Charles S. LAMBERT, Jr. and Capitol House Preservation Company, L.L.C.
v.
RIVERBOAT GAMING ENFORCEMENT DIVISION, Office of State Police, Department of Public Safety, State of Louisiana, and Lt. Marcal Poullard.
Court of Appeal of Louisiana, First Circuit.
*174 Charles S. Lambert, Jr., Baton Rouge, for Plaintiffs-Respondents Charles Lambert, Jr., and Capitol House Preservation Company.
Martin Golden, Baton Rouge, for Defendants-Applicants Lt. Marcal Poullard and State.
Jennifer Schaye, Thomas Warner, III, Baton Rouge, for Defendant Attorney General Department of Justice.
Stephen A. Quidd, Baton Rouge, for Defendant Riverboat Gaming Enforcement Division and the State Police.
Joseph P. Brantley, IV, Baton Rouge, for Intervenor Louisiana Casino Cruises, Inc.
Before FOIL, WHIPPLE and KUHN, JJ.
WHIPPLE, Judge.
This matter is before us on a grant of certiorari. Defendants, the Louisiana State Police, Riverboat Gaming Enforcement Division (the "Division"), and Lt. Marcal Poullard, the supervisor of the Riverboat Gaming Enforcement Division, seek review of the trial court's judgment of August 8, 1996, wherein the court found that Lt. Poullard enjoyed qualified immunity, but nonetheless overruled an exception of no cause of action filed on behalf of Poullard and the Division.[1] For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The dispute in this case concerns actions taken by the defendants in awarding licenses for riverboat gaming operations in East Baton Rouge Parish. Plaintiffs, Charles S. Lambert, Jr. and Capitol House Preservation Company, L.L.C., are the successors in interest of Lady Luck Baton Rouge Casino, Inc. (Lady Luck), an applicant denied a riverboat casino license in East Baton Rouge Parish.
Through their original and two amending and supplementing petitions, plaintiffs challenge: the Division's actions in awarding, and subsequently failing to revoke, a riverboat gaming license to Louisiana Casino Cruises, Inc. (LCC); the method utilized by the Division in awarding the last two licenses; and the constitutionality of LSA-R.S. 4:525(A), which sets at fifteen the maximum number of gaming licenses which may be granted by the Division. In their pleadings, plaintiffs assert that defendants' actions violated plaintiffs' rights under the Louisiana Constitution, the United States Constitution and 42 U.S.C. § 1983. Plaintiffs allege that: in considering sixteen license applications, the Division evaluated the first thirteen applicants under a uniform evaluation process, yet utilized a "ranking scheme" for the last three applicants, who were competing for two remaining licenses; that utilization of this "ranking scheme" was improper and a denial of equal protection, in violation of Art. 1, § 3 of the Louisiana Constitution, the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983; and that the "ranking scheme" deprived them of a fair, equal and nondiscriminatory hearing, review, evaluation and licensing process. In their pleadings, plaintiffs also allege that Poullard and other officials of the Division or the State are liable for damages under LSA-C.C. art. 2315.
Thus, in their original and amending and supplementing petitions, plaintiffs seek a peremptory writ of mandamus directing the defendants to revoke LCC's license; damages under state and federal law; injunctive relief; and a declaratory judgment from the court that LSA-R.S. 4:525(A) is unconstitutional.
In response, defendants filed various exceptions, including an exception raising the objection of no cause of action. In their exception, defendants claim that plaintiffs fail to state a cause of action under 42 U.S.C. § 1983 as defendants are entitled to absolute and qualified immunity. As an additional basis for their exception, defendants contend *175 they are protected by the discretionary acts defense set forth in LSA-R.S. 9:2798.1(B) and that, accordingly, plaintiffs are unable to state a cause of action under LSA-C.C. art. 2315. The trial court overruled defendants' exceptions, including, in part, the exception of no cause of action. The trial court overruled the exception "except insofar as the issue of immunity was raised," stating "this court will take said exception of no cause of action under advisement and arrive at a ruling after a trial on the merits thereof."
On review after a grant of certiorari, we found that the trial court had not ruled on the issue of immunity, and remanded the case for a decision on the peremptory exception raising the objection of no cause of action. Lambert v. Riverboat Gaming Enforcement Division, Office of State Police, Department of Public Safety, State of Louisiana, 95-0872, p. 3 (La.App. 1st Cir. 12/15/95);
On remand, the district court found that Lt. Poullard enjoyed qualified immunity, but nonetheless overruled the exception of no cause of action filed on behalf of the defendants. This ruling by the district court, after our previous grant of certiorari and remand of the matter, prompted defendants to again seek review. Accordingly, this matter is again before us on a grant of defendants' application for supervisory writs.
In support of their application, defendants contend that the trial court erred: (1) in ruling that defendants had established the qualified immunity defense, yet failing to grant their exception of no cause of action and dismissal of plaintiffs' 42 U.S.C. § 1983 and Civil Code article 2315 claims; (2) in implicitly ruling that defendants do not enjoy absolute immunity; and (3) in implicitly ruling that the discretionary acts defense set forth in LSA-R.S. 9:2798.1 does not defeat plaintiffs' Civil Code article 2315 claim for damages.
NO CAUSE OF ACTION
The peremptory exception raising the objection of no cause of action tests the legal sufficiency of the petition and is triable solely on the face of the petition. Woodland Ridge Association v. Cangelosi, 94-2604, p. 3 (La.App. 1st Cir. 10/6/95);
The petition must set forth material facts upon which the cause of action is based. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception of no cause of action. LSA-C.C.P. art. 891; Kyle v. Civil Service Commission,
When an exception of no cause of action is based on an affirmative defense, the exception must be overruled unless the allegations of the pleading exclude every reasonable hypothesis other than the premise upon which the defense is based. Owens v. Martin,
For purposes of our discussion, we separately address plaintiffs' claims and defendants' related defenses.
THE § 1983 CLAIM AND RELATED DEFENSES OF ABSOLUTE AND QUALIFIED IMMUNITY
Title 42, § 1983 of the United States Code provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....
Recovery under § 1983 requires a plaintiff to allege and prove two essential elements: (1) that the defendant's conduct occurred under color of state law, and (2) that defendant's *176 conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution or a law of the United States. Moresi v. State, Department of Wildlife and Fisheries,
However, when an official performs a function integral to the judicial process or a traditional legislative function, the official is absolutely from § 1983 liability for acts performed in those capacities. Moresi,
Additionally, a qualified immunity generally applies to most acts of government officials. Moresi,
Defendants argue that even though modern qualified immunity jurisprudence often refers to the threshold determination of qualified immunity via a motion for summary judgment rather than through an exception of no cause of action, their plea of qualified immunity herein raises purely legal issues which they argue can be reviewed on the pleadings alone. Plaintiffs, on the other hand, contend that the question of qualified immunity should not be decided on the pleadings, but is more properly asserted through a motion for summary judgment as suggested in Harlow,
The Supreme Court in Harlow expressed its belief that the new qualified immunity standard would permit "the resolution of many claims on summary judgment" and that, toward that end, "discovery should not be allowed" until resolution of the threshold question of the application of an immunity defense. Harlow,
Turning to the pleadings filed herein, plaintiffs allege that defendants were acting under color of state law, for purposes of the § 1983 action, in: canceling Lady Luck's original scheduled hearing on its application for a gaming license under a uniform evaluation process; arbitrarily delaying the hearing so that it could be scheduled at the same time as the hearing on the other two (ultimately successful) applications; and denying a license to Lady Luck on the basis of the "ranking scheme" which defendants utilized at the hearing as opposed to the uniform evaluation process which had been used when defendants considered the other thirteen gaming license applications. Plaintiffs further allege that the "ranking scheme" was a *177 violation of the equal protection guarantees of the Louisiana and United States constitutions.
Plaintiffs also allege the defendants improperly granted LCC a gaming license despite finding that LCC was a disqualified applicant. Thus, plaintiffs allege, while Lady Luck was determined to be a suitable license applicant, it was nonetheless improperly denied a gaming license on the grounds "that all fifteen licenses ... have been issued." Plaintiffs also set forth with particularity the manner in which specific statutes were allegedly violated by the defendants, which include allegations of acts by defendants in violation of LSA-R.S. 4:530 and 4:536(3) and (4) in awarding a license or permit to LCC despite finding that violations had occurred which rendered LCC unsuitable to hold a gaming license.
Thus, unlike the plaintiff in Kyle,
Moreover, we find nothing in our review of plaintiffs' petitions herein which disclose on the face thereof the affirmative defense of absolute immunity to plaintiffs' § 1983 claim. See Dickerson v. Kemp,
THE ART. 2315 CLAIM AND THE DISCRETIONARY ACTS DEFENSE
Defendants further argue that in addition to being shielded from liability by absolute and qualified immunity, they are also shielded from tort liability under LSA-C.C. art. 2315 by the discretionary acts defense provided by LSA-R.S. 9:2798.1(B).
Louisiana Revised Statute 9:2798.1(B) grants public entities qualified immunity from liability "based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts." The Louisiana Supreme Court, relying on Berkovitz v. United States,
Initially, we note that plaintiffs herein allege certain acts of misconduct by defendants which plaintiffs contend are violative of a prescribed course of conduct outlined in the Louisiana Riverboat Economic Development and Gaming Control Act, LSA-R.S. 27:41 et seq., formerly LSA-R.S. 4:501 et seq. Specifically, the alleged acts of misconduct set forth by plaintiffs include: violations of former LSA-R.S. 4:518(9) (now LSA-R.S. 27:58(9)), which provides that the Division shall ensure that licenses or permits are not issued or held by a disqualified person and that there is no material involvement with a licensee by a disqualified person; and violation of former LSA-R.S. 4:536 (now LSA-R.S. 27:76), which provides that the Division shall not award a license or permit to any disqualified person. Inasmuch as these statutes are couched in mandatory language, these statutes do not provide for any discretion; thus, the discretionary acts defense is inapplicable. See Tenhaaf v. Quenqui,
Additionally, even if certain of the alleged acts of misconduct, such as defendants' failure to conduct individual hearings for each applicant and utilization of a "ranking scheme" are discretionary acts and decisions as claimed by the defendants, we are *178 unable to determine through the exception of no cause of action whether the defense will apply herein. Even where discretion is involved, the court must determine whether the discretionary act is the kind which is "grounded in social, economic or political policy," Russell v. Guillory,
CONCLUSION
For the above and foregoing reasons, we conclude that plaintiffs have stated a cause of action pursuant to 42 U.S.C. § 1983 and LSA-C.C. art. 2315 and, accordingly, defendants are not entitled to dismissal through their exception of no cause of action. The writ of certiorari and review previously granted herein is hereby recalled; and the judgment of the trial court, denying defendants' exception of no cause of action is affirmed. The matter is remanded for further proceedings.
WRIT OF CERTIORARI RECALLED; JUDGMENT OF THE TRIAL COURT AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.
NOTES
Notes
[1] We note that the transcript of the trial court's ruling shows the date as August 8, 1995. However, the trial court's ruling was subsequent to our remand in this matter (in December, 1995). Thus, as the minutes reflect, the actual date of the ruling at issue was August 8, 1996.
[2] As discussed above, this court has considered, in the procedural context of an exception of no cause of action, whether a petition sets forth sufficient material facts to survive the defense of qualified immunity to a § 1983 claim. Kyle,