Opposition Brief — Wells v. Lamz, 127 S. Ct. 2043 (2007) (No. 06-1109)

(A)

No. 06-1109 MAR 3 ~ 2007

| OFFICE vr Rich “ ERK

SU JPREME US

IN THE oe

Supreme Court of the ¥nited Stutes.

JOHN WELLS,

Petitioner,

V.

JAMES R. LAMZ, TOM W. THORNHILL; COMMITTEE TO

ELECT JIM LAMZ; THORNHILL LAW FIRM, LLC;

CHARLES C. FOTI, JR., ATTORNEY GENERAL OF THE

STATE OF LOUISIANA,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UnNitTepD STATES COURT OF APPEALS

FOR THE FirtH Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

JAMES “JIM” LAMZ

ADRIANNE L. BAUMGARTNER

Counsel of Record

KATHLEEN E. SIMON

Porteous, HAINKEL & JOHNSON

408 North Columbia Street

Covington, LA 70433-2920

(985) 893-4790

207302 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page

Table of Cited AumtiiorMies.. ...60cccudessideeves iii

OIIOOD. oss cc cer cudegnneseeseaeee ]

semen OF Ge CAO oa cccccvcctadetaseeivens 2

Reasons for Denying the Petition............... 4

The Fifth Circuit Properly Affirmed The District

Court’s Granting Of Defendant Lamz’s Motion

To Dismiss: The Decisions Below are Entirely

Coneisttat WHR LMGOT «6 cccescneceeduces 4

First Prong: Plaintiff Wells Was Not Deprived

Of Any First Amendment Right To Freedom

CE SOOO oc ccc cnevasvesccedccveceree 6

The District Court Below Correctly Applied

The Holding In Colson v. Grohman To The

ee OF” Pee eee oe 7

Second Prong: Defendant Lamz Is Not A

“State Actor” And The Actions Of Lamz Did

Not Constitute State Action ............. 10

1. Petitioner Fails To Meet Any Of The

Three Part Tests In Lugar To Determine

A “Wee ROO” bck cea 12

a.) Petitioner Fails to Meet Part | of

Lugar - “Public Function Test” ... 12

li

Contents

Page

b.) Petitioner Fails to Meet Part 2 of

Lugar - “State Compulsion Test”. . . 13

c.) Petitioner Fails to Meet Part 3 of

Lugar - “nexus or joint action test”

EE ee 14

“Officer Of The Court” Does Not Equal

EE ee 18

21

EE

iil

TABLE OF CITED AUTHORITIES

CASES:

Adickes v. §.H. Kress & Co., 389 U.S. 144 (1970) ...

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40

CRUE oaks van Maw datuencte een eens

Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381

Ce. Tae -ckwabeouwiedeusnn vere ee

Bayou Fleet, Inc. v. Alexander, 68 F. Supp. 2d 734

CEs Si Re Ss siaicw ccs aa kee ree eo eeee

Blum v. Yaretsky, 457 U.S. 991 (1982) ...........

Brinkman v. Johnson, 793 F.2d 111 (Sth Cir. 1986)

eeeseoeceasveoeae eeu eeweoeeaeoeeoeaeeeneeeoeese eC eee eee

TOCQeveeecCwssce Cee ese aes 2 08 O'8 4.8 2 2 OY 2 2 8 eC ee eS

Cobb v. Saturn Land Co., 966 F.2d 1334 (10th

a CO Sv sdauvenolaaoae sie rse ecm

Collins v. Womancare, 878 F.2d 1145 (9th Cir. 1989),

cert. denied, 493 U.S. 1056, 110 S. Ct. 865, 107

MU GUE EEE os bie aS cee

Colson v. Grohman, 174 F.3d 498 (Sth Cir.1999) ..

Page

5

[1

11

17

17

eae ace. Wie er eae os each ae Oar ae 7, 8,9, 10

iv

Cited Authorities

Daniel v. Ferguson, 839 F.2d 1124 (Sth Cir. 1988) ..

Davis Oil Co. v. Mills, 873 F.2d 774 (C.A.5

Page

4-5

FR rm a Perry re meres eee ee 17

Dorsett v. Board of Trustees for State Colleges &

Universities, 940 F.2d 121 (Sth Cir. 1991) ..... 10

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98

S. Ct. 1729, 56 L. Ed. 2d 185 (1978) .......... 5

Hoai v. Vo, 935 F.2d 308 (D.C.Cir.1991), cert.

denied, 503 U.S. 967, 112 S. Ct. 1578, 118 L. Ed.

ERED 5 0b ica ks 6nd 0 ee aware ee ckare 17

Howard v. Gault Co. v. Texas Rural Legal Aid, Inc.,

848 F.2d 544 (Sth Cir.1988) ........ cece nee 21

Jackson v. Metropolitan Edison Co., 419 U.S. 345

Vidi METER ETRE ee ee eee ee 14

Jones v. Poindexter, 903 F.2d 1006 (4th Cir. 1990)

RE a re ee Ie ey a rE me 17

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102

S. Ct. 2744, 73 L. Ed. 2d 482 (1982) ........ 5, 11, 15

Mattox v. City of Forest Park, 183 F.3d 515 (6th

oR. . CGEM ne re Pere ty pep ere 9

Cited Authorities

Page

Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239

CE Pan c Posies ick a cabeleeekeeeks 21

Parker v. Byrd & Wisner, 947 F. Supp. 245 (S.D.

Se: PE Sd ee ea le oe eke re ee 16, 17, 20

Pickering v. Board of Educ., 391 U.S. 563, 88 S. Ct.

Fi o hs 20 bes Ee BO LE CIPOO) bcos cdciesceses 9

Polk County v. Dodson, 454 U.S. 312, 102 S. Ct.

ee Et AES 6c io eae dead e ees 19

Priester v. Lowndes County, 354 F.3d 414 (Sth

et SE a bb 5R eee RE eT Ee OAs eee 15

Tower v. Glover, 467 U.S. 914, 104 S. Ct. 2820

Ce A Serer eP alana ei aae wee a ae 19

Winterland Concessions Co. v. Trela, 735 F.2d 257

e. £* | re ree ery rr a 17

Wyatt v. Cole, 994 F.2d 1113 (C.A.5 (Miss.),1993)

vi

Cited Authorities

Page

LAW AND STATUTES:

First Amendment of the Constitution of the

EES See ene PR ere 3

Fourteenth Amendment of the Constitution of the

NE No a aebaweee aes 3

oS ) ai |... nee ere 3, 4, 5, 7, 11, 19

ee EE coc bet aot ence seb eeeaseeeTeee 3

ID SE SUED Bc oc ck we eeucuscvetsudaes 1,4

A” Re a ene RIA ean 4,21, 22

Louisiana Revised Statute 18:1463 - Louisiana

SN ERED. nc kc caucccWsesees 1,2, 10, 12, 14, 20

Louisiana Code of Civil Procedure Article 371 ...18, 19

Louisiana Code of Criminal Procedure Article

| SRE I RI a ae Di a aR Apes FW em 12

I

INTRODUCTION

Petitioner Wells has presented no “compelling reasons”

for his Petition for a Writ of Certiorari to be granted

(“Petition”). See Supreme Court Rule 10. Specifically,

Petitioner fails to demonstrate that the Fifth Circuit’s

November 13, 2006 Opinion (“Opinion”) is in conflict with

a decision of this Court or another Court of Appeals or that

the Fifth Circuit decided an important federal question that

has not been settled by this Court. See Supreme Court Rule

10(a)-(c). Therefore the Petition should be denied.

Petitioner first contends that the Fifth Circuit erred in

affirming the District Court’s Motion to Dismiss, when the

Court had jurisdiction to hear the case under the Declaratory

Judgment Act and the Eleventh Amendment did not bar the

action, on contravention of this Court’s precedent and the

holdings of other circuit courts of appeal. As to this first

question presented, Respondent Lamz respectfully disagrees

and will defer to the briefs of other Respondents including

Charlies C. Foti, Jr., Attorney General of the State of

Louisiana, as to the constitutionality of the state statute at

issue.

Respondent Lamz respectfully disagrees with the second

question presented by Petitioner. The Fifth Circuit correctly

affirmed the District Court’s granting of the Motion to

Dismiss against all defendants. Both Courts appropriately

found that there was no deprivation of the Petitioner Wells’

protected First Amendment Right to freedom of speech and

further that the filing of a request for a Temporary Restraining

Order as provided for in Louisiana Election Code under LSA-

R.S. 18:1463 by then candidate for judge and private citizen

Lamz was not an action which would constitute “state

action”.

2

Petitioner herein has failed to show that the actions of

the District Court ‘and the Fifth Circuit Court of Appeals are

in contravention of this Court’s legal precedent or the

holdings of other circuit courts of appeal. Simply put,

Petitioner has failed to completely carry his burden of

demonstrating that there are any compelling reasons for this

Court to grant the Petition. Accordingly, the Petition for Writ

of Certiorari should be denied.

STATEMENT OF THE CASE

This matter stems from a Louisiana state court lawsuit

that was filed prior to the election for Slidell City Court Judge

held on November 2, 2004. The Plaintiff, John B. Wells and

the Defendant, James R.E. Lamz were candidates in the

election. On November 3, 2004, Lamz was declared the

winner of the election and is now presiding as Judge of Slidell

City Court for the State of Louisiana.

In his Complaint Petitioner Wells alleges that Lamz,

through his counsel, defendants Thornhill and Thornhill Law

Firm LLC, filed a petition for injunctive relief in state court

on October 29, 2004, alleging that Wells’ campaign material

violated La. R.S. 18:1463 of the Louisiana Election Code.

(Complaint {| XXXII) Wells further alleges that the petition

seeking injunctive relief, filed on behalf of Lamz, was filed

to prevent Wells from airing commercials or mailing

campaign literature. (Complaint { XXXII) In his complaint,

Wells acknowledges that on the same day, October 29, 2004,

the State District Court denied Lamz’s motion for a

Temporary Restraining Order. (Complaint | XXXIID

On the day following the election, Novernber 3, 2004,

Lamz filed a Supplemental and Amending Petition for

Injunctive Relief and Damages. On that day, Wells filed a

Special Motion to Strike pursuant to the Louisiana Code of

3

Civil Procedure. Again Wells specifically acknowledges in

the pleadings filed on November 3" that the State District

Court had denied Lamz’s request for TRO on the same day it

was filed on October 2%". (at | XLII and 4 XLII)

Petitioner Wells alleges that he was deprived of his

constitutional rights under 42 U.S.C. $1983. Wells alleges

that Lamz’s counsel, Thornhill, acted under the color of state

law by filing the petition on October 29, 2004, for the purpose

of denying Wells his right to free speech guaranteed by the

First and Fourteenth Amendments of the Constitution.

However, it is most important to note that at no time prior to

or including the date of the election was the distribution or

publication of Wells’ campaign materials ever restrained or

prohibited in any way. In fact, the Temporary Restraining

Order (TRO) filed by Lamz was acted upon quickly by the

state court. The TRO was denied on October 29, 2004, the

same day it was filed and days before the scheduled election

of November 2, 2004. In short Petitioner Wells was successful

in the state court and suffered no deprivation of any

constitutionally guaranteed rights.

In his Complaint to the United States District Court for

the Eastern District of Louisiana, Petitioner Wells alleges

that Defendant Lamz acted under the color of state law by

seeking recourse in the district courts of the State of

Lowsiana. Petitioner alleges that Lamz’s actions of seeking

egal redress in the form of a Request for TRO under the

provisions of the Louisiana Election Code pursuant to LSA-

R.S. 18:1463 caused Wells to lose the election. Furthermore,

Petitioner Wells alleges that Lamz conspired with others to

limit and restrict Wells’ rights to free speech thus violating

his rights under 42 U.S.C. $1985. Petitioner’s allegations

are not well founded.

4

Defendant Lamz filed an Answer to the Complaint

denying the allegations contained therein and then filed a

Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6). Similar

motions were filed by all of the other named defendants in

this action on the same legal principles. On July 13, 2005,

Judge Stanwood R. Duval Jr. granted the Motions to Dismiss

filed by each defendant. The District Court issued judgment

in favor of defendants and against plaintiff Wells dismissing

plaintiff's federal law claims with prejudice and dismissing

plaintiff's state law claims without prejudice.

Petitioner Wells then filed a timely notice of appeal. The

matter was briefed and ultimately Oral Argument was

afforded to all before the Fifth Circuit Court of Appeals. The

Fifth Circuit affirmed the District Court ruling in favor of

defendants and against plaintiff Wells dismissing plaintiff's

federal law claims with prejudice and dismissing plaintiff's

state law claims without prejudice. Petitioner Wells then filed

a timely Petition for Writ of Certiorari to this Court.

REASONS FOR DENYING THE PETITION

The decisions below do not conflict with any decision

of this Court or any Court of Appeals nor do they implicate a

federal question that has not been decided by this Court.

Accordingly, Petitioner has not carried his burden of

demonstrating any “compelling reasons” for the Petition to

be granted. See Supreme Court Rule 10.

THE FIFTH CIRCUIT PROPERLY AFFIRMED THE

DISTRICT COURT’S GRANTING OF DEFENDANT

LAMZ’S MOTION TO DISMISS: THE DECISIONS

BELOW ARE ENTIRELY CONSISTENT

WITH LUGAR

Petitioner Wells did not establish a claim under 42 U.S.C.

§ 1983 in the trial court. In Daniel v. Ferguson, 839 F.2d

5

1124 (5S Cir. 1988), the court stated that to prevail under

42 U.S.C. §1983, a plaintiff must prove “(1) that he has been

deprived of a right secured by the Constitution and the laws

of the United States and (2) that the persons depriving him

of this right acted under ‘color of state law’ of the state.” Id.

at 1128. This Court has applied a two-prong analysis,

indicating that private conduct “fairly attributable to the state”

may also be actionable under 42 U.S.C. § 1983. See Lugar

v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744,

2753, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks,

436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d

185(1978).

To satisfy the first prong, Petitioner Wells must prove

that Defendant Lamz deprived Wells of some right secured

by the Constitution and laws of the United States. In order

to satisfy the second prong Petitioner Wells must prove that

Defendant Lamz was acting under the color of state law.

Adickes v. S.H. Kress & Co., 389 U.S. 144 (1970); and Flagg

Brothers, Inc., 436 U.S. 149 at 155. Simply stated, at no

time was Lamz a state actor nor did he act under the color of

state law. As a judicial candidate and private citizen, Lamz

utilized the provisions of the Louisiana Election Code under

LSA-R.S. 18:1463 and filed a TRO with the state court due

to his concerns of improper campaign practices by Wells.

The reference in the petition for TRO of the criminal

sanctions specifically provided for in the statute does not in

and of itself rise to the level of state actor. Nor does that fact

that Lamz was an attorney at law actively running for judge

make him a state official. Petitioner Wells has repeatedly

failed to satisfy both prongs of the analysis in Lugar.

Accordingly, the District Court appropriately granted the

Motions to Dismiss and the Fifth Circuit correctly affirmed.

6

FIRST PRONG: PLAINTIFF WELLS WAS NOT

DEPRIVED OF ANY FIRST AMENDMENT RIGHT TO

FREEDOM OF SPEECH

In this case, Petitioner Wells alleges that he was deprived

of his constitutional rights to free speech as guaranteed by

the First and Fourteenth Amendments as a result of the filing

of a state court petition on behalf of Defendant James Lamz

for injunctive relief (TRO) dealing with campaign issues.

Petitioner Wells claims that the sole purpose for the filing

for the TRO was an attempt by Lamz to deny Plaintiff Wells

of his right to free speech. Specifically Wells alleges in the

Complaint ({ XXXID) that suit was filed on October 29, 2004

for injunctive relief by Lamz in state court. Then, in the

following paragraph of his Complaint (| XXXIID, Plaintiff

Wells acknowledges that the state court petition seeking

injunctive relief filed on behalf of Lamz was denied the very

day it was filed —- October 29, 2004. These statements by

Petitioner are correct. The TRO was filed and was denied by

the state court on the same day.

There is no question that the TRO sought by Lamz was

promptly denied by the state court on the very dav that it

was filed. The state court found that Lamz could not carry

his burden as required under Louisiana law in seeking

injunctive relief. The state court ruling was therefore not a

finding of fact, but a denial of injunctive relief as requested.

Therefore, as a result of the ruling by the state court, there

was nothing to prohibit, delay or restrain the publication,

distribution or dissemination of any of Petitioner, and then

candidate, Wells’ campaign materials prior to the elect’ + of

November 2, 2004.

In reality, Mr. Wells was the victor in the state court since

Lamz’s Request for TRO was denied. At no time was Wells

ever deprived of a right secured by the Constitution or laws

Te ee ee es

7

of the United States. Plaintiff Wells had every opportunity

to continue to campaign until the close of the election on

November 2". At no time did the state court ever issue any

type of injunction denying Plaintiff Wells’ right to free speech

or in any way restricting any of Wells’ campaigning including

public appearance, content of campaign materials or running

television and/or radio advertisements.

THE DISTRICT COURT BELOW CORRECTLY

APPLIED THE HOLDING IN COLSON v. GROHMAN

TO THE CASE SUB JUDICE

Petitioner’s brief is wholly silent and simply ignores the

precedent in the Fifth Circuit which is in harmony with the

law of this Court and other Circuits in the case of Colson v.

Grohman, 174 F.3d 498 (5 Cir.1999). In its finding that Wells

was not deprived this matter, the District Court relied heavily

on the case of Colson. In Colson, the plaintiff, a former city

counsel member, brought a civil rights action against various

city officials including the police chief for their alleged

violations of her right to free speech and her Fourteenth

Amendment rights. The matter was removed to the United

States District Court to pursue actions for defamation, libel,

due process violations and allegations under 42 U.S.C.§ 1983

for violations of her rights under the First and Fourteenth

Amendments. All defendants filed motions for summary

judgment as to Colson’s § 1983 claims and contended that

Colson had failed to allege any deprivation of a cognizable

constitutional right. @d. at 505) The District Court granted

the Defendants’ Motions for Summary Judgment on the First

and Fourteenth Amendment claims and dismissed those

claims. Colson then appealed.

The Court of Appeals on review held that the actions of

the defendants’ including false charges and circulation of

unfounded recall petition against the city counsel member

8

Colson in alleged retaliation for Colson’s exercise of her own

free speech rights, were not sufficiently serious either

individually or as part of a campaign of retaliatory harassment

to rise to the level of First Amendment violation.

In the case sub judice, the District Court below cited

Colson at length noting the “very complex factual pattern”

that presented itself therein. The Fifth Circuit Court of

Appeals in Colson specifically made great effort to describe

“in detail the long and tortured history” of the Colson case

“[blecause the precise nature of the harms suffered by a

plaintiff claiming First Amendment retaliation is crucial to

our determination of whether she has alleged a constitutional

deprivation,”. @d. at 500) In Colson, the alleged harassing

actions of defendants occurred over a two year period from

the time Colson was elected in 1992 until the grand jury was

empanelled in early 1994 to examine charges of retaliation

and coercion. The grand jury returned a no true bill on both.

charges. (/d. at 504) In May of 1994, Colson lost her

reelection bid by a wide margin. ¢d. at 504)

In examining the allegations asserted by the plaintiff

Colson, the Fifth Circuit Court of Appeals specifically noted

“(w]e first emphasize what did not happen: Colson was never

arrested, indicted, or subjected to a recall election. Nor was

she formally reprimanded.” @d. at 511) The court went on to

note that “[oJn the contrary, Colson has alleged only that she

was the victim of criticism, an investigation (or an attempt

to start one), and false accusations: all harms that, while they

may chill speech, are not actionable under our First

Amendment retaliation jurisprudence.” (/d. at 512).

In the case at bar, the District Court also examined the

chronology of the events and the allegations of the plaintiff

Wells, citing the above quotations from Colson as authority

with emphasis on “what did not happen” to Wells. (Opinion

9

at 28) The District Court noted that the Motion for Temporary

Restraining Order was filed in the state court on October 29,

2004 and was promptly denied that very same day. At no

time were there any charges filed against Wells, no grand

jury was ever empanelled, Wells was never arrested and there

was no investigation. At no time was there any prohibition

on Wells’ speech in any form - including his scheduled

campaign events and appearances, print ads, publications and

fliers, television and/or radio ads, or any other campaign

activities. In fact, the state court denied the TRO requested

by Lamz, in effect finding in favor of Wells.

Without question, the First Amendment right to free

speech includes not only the affirmative right to speak, but

also the right to be free from retaliation for the exercise of

that right. See e.g., Pickering v. Board of Educ., 391 U.S.

563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). However,

not every action in response to an individual’s exercise of

his right to free speech is an actionable First Amendment

harm. See Colson, 174 F.3d at 510. For example in the case

of Mattox v. City of Forest Park, 183 F.3d 515, 522 (6th

Cir.1999), the Court held that adverse publicity which caused

a public official to lose her election was not the type of

adverse action against which the First Amendment protects.

Therefore, Petitioner Wells’ claim for relief under § 1983

based on violation of his rights under the First Amendment

must be dismissed.

The court in Colson stated and the District Court

referenced in its Opinion that the alleged campaign of

retaliation taken against Colson simply did not rise to the

level of constitutional deprivation.

“Even viewing the summary judgment evidence

in the light most favorable to Colson, the

defendants’ allegedly retaliatory crusade

10

amounted to no more than the sort of steady stream

of false accusations and vehement criticism that

any politician must expect to endure.” Cf. Dorsett

v. Board of Trustees for State Colleges &

Universities, 940 F.2d 121,123 (5 Cir.1991)

Id. at 514.

The District Court below appropriately relied on Colson in

holding that any injury suffered by Wells was not of

constitutional dimension. The ruling in the Colson case is

dispositive of this issue. Petitioner Wells on appeal to the

Fifth Circuit previously argued that the Colson case is not

controlling “because the harm suffered in that case was more

remote and less direct harm suffered by Wells.” (Brief at page

27) Respondent Lamz respectfully disagrees. Far less

happened to Mr. Wells than happened to Ms. Colson. Despite

Petitioner’s repeated and consistent claims that criminal

charges were “filed” by virtue of the mention of the criminal

sanctions set out in LSA-R.S. 18:1463(E) in the Request for

TRO, no criminal charge was ever filed against Wells.

In this case, Petitioner Wells has failed to show that he

was deprived of his constitutional right to free speech as a

result of the filing of a state court petition on behalf of

Defendant James Lamz for injunctive relief (TRO) dealing

with campaign issues. Accordingly, Respondent Lamz

submits that Petitioner Wells has not established any

compelling reasons for this Court to grant the Petition and

therefore the Petition should be denied.

SECOND PRONG: DEFENDANT LAMZ IS NOT A

“STATE ACTOR” AND THE ACTIONS OF LAMZ DID

NOT CONSTITUTE STATE ACTION

Wells’ Complaint was filed against a private defendant

James Lamz who cannot be labeled as a “state actor’. Lamz

is an attorney-at-law, in good standing, licensed and

11

practicing in the State of Louisiana and after successfully

winning the election in November of 2004 has served as the

Judge of Slidell City Court since that time. All the actions

complained of by the plaintiff Wells are alleged to have

occurred before the election.

At all times material herein, Lamz was a fellow candidate

for judge to fill the Slidell City Court vacancy. “State action”

requires some manner of state responsibility for the actions

which underlie the 42 U.S.C. §1983 claim. Auster Oil & Gas,

Inc. v. Stream, 764 F.2d 381, 387 (5" Cir. 1985). A private

person does not act under color of state law simply because

he invokes state authority. Brummett v. Camble, 946 F.2d

1178, 1184 (S® Cir. 1991)

Conduct is fairly attributable to the state where: (1) it is

“caused by the exercise of some right or privilege created by

the state or by rule of conduct imposed by the State or for

whom the state is responsible;” and (2) where the party

charged with the deprivation is a person who may “fairly be

said to be a state actor.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999).The first part of this test is easily

met, but the second part requires Petitioner Wells to prove

that Lamz’s conduct may fairly be attributable to the state.

In Lugar v. Edmunsan Oil Co., Inc., 457 U.S. 922, 929-

930 (1982), the court sets out three tests that could be used

to meet this requirement. The Lugar case is addresses an

essentially settled issue that does not merit this Court’s

attention. Even if this Court were inclined to address this

issue, this case does not present such an opportunity because

Petitioner never proffered any evidence that Lamz was a state

actor or that Lamz was cognizant of any constitutional

challenge to the State Election Code.

12

1. PETITIONER FAILS TO MEET ANY OF THE

THREE PART TESTS IN LUGAR TO DETERMINE

A “STATE ACTOR”.

a.) Petitioner Fails to Meet Part 1 of Lugar - “Public

Function Test”

The first test under Lugar is the “Public Function Test”.

Petitioner Wells continues to argue that the defendants

including Lamz “filed” criminal charges. Despite his repeated

and consistent claims that criminal charges were “filed” by

virtue of the mention of the criminal sanctions set out in

LSA-R.S. 18:1463(E) in the Request for TRO, no criminal

charges were ever filed against Wells. Without question, the

filing of charges is a function of the state; however, Lamz

was not a state actor and was at all times pertinent herein a

private individual who as a candidate for public office availed

himself of the appropriate provisions of the Louisiana

Election Code. There is nothing about the actions of Lamz

that can be reasonably attributable to the state.

The most significant flaw in appellant’s argument is that

despite his insistence that there were, there were never

criminal charges filed. Under the Louisiana Code of Criminal

Procedure in order for criminal charges to be filed in a parish

court, they have to be “instituted by affidavit or information

charging any offense. La C. Cr. P. Art. 382(B)(2). This would

require the involvement of the District Attorney and quite

simply, this never happened.

What did occur is that Lamz then a fellow candidate for

Judge, with the assistance of counsel, filed a request for

injunctive relief in the Twenty-Second Judicial District Court

for the Parish of St. Tammany, State of Louisiana, alleging

that candidate Wells had violated the Election Code under

LSA-R.S.18:1463. Under section E of this statute,

13

“(w]hoever violates any provision of this Section may be

punished by a fine not to exceed five hundred dollars or be

imprisoned for not more than six months or both.” The fact

that the provisions of the statute were outlined in the

pleadings in the state court proceeding does not in any way

make Lamz a state actor or pass the “public function test” in

Lugar. In this case, there were never any criminal charges

filed. Petitioner fails to meet part 1 of Lugar - the “Public

Function Test”

b.) Petitioner Fails to Meet Part 2 of Lugar - “State

Compulsion Test”

The second test under Lugar is the “State Compulsion

Test” which provides that “a State normally can be held

responsible for a private decision only when it has exercised

coercive power or has provided such significant

encouragement, either overt or covert, that the choice must

in law be deemed to be that of the state.” Blum v. Yaretsky,

457 U.S. 991, 1004 (1982). Petitioner Wells argues that the

state provided defendants the right of action under Louisiana

Revised Statute 18:1463D(1) and that this is overt

encouragement.

This argument is not valid. Obviously each state must

provide its candidates for elective office an avenue and means

to address their concerns regarding political speech and

campaign material. Applying appellant Wells’ argument to

the facts of this case, there would either have to be no statute

that allowed candidates to challenge their opponerit’s speech

and publications or every action instituted regarding elections

would fall under federal jurisdiction because the state

provided the candidate with the avenue to seek an injunction.

Applying Wells’ logic would result in a flood of federal

actions for each and every election throughout this state and

the country. This argument is simply misplaced.

14

Furthermore, appellant Wells argues that the state

provided the defendants with an avenue that limited his right

to speech because he had to interrupt his campaigning to

travel to the District Court and respond to the Request for

TRO. Plaintiff Wells therefore complains on the one hand

that he was given due process in the state proceedings and

allowed to address those issues, but that on the other hand

his right to speech was violated by the state since he could

not campaign at the same time he was in court. Wells elected

to represent himself in state court rather than continue

campaigning. There was no court order or other prohibition

against his right to campaign, to disseminate information or

to print materials at any time pertinent herein. This test fails

as well.

c.) Petitioner Fails to Meet Part 3 of Lugar - “nexus

or joint action test”

The third test under Lugar is the “nexus or joint action

test” which provides that the “state action may be found

where the government has insinuated itself into a position

of interdependence that it was a joint participant in the

enterprise.” Jackson v. Metropolitan Edison Co., 419 U.S.

345, 357-358 (1974). Wells uses the same argument here as

before, namely that the state provided an avenue for the

defendants under LSA-R.S. 18:1463D and further that the

State provided the use of their courts. Wells is suggesting

that the state and Defendant Lamz are in joint participation

because state courts are used to seek injunctive relief.

Plaintiff's position is untenable.

In this case, Defendant Lamz as a private individual filed

a State court lawsuit for injunctive relief alleging that Plaintiff

Wells had violated Louisiana Revised Statute 18:1463

15

regulating elections, particularly section C(1) which provides

that:

[nJo person shall cause to be distributed or

transmitted any oral visual or written material

containing any statement which someone knows

or should reasonably be expected to know makes

a false statement about a candidate for election in

a primary or general election or about a

proposition to be submitted to the voters.

This statute specifically authorizes injunctive relief and

provides for sanctions against violators. LSA-R.S. 18:1463

D(1) provides that “[AJn affected candidate or voter shall be

entitled to an injunction to restrain future violations of

Subsections B and C of this Section.” Lamz filed his suit in

State court for injunctive relief following the applicable law

and utilizing the appropriate procedure.

There is no dispute and Petitioner Wells specifically

admits in his Brief that the state court denied the TRO filed

by Lamz on the very same day that it was filed. By filing the

TRO in state court, Lamz was merely availing himself of the

procedure set forth by the State of Louisiana for seeking

injunctive relief under La. R.S. 18:1463 et seq., and therefore

cannot be deemed to be a state actor solely by virtue of doing

so. In the alternative, for a private citizen to be held liable

pursuant to §1983, “the plaintiff must allege that the citizen

conspired with or acted in concert with state actors.”

See Priester v. Lowndes County, 354 F.3d 414, 420 (5"

Cir.2004) and Lugar, 457 U.S. at 937, 102 S.Ct. at 2754. A

private citizen must be a “willful participant in joint activity

with the State or its agents.” Priester, 354 F.3d at 420.

Conclusory allegations of conspiracy, without reference to

specific facts, will not suffice. Jd.; Brinkman v. Johnson, 793

F.2d 111, 112-113 (S" Cir. 1986).

16

Petitioner has only made such veiled suggestions in one

sentence of his Brief in which he writes on page 21 as follows:

Here Thornhill and his law firm engaged in a

conspiracy with Lamz and his committee, to usurp

the United States Constitution by improperly

seeking injunctive relief and criminal sanctions

for the purpose of depriving Wells of federally

protected rights. Consequently Thornhill and the

Thornhill Law Firm, LLC meet the Lugar

definition of state actors.

It should be noted that Petitioner does not assert in his Brief

to this Court that Lamz is a state actor, although he has taken

this position in the past.

At all times material herein, Defendant James Lamz was

a private citizen. Therefore Wells must prove that Lamz was

a willful participant in joint activity with the State or its

agents, or that Lamz conspired with or acted in concert with

state actors in order to implicate a cause of action under

§1983. Petitioner has not set forth any factual allegations

with respect to a conspiracy or a mutual understanding

between Lamz and any state agent or official. A civil

conspiracy pursuant to §1983 is an agreement between private

and public actors to violate a plaintiff's constitutional rights.

Bayou Fleet, Inc. v. Alexander, 68 F.Supp.2d 734, 745

(E.D. La. 1990)

Petitioner Wells argues that 42 U.S.C §1983 is implicated

in this matter because in the underlying state matter, he called

into question the constitutionality of Louisiana Revised

Statute 18:1463. A similar argument was attempted in the

case of Parker v. Byrd & Wisner, 947 F.Supp. 245 (S.D. Miss.

1996). In Parker, the Court held that the private attorney did

not become a state actor by virtue of using the state

17

procedures for filing a lawsuit. The plaintiff in Parker also

argued that 42 U.S.C §1983 was implicated because in the

underlying state court action the defendants relied upon an

unconstitutional state statute for their lawsuit. It was further

argued that the defendants’ state lawsuit amounted to

malicious prosecution. The Court found those arguments to

be without merit and subject to the same analysis the Court

applied to the plaintiff's other arguments for the §1983

claims. Parker, 947 F.Supp. 245, 251. For the same reasons,

this Honorable Court should reject such an argument.

This Court in Lugar faced a similar charge that private

defendants’ attachment suit was “unlawful under state law.”

Lugar, 457 U.S. at 940, 102 S.Ct. at 2755. In discussing this

claim, the Court made plain that “private misuse of a state

statute does not describe conduct that can be attributed to

the State.” Jd. at 941, 102 S.Ct. at 2756. The choice to invoke

the “statute without the grounds to do so could in no way be

attributed to a state rule or state decision”; this act is “contrary

to the relevant policy articulated by the state.” /d. at 940,

102 S.Ct. at 2755. For this reason, complaints “alleg[ing]

only misuse or abuse of the statute” do not “present a valid

cause of action under §1983.” /d. at 942, 102 S.Ct. at 2756.

As noted by the court in Wyatt v. Cole 994 F.2d 1113

(C.A.5 (Miss.),1993) “[iJn the wake of Lugar, several courts

have recognized and given effect to this principle.” See, e.g.,

Davis Oil Co. v. Mills, 873 F.2d 774, 779-80 (Sth Cir. 1989)

(discussing Lugar ); Cobb v, Saturn Land Co., 966 F.2d 1334,

1335-36 (10th Cir.1992); Hoai v. Vo, 935 F.2d 308, 313-14

(D.C.Cir. 1991), cert. denied, 503 U.S. 967, 112 S.Ct. 1578,

118 L.Ed.2d 220 (1992); Jones v. Poindexter, 903 F.2d 1006,

1010-11 (4th Cir.1990); Collins v. Womancare, 878 F.2d

1145, 1152-54 (9th Cir.1989), cert. denied, 493 U.S. 1056,

110 S.Ct. 865, 107 L.Ed.2d 949 (1990); Winterland

ConcessionsCo. v. Trela, 735 F.2d 257, 262 (7th Cir.1984).

18

“OFFICER OF THE COURT” DOES NOT EQUAL

“STATE ACTOR”

Petitioner Wells argues that pursuant to Louisiana Code

of Civil Procedure Article 371, an attorney “by virtue of his

status as an officer of the court” is therefore legislatively

declared a state official and consequently a “state actor”. This

Article makes no such declaration, and reads in its entirety

as follows:

Louisiana Code of Civil Procedure Article 371

- Attorney

An attorney at law is an officer of the court. He

shall conduct himself at all times with decorum,

and in a manner consistent with the dignity and

authority of the court and the role which he

himself should play in the administration of

justice.

He shall treat the court, its officers, jurors,

witnesses, Opposing party, and opposing counsel

with due respect; shall not interrupt opposing

counsel, or otherwise interfere with or impede the

orderly dispatch of judicial business by the court;

shall not knowingly encourage or produce false

evidence; and shall not knowingly make any

misrepresentation, or otherwise impose upon or

deceive the court.

For a violation of any of the provisions of this

article, the attorney at law subjects himself to

punishment for contempt of court, and such

further disciplinary action as is otherwise provided

by law.

19

Petitioner Wells and Respondent Lamz are both attorneys

at law and were both candidates for the election to fill the

seat for judge of Slidell City Court. To suggest that each and

every attorney at law in the state of Louisiana is a “state

actor” by virtue of LSA-Louisiana Code of Civil Procedure

Article 371 is beyond reason and would open Pandora’s Box

to litigation and claims of state action under $1983 and other

statutes.

Petitioner Wells argues that attorneys have been found

to be state actors when they participate in a conspiracy to

deprive plaintiffs of federal rights. Respondent submits that

Petitioner Wells does not provide the complete facts from

the cases cited which render the cases distinguishable from

the facts of the case at bar.

For example, in the case of Tower v. Glover, 467 U.S.

914, 104 S.Ct. 2820 (U.S.1984), the client filed a pro se

action alleging that the public defenders who represented him

in his prior state criminal action violated civil rights statutes

by conspiring with various public officials to violate their

client’s constitutional rights. This Supreme Court held that

(1) the complaint adequately alleged conduct “under color

of” state law in view of the conspiracy allegations, and (2)

state public defenders are not immune from liability under

$1983 for intentional misconduct by virtue of alleged

conspiratorial actions with state officials which deprived their

clients of federal rights.

In Tower, the public defenders were found to be state

actors not by the mere fact that they were attorneys, but by

their participation in the conspiracy with public officials.

Therefore, the Tower decision is not inconsistent with the

holding in Polk County v. Dodson, 454 U.S. 312, 102 S.Ct.

445 (U.S.,1981) that a public defender does not act “under

color of state law” in performing a lawyer’s traditional

20

functions as counsel to an indigent defendant in a state

criminal proceeding.

In the case at bar, there is no allegation that Lamz or his

attorney of record worked in joint participation with any state

official in filing the Request for TRO. Lamz reasonably

resorted to the legal process set out in the Louisiana Election

Code. With the assistance of counsel and in accordance with

the provisions of LSA-R.S. 18:1463, the Request for TRO

was filed. The Request for TRO was immediately denied by

the state court. There was no action by the state to deprive

Wells of any rights. In fact, the state operated and acted to

Wells’ benefit — not to his detriment.

The case law simply does not support a finding that an

action under §1983 exists merely because a lawyer filed a

lawsuit based on what may be ultimately determined to be

an unconstitutional statute. (See Parker, supra) The District

Court correctly held that there was no constitutional

deprivation to Wells in this case and stated as follows:

THE COURT: I understand he was

inconvenienced, but it doesn’t rise to the

color of state law, which I think is a

closer question frankly. I feel that it

requires the state to do something, to

implement the alleged unconstitutional

statute, other than simple act as a judge

and rule on it. They would have to do

something that would restrain him.”

(Doc. 51 at page 33 lines 16 through 21)

For the reasons set forth above, Petitioner Wells’

arguments for converting Lamz to a state actor and Wells’

suggestions that Lamz conspired in some way with other state

actors o# s¢ate officials should be rejected. Our courts have

21

consistently rejected attempts by litigants to define state

action under §1983 as simply the use of the state’s judicial

process and procedures. See Miller v. Hartwood Apartments,

Ltd., 689 F.2d 1239, 1242 (5" Cir. 1982)(the mere use of

State process does not support a §1983 claim); See Howard

v. Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544,

555 (5" Cir.1988) (a litigant does not “act under color of

state law” by merely filing a lawsuit and seeking a temporary

injunctions); Wyatt v. Cole, 994 F.2d 1113, 1117-1118 (5°

Cir.1993), cert.denied, 510 U.S. 977, 114 S.Ct. 470, 126

L.Ed.2d 421 (1993) (even the misuse or abuse of the judicial

process does not constitute state action). Accordingly,

Petitioner Wells has failed to show that defendant Lamz is a

“state actor” and has failed all three parts of the Lugar test.

CONCLUSION

In conclusion, Petitioner Wells has not established a

claim under 42 U.S.C. §1983. To prevail under 42 U.S.C.

§ 1983, a plaintiff must prove “(1) that he has been deprived

of a right secured by the Constitution and the laws of the

United States and (2) that the persons depriving him of this

right acted under ‘color of state law’ of the state.” (See Daniel

v. Ferguson, 839 F.2d 1124 (5S Cir. 1988)). Petitioner has

failed on both counts.

The District Court, after accepting the pleadings as true

for the 12(b)(6) Motion found that there was no deprivation

of Plaintiff's First Amendment right to freedom of speech.

“The Plaintiff can’t show that any of his speech was actually

restrained.” (Opinion at page 45 lines 16-17) The District

Court nghtly addressed the similarities to the Colson case in

finding that there was no deprivation. The District Court cited

the Colson decision where the court stated “[a]ccordingly,

this circuit has held that although some actions may have

the effect of chilling the plaintiff's protected speech, they

22

are not actionable.” (Opinion at page 47 citing Colson at

page 511) The District Court went on to rule that the plaintiff

Wells could not show the sufficient chilling effect on his

speech for there to be a constitutional deprivation.

In addition, the District Court correctly applied the

applicable law to the facts and held that there was no state

action in this case “because the state under all the tests,

something has to be done, even if it’s unwitting by the state,

as it was with the sheriff in the replevin case.” (Opinion at

page 49 lines 20-23) “{N]o action was taken here by the state.

The state did nothing — did not use these procedures against

this gentlemen.” (Opinion at page 49 line 25 through page

50 line 2) The District Court went on to note that even if

criminal charges were filed in this matter, under the case

law the simple filing of state charges is not sufficient to

establish state action.

Petitioner Wells failed to satisfy both prongs of the

analysis in Lugar. Respondent Lamz was not a State actor,

and at no time was acting under the color of state law. As a

judicial candidate, Lamz utilized the provisions of the

Louisiana Election Code under LSA-R.S. 18:1463 and

requested a TRO from the state court based on his concerns

of improper campaign practices by Wells. The reference in

the Request for TRO of the criminal sanctions provided for

in the statute does not of itself rise to the level of state action

nor does the fact that Lamz is an attorney-at-law make him a

state official. The District Court appropriately granted the

Motion to Dismiss pursuant to Rule 12(b)(6) filed by Lamz

and the Fifth Circuit properly affirmed.

Accordingly, Respondent Lamz submits that Petitioner

Wells has not established any compelling reason for this

Court to grant the Petition. Therefore, Respondent Lamz

respectfully requests that the Petition be denied.

23

Respectfully submitted,

ADRIANNE L. BAUMGARTNER

Counsel of Record

KATHLEEN E. SIMON

Porteous, HAINKEL & JOHNSON

408 North Columbia Street

Covington, LA 70433-2920

(985) 893-4790