Opinion
2022 CA 0032
09-16-2022
DR. STEVEN RUSHING v. SOUTHEASTERN LOUISIANA UNIVERSITY, ET AL.
Loretta G. Mince Michael R. Dodson New Orleans, LA Counsel for Plaintiff/Appellant, Dr. Steven Rushing Linda Law Clark Brandon J. DeCuir Monica Gant Moton Baton Rouge, LA, Diana Tonagel, Denham Springs, LA Counsel for Defendants/Appellees, Southeastern Louisiana University, Et al.
NOT DESIGNATED FOR PUBLICATION
Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2018-0003690 The Honorable Charlotte H. Foster, Judge Presiding
Loretta G. Mince Michael R. Dodson New Orleans, LA Counsel for Plaintiff/Appellant, Dr. Steven Rushing
Linda Law Clark Brandon J. DeCuir Monica Gant Moton Baton Rouge, LA, Diana Tonagel, Denham Springs, LA Counsel for Defendants/Appellees, Southeastern Louisiana University, Et al.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, Dr. Steven Rushing, from a judgment of the district court dismissing his claims with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 26, 2018, Dr. Steven Rushing, a tenured professor employed by Southeastern Louisiana University ("SLU") and a former member of the SLU Faculty Senate, filed a petition to enforce Louisiana's Open Meetings Law against: SLU; SLU Human Resources Director, Tara S. Dupre; the SLU Faculty Senate; the SLU Faculty Senate Executive Committee; SLU Faculty Senate President, Erin Watson Horzelski; SLU Faculty Senate Parliamentarian, John Yeargain; SLU Faculty Senate Membership Secretary, Jerry Parker; SLU Faculty Senate Recording Secretary, Elizabeth Sanders; SLU Faculty Senate At Large Member, Ed Nelson; SLU Faculty Senate At Large Member, Gerlinde Beckers; "[u]nidentified faculty and staff whose complaints were forwarded to the [SLU] Human Resources Department"; and the SLU Workplace Violence Committee.
In March of 2018, Dr. Rushing was elected to the SLU Faculty Senate. In May of 2018, he was elected to the position of Vice President of the SLU Faculty Senate. On October 31, 2018, he was suspended from the SLU Faculty Senate. Thereafter, in the summer of 2019, Dr' Rushing was removed as a faculty member of SLU.
In the briefs and record herein, the "SLU Faculty Senate Executive Committee" and the “SLU Faculty Senate Executive Council" are referred to interchangeably.
In his petition, Dr. Rushing alleged: that the minutes of the Faculty Senate meetings and Faculty Senate Executive Committee meetings were not published in accordance with LSA-R.S. 42:20 and the SLU Faculty Senate Bylaws; that proposals he submitted to the SLU Faculty Senate Executive Committee prior to their September 26, 2018 meeting, for consideration at the October 3, 2018 SLU Faculty Senate meeting, were not included on the October 3, 2018 Faculty Senate meeting agenda in accordance with the SLU Faculty Senate Bylaws; that there was no cause for removing him from the meeting pursuant to LSA-R.S. 42:17(C); and that the September 26, 2018, October 3, 2018, and October 31, 2018 meetings were not noticed nor were the agendas of same published in accordance with LSA-R.S. 42:19. Dr. Rushing thus sought issuance of a writ of mandamus, injunctive relief, and declaratory judgments that the Open Meetings Law pertained to defendants, and that accordingly, all actions taken at the September 26, 2018 SLU Faculty Senate Executive Committee meeting, the October 3, 2018 SLU Faculty Senate meeting, and the October 31, 2018 SLU Faculty Senate meeting should be voided. Dr. Rushing further sought civil penalties, attorney's fees, and costs.
Dr. Rushing further alleged that after utilizing proper parliamentarian procedures at the October 3, 2018 Faculty Senate meeting by raising a point of order to have his proposals considered, his attempts were ignored and he was ejected from the meeting, along with university students. Dr. Rushing averred that he was subsequently advised that he was removed from the office of Vice President of the SLU Faculty Senate, without notice or due process as required by the SLU Faculty Senate Bylaws and Roberts Rules of Order Revised, and has since been denied all information and documents from past and future SLU Faculty Senate activities and meetings. Dr. Rushing contended he was later notified that faculty and staff complaints about him had resulted in matters being turned over to the University Workplace Violence Committee, which determined that he be suspended from the university, banned from its campus, facilities, and events held off campus, and directed to a "workplace psychiatrist" for a fitness evaluation.
Defendants SLU, Tara Dupre, Erin Horzelski, John Yeargain, Jerry Parker, Elizabeth Sanders, Ed Nelson, and Gerlinde Beckers responded by filing exceptions of improper cumulation, vagueness, and nonconformity. Following a hearing, the district court signed a judgment on July 1, 2019, sustaining defendants' exceptions and dismissing Dr. Rushing's tort claims without prejudice.
The district court initially signed a judgment on June 21, 2019, sustaining defendants' exceptions and dismissing Dr. Rushing's claims "with prejudice." However, pursuant to a motion for new trial by Dr. Rushing, the district court signed a judgment on October 14, 2019, vacating the June 21, 2019 judgment and ordering that the July 1, 2019 judgment dismissing Dr. Rushing's claims "without prejudice" is the operative judgment on the exceptions.
On June 27, 2019, Dr. Rushing filed an amended and restated petition, wherein he reasserted the claims set forth in his original petition and named all defendants originally named except Human Resources Director, Tara S. Dupre; "[u]nidentified faculty and staff whose complaints were forwarded to the [SLU] Human Resources Department"; and the SLU Workplace Violence Committee. Dr. Rushing further alleged that additional violations of the Open Meetings Law arose from SLU Faculty Senate Meetings held on November 7, 2018, December 5, 2018, January 23, 2018, February 6, 2019, March 13, 2019, April 3, 2019, and May 1, 2019, and SLU Faculty Senate Executive Committee meetings held on January 16, 2019, January 30, 2019, March 6, 2019, March 27, 2019, and April 24, 2019.
The March 13, 2019 meeting was incorrectly referenced in the petition as March 13, 2016.
On September 23, 2019, the district court conducted a hearing to initially determine whether the SLU Faculty Senate is a "public body" as defined in LSA-R.S. 42:13 of the Open Meetings Law. On September 24, 2019, the district court signed a judgment in favor of Dr. Rushing, finding that the SLU Faculty Senate is a public body, and as such, its meetings are subject to the Open Meetings Law.
TO the extent that the judgment of the district court references LSA-R.S. 42:4.2(A)(2), we note that this statute was redesignated as LSA-R.S. 42:13 by La. Acts 2010, No. 861, §23.
Thereafter, the district court conducted a hearing on November 4, 2019, to determine whether the SLU Faculty Senate violated the Open Meetings Law. Following the hearing, on November 26, 2019, the district court issued written reasons for judgment after determining that much of the difficulty encountered at the September 26, 2018 meeting was due to Dr. Rushing's actions, that the October 3, 3018 meeting "can only be described as 'chaotic'," that the Faculty Senate had sufficient grounds to remove Dr. Rushing from the meeting, and that no evidence was presented at trial as to any action taken at the October 31, 2018 meeting. Thus, the district court declined to order relief, assess civil penalties, or void any action taken in the meetings cited in Dr. Rushing's original petition.
As to the claims asserted in Dr. Rushing's amended petition, the district court found that the amended petition filed on June 27, 2019, citing violations arising from meetings held from November 7, 2018 to April 24, 2019, was not timely filed within sixty days of the complained of meetings as required by LSA-R.S. 42:24. The district court thus determined that any cause of action under the Open Meetings Law as to those meetings was perempted and dismissed those claims. In conformity with its written reasons, the district court signed a judgment on January 20, 2020, in favor of defendants, dismissing Dr. Rushing's claims with prejudice.
Dr. Rushing appealed the district court's written reasons and January 20, 2020 judgment, which appeals were consolidated by this court. On review, however, this court determined that Dr. Rushing failed to show that the written reasons constituted a valid final judgment and that the January 20, 2020 judgment was not final and appealable where it failed to identify the defendants. Thus, this court dismissed the appeals and remanded the matter to the district court. See Rushing v. Southeastern Louisiana University, 2020-0669, 2020-0672 (La.App. 1st Cir. 3/29/21), 2021 WL 1170451 (unpublished).
On remand, the district court signed a judgment on August 18, 2021, properly identifying defendants SLU; the SLU Faculty Senate; the SLU Faculty Senate Executive Committee; SLU Faculty Senate President Erin Watson Horzelski; SLU Faculty Senate Parliamentarian John Yeargain, SLU Faculty Senate Membership Secretary Jerry Parker, SLU Faculty Senate Recording Secretary Elizabeth Sanders, SLU Faculty Senate At Large Member Ed Nelson; and SLU Faculty Senate At Large Member Gerlinde Beckers, and rendering judgment in their favor and against Dr. Rushing, dismissing Dr. Rushing's claims with prejudice.
Dr. Rushing appeals the August 18, 2021 judgment, contending that the district court erred in:
1. Finding that peremption barred his claims with respect to the meetings held between November 2018 and April 2019, when he timely filed his original petition;
2. Denying him any relief whatsoever when the undisputed evidence showed violations by defendants of the Open Meetings Law;
3. Denying his claims for civil penalties, when the undisputed evidence showed defendants' willful refusal to follow the requirements of the Open Meetings Law;
4. Determining that any alleged "difficulty encountered" at a meeting of the Executive Committee on September 26, 2018 "was due to Petitioner's actions," when no evidence of any difficulties was presented and the court refused to listen to a recording of the meeting; and
5. Determining that "the Faculty Senate had sufficient grounds to remove Petitioner" from the meeting on October 3, 2018, when the district court ignored the refusal by the Faculty Senate to abide by its own "rules and restrictions regarding" the comment period to be afforded before acting on an agenda item, see LSA-R.S. 42:14(D).
DISCUSSION
Applicable Law
Louisiana's Open Meetings Law is codified as LSA-R.S. 42:11, et seq. Any person who has been denied any right conferred by the Open Meetings Law or who has reason to believe that the Open Meetings Law has been violated may institute enforcement proceedings. LSA-R.S. 42:25(C). Any action taken in violation of the Open Meetings Laws is voidable by a court of competent jurisdiction; however, such suit to void any action must be commenced within sixty days of the action. LSA-R.S. 42:24.
In any enforcement proceeding, the plaintiff may seek and the court may grant any or all of the following forms of relief: a writ of mandamus; injunctive relief; declaratory judgment; judgment rendering the action void as provided in R.S. 42:24; and/or judgment awarding civil penalties as provided in R.S. 42:28. LSA-R.S. 42:26(A). If a party who brings an enforcement proceeding pursuant to R.S. 42:25 prevails, the party shall be awarded reasonable attorney fees and other costs of litigation. If such party prevails in part, the court may award the party reasonable attorney fees or an appropriate portion thereof. LSA-R.S. 42:26(C).
Any member of a public body who knowingly and willfully participates in a meeting conducted in violation of the Open Meetings Law shall be subject to a civil penalty not to exceed five hundred dollars per violation. The member shall be personally liable for the payment of such penalty. A suit to collect such penalty must be instituted within sixty days of the violation. LSA-R.S. 42:28. The Open Meetings Laws shall not prohibit the removal of any person or persons who willfully disrupt a meeting to the extent that orderly conduct of the meeting is seriously compromised. LSA-R.S. 42:17(C).
All public bodies, except the legislature and its committees and subcommittees, shall give written public notice of their regular meetings, if established by law, resolution, or ordinance, at the beginning of each calendar year. Such notice shall include the dates, times, and places of such meetings. LSA- R.S. 42:19(A). All public bodies shall keep written minutes of all of their open meetings. LSA-R.S. 42:20(A). The minutes shall be public records and shall be available within a reasonable time after the meeting, except where such disclosures would be inconsistent with R.S. 42:16, 17, and 18 or rules adopted under the provisions of R.S. 42:21. LSA-R.S. 42:20(B)(1). If the public body has a website, the public body shall post on its website a copy of the minutes made available pursuant to Paragraph (1) of this Subsection and shall maintain the copy of those minutes on the website for at least three months after the posting. If the public body is required to publish its minutes in an official journal, the public body shall post its minutes on its website within ten days after publication in the official journal. If the public body is not required to publish its minutes in an official journal, the public body shall post its minutes on its website within a reasonable time after the meeting. LSA-R.S. 42:20(B)(2).
Standard of Review
In an action to enforce the Open Meetings Law pursuant to LSA-R.S. 42:2528, the district court has original jurisdiction, and this court reviews its findings for errors of law or manifest errors of fact. See LSA-R.S. 42:25(C) and 42:27(A); Bums v. Louisiana Auctioneer's Licensing Board, 2014-1166 (La.App. 1st Cir. 8/19/15) 2015 WL 4937908, *2 (unpublished).
Under the manifest error standard of review, to reverse a district court's factual conclusions, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the district court's conclusion, and the finding must be clearly wrong. Walton v. State Farm Mutual Automobile Insurance Company, 2018-1510 (La.App. 1st Cir. 5/31/19), 277 So.3d 1193, 1196.
This court's determination is not whether the factfinder was correct, but whether the factfinder's conclusion was a reasonable one. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Premier Tugs, LLC v. Caillou Island Towing Co., Inc, 2019-1166 (La.App. 1st Cir. 6/18/20), 307 So.3d 218, 223; Rosell v. Esco, 549 So.2d 840, 844 (La. 1989). Thus, where there are two permissible views of the evidence, the factfinder's choice cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d 840 at 844.
Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings, for only the fact finder can be aware of the variation in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d 840 at 844. Indeed, where the fact finder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Martinez v. Wilson, 2019-0017 (La.App. 1st Cir. 9/27/19), 287 So.3d 27, 31.
Assignment of Error Number One
In his first assignment of error, Dr. Rushing contends that the district court erred in finding that peremption barred the claims asserted in his amended petition with respect to the meetings held between November 2018 and April 2019, where he timely filed his original petition alleging violations of the Open Meetings Law. We disagree.
The sixty-day time limit for commencement of a suit to void an illegal action in LSA-R.S. 42:24 is peremptive, not prescriptive. Stewart v. Department of Public Safety and Correctional, 2019-1205 (La.App. 1st Cir. 5/11/20), 303 So.3d 352, 356; Sandi's II, Ltd, v. Assumption Parish Police Jury, 2001-2819 (La.App. 1st Cir. 12/31/02), 837 So.2d 124, 127; Hoffpauir v. State, Department of Public Safety and Corrections, 1999-1089 (La.App. 1st Cir. 6/23/00), 762 So.2d 1219, 1222, writ denied, 2000-2230 (La. 10/27/00), 772 So.2d 652; see also Norwood v. Layrisson, 451 So.2d 1338, 1339 (La.App. 1st Cir. 1984). Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. LSA-C.C. art. 3458. Except as otherwise provided by law, peremption may not be renounced, interrupted, or suspended. LSA-C.C. art. 3461.
Dr. Rushing's amended and restated petition was filed on June 27, 2019. The violations of the Open Meetings Law alleged therein occurred from November 7, 2018, to April 24, 2019. Where Dr. Rushing's suit to void these actions was not commenced within sixty days of the alleged violations, the district court correctly determined that those claims were perempted. See LSA-R.S. 42:24.
We further reject Dr. Rushing's argument that "[f]hese issues have ... been in the case from the beginning" (emphasis omitted) and that the violations asserted in his amended petition were "additional violations" arising from the timely asserted claims in his original petition such that they relate back to the filing of the original petition. Louisiana Revised Statute 42:24 contemplates that each action taken in violation of the Open Meetings Law is an individual action, and suit to void such action must be commenced within sixty days of the action. It is well established that nothing may interfere with the running of a peremptive period, and relation back of an amended or supplemental pleading is not allowed to avoid the running of a peremptive period. Regions Bank v. Eymard, 2021-0926, 2021-0927 (La.App. 1st Cir. 5/23/22), ___ So. 3d ___, ___, 2022 WL 1617693, *9, citing Naghi v. Brener, 2008-2527 (La. 6/26/09), 17 So.3d 919, 924-925. Because the expiration of a peremptive time period destroys the cause of action, there is no cause of action to which an amended or supplemental petition can relate. Regions Bank V. Eymard, ___ So. 3d at ___, 2022 WL 1617693 at *9.
Moreover, to the extent that Dr. Rushing argues that the district court raised peremption on its own motion without "any notice" to him, we note that peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment. See LSA-C.C. art. 3460.
Thus, we find no merit to this assignment of error.
Considering our determination that the district court correctly determined that the violations alleged in Dr. Rushing's amended petition were perempted, we review the remaining assignments of error as pertaining to violations allegedly arising from the September 26, 2018, October 3, 2018, and October 31, 2018 meetings.
Assignments of Error Numbers Four and Five
Dr. Rushing contends that the district court erred: (1) in determining that any alleged "difficulty encountered" at a meeting of the Executive Committee on September 26, 2018 "was due to Petitioner's actions," where no evidence of any difficulties was presented and the court refused to listen to a recording of the meeting; and (2) in determining that "the Faculty Senate had sufficient grounds to remove [him]" from the meeting on October 3, 2018, and by the district court ignoring the refusal by the Faculty Senate to abide by its own "rules and restrictions regarding" the comment period to be afforded before taking action on an agenda item pursuant to LSA-R.S. 42:14(D).
At the trial of this matter, the district court heard the testimony of numerous witnesses, including the testimony of Dr. Rushing and his colleagues; reviewed documentary evidence, which included email correspondence; and listened to an audio recording of the October 3, 2018 meeting. Dr. Erin Horzelski, the Faculty Senate President testified that Dr. Rushing was "on the cusp" of being "physically belligerent" at the September 26, 2018 meeting, which was not productive because Dr. Rushing "went off the rails." She testified that the meeting "got ugly" quickly and described Dr. Rushing's behavior as "severely unprofessional" and "very threatening." She testified that nothing was accomplished at the meeting because of Dr. Rushing's "antics." She testified that certain agenda items were never discussed because Dr. Rushing "hijacked" the meeting and never gave them the opportunity to complete discussion of the agenda.
An audio recording from the September 26, 2018 meeting was proffered by counsel for Dr. Rushing. The district court sustained the defendants' objection to playing the recording at the hearing as the defendants had not previously been given the opportunity to listen to it. Although Dr. Rushing contends the district court's refusal to listen to the audio recording was prejudicial error, we note that Dr. Rushing and several colleagues who were in attendance at the meeting provided testimony at the trial about the September 26, 2018 meeting. Under the circumstances, we find no abuse of the district court's discretion in sustaining the defendants' objection. See Cola v. Cola, 2019-0530 (La.App. 1st Cir. 12/27/19), 294 So.3d 6, 9. writ denied, 2020-00344 (La. 6/3/20), 296 So.3d 1068.
Multiple witnesses, including professors, faculty members, and executive committee members testified regarding Dr. Rushing's conduct and its effect on the scheduled meetings. His colleagues variously testified that Dr. Rushing "hijacked" the October 3, 2018 meeting, making "loud, distressing, and hostile comments" behaving in an "unprofessional" manner like a "bully," and seemed "very frustrated" and "irate." Dr. Erin Horzelski, also testified that upon her arrival at the October 3, 2018 meeting, she was approached by several faculty members in the parking lot, who were concerned whether it was safe to enter the meeting in view of Dr. Rushing's ongoing conduct. Dr. Rushing's colleagues further testified that the proposals he attempted to place on the agenda had already been addressed and resolved. The overall testimony reflected increasing concern for his Dr. Rushing's behavior at the meetings and for a period of time prior to the meetings. The testimony established that Dr. Rushing "bombarded" faculty members with hundreds of emails and subjected them to "intense scrutiny" in the months preceding the meetings, which culminated in a contentious, hostile environment. In Dr. Rushing's own words, after he stood up and raised a question of privilege concerning the conduct of officers, "chaos ensued" resulting in him eventually being escorted out of the meeting by the police.
After thoroughly reviewing the testimony and evidence herein, we find no legal error or manifest error of fact in the district court's decision to decline to void any action taken at the meetings, based on the court's underlying finding that the difficulty encountered at the September 26, 2018 meeting was caused by the actions of Dr. Rushing and that there were sufficient grounds to remove him from the October 3, 2018 meeting. See LSA-R.S. 42:17(C). These findings are amply supported by the record and, moreover, are based on credibility determinations subject to a manifest or clear error standard of review. Stobart, 617 So.2d at 882. Thus, in the absence of any clear error by the district court in its credibility decisions, we can find no basis for reversal. See Centurion Place Civic Association v. Coleman, 2019-0856 (La.App. 1st Cir. 6/12/20), 2020 WL 3108697, 4 (unpublished).
We likewise find no merit to these assignments of error.
Assignments of Error Numbers Two and Three
Dr. Rushing next contends that the district court misapplied LSA-R.S. 42:26 as permissive in failing to grant him relief for the defendants' alleged violations of the Open Meetings Law provisions concerning notice of the meetings and publication of the agenda, and in further denying his claims for civil penalties pursuant to LSA-R.S. 42:28.
Louisiana Revised Statute 42:26(A) provides various remedies for violations of the Open Meetings Law and states that "the court may grant any or all of the [enumerated] forms of relief." (Emphasis added). A cardinal rule of statutory interpretation is that the word "may" is permissive. LSA-R.S. 1:3; Town of Sorrento v. East Ascension Consolidated Gravity Drainage District No. 1, 2021 -1220 (La.App. 1st Cir. 4/12/22), ___ So.3d ___, ___, 2022 WL 1090189, *4, citing Pierce Foundations, Inc, v. Jaroy Construction, Inc., 2015-0785 (La. 5/3/16), 190 So.3d 298, 304. A second cardinal rule of statutory interpretation is that the word "shall" is mandatory. LSA-R.S. 1:3; Whitney Bank v, Rayford, 2021-0406 (La.App. 1st Cir. 12/9/21), 332 So.3d 1243, 1251, citing Pierce Foundations, Inc., 190 So.3d at 304. It is evident from a reading of the provisions cited above that
Based on the above and foregoing reasons, the August 18, 2021 judgment of the district court, dismissing Dr. Rushing's claims with prejudice, is hereby upon a finding of a violation, the district court has the authority and discretion to grant any or all relief, which it deems necessary. Where the statute provides that it "may" grant relief, as opposed to "shall" grant relief, the grant of such relief is permissive and not mandatory. Thus, even if the district court were to have found violations of the Open Meetings Law by the defendants herein, it nonetheless maintained the discretion to determine the relief that should be granted for any purported violations.
Moreover, to the extent that Dr. Rushing contends that notice of the meetings was not in compliance with the Open Meetings Law, we note that mere technical violations of the Open Meetings Law do not offer any grounds for relief, particularly where Dr. Rushing was not denied any rights as he was aware of the meeting and was personally present at the meeting. See Daigre v. Terrebonne Association for Retarded Citizens, 543 So.2d 1108, 1109-1110 (La.App. 1stCir.), writ denied, 548 So.2d 333 (La. 1989); see also Pittman, 2006 WL 3734644 at *4.
On review, we find no error in the district court's determinations that the provisions of LSA-R.S. 42:26 are permissive and, further, that Dr. Rushing was not entitled to relief against the defendants herein. In the absence of a finding that defendants knowingly and willfully participated in meetings conducted in violation of the Open Meetings Law, we find no error in the district court's determination that civil penalties were not warranted. See LSA-R.S. 42:48.
These assignments also lack merit.
CONCLUSION affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Dr. Steven Rushing.
AFFIRMED.