d at 629-30.
This court has followed the rationale in Abshire where the relief requested involved
forcing a state agency to perform its ministerial duties. See Cameron Parish Police
Jury v. McKeithen, 02-1202 (La.App. 3 Cir. 10/14/02), 827 So.2d 666, writs denied,
02-2547, 02-2548 (La. 10/23/02), 827 So.2d 1148, 1149.
The Foster case involved a situation wherein the plaintiff served as a principal
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in a St. Tammany Parish school and the Louisiana Board of Elementary and
Secondary Education (BESE Board) ordered him transferred to another school within
the parish. He brought suit in St. Tammany Parish against the BESE Board, seeking
to enjoin it from transferring him. After the trial court dismissed the suit as having
been filed in a parish of improper venue, he appealed the dismissal. Although the
first circuit concluded that East Baton Rouge Parish was the parish of proper venue
for the suit against the BESE Board, we do not find that the decision favors the
defendants’ position in the matter now before us. The first circuit’s decision was
based on the application of La.Code Civ.P. arts. 42(2) and 74, and not La.R.S.
13:5104(A).
We note that in all three of the decisions relied upon by the plaintiffs, the relief
being sought was based in contract. However, in both the Abshire and Cameron
Parish Police Jury cases, the relief being requested involved ministerial duties.
Specifically, in the Cameron Parish Police Jury case, mandamus relief was being
sought. Louisiana Code of Civil Procedure Article 3861 provides that “[m]andamus
is a writ directing a public officer or a corporation or an officer thereof to perform any
of the duties set forth in Articles 3863 and 3864.” Louisiana Code of Civil Procedure
Article 3863 provides in pertinent part that “[a] writ of mandamus may be directed
to a public officer to compel the performance of a ministerial duty required by law.”
As previously stated, the plaintiffs have requested a judgment issuing a
permanent injunction requiring the defendants “to provide a Public Defender program
in Calcasieu Parish that is consistent with the Sixth and Fourteenth Amendments to
the United States Constitution, and Article I, Sections 2 and 13 of the Louisiana
Constitution of 1974.” Thus, regardless of the terminology used, the plaintiffs are in
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effect requesting that the Legislature be ordered to do that which it is mandated to do
by both the federal and state constitutions and that the Governor be ordered to do that
which she is mandated to do by statute, i.e., provide indigent defendants in criminal
matters with constitutionally adequate assistance of counsel. As such, the action
before us is one in mandamus. Whether or not mandamus will lie on the merits is not
currently before us.
Moreover, as stated in Abshire, 636 So.2d at 629-30, “LSA-R.S. 13:5104 A
would render exceptionally rare the circumstances under which a state entity who
opposes litigation away from home might be required to litigate issues of great import
statewide, as opposed to causes of action whose immediate consequences merely
reverberate locally.” Clearly, the cause of action in the instant case does not involve
consequences that merely reverberate locally, as the plaintiffs in the instant case do
not contend that Calcasieu Parish indigent defendants are receiving disparate
treatment in the administration and funding of the Louisiana indigent defender
system. Rather, because the plaintiffs are challenging the administration and funding
of the Louisiana indigent defender system in general, although the class they seek to
certify involves Calcasieu Parish indigent defendants only, the issue is of great import
statewide. Thus, we find further support for venue being proper in East Baton Rouge
Parish.
DISPOSITION
For the foregoing reasons, we reverse the trial court’s judgment and transfer
this litigation to the Nineteenth Judicial District Court, the court of proper venue, for
further proceedings. We assess costs to the plaintiffs to the extent allowed by law.
REVERSED AND TRANSFERRED.
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