King et al v. Jindal et al

Filing 19

ORDER & REASONS granting 12 Motion for Summary Judgment. The issue of fees and costs will be referred to the magistrate judge for resolution. Signed by Judge Martin L.C. Feldman on 5/14/2014. (NEF: MAG-3) (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY KING & LAURA KING

CIVIL ACTION

VERSUS

NO. 13-4913

JAMES D. CALDWELL
EX REL., STATE OF LOUISIANA,
ATTORNEY GENERAL

SECTION F

ORDER AND REASONS
Before the Court is plaintiffs' motion for summary judgment.
For the reasons that follow, the motion is GRANTED.
Background
This is a free speech case brought by Dr. Laura King and her
husband, Terry.
Dr. Laura King formerly worked for the St. Tammany Parish
Coroner's Office, as the manager of its forensic laboratory.
However, after she raised concerns to her superiors regarding
mismanagement of the office, her employment was terminated.
After her termination, Dr. King, along with her husband,
Terry, continued to pursue her concerns by making complaints to
various state and federal agencies with jurisdiction over the
activities of the Coroner's Office, including the Louisiana State
Board of Ethics.

The media began covering the Kings' allegations,

including their complaints to the Louisiana Board of Ethics.
In September 2011, the Kings were charged by misdemeanor bill

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of information with violating La. R.S. 42:1141,1 which makes it a
crime to breach the confidentiality of ethics complaints by making
public statements concerning a private investigation or hearing of
the Louisiana Board of Ethics.

The charges were brought after the

Coroner's Office complained to the District Attorney for St.
Tammany Parish, who recused himself and referred the charges to
Louisiana Attorney General Buddy Caldwell, who then specially
appointed the St. Charles Parish District Attorney's Office to
pursue the charges.

In June 2012, the charges against the Kings

were nolle prossed.
In June 2013, the Kings filed suit in this Court against
Louisiana Governor Bobby Jindal and Louisiana Attorney General
Buddy Caldwell, in their official capacities, alleging that La.
R.S. 42:1141.4(L)(1) violates their rights to free speech under the
First and Fourteenth Amendments to the United States Constitution,
and Article I, Sections 7 and 9 of the Louisiana Constitution.
Plaintiffs seek relief in the form of a declaration that the
statute is unenforceable, an injunction preventing the statute's
enforcement, and costs and fees associated with bringing this
action. On October 16, 2013, this Court granted in part and denied
in part defendants' motion to dismiss the complaint for lack of
subject matter jurisdiction, dismissing plaintiffs' claims against
1

Specifically, plaintiffs were charged under La. R.S.
42:1141(E)(12)(a), which has since been amended and is now
engrossed at La. R.S. 42:1141.4(L)(1).
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Governor Jindal.

Plaintiffs now move for summary judgment.
I.

Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress

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his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed. R. Civ. P. 56(c)(2).

Finally, in evaluating summary

judgment, the Court must read the facts in the light most favorable
to the non-moving party.

Anderson, 477 U.S. at 255.
II.
A.

Abstention

"Abstention from the exercise of federal jurisdiction is the
exception, not the rule."

Colorado River Water Conserv. Dist. v.

United States, 424 U.S. 800, 813 (1976).

The Supreme Court has

"confined the circumstances appropriate for abstention to three
general categories."

Id. at 814.

First, "[u]nder the Colorado

River doctrine, a court may abstain from a case that is part of
parallel,

duplicative

litigation

under

'exceptional

circumstances.'" Saucier v. Aviva Life & Annuity Co., 701 F.3d 458,
462

(5th

Cir.

2012).

As

a

threshold

matter,

Colorado

River

abstention applies only when a parallel state case remains pending.
See Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir.
2006).

Second,

under

the

Pullman

doctrine,

abstention

is

appropriate where the federal constitutional issue in a case may be
mooted by a state-court determination of state law. R.R. Comm'n of
Tex. v. Pullman Co., 312 U.S. 496, 501 (1941).

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Third, under the

Buford doctrine, abstention is proper where a case involves an
unclear

state-law

question

of

important

transcends the result in the federal case.

local

concern

that

Buford v. Sun Oil Co.,

319 U.S. 315, 332-34 (1943); see also La. Power & Light Co. v. City
of Thibodaux, 360 U.S. 25 (1959).
The State contends that this Court should refrain from ruling
on the constitutionality of the challenged statute in the interest
of state sovereignty and comity.

The Court is not persuaded.

Contrary to the State's contentions, this case is not "strictly a
State law matter," but rather, involves serious claims under the
First and Fourteenth Amendments to the United States Constitution.
Although

plaintiffs

constitutional

also

rights,

the

claim

violations

state-law

issues

of

their

neither

transcend the determination of the federal issues.

state

moot

nor

There is also

no parallel state case currently pending, and so, no legitimate
reason for this Court to abstain.
B.

Standing

Article III of the Constitution commands that a litigant must
have standing to invoke the power of a federal court.

The Court’s

focus, in assessing standing, is on the parties’ right to have the
Court decide the merits of the dispute. See Doe v. Beaumont Indep.
Sch. Dist., 240 F.3d 462, 466 (5th Cir. 2001)(citing Warth v.
Seldin, 422 U.S. 490, 498 (1975)).

To establish standing, the

plaintiffs must demonstrate: (1) that they each personally suffered

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some actual or threatened “injury in fact” (2) that is “fairly
traceable” to the challenged action of the defendant, and (3) that
likely “would be redressed” by a favorable decision in Court.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

See

The actual

injury requirement ensures that issues will be resolved “not in the
rarified atmosphere of a debating society, but in a concrete
factual context.”

Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982).
The State disputes that plaintiffs were actually harmed in
this case, because the charges against them were nolle prossed and
expunged from the record.

Although plaintiffs submit that they

fear a threat of future prosecution under the statute, the State
responds that such concerns are too hypothetical to establish
standing.
credible
standing.

The Court disagrees.
threat

of

future

It is well established that a

criminal

prosecution

will

confer

See, e.g., Va. v. Am. Booksellers Ass'n, Inc., 484 U.S.

383, 392-93 (1988).

The history of enforcement in this case makes

the threat of future prosecution a real possibility.

The State's

contention that plaintiffs suffered no actual injury simply because
the charges against them were dropped is specious at best. Because
plaintiffs have standing, the Court turns to the merits of their
claims.

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C.

First Amendment

The First Amendment to the United States Constitution declares
that "Congress shall make no law . . . abridging the freedom of
speech."

U.S. Const. amend. I.

"As a general matter, the First

Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content."

United

States

v.

559

Stevens,

U.S.

460,

(2010)(internal quotation marks and citations omitted).

468

A statute

that regulates based on subject matter or content is "presumptively
invalid," and subject to strict scrutiny.

Id.

La. R.S. 42:1141.4(L)(1) provides:
It shall be a misdemeanor, punishable by a fine of not
more than two thousand dollars or imprisonment for not
more than one year, or both, for any member of the Board
of Ethics, its executive secretary, other employee, or
any other person, other than the person who is subject to
the investigation or complaint, to make public the
testimony taken at a private investigation or private
hearing of the Board of Ethics or to make any public
statement or give out any information concerning a
private investigation or private hearing of the Board of
Ethics without the written request of the public servant
or other person investigated.
(emphasis

added).

The

Kings

42:1141.4(L)(1) on its face.

purport

to

challenge

La.

R.S.

Typically, to succeed on a facial

challenge, the plaintiffs must show "that no set of circumstances
exists under which the [statute] would be valid . . . or that the
statute lacks any plainly legitimate sweep."

Stevens, 559 U.S. at

472 (internal quotation marks and citations omitted).

However, in

the First Amendment context, "a second type of facial challenge" is
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available, "whereby a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged
in relation to the statute's plainly legitimate sweep."

Stevens,

559 U.S. at 473 (internal quotation marks and citations omitted).
Notably, though, a facial challenge based on overbreadth is not
appropriate if the rights asserted by the plaintiff are essentially
coterminous with the expressive rights of third parties.

United

States v. Hicks, 980 F.2d 963, 969 (5th Cir. 1992).
The

State

constitutional.

submits

that

La.

R.S.

42:1141.4(L)(1)

is

The State concedes that strict scrutiny applies,2

but asserts that the statute is narrowly tailored to a compelling
state interest.

The State asserts that the purpose of the statute

is to protect the subjects of ethics investigations and ensure the
integrity of the disciplinary process.
because

the

statute

prohibits

speech

The State argues that
only

while

the

ethics

investigations remain private, before the Board adjudicates the
charges, the statute is narrowly tailored to achieve its purpose.
The Court disagrees.
The Court is persuaded that La. R.S. 42:1141.4(L)(1) is
invalid, both as applied to these plaintiffs and on its face, at

2

Although neither party briefs the issue, the Court is
satisfied that La. R.S. 42:1141.4(L)(1) regulates speech based on
subject matter (namely, Board of Ethics investigations) and thus is
subject to strict scrutiny.
The statute may even be viewpoint
based, as it permits speech by or at the request of the subject of
the ethics investigation, but not by the complainant.
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least in part.

See Leavitt v. Jane L., 518 U.S. 137, 139 (1996)

(severability of state statutory provisions is a matter of state
law); see also La. R.S. 24:175(A) (permitting severance).

Insofar

as the statute makes it a crime for "any other person," besides the
subject of an ethics investigation, "to make any public statement
or give out any information concerning a private investigation or
private hearing of the Board of Ethics" absent the subject of the
investigation's written request, the statute is impermissibly
overbroad.

Even accepting the State's proffered interests as

sufficiently compelling, the State fails to show that the means
selected are the least restrictive appropriate to the task.

See

Stevens, 559 U.S. at 468 (government bears the burden to rebut
presumption of invalidity).3
Accordingly,

IT

IS

ORDERED:

summary judgment is GRANTED.

that

plaintiffs'

motion

for

The Court hereby declares La. R.S.

42:1141.4(L)(1) invalid insofar as it prohibits "any other person"
from "mak[ing] any public statement or giv[ing] out any information
concerning a private investigation or private hearing of the Board
of

Ethics."

Defendant

and

its

officers,

agents,

servants,

employees, and assigns are hereby enjoined from enforcing this
provision, until further order of this Court.4

The issue of fees

3

The Court does not reach plaintiffs' state law claims,
which have not been briefed.
4

Counsel for plaintiffs shall submit a form of injunction and
judgment within five working days.
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and costs will be referred to the magistrate judge for resolution.
New Orleans, Louisiana, May 14, 2014
___________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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