Tavis Joseph Versus Jefferson Parish Clerk of Court Office and the District Attorney Paul Connick ( 2024 )

TAVIS JOSEPH NO. 23-CA-532
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH CLERK OF COURT COURT OF APPEAL
OFFICE AND THE DISTRICT ATTORNEY
PAUL CONNICK, ET AL. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 843-222, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
May 29, 2024
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Scott U. Schlegel
AFFIRMED
JGG
MEJ
SUS
COUNSEL FOR PLAINTIFF/APPELLANT,
TAVIS JOSEPH
TAVIS JOSEPH
COUNSEL FOR DEFENDANT/APPELLEE,
JON A. GEGENHEIMER, JEFFERSON PARISH CLERK OF COURT
Carey B. Daste
COUNSEL FOR DEFENDANT/APPELLEE,
PAUL D. CONNICK, JR., DISTRICT ATTORNEY PARISH OF JEFFERSON
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
GRAVOIS, J.
There is only one issue in this appeal: Did the trial court
properly deny plaintiff/appellant, Tavis Joseph’s, Petition for Writ of
Mandamus directed to the Clerk of Court for the Twenty-Fourth
Judicial District and the District Attorney for the Parish of Jefferson?
Our answer is “yes.” We affirm.
PROCEDURAL BACKGROUND AND
FACTS ESTABLISHED AT TRIAL
In February 2014, a Jefferson Parish grand jury indicted Mr.
Joseph on two counts of second degree murder in case number 13-
4308. In July 2015, a jury found Mr. Joseph guilty as charged. The
court sentenced Mr. Joseph to life imprisonment at hard labor without
the benefit of probation, parole, or suspension of sentence on each
count, to run concurrently. This Court affirmed Mr. Joseph’s
convictions and sentences. State v. Joseph, 16-349 (La. App. 5 Cir.
12/14/16), 208 So.3d 1036, writ denied, 17-0077 (La. 4/7/17), 218
So.3d 109.
On June 7, 2023, Mr. Joseph filed a public records request with
the Clerk of Court. He requested to inspect and copy “the Jefferson
Parish Clerk of Court minutes reflecting a true bill of indictment was
found by no less than nine members of the grand jury who voted for:
[sic] I request a copy of the grand jury voted [sic] and returned the
indictment into open court.” In response, on the same date, the Clerk
of Court advised Mr. Joseph the documents he requested are not
maintained by the Clerk of Court and/or are not part of the court
record. The Clerk of Court wrote “record of vote count on indictment
by grand jury (DA’s Office).”1
Subsequently, on July 19, 2023, Mr. Joseph instituted the
present suit by filing a Petition for Writ of Mandamus directed to the
Clerk of Court and the District Attorney. He requested that the Clerk
of Court and the District Attorney provide him with the cost and/or
1
Included in this appeal record is an unsigned letter dated June 14, 2023
from Mr. Joseph to the District Attorney requesting the same information.
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copies of the following documents he previously requested but never
received: his “‘True Bill’ of indictment, the grand jury vote count on
the second degree murders showing at least nine grand jurors
constitute a quorum, and nine grand jurors concurred a (vote) to find
an indictment on Tavis Joseph; and the return into open court” in case
number 13-4308.
The Clerk of Court answered and asserted the Petition for Writ
of Mandamus should be dismissed since the Clerk of Court never
refused to provide Mr. Joseph access to public records and never
failed to respond to his public records request. The Clerk of Court
interpreted Mr. Joseph’s initial request to be for a record of the vote
count by the grand jury on his indictment, but the Clerk of Court does
not maintain the grand jury’s vote count. The Clerk of Court
informed Mr. Joseph of such on June 7, 2023. After being served
with the Petition for Writ of Mandamus, the Clerk of Court wrote to
Mr. Joseph on August 7, 2023 to notify him the Clerk’s office is only
in possession of the grand jury return minute entry reflecting the name
and number of the grand jurors present for the return and the signature
of the grand jury foreperson on the bill of indictment. To receive a
copy of those documents, Mr. Joseph needed to submit a payment of
$9.00. The Clerk of Court informed Mr. Joseph the record in his
criminal proceeding did not contain any documents reflecting the
number of grand jury members who voted for the indictment.
The District Attorney filed peremptory exceptions of no cause
of action and no right of action, asserting that as a practice, the
District Attorney does verify with the grand jurors that a quorum of at
least nine voted to return a true bill, but does not obtain a transcript of
that exchange. To the District Attorney’s knowledge, no such
transcript of that portion of Mr. Joseph’s grand jury proceeding has
ever been generated. Even so, the District Attorney argued he is not
the proper party to request that such a document be generated, and Mr.
Joseph has not shown a particularized need for the document that
outweighs the interest in grand jury secrecy.
23-CA-532 2
A hearing on the Petition for Writ of Mandamus and the
District Attorney’s exceptions was held on September 7, 2023. At the
hearing, Mr. Joseph stated three times he had no cause of action
against the District Attorney. Thus, the court granted the exception of
no cause of action and dismissed the District Attorney. The court then
denied the Petition for Writ of Mandamus against the Clerk of Court,
finding the Clerk of Court properly responded to Mr. Joseph’s request.
On September 14, 2023, the court signed a written judgment
sustaining the District Attorney’s exceptions, dismissing the District
Attorney with prejudice without objection, denying the writ of
mandamus as moot, and dismissing the Clerk of Court with prejudice.
This appeal followed.
On appeal, Mr. Joseph argues the trial court erred when it
denied his Petition for Writ of Mandamus, and the Clerk of Court
erred when it did not record the vote count of the grand jury, thus
circumventing the public records law and denying him his right to due
process and equal protection of law.2
LAW AND ANALYSIS
The public’s right of access to public records is a fundamental
right guaranteed by the Louisiana Constitution. La. Const. Ann. art.
XII, § 3. That right of access must be liberally construed in favor of
free and unrestricted access, which can only be denied when a law
specifically and unequivocally provides otherwise. Pardee v.
Connick, 18-718 (La. App. 5 Cir. 3/15/19), 267 So.3d 179, 182, citing
Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La. 1984).
Providing access to public records is the responsibility and duty
of the custodian and his employees, who shall present any public
record to any person of the age of majority who so requests, except as
otherwise provided in the Public Records Law. See La. R.S. 44:31,
44:32(A). An individual in custody after sentence following felony
2
This appeal only concerns the trial court’s denial of the Petition for Writ
of Mandamus. Mr. Joseph told the trial court he had no cause of action against
the District Attorney, did not object to the granting of the District Attorney’s
exceptions, and did not assign that ruling as error on appeal.
23-CA-532 3
conviction who has exhausted his appellate remedies is permitted
access to public records if the request is limited to grounds upon
which the individual could file for postconviction relief under La.
C.Cr.P. art. 930.3. La. R.S. 44:31.1. However, nothing in La. R.S.
44:31.1 prevents an inmate from seeking records related to his
conviction simply because the time period for filing for post-
conviction relief has passed. State ex rel. Leonard v. State, 96-1889
(La. 6/13/97), 695 So.2d 1325.
Under La. R.S. 44:35(A), a person who has been denied the
right to inspect, copy, reproduce, or obtain a copy or reproduction of a
public record may institute proceedings for the issuance of a writ of
mandamus, injunctive, or declaratory relief, together with attorney’s
fees, costs, and damages. See Muhammad v. Office of Dist. Attorney
for Par. of St. James, 19-24 (La. App. 5 Cir. 6/19/19), 275 So.3d 421,
429, writ not considered, 19-01183 (La. 10/15/19), 280 So.3d 607.
If the public record is not in the custody of the person to whom
the application is made:
… such person shall promptly certify this in writing to
the applicant, and shall in the certificate state in detail to
the best of his knowledge and belief, the reason for the
absence of the record from his custody or control, its
location, what person then has custody of the record and
the manner and method in which, and the exact time at
which it was taken from his custody or control. He shall
include in the certificate ample and detailed answers to
inquiries of the applicant which may facilitate the
exercise of the right granted by this Chapter.
La. R.S. 44:34.
It is a long-established policy that the secrecy of grand jury
proceedings should be carefully maintained; however, this secrecy is
not absolute. State v. Ross, 13-175 (La. 3/25/14), 144 So.3d 932, 937.
Louisiana grand jury secrecy laws expressly allow for the disclosure
of state grand jury materials in limited situations. See La. C.Cr.P. arts.
434 and 434.1. Outside of those situations, a party seeking disclosure
of state grand jury materials must show a compelling necessity for the
materials. Ross, 144 So.3d at 938.
23-CA-532 4
In the present case, the Clerk of Court advised Mr. Joseph on
June 7, 2023 the information he requested is not maintained by the
Clerk of Court and directed him to the District Attorney. The Clerk of
Court again certified in writing to Mr. Joseph on August 7, 2023 that
the record does not contain any documents which reflect the number
of grand jury members who voted for the indictment. If he wished to
have a copy of the grand jury return minute entry and his bill of
indictment, he was required to submit a payment of $9.00 to the Clerk
of Court. At the hearing on the matter, the Clerk of Court explained
again, with regard to the grand jury proceedings, the Clerk of Court
only has a record of the return on the indictment, but the return does
not include the number of grand jury members who voted to support
the indictment. The Clerk of Court stated the only entity who would
have that information is the District Attorney.
Considering the Clerk of Court is not in possession of the
requested information, Mr. Joseph was properly informed of such, and
Mr. Joseph was given a cost estimate for copies of the documents the
Clerk of Court does possess, we find no error in the trial court’s
judgment dismissing the Petition for Writ of Mandamus.
Finally, on appeal, Mr. Joseph asserts that his rights to due
process and equal protection were violated under La. C.Cr.P. arts.
383, 435, and 444 because the Clerk of Court did not record how
many grand jurors voted to indict him. An indictment is a written
accusation of crime made by a grand jury. It must be concurred in by
not less than nine of the grand jurors, indorsed “a true bill,” and the
indorsement must be signed by the foreman. La. C.Cr.P. art. 383.3 A
review of Mr. Joseph’s previous appellate record reveals a minute
entry dated February 20, 2024, which states that it is a partial return of
the Jefferson Parish Grand Jury. The minute entry states that after
being sworn and taking the stand, the foreperson provided that a
“TRUE BILL” was returned on Mr. Joseph and he was indicted on
3
La. C.Cr.P. art. 435 provides, in pertinent part: “Nine grand jurors shall
constitute a quorum, and nine grand jurors must concur to find an indictment.”
La. C.Cr.P. art. 444 provides, in pertinent part: “At least nine members of the
grand jury must concur in returning ‘a true bill’ or ‘not a true bill.’”
23-CA-532 5
two counts of second degree murder. The bottom of the return states:
“IT IS ORDERED BY THE COURT that the finding of the Grand
Jury of the Partial Return be filed with the Clerk of Court … .” It is
signed by the minute clerk. The Clerk of Court informed Mr. Joseph
he could receive a copy of this grand jury return minute entry and his
bill of indictment by submitting a payment of $9.00. We find that Mr.
Joseph failed to present any evidence indicating the Clerk of Court
failed to perform any legal duties owed to him. Mr. Joseph’s
arguments on appeal are without merit.
DECREE
The trial court judgment dismissing the Petition for Writ of
Mandamus is affirmed.
AFFIRMED
23-CA-532 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 29, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-532
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
CAREY B. DASTE (APPELLEE) DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
TAVIS JOSEPH #4707704 (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
LOUISIANA STATE PENITENTIARY (APPELLEE)
ANGOLA, LA 70712 DISTRICT ATTORNEY
SUNNY D. FUNK (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053