St Tammany Parish Clerk of Court Docket#201611530 a0 cy 2 2B a 15 16 a 1 as 20 2 22 23 24 26 an 28 29 30 31 32 THENTY-SECOND JUDICIAL DISTRICT COURT PARISH OF ST. TAMMANY WARREN MONTGOMERY, DISTRICT ATTORNEY FOR ST. TAMMANY PARISH VERSUS No. 16-11530 FILED st. TAMMANY PARISH covERNNEN, ET AL 2 3 2016- TRANSCRIPT OF PROCEEDING held before the Honorable Marion F. Edward, Ad Hoc Judge Presiding, Division "J", Twenty-Second Judicial District Court, Parish of St. Tammany, State of Louisiana, on MAY 16, 2016, in Covington, Louisiana. APPEARANCES: JANES C. PERCY, =SQ. EDWARD H. BERGIN, ESQ. (ATTORNEYS FOR WARREN MONTGOMERY, DISTRICT ATTORNEY) RICHARD C. STANLEY, ESQ. JENNIFER L. THORNTON, ESQ. (ATTORNEYS FOR PATRICIA P. BRISTER, PARTSH PRESIDENT, AND ST, TAMMANY PARISH GOVERNMENT) ROSS F. LAGARDE, ESQ WILLIAM J. FAUSTERMANN, JR., ESQ (ATTORNEYS FOR ST. TAMMANY PARISH COUNCIL AND ST. TAMMANY PARISH GOVERNMENT) REPORTED BY: Lillie R. Burch \ Certified Cour: Reporter Certification No. 87177 fo Page 1 of 63Sst Tammany Parish Clerk of Court Docket#201611530 2 13 u 3 16 u 18 20 aa 22 23 m4 23 26 2 28 29 30 Ey 2 PROCEEDING BY THE COURT: Good afternoon. Please be seated. This is matter number 2016-11530, Waren Montgomery In His Official Capacity As District Attorney for St. Tammany Parish Versus St, Tammany Parish Government by and through st. Tanmany Parish Council and Patricia P. Brister in her official capacity as parish president. Please identify yourselves for the record. BY MR. PERC! Jim Perey on behalf of the plaintifes. BY MR, BERGIN: Edward Bergin also on behalf of the plaintiffs. BY MR, LAGARDE: Ross Lagarde, Your Honor, on behalf of St. Tammany Parish Government. BY MR, STANLEY: Rick Stanley on behalf of the defendants. BY MS. THORNTON: Jennifer thornton also on behalf of defendants. BY MR. FAUSTERMANN: BAll Faustermann on behalf of St ‘rammany Parish Council, St. Tammany Parish Government. BY THE. COURT Page 2 of 63st Tammany Parish Clerk of Court Docket#201611530 33 a a5 16 a Fa as 20 a 2 23 24 25 26 21 28 29 30 3a 32 Gentlemen, my appreciation is that we are here today to hear argument on peremptory and dilatory exceptions. Ts that correct? BY MR. STANLEY: Yes, Your Honor. BY THE COURT: Are we ready to proceed? BY MR. STANLEY: Yes, Your Honor BY THE COURT: Proceed. BY MR. STANLEY: Good afternoon, Your Honor. Rick Stanley. I'm here for Pat Brister as Parish President, and the St. Tammany Parish Government. We have four exceptions before Your Honor. I am going to address the exceptions of no cause and no right of action. BY THE COURT: ALL right BY MR. STANLE! And Ms. Thornton will address the exceptions of prematur ty and unauthorized use of summary process BY THE couRT: ALL right, why don't we take the exception of no cause and no right of action together, and finish with those, and then proceed to the dilatory ee Page 3 of 63‘st Tammany Parish Clerk of Court Docketi#201611530 10 an w a3 4 3 a6 ra 18 a9 20 a 2 23 2 25 26 21 28 29 30 a 32 exceptions. BY WR. STANLEY: Perfect, we'll do that, Your Honor There are a few basic facts that T think are important to these exceptions. Since 1988 St; Tammany Parish has operated under a president/council forum of parish government which is established by its home rule charter. The parish government and powers within the parish governnent are divided and balanced between these two branches, which have different powers, different responsibilities. The president is the chief executive of the parish. The council is the legislative branch of the parish, The parish has a lecal department that zeports to the parish president and the parish council has a separate staff of legal counsel that provides the council with independent legal advice on its legislative functions. These two legal staffs currently are funded entirely by the parish government and are funded separately from the D.A.'s staff. BY THE COURT: How long has that legal department been in existence? BY MR, STANLEY: The lege? department has been in existence since it was created by the aL e———eoererr Page 4 of 63Sst Tammany Parish Clerk of Court Docket#201611530 a2 33 1 a5 a6 an 18 3 20 a 2 23 24 25 26 2 28 29 30 31 32 nN oe hone rule charter, but it's operated it this way for at least for fifteen years. BY THE COURT: okay. BY MR, STANLEY: And, in fact, that was my next point. the system has been in place for at least fifteen years and it ensures thet each branch of the parish government has separate and independent legal advice. A further word about the charter ieself. We have attached it as Exhipit 8 to our exceptions. The legal department is created under Article 4 of the charter. As a department under Article 4 it is expressly subject to the, quote, “direction and supervision", closed quote, of the parish president. This is an important point that T wanted to stress to the court. The legal department once it is approved by the parish counei must take its direction from the president. It does not operate Lndependently of the president The charter further states thet tne president and the council retain and have the ongoing power to change the legal department and even abolish it entirely. And that's Article 4-12 of the chester. Thus, the adninistrative department exists and serves according to the direction and control of the parish Page 5 of 63St Tammany Parish Clerk of Court Docket#201611530 10 ua 12 a3 us 15 uv ae 19 20 a 22 23 24 25. 26 2 28 29 30 a1 32 nN a president and the parish council. It does not exist independently of them. Viewed in the context of these facts, which really are not in dispute and come from the charter itself, the lawsuit makes no sense. The lawsuit essentially makes two claims. One, that the District Attorney has the statutory right to represent the parish president and the parish council. And, two, the District Attorney has an independent right under the charter to demand that he represent the president and the council. Neither point is correct, and I'll take them in turn. First, the statutory claim. The complaint relies on two state statutes that provide, unless otherwise provided by law the District Attorney shall serve aa the regular attorney and counsel for parish governments. And that's 16:2 and 42:261. In this case the law “otherwise provides". In particular, "ZA R.S. 16:2 (0) says the rvle does not apply when the parish has adopted a home rule charter, as St. Tammany has done. the District Attorney claims that the exception does not apply because the charter does not establish the position of parish attorney. The argument that he makes, though, ig too narrow. 2-D does not say you must have a nomenclature of Page 6 of 63Sst Tammany Parish Clerk of Court Docket#201611530 10 a 12 3 a 18 a3 20 a 2 23 28 25 26 ar 28 29 30 31 32 a parish attorney. That's one of several, ways you can come outside of the statute. You can designate a parish attorney or you can designate simply any attorney or counsel to represent the pazish generally. the designation of the legal department in the charter plainly brings this government into the exception of 2D. So fron our stendpoint, these statutes were designed to ensure that parishes have access to legal counsel through some source if they need it. It was never designed to impose an unwanted repzesentation on parish government when the parish government provided otherwise in its charter. Let me move to the charter argument. the District attorney next relies exclusively on one provision of the charter, 4-03A for this part of their argument, That position is wrong for multiple reasons. first, the claim is fundamentally at odds with the way it has operated for the past fifteen years. The pistrict Attorney admits as much in his petition in paragraph fourteen. Second, the claim does not match up with the charter in general, ox with Section 4-038 in particular. At page two of their meno the District Attorney restates his osition in clear terms. And I'm quoting Page 7 of 63> ‘St Tammany Parish Clerk of Court Docket#201611530 10 n 2 13 a4 a5 16 u a8 9 20 a 22 23 24 25 26 27 28 29 30 Ey 32 from his memo, “The plaintiff's position is that pursuant to Section 4-03A of the St. Tammany Parish Home Rule Charter and the state statutes the plaintiff has the right, duty, and obligation to serve as the primary legal advisor for st. Tammany Parish.” Well, the trouble is 4-03 doesn't say that. 4-03 doesn't say anything about any right, duty, of obligation on the part of the D.A. to do anything. And st says nothing about "being the primary" legal advisor, Tt does not say solely And it does not foreclose the employment of other counsel. Most importan: vy 08 an advisor it does not empower the District Attorney to conmand the gepresentation. He is called upon to advise and the client is free to accept or reject that advice as it sees fie. Tt does not empower hin to become and to supplant the legal department in its entirety. More importantly, Section 4-03 does not exist in a vacuum, rt is one part of the administrative articles of the home rule charter. As I mentioned previously, Section 4-01 says that all departments axe subject to the direction and supervision of the president. And 4-12 provides for the amendment, alteration, or abolition by the president or the Page 8 of 63St Tammany Parish Clerk of Court Docket#201611530 10 nu 2 a3 a as 16 a6 as 20 a 2 23 24 25 26 21 28 29 30 31 2 an Se counsel of any of the departments. The legal department simply cannot operate independently of the parish government 2s this lawsuit proposes. Finally, the implementation of 4-038 nakea clear that this was the intent of the charter. We h ve attached budgets which show the funding of the District Attorney and the separate funding of the law department. And it has been that wey for many years. nd we attached a code of ordinances which has reorganized the department somewhat to make clear thet lawyers independent of the D.A. will serve in the legal department as counsel to the president and the council. Finally, there is a third and overriding reason that the District Attorney's position must be rejected. To read the statutes and the charter as proposed in this lawsuit would render them unconstitutional, The district attorneys are not inmune from the rules of professional conduct. The client hes the absolute right to direct the representation of their own interests and to discharge the lawyer when they see the need to do s0, ox to not accept the lawyer's advice. A lawyer simply cannot force his representation on a client and certainly cannot do so when there's a conflict of interest. Page 9 of 63‘St Tammany Parish Clerk of Court Docket#201611530 30 a 2 a3 u a5 16 ” 16 » 20 a 22 23 24 25 26 21 28 29 30 31 32 Now that leads us to that latter point, the District Attorney concedes that when he has a conflict of interest he cannot represent the client. This lawsuit itself poses exactly thet conflict of intezest by intentionally imposing on the client the will of the lawyer, which the client hes asked the lawyer not to do. The District Attorney also seems to argue, though it's unclear to me, that the president and the council may not really be his clients, that someone else may be his client. Well, if that's the District Attorney's position it's fatal to his claim, If the D.A. does not take direction from the president end the council, then he is outside of the charter, he is not acting in accordance of the charter, and they are not his clients, hence the lawsuit must fail. If he has some client other than the president and the council and some other auty of loyaity that prevents hin from taking direction from the president and the council, then the conflict that existe is confirmed and he cannot proceed with this action. Succession of Wallace ts cleer. No statute or charter can interfere with the client's right to choose their counsel, or with the coungel's duty of loyalty LE 10 Page 10 of 63stTammany Parish Clerk of Court Docket #6161153 10 n 2 B a 15 16 ra 18 a9 20 a 22 23 2 25 26 27 28 23 30 31 32 a See In conclusion, Your Honor, we believe these issues are fatal to the case, The court will have to wrestle with them sconer or later, Because we feel they are dispositive we're raising then now to end this in the early stages. The pistrict Attorney simply has no cause of action to bring these claims and he has no right of action to force a conflicted and unwanted representation on the defendants. Aecordingly, we ask that these exceptions be granted. BY THE COUR! Mr. Percy? BY MR. PERC’ Good afternoon, Your Honer, And thank you. First of all, the court asked the question right out of the blocks. How long has this been in existence? And the answer given to you was fifteen years. = want to make a point aswell. This partioular individual that brought this case, Mr. Montgomery, has not been the pistrict Attorney for fifteen years. Mz. Montgonery has only just recently been elected, as the court is probably well avare. Mz. Montgomery had no participation in what has gone on with either the District Attorney's office oF the parish during that period of time. ut if, in fact, this is unlawful a Page 11 of 63Sst Tammany Parish Clerk of Court Docket#201611830 10 Fty 2 13 a4 a5 16 a 18 a9 20 a 2 23 24 25 26 a1 28 29 30 31 32 na oo activity under the charter, the statutes that apply, and the constitution, Mz. Montgomery is compelled to bring this action. and that's the point T wanted to make right out of the blocks for the court in answer to that particular question. Now, Mr. Stanley has gone back through the statutes, the charter. And would like to do exactly the same thing but also point out a couple of statutes, charters, other provisions of the constitution that Mr. Stanley has not mentioned. BY THE COUR’ Please do. BY MR. PERCY: First of all, the constitutional provision governing the district attorneys of the State of Louisiana. Now, at first blush this would be somewhat of a surprise to some people that the District Attorney is even Aavolved in civil representation cause as we all know, the central function of the D.A.'s office is criminal prosecution. And, in fact, that’s what Article 5, Section 26 first focuses on for district attorneys! authority. And At says “will perform criminal prosecutions on behalf of the state”. it's only in the last sentence of that w Page 12 of 63st Tammany Parish Clerk of Court Docketf201611530 20 ca 2 13 a a5 16 a 18 20 2 2 23 2 23 26 27 28 29 30 31 32 particular section that it then goes on to say, “The Disteict Attorney shall perforn other duties provided by lew." That's the constitutional authorization for the district attorney to perform these sorts of civil functions. However, he can't do it ina vacuum. He can't do it on his own, Local government can't tell the district attorney you shaiz perform civil legal representation of the parish, They don't have the authority to go that. The duties have to be provided by law. We have cited for the court how the Supreme Court interprets thet phrase which the Supreme Court says occurs one hundred six times in the constitution in board of Education Versus Nix when cited that case, And when the Suprene Court says the constitution uses those words, what does it mean? It means provided by legislation, by the state legislature. So the first thing that the court needs to grapple with obviously is what Aa the District Attorney's authority to do this in the firat place. It's a very unueual authority for the D.A, This has happened and has been going on for many more than fifteen years in the state of houisiana, as the court is well aware. the only way the District Attorney can do this, there has to be a statute. Not only is there one statute, a the court 3 Page 13 of 63‘st Tammany Parish Clerk of Court Docketf#201611530 10 Fey 2 B aa 18 16 uv 18 » 20 a 22 23 2a 2s 26 2 28 29 30 31 32 Eee has seen, there are actually two statutes. One entitled 16. One e1 tied 42. And they are absolutely, first of all, mandatory in nature. The district attorney shall be the regular attorney oF counsel for the parishes unless otherwise exempted by the constitution, exempted by the statute, or some other provision ‘The district attorney also is mandated by those statutes and it carries -- and I know, Judge, you have read this it carries some very severe potential penalties of malfeasance in office if he doesn't do what he is obligated to do by this statute Now, when Louisiana's constitution began authorizing hone rule cherters they realized, the legislature clearly realized there may be instences where local governments might choose to be represented by their own counsel as opposed to the district attorney. So they provided some language in that statute, which I'm going to get to shortly. And allowed, What do they allow? How is this statute worded and how does it work? It's not the parishes cen elect to opt into the system where the district attorney provides the generat legal advice for the parish, it's an opt out provision. If you have the and authority and if that authority a4 Page 14 of 63St Tammany Parish Clerk of Court Docket#201611530 10 n a 33 a 15 16 uv 38 cry 20 2 2 23 24 25 26 21 28 29 30 at 32 the statute is pretty clear authority is if your home rule chazter allows it you can opt out of this, But it takes an affirmative opting out by the parish, not an opting in, As 1 said at the beginning, because of the constitutional provision involving the district attorneys local government cannot charge the district attorney with any provisions or any duties oF responsibilities. They can't. For example, local government couldn't say by local ordinance we command the governor to perform a certain function. Can't do that. Can't tell the attorney general what t0 do, Local government can't teil the district attorney what to do. AS rive said and as the constitution says, the legisiature can tell the district attorney what to do and in fact has very, very: strongly told the District Attorney what to do in this case. But what local government can do vader those statues in that statutory schene is if theiz charter provides it their hone rule charter -- by the way, sudge, as you may have observed also, one of the other things they could do is they covld go down to the legislature as some parishes have done and gotten an amendment passed to those particular statues amending them out of those as Page 15 of 63‘st Tammany Parish Clerk of Court Docket#201611530 13 1 as 16 ar 18 as 20 a 22 23 24 25 26 a1 28 23 30 32 statutes. Or as the statute allows then to do, theiz local government charter, their home rule charter can allow them to opt out of this. Now, we very much don't want thi court to do anything but read very cazefully every provision of the statutes and the charter that govern here. Nobody is asking you not to read certain or read certain provisions end not others. So T have actuatly brought them and we'll walk through these and what the words on the page actually say. Because I know that's where the courts begin. And it's only if the words on the page are somehow ambiguous or lead to sone absurd consequences that the court is then allowed to interpret them from among however many interpretations. But let's take a look at actually what these provisions say. The ones that I have brought are the ones that are actually central to this whole discussion, Judge. And I will in fact start with Section 4-03 for a nunber of reasons. BY THE COURT: Let me ask you one question before you go there, Mr. Percy. BY MR. PERCY: yes, siz. BY THE COURT: it appears to me from my reading that 16 Page 16 of 63‘st Tammany Parish Clerk of Court Docket#201611830 a0 Fry a2 a3 a a5 a6 a7 18 13 20 a 22 23 2 25 26 27 28 29 30 31 32 A Af there is a home rule charter then the parish is out of the issue from the state statutes. Is that correct? BY MR. PERCY: No, that is not correct. And that's exactly ~~ BY THE COURT: Well, then show me why it's not. BY MR. PERCY: where I'm heading with this, gudge. Thank you very much. You have anticipated exactly where we're going. But in answer alse to the question, gudge, that was the importance of showing what the constitutional framework is Because that was precisely the point T was making and that is where I'm going. And that is if that statute says that, if that statute -- and I'm going to get to thot provision last if you don't mind because we need to see exactly what this charter provides. BY THE COURT: You can handle it any way you'd like. BY MR. PERCY: But if that statute says thet, cudge, that statute right out of the blocks when this charter was passed renders A entirely meaningless, absolutely meaningless. Because if you read that stetute the way they suggest, and because they have a charter and because as they ay Page 17 of 63Sst Tammany Parish Clerk of Court Docket#201611530 10 n 12 13 4 15 16. uv a8 as 20, a 22 23 24 25 26 20 28 29 30 32 nN say it provides for the retention of special counsel, they concede it doesn't provide for the hiring of a parish ‘ttorney as that particular section of the statute that we will get to ina econd says. If you interpret it the way they say, when this charter was passed "AY has no meaning. Why? Because then there is no statute that directs the District Attorney to perform those duties, And if there is no legislation, state legisiation, authorizing or directing the District Attorney to perform those duties, local government can't do it, doesn't have the power to do it, That's why I went through the constitutional analysis. Which means the charter can't do this in Subsection A if you take the interpretation rendered by the parish president and the parish council in this case. That's precisely the problem. But let's see what the words on the page say Now, the first thing I wanted to talk about, you heard a lot about the legal department in the charter, That's what it says in the heading. it doesn't mention anything about a legal department in the heading under the heading “Legal Department". This charter provision doesn't create and it doesn't -~ you can ae read the words o1 the page, oudge 1e Page 18 of 63St Tammany Parish Clerk of Court Docket#20161 1830 a 10 an 2 33 a a5 16 a7 18 as 20 a 22 23 2 25 26 21 28 29 30 a1 32 doesn't authorize the creation of = legal department as well. And I'm going to get to that in just a second as well. BY THE COURT: You read those words in 4-03 as prohibiting the establishment of @ legal department. BY MR. PERCY: xo. And I'm going to get to that, Judge. But this particular provision does not do anything about the creation of a legal department. I'm going to get to that because that's the other provision that they rely on and we'll see what it provides as well But what does this do? First of all, de says, "The District Attorney shall serve as legal advisor to the council, the president, and all departments, offices and agencies, and represent the perish government in legal proceedings.” Rather broad direction under the mandatory "shall" which they are allowed to do if the statute allows them to continue to participate in thet regime of the district attorney pro ing genera? civil legal advice to the parishes. Entirely allowed by the constitution. Entirely allowed by the statutes in effect at the time that this was passed. Now, one of the things that they say is, wait a minute, this doesn't say shall ——————————— a3 Page 19 of 63‘st Tammany Parish Clerk of Court Docketi#201611530 10 a 2 a4 a5 16 u 18 as 20 a 22 23 2 28 26 27 2a 29 30 31 32 a serve as the legal advisor or primary. Absolutely, Judge, but you can read what those records say. That doesn't say shall secve as a legal advisor. And shall be one of many attorneys to represent the parish government. Shall serve as legal advisor. = would suggest to you, Judge, that it does result in an absurd interpretation if this merely means, well, you can hire the District Attorney if you want to, but you don't heve to. That's not authorized if in fact the provisions we are going to get to in a second allows them to completely ignore what the statutes say. This is shall serve as legal advisor. And that means the legal advisor. Now, there's a lot of discussion about conflicts and other things. Your Honor, that is precisely why B is in here. There are going to be instances, and Mr. Stanley raises a very good exampie, this litigation before the court today, this is the perfect example of situations where the District Attorney cannot perform these functions and it te necessary to retain these guys right here to do this work for a very limited apecia? purpose as special counsel Now, are there instances where a conflict might arise? Yes. That's why you have section B. 20 Page 20 of 63> St Tammany Parish Clerk of Court Docket#201611530 10 a 2 3 Mu a5 16 uv 16 a9 20 21 2 23 24 25 26 21 28 23 30 a1 32 a eee By the way, Judge, at this point I also want to ask the court, we've ally gathered them in preparation today and I'm not going to submit then to you, but the court can take judicial notice of something that I'm going to ask the court. And I will be happy to provide this after argument if the court 30 chooses. There are cher parishes very similar to St. Tammany Parish thet passed hone rule charters. And what's interesting is, the court can see, end continue to elect to stay in the regime using the District Attorney. And the court can see how the other parishes handled this. And as the court knows, there's @ police jury association here in houisiana, the police jury will provide you model charters. You can go and examine other parishes that have done charters with similar provisions. Here is what the court is going to find when the court reviews. There are a couple that are exactly like st. Tammany Parish, have this wording right here. The court le also going to see there are several that say this, "The district attorney shall sezve as lega) advisor," and hos this wording. Then there's @ sentence that immediately follows in several of these parishes. "However -- "and it goes on to say, and I'll summarize, if a Page 21 of 63St Tammany Parish Clerk of Court Docket#201611530 10 a 12 ua Fey 16 ar 18 a9 20 aa 2 23 24 25 26 27 28 29 30 31 32 the parish decides that it's better for the parish to have its own parish counsel thon the district attorney shall not serve as the legal advisor and the parish may choose to retain -- and the charter, their local charter actually authorizes thet. ‘The point being, when it needs to be said and when the charter or the people want to retain that power to hire a parish attorney to provide general legal advise they know exactly how to sey thet and did in fact say that in those parishes, but not in the parishes thet are like St. Tammany and not in st. ‘Tammany Parish. Now let me get to that next section. Because you asked the question, Judge, about the legal department, can they form a legal department. And here is the answer, Judge. ‘They can form ~~ let me step back for just @ second. Apparently there is no disagreement, and T don't think there can be any disagreement. There is no disagreenent that the District Attorney is not a department, office, or agency of the Locel government. I think we all agree on that and 1 think you have seen it in their peiefs and you heard I think Mz. Stanley acknowledge that. The District Attorney As not a department, office, oF agency of ——— 22 Page 22 of 63,St Tammany Parish Clerk of Court Docket#261611830 2 local government. It can't be created, 2 it can't be abolished, it can't be merged 3 with a local department. It's simply 4 hot. It's not a creature of local 5 governnent, it's an independent creature 6 of state government, of the constitution 7 in fact. 8 But here is the reason that's very 9 important. And in answer to your 20 question about a legal department, can u they form a -- here's what they can do, 12 Judge. They can form any department they 13 want to. They can call it the purple 1 department, the blue department, they con 18 give it any name they want to. Can they, 16 can they form departments? Absolutely aa they can form departments. And here is 16 their authority that they point to, it's as 4-12. But let's carefutly look at the 20 words on the page, cudge, and see what it a is that this particular provision allows 22 them to do. 23 “he president may propose te the 24 council the creation, change, altezation, 2s consolidation, ox abolition of parish -~ 26 same wording -- departments, offices, and 21 agencies.” 28 And I think we can all agree, 29 including Mz. Stanley, that that does not 30 Anelude the office of the District 31 Attorney, But then it gets te the real 32 important discussion. And the Page 23 of 63St Tammany Parish Clerk of Court Docket#201611530 o 3B 4 a5 16 a7 a8 a9 20 a 22 23 24 25 26 21 28 29 30 31 32 reallocation of the functions, powers, duties, and responsibilities of such departments, offices, or agencies, including those provided for in this charter." Again, dudge, the District Attorney's office is not one of those. They cannot reallocate the functions, powers, duties and responsibilities of something other than departments, offices, and agencies. And that makes entire sense, Judge. Aad that's again why we walked through the statutory and constitutional framework at issue and in place when this charter was adopted and when the legislature and the constitution authorized the adoption of local charters. That's what they cannot ao. Most fundamentally and we're going to get to that next issue with regard to the client discharging an attorney for purposes of no cause and no right of action. Mo: t importantly, who passed this charter? The people of St. Tammany Parish. Not the parish president, not the District Attorney, not the council. It was drafted, it was constructed and it was offered to the people. And this is the charter by which all of those have to operate through the will of the people. In fact, the charter, I've got the copy and I know the court has read the 2a Page 24 of 63‘St Tammany Parish Clerk of Court Docket#201611530 je 10 n 3 a 3 a6 a a8 a9 20 a 2 23 24 2s 26 27 28 29 30 31 32 charter, We the people of St. Tammany Parish. But they also talked about what the general powers wore that they were granting to their government in st. Tammany Parish. And this is the language they continue to use. And, by the way, Judge, it's Section 1-04 of the charter under the heading General Powers. BY THE COURT: Right. BY HR. PERCY: And heze is what it says. “Except as otherwise provided by this charter the parish government shail continue to have all the powers, rights, privileges, imnunities and authority heretofore possessed.” And then in the second sentence it says, “The goveranent shall have and exercise such other powers, rights, privileges, immunities, authority and functions not inconsistent with this charter And then, finally, it goes on to say again, "not denied by this charter or by general state law or inconsistent with the constitution Everything the powers, duties, and responsibilities are very broad for local government. I used to be the deputy director of the Louisiana Municipal 25 Page 25 of 63St Tammany Parish Clerk of Court Docket#201611530 10 un 2 a3 14 a5 16 ” a8 a9 20 a 2 23 2 25 26 21 28 23 30 31 32 Association, very supportive of local government, the powers of local government, Judge. But ultimately where ie the constzaint on those powers? It's first of all in the state constitution. It's then to the extent the legisteture has the power with the legislature, but it's also constrained by the charter itself that the people passed. So every time you hear the legal department -- that's why T'm not trying to be cagey. Could they, for example because examples are the best way to elucidate or illuminate en argument. Could they create a legal department? They can create any department they want to, Judge. what they cannot do is give functions, powers, duties, and responsibilities conferred or opted by the parish in the charter that belong to someone, an independent state constitution office, someone other than a partment, office, or agency. Because there is no such power given to them. And it's not presumed. And it’s not assumed. And it's because the District Attorney, the office of the District Attorney, is not the department, nor is it a department of local government. And everybody knew this at the time of the enactment of the charter. That's exactly what the setup was. 26 Page 26 of 63‘St Tammany Parish Cierk of Court Docket#20161 1520 20 a a2 a a5 16 u 18 a9 20 2 22 23 24 25 26 21 28 29 30 31 32 Finally, Judge, let's get to exactly the other provision of state law that they say allows then to do this. and it's going to I think illuminate what I was saying and why I walked through all of this, This is the provision. And iste 1 . You're familiar with it, Judge, you've read it. But again, here are the words on the page, the actual words on the page. Another very important statutory construction rule is that when you are called upon to interpret the words on the page and the words of the statute you lock at the statute as a whole, not just this particular Subsection D, but how they used these same words throughout. What you will find, Judge -- and incidentally, as the court also knows and recalls, it's not just in Title 16, Section 2, there's a whole section in Title 42:26 through 263. We believe these words on the page are extremely clear and don't require any further interpretation and mean exactly what they say. then parishes adopt 2 charter for local government or home rule charter and such charter provides for the employment of a parish attorney -- let's stop right there, I think everyone in this room concedes that this charter for St. Tammany Parish does not allow the retention, does not provide for the 20 Page 27 of 63‘st Tammany Parish Clerk of Court Docket#201611530 10 u 2 a3 ua a5 16 a6 19 20 2a 2 23 2 25 26 27 28 29 30 a1 32 an a retention of a parish attorney. I willl et to what they say in the charter ina second, But it does not allow that. Then it says, or @ special attorney or counsel. And then it goes on to say thi District Attorney shall not be 2 regular attorney or counsel. What they say this means is, and their latest reply brief even points this out, they point to this as three separate provisions. So if it allows for that, he shali not be the regular attorney. If it allows for this special attorney, he shall not be the regular attorney. And then something if it allows for counsel. AAs the court already knows, the only thing that 4-03 does is "A" says the District Attorney shall be legal advisor to the parish and represent all departments and the parish president and the parish council. So it doesn't do this. It does allow for the special attorney. But to read this the way they do, well there. It provides for @ special counsel so he’s not the regular attorney in the parish. And again the result is you just completely eviscerated Section A of 4-03 in the charter because they say he can't be the reguiar attorney. Now there is no statutory authority for him to be the regular attorney. They couldn't even elect that 28 Page 28 of 63Sst Tammany Parish Clerk of Court Docket#20161 1630 a elem 1 in A under the analysis. 2 But they also suggest “counsel” where 3 it's used here is somehow something 4 separate from this. Here is what I ask 5 the court to do. Read 16:2 in its 6 entirety and read 261 and 263. They vse 1 these phrases right here, special a attorney oz counsel, and the clear 9) meanings throughout the statutes is this 20 is the same thing. It just says special u attorney or special counsel. when they 12 talk about parish attorney they really 13 don't use parish attorney much, if any, a4 anywhere in any of those. But I believe 1s what's clear as to the words on the page 16 ie that when they use this they are uv talking about two things. And this is a8 also the statutory framework T want the 19 court to please read. And I know you 20 have, Judge. au BY THE COURT: 22 I have. 23 BY NR. PERCY: 24 Every time they talk about this 25 throughout the statutes, 16:2 or 42:261, 26 throughout here is what they sey. There 27 are two types of representation of local 28 government referred to. General 29 representation typically done by a parish — | 30 attorney oz under the regime of the 31 statutes by the District Attorney. And 2 then in those occasions where es the 29 Page 29 of 63-~ a St Tammany Parish Clerk of Court Docke(#201611530 Fey a2 a3 uM a5 16 ww 18 a9 20 21 22 23 24 25 26 21 28 29 30 at 32 statute says a real necessity existe, special counsel for special matters. that's all they ever talk about. That's all they ever talk about is general esentation, civil representation, as the regular attorney for the local government and special couns for special matters in those instances where it may be necessary for special counsel. that's all they say. So the clear meaning of this is, if you permit me, Judge, when the parish has adopted a home rule charter and it provides for the employment of a parish attorney or special counsel or speciel attorney the District Attorney shail not be the regular attorney where the parish has so provided for a parish attoraey. And he won't be special counsel in those cases whore they have retained special counsel and the charter has authorized them to do that. That's what that section means. Because that then gives fe and meaning and credibility to everything, including Section 4-03, That = | As the only reasonable construction of this. And really there is no other reasonable construction of this. Because again there would be a huge gap and this would be entirely inoperable to read it any other way. And again it is because the constitution only allows thet. 30 Page 30 of 63‘St Tammany Parish Clerk of Court Dockef#201611530 2 10 Ft 2 13 a 45 36 uv 18 ce 20 a 22 23 24 25 26 2 28 29 30 a1 32 Now let's briefly hit on the whole issue of discharge of a client. But before I do, with regard to all of this and the challenge by a District Attorney, talking about cause of action, they don’t like the Perez case, the Supreme Court's decision in Perez, but the Perez case by the Supreme Court was absolutely @ district attorney challenging some local boards and commissions, retention of special counsel under his broad and general power under Title 16 and Title 42, And what did the Supreme Court say in that case? The Supreme Court said the district attorney has a right and an interest to bring this litigation to ultimately make the legal determination. Rpsolutely the district attorney has the Tight and the interest and the cause of action to bring this. what else is interesting, though, sudge, they cite ~ and I'm getting to the termination issue or the discharge issue -- they cite Succession of Wallace. It's fascinating that they cite that case for no cause of action. Because what did the Supreme Court allow in thet case? What did the local court allow? Te allowed the attorney in that case, the attorney for the testator who drafted the will end the attorney who was designated as the attorney for the succession, 31 Page 31 of 63SStTammany Parish Clerk of Court Docket 201611530 ~ 10 a 2 B 14 45 16 ” 18 cry 20 a 22 23 2a 2s 26 21 28 29 30 31 32 allowed the attorney. The case went all the way to the Supreme Court. There was no indication in that case that that attorney did not have a cause of action to ultimately make a determination o= have the court make a determination of the right to serve as counsel. That case wont all the way to the Suprene Court. ‘The Supreme Court never said, oh, and by the way, an attorney that has been discharged has absolutely no right to bring such an action. Quite the contrary, In both the Perez case and the Wallace case the court heard that precise challenge, which is the kind of challenge before you today Now, with regard to the termination issue, the fundamental issue, and ultimately what this court may wind up having to decide, we again think it's pretty darned clear, who is the client? The one thing that I have never heard, the rule th I have never heard from the other side, I've been waiting to hear it, I thought we might actually see this ina discvsaion in their reply -- is rule 1.13. Because we've said it 211 along. We didn't need to cite it. I know the court is familiar with rule 1.13, What does that rule in the rules of professional conduct deal with, Judge? organization as client. The lewyer 32 Page 32 of 63‘St Tammany Parish Clerk of Court Docket#201611530 = 10 nn 2 13 4 16 wv 18 19 20 aa 22 23 24 25 26 a 28 29 30 31 32 employed or retained by an organization represents the organization acting through its duly authorized constituents Ie then goes on to say in, dealing with an organization's directors, officers, employees, members, shareholders, or other constituents a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. the rule itself allows the lawyer to continue to represent the organization. And in those cases -- in fact, it's a very lengthy rule, Judge, and 1 know the court is going to read this. But this rule is precisely on point here. Who hes retained the district attorney here? St Tenmany Parish Government through the people or he people through St. Tammany Parieh Government. And they have dictated who their lawyer is going to be. who can discharge that lawyer? And I'm not talking about where a conflict might arise. Because we readily acknowledge and concede in situations where a conflict arises or there is some other real necessity to ize special counsel other than someone in the district attorney's office, they have all the power they need to resolve all of those [Powe they neee eee 33 Page 33 of 63‘St Tammany Parish Clerk of Court Docket#201611530 a 10 n 2 3 a 45 16 an a8 19 20 a 22 23 24 25 26 ar 28 29 30 31 32 situations if and when they arise. Sut who is the client? it's St. Tammany Parish Government through the people. And St. Tammany Parish Government has specifically -- the people have specifically retained that retention here. How do you change it? You change the charter, And how do we know that they actually do agree with that, Judge? Because you sew a big footnote in their reply. Because they didn't like when the lawsuit and we have nentioned the proposal to change the charter back in Novenber. Now, it failed. 1 completely agree. You can't read -- the court can't cead anything into the failure of that because all of that reflects merely that the people perhaps didn't like the particular wording of that particular charter amendment that was proposed. Here's what you can read into it. If you take their interpretation, they never had to offer that amendment to the people. That amendment never needed to go forward, Judge By THE couRT: Nr. Percy, let me ask you a question here. And walk me through this if you would, please BY MR. PERCY: yes, sir. ue Page 34 of 63St Tammany Parish Clerk of Court Docket#201611530 ~ 10 nu 2 a3 a a5 a6 an 18 Fe 20 a 22 23 2a 25 26 an 28 29 30 a 32 BY THE couRT: Under your interpretation you would say that the people of St. Tammany Parish is the client; is that correct? BY MR. PERCY: ‘The people through St. Tammany Parish Government, the formation. It's St. Tammany Parish Government. the formation of St. Tammany Parish Government is the client. BY THE couRT: To whom would the District Attorney owe his loyalty, the obligation of confidentiality? BY MR. PERCY: St. Tammany Parish Government. Good question, Judge. Because that's covered in 1.13, And the issue of conflicts is covered in 1.13. They owe confidentiality which would include the constituents. And the constituents are the various officers, directors, council members, et cetera. Now -- I don't want to interrupt if you've got a further question BY THe couRT: No. Please go ahead. BY MR. PERCY: That's precisely the issue. 1f something arises where the District Attorney perceives or one of thos constituents, the parish president, for 35 Page 35 of 63,‘St Tammany Parish Clerk of Court Docke(#201611530, 10 n 3 uM 15 16 0 18 1 20 2 23 24 25 26 2 28 29 30 31 32 example, has sone particular problem where the sharing of information might in fact be confidential or need to be confidential from the council, I can't envision a situation where the District Attorney is providing merely general legal advice, interpretation of statutes or whatever, But if thet arises that could be a situation where they may have to get special counsel for a very specific matter, a special matter. But this happens every day in the State of Louisiana with attorneys that are general counsel for corporations and are back in the board room with the board of dizectors and are in the president's office with the president. and who does that attorney represent, who does that general counsel represent? The organization acting through its constituents. And the rule even provides that that attorney in those cases can represent each of those constituents individually. For example, if a corporation is sued as well as the president, that attorney as long as ail of the conflicts are resolved under rule 1.7, the rule provides that attorney can represent the organization as well as the various constituents, the board members And that happens every day, Judge, absolutely every day. And that's the 36 Page 36 of 63‘St Tammany Parish Clerk of Court Docket#201611530 ~~ a0 a 2 13 aa a8 16 wv 18 20 a 22 23 24 28 26 ar 28 29 30 31 32 —— scenario you have here. And, incidentally, dudge, there would be nothing wrong, nothing whatsoever wrong, if a smali closely held corporation's shareholders got together and passed Articles of Incorporation that said, we the shareholders formed this corporation and we retained ABC Law Firm and Me. John Smith as counsel for the corporation. What happens if they do that in the articles and only the articles under this particular scenario can be changed by the shareholders? Well, the board of directors can't the attorney. The president can't fire the attorney. The constituents of the organization. That has been reserved to the shareholders. Who is the client? The organization. The shareholders acting through their articles. That's who can retain and that's who can discharge. Now, again, even in that scenario might it be necessary for special counsel to be retained if there is a conflict? Again that's spelled out in rule 1.13, Judge, it absolutely is laid out there. So when we talk about Succession of Wallace, again it's been cited and I know you have read succession of Wallace ~~ BY THE COURT: 1 have. a Page 37 of 63St Tammany Parish Clerk of Court Docket#201611530 a 10 nu 12 3 “4 15 16 aw 18 19 20 aa 22 23 2a 25 26 21 28 23 30 32 BY MR. PERCY: Tt turned on the issue of who was the els nt. And what the Supreme Court ultimately came down and said was the deceased testator is not and cannot be the client under these circumstances. It's got to be the living executor that Ae the client. And the Supreme Court on that basis struck that down not for any ether reason that anybody, any constituent in an organization can fire the lawyer, That's entirely untenable under even our rules of professional conduct for Louisiana. They had to make the determination who the client was in that case that had the power to make that discharge. I will give you another exemple, Judge. The practice of law is regulated. We absolutely concede and acknowledge that. That applies to the Attorney General. Can the governor fire the attorney general? Can the secretary of the Department of =i vironmental Quality or the Secretary of the Department of Natural Resources fire the Attorney General? No. Where docs the Attorney General get his authority? From the constitution. Where does the constitution get its authority? From the people of the state of Louisiana. Now, does the legislature provide for 38 Page 38 of 63St Tammany Parish Clerk of Court Docketi#201611530, 10 a 2 a3 u a5 16 uv 18 1s 20 aa 22 23 24 25 26 20 28 23 30 31 32 the retention of counsel for DEQ or DNR or Department of Transportation? Absolutely. But the organization, you can't fire the Attorney General and you can't Size these folks. You can't fire the District Attorney. The client can fire the District Attorney, St. Tammany Parish Government acting through the people in revision of the charter. ‘The final thing t want to point out, the cases support Perez, Wallace, Both of the cases including Wallace cited by them support that there is a cause of action and a right of action not just by a district attorney in precisely this sane scenario, but by any attorney in the scenario with Succession of Wallace where there is some dispute about who is the client and whether in fact that attorney was actually discharged and who has the power to discharge the attorney. But fundamentally, gudge, where can this dasue ever arise if not in court? What ay client suggests is when you read all of this, the regime that was put in place in St. Tammany Parish when he arrived is not lawful. tt does not comply with the charter, it does not comply with the statutes precisely on point, and ultimately with the constitution and the very, very clear distribution of powers through the 33 Page 39 of 63‘St Tammany Parish Clerk of Court Docket#201611530 16 u 1 » 20 a 22 23 24 25 26 2 2a 29 30 3 2 constitution. Well, how do you ever get that resolved? How do you ever get it resolved? Do you just say, well, the Supreme Court has said it's a client, I'm not going to pay any attention to who the client might be, if somebody discharges you you just have to go away By the way, Judge, this district Attorney, and you haven't heard any suggestion, in light of the resistance the District Attorney haen't been inserting himself in functions and collaborations. He hasn't been sticking his nose in, banging on the door in council meetings saying I need to be back there in executive session. So it's not anything like that. Where else can this be resolved ultimately? There's got to be a cause of action for this. Because the only place this can be resolved even if it ultimately becomes an issue of the rules of professional conduct, who is the only forum where that con be resolved? The Supreme Court, First here, then the Supreme Court. The judiciary is the only place. My final comment on no cause, no right of action is, T read with interest in the reply brief that we haven‘ cited any case that says we have a cause of action. Well, first of all, that's not 40 Page 40 of 63St Tammany Parish Clerk of Court Dockef#201611530 12 13 uM 18 16 at 16 a9 20 a 22 23 ey 25 26 a1 28 29 30 3 32 rez says we have a cause of action. wallace in fact says we have a cause of action, But, secondly, and more importantly, that's aot how a no cause of action or @ no right of action works. It's presumed that we stated a cause of action. They have te show you a case that says we don't have a cause of action and they haven't done that. That's how no causes of action and no right of actions work. And they haven't cited any. The only one I have heard about is Succession of Wallace and it says precisely the opposite. And again it went all the way to the Supreme Court where the Supreme Court ultimately resolved that issue. 2'11 be heppy to answer any further questions, Judge, but that's all I have on no cause and no right. BY THE couRT: Okay, thank you. Mr. Stanley? BY MR, STANLEY: Your Honor, I guess the first point 4s, 4t took the District Attorney's counsel thirty some odd minutes to explain how he has the simple right and authority to do what it is he thinks he has the right to do. Buried in that long dissertation was an admission, and it's a key admission, And r want to point it a Page 41 of 63‘St Tammany Parish Clerk of Court Docket#201611830 ao rr 2 B aa a5 16 a 18 19 20 a 22 23 24 25 26 an 2a 29 30 a 32 out, He said the D.A, is not an agency ef local government. If that's true, and T think he might be right, then how docs the Disteict Attorney agree to take the direction and supervision of the parish president under the home rule charter? The legal department exists independently of the district attorney. and if that is true, and I think it 4s by vireue of what I heard Me. Percy say, that the legal department must exist independently of the District Attorney. Because the District Attorney has nothing to do with the parish government. Therefore, you have a separate and independent legal Gepartment established by the charter that reports to the president. Under the plain rules, plain words of the charter, and under the aduiseion of the District Attorney's argument. Mr. Percy talked about Article 4-12, but he neglected to mention that this article, too, was passed by the people of St. Tammany Parish. And when the people of St. Tammany Parish set up this home rule charter and set up these administrative departments they expressly gave the right to the president and the council to change it, to alter it, to abolish it, to learn as they go, to use it as 2 laboratory to get things right as they went along. And we have cited to 42 Page 42 of 63St Tammany Parish Clerk of Court Docket#201611530 10 Pen a2 a3 a a5 16 7 ae as 20 a 22 23 a 28 26 a1 28 29 30 31 32 you an ordinance where they've done just that. It's already been passed. For fifteen years these people have been working under the authority granted to them under 4-12 to work this government. So every branch of government, and we all know there are political conflicte between the council and the president and whomever else there may be out there. And that's why each needs separate and independent legal representation. They are not forced to take representation from anyone. 4-03A, the district attorney, I think they concede now, is not the primacy legal advisor as they stated in their brief, but serves as legal advisor. Legal advisor. It doesn't say the District Attorney shall serve as attorney and counsel for the parish, i: says as advisor. Well, the last time T looked up that word it meant when you ask for advice you get it, but you don't have to take it. You don't have to take it. The use of the word advisor here gave the District Attorney a more limited role. Whet he's asking this court to do in this lawsuit is say even though I'm not part of parish government T want you to unweite 4-03, T want you to unweite 4-01, I want you to make me the sole and exclusive legal advisor until I determine 43 Page 43 of 63