Jacob Johnson v. Daryl Purpera, Individually and in his Official Capacity as Louisiana Legislative Auditor, State of Louisiana, Through Louisiana Legislative Auditor ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
JACOB JOHNSON NO. 2019 CW 1503
PAGE 1 OF 3
VERSUS
DARYL PURPERA, INDIVIDUALLY AND IN SEPTEMBER 10, 2020
HIS OFFICIAL CAPACITY AS LOUISIANA
LEGISLATIVE AUDITOR, STATE OF
LOUISIANA, THROUGH LOUISIANA
LEGISLATIVE AUDITOR
In Re: Daryl Purpera and the State of Louisiana through the
Louisiana Legislative Auditor, applying for
writs, 19th Judicial District Court,
supervisory
Parish of East Baton Rouge, No. 657022.
BEFORE: WHIPPLE, C. J., GUIDRY AND WOLFE, JJ.
WRIT DENIED. While the question of whether a communication
is defamatory is one of law, genuine issues of material fact
exist herein, specifically as to whether or not
defendants/ relators, Daryl Purpera and the State of Louisiana
through the Louisiana Legislative Auditor, implicitly accused
plaintiff, Jacob Johnson, of violations of criminal law. See
Costello v. Hardy, 2003- 1146 ( La. 1/ 21/ 04), 864 So. 2d 129, 140.
As noted by the district court, the implication and
interpretation of the challenged statements, and whether the
Legislative Auditor' s reports accuse Johnson of perjury, theft,
and malfeasance, are questions of fact properly reserved for a
jury. Under a theory of defamation per se, words which
expressly or implicitly accuse another of criminal conduct, or
which by their very nature tend to injure one' s personal or
professional reputation, without considering extrinsic facts or
circumstances, are considered defamatory per se. Kennedy v.
Sheriff of East Baton Rouge, 2005- 1418 ( La. 7/ 10/ 06), 935 So. 2d
669, 675. As such, summary judgment is not appropriate at this
time.
Moreover, genuine issues of material fact remain concerning
Johnson' s status as a public official, the designation of which
is critical, as he is unable to assert a theory of defamation by
innuendo if categorized as such. Fitzgerald v. Tucker, 98- 2313
La. 6/ 29/ 99), 737 So. 2d 706, 717.
Under a theory of defamation
by innuendo, a plaintiff may recover for truthful statements of
fact which carry a false, defamatory implication about another.
In other words, defamatory meaning can be insinuated from an
otherwise true communication. Id. Herein, if the statements
contained in the Legislative Auditor' s reports are true, and if
held to be a public official, Johnson is unable to assert a
claim of defamation by innuendo.
Consequently, as genuine
issues of material fact exist concerning the extent of Johnson' s
authority and duties as HEAL executive director, specifically as
related to, and contrasted with, the HEAL Board of Trustees,
summary judgment is not appropriate at this time.
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2019 CW 1503
PAGE 2 OF 3
Whipple, C. J., dissents and would grant the writ.
Defamation involves the invasion of a person' s interest in his
or her reputation and good name. To maintain an action for
defamation, plaintiffs have the burden of proving: ( 1)
2) 3) falsity; ( 4)
defamatory words; ( unprivileged publication; (
actual or implied malice; and ( 5) resulting malice. If even one
of these required elements is lacking, the cause of action
fails. Thinkstream, Inc. v. Rubin, 2006- 1595 ( La. App. lst Cir.
9/ 26/ 07), 971 So. 2d 1092, 1101, writ denied, 2007- 2113 ( La.
1/ 7/ 08), 973 So. 2d 730, citing Costello v. Hardy, 2003- 1146 ( La.
1/ 21/ 04), 864 So. 2d 129, 140.
Herein, plaintiff/ respondent, Jacob Johnson, alleges
defendants/ relators, Daryl Purpera and the State of Louisiana
through the Louisiana Legislative Auditor (" LLA" or
defendants"), accused him of various criminal violations,
theft, However, the record
including malfeasance, and perjury.
reflects that in its two audit reports of the Health Education
Authority of Louisiana (" HEAL"), the LLA simply discovered that
certain rules and regulations were not followed by Johnson, as
HEAL Executive Director, in specific instances, and noted that a
statement made by Johnson was inaccurate based on facts as
outlined in the audit reports. The audit reports contained no
accusation of criminal intent. Moreover, Johnson does not deny
that he failed to follow proper state regulatory protocol. As a
matter of law, a statement that a public agency did not always
comply with paperwork requirements is not defamatory. See State
v. Petitto, 2010- 0581 ( La. 3/ 15/ 11), 59 So. 3d 1245, 1254. The
audits did not impute any violation of criminal law to HEAL or
Johnson and, as argued by the LLA, " if [ it] cannot comment upon
whether a government agency complied with technical procurement
policies without having to defend itself at a trial on the
merits, then the utility of the office will have been vastly
diminished." The Supreme Court of the United States has stated
speech on public affairs " should be uninhibited, robust, and
wide- open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public-
officials." New York Times Co. v. Sullivan, 376 U. S. 254, u
270,
84 S. Ct. 710, 721, 11 L. Ed. 2d 686 ( 1964).
Further, the challenged statements contained within the
LLA' s reports are not " provably false." As to HEAL' s contracts,
the audits identify the contracts at issue, their dates of
execution and amounts, and the approvals that were needed, but
not obtained. Regarding travel expenditures, because New
Orleans was Johnson' s domicile for employment purposes, state
policy does not authorize reimbursement of his travel expenses
within the city. These statements are not provably false, but
merely convey the auditors' professional judgments that HEAL and
Johnson' s practices fell short of state policy. Also, Johnson
does not dispute his, or HEAL' s, failure to follow state
contract approval or reimbursement policy. While defamatory
words are those that harm the reputation of another so as to
lower him in the estimation of the community, or deter others
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2019 CW 1503
PAGE 3 OF 3
from associating with him, statements of opinion relating to
matters of public concern which do not contain a provably false
factual connotation will receive full constitutional protection.
Lamz v. Wells, 2005- 1497 ( La. App. 1st Cir. 6/ 9/ 06), 938 So. 2d
792, 798 & Romero v. Thomson Newspapers ( WI), Inc., 94- 1105 ( La.
1/ 17/ 95), 648 So. 2d 866, 870, cert. denied, 515 U. S. 1131, 115
S. Ct. 2556, 132 L. Ed. 2d 810 ( 1995), citing Milkovich v. Lorain
Journal Co., 497 U. S. 1, 20, 110 S. Ct. 2695, 2706, 111 L. Ed. 2d 11990).
Lastly, even assuming arguendo that the challenged
statements are defamatory per se, no malice can be found within
the LLA' s reports. Malice will be found where a story is
fabricated by a defendant, is the product of his imagination, or
is so inherently improbable that only a reckless man would have
put it in circulation, but may not be inferred from evidence of
personal spite,
an intention to injury, or a bad motive. Starr
v. Boudreaux, 2007- 0652 ( La. App. 1st Cir. 12/ 21107), 978 So. 2d
384, 390 & Tarpley v. Colfax Chronicle, 94- 2919 ( La. 2/ 17/ 95),
650 So. 2d 738, 740 ( per curiam). As defined in Tarpley, malice
requires that the statement be made with a reckless disregard
for the truth, and that the defendant made the false publication
with a " high degree of awareness of probable falsity" or that
the defendant " entertained serious doubt as to the truth of his
publication." Id. The challenged statements made by the LLA
regarding HEAL and Johnson' s failure to follow proper state
purchasing and reimbursement protocol certainly do not rise to
this standard.
For these reasons, I find that the district court erred in
denying the defendants' Motion for Summary Judgment and would
grant the writ,
reversing the district court' s September 17,
2019 judgment, and would enter judgment in favor of defendants
herein granting their Motion for Summary Judgment.
COURT OF APPEAL, FIRST CIRCUIT
liDEPUTY* FOR
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