Angela Stewart v. State of Louisiana, Department of Public Safety and Correctional, Louisiana Probation and Parole, Louisiana State Board of Pardons Alan Roche, Keith Jones, Kenneth Lofton, Jim Wise, Brennan Kelsey ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 1205
ANGELA STEWART
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONAL ET AL., LOUISIANA PROBATION AND PAROLE,
LOUISIANA STATE BOARD OF PARDONS, ALAN ROCHE, KEITH
JONES, KENNETH LOFTON, JIM WISE, BRENNAN KELSEY
Judgment Rendered.
MAY 1 1 2010
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C682602
The Honorable Richard M. " Chip" Moore, Judge Presiding
Angela Stewart Counsel for Appellant
St. Gabriel, Louisiana Pro Se
Jonathan R. Vinning Counsel for Appellee
Baton Rouge, Louisiana Louisiana Department of Public Safety
and Corrections
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
THERIOT, J.
Angela Stewart appeals the judgment of the Nineteenth Judicial District
Court dismissing her application for writ of mandamus with prejudice for failing to
state a claim upon which relief may be granted. For the following reasons, we
reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On April 23, 2019, Angela Stewart filed an application for writ of
mandamus in the Nineteenth Judicial District Court.' According to her application,
Stewart was convicted of second degree murder and began serving a life sentence
in September 1994. Stewart asserted that she requested clemency before the
Louisiana Board of Pardons and Committee on Parole (" the Board') 2 and was
granted a hearing on February 25, 2019. On March 25, 2019, Stewart' s request for
commutation was denied.3
Accordingly, in her application for writ of mandamus, Stewart sought to
have the decision of the Board declared null pursuant to La. R. S. 42: 24 as a
violation of Louisiana' s Open Meetings Laws. As succinctly stated in the
Commissioner' s Report,' Stewart' s writ of mandamus asserted the following
arguments:
Although Stewart' s application for writ of mandamus was stamped by the deputy clerk of court of East Baton
Rouge Parish with the date May 2, 2019, the certificate of service provides that the application was served on April
23, 2019. Pursuant to the " mailbox rule," a pro se prisoner' s petition for judicial review is deemed filed at the time
it was delivered to the prison authorities for forwarding to the trial court. Bourque v. Louisiana Department of
Public Safety and Corrections, 2016- 1342 ( La. App. 1 Cir. 4/ 12/ 17); 218 So. 3d 1041, 1043. Because these are the
only two dates on the application, we consider the application to have been filed on April 23, 2019.
2 See La. Const. Art. IV, § 5( E)( 2) ( setting forth the requirements of the Board of Pardons); La. R. S. 15: 574.2( A),
D), and ( E) ( creating the Committee on Parole; setting forth the duties of the Board of Pardons; and abolishing the
Board of Parole); and La. R.S. 36: 409( C)( 4) and ( 5) ( transferring and mandating that the Board and the Committee
on Parole are within the Department of Public Safety and Corrections).
3 Stewart' s denial letter stated that her request had been denied due to insufficient self-improvement, judicial/ law
enforcement opposition, and past criminal record. The letter further provided that she could reapply five years after
the denial, and every five years thereafter.
4 The office of the Commissioner of the Nineteenth Judicial District Court was created by La. R.S. 13: 711 to hear
and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The
Commissioner' s written findings and recommendations are submitted to a district court judge, who may accept,
reject, or modify them. Hakim- El-Mumit v. Stalder, 2003- 2549 ( La. App. l Cir. 10/ 29/ 04); 897 So. 2d 112, 113 n. 1.
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1)
the Board erred in relying on a disciplinary decision that was
imposed 5 years prior to her hearing and argued the Board was not
made privy to the contents of the report —only the resulting violation;
2) the Board erred by relying on her past criminal history and that the
information that was provided was incorrect; ( 3) the Board did not
have access to all documents showing the Petitioner' s participation in
self-improvement and educational classes due to the flooding
experienced at Louisiana Correctional Institute for Women ( LCIW) in
2016 which resulted in the loss of these documents; ( 4) that
information was provided to the Board outside of the hearing process
by judicial and/ or law enforcement and that said information was not
provided to the Petitioner; ( 5) the Board denied entrance to the
hearing to a person speaking on behalf of the Petitioner as the person
did not arrive at the institution by 7: 00 [ a.m.] due to a delayed flight;
6) the Board violated Robert' s Rules of Order; 5 ( 7) the Board failed
to take notice of newly discovered evidence provided by the victim' s
mother; ( 8) the rooms in which the hearings are held are of
insufficient capacity for the public and supporters to attend; ( 9) error
occurred when the website notifications of board decisions was not
updated timely and that she did not receive notice of her denial of
clemency until one month after the hearing. [ Footnote added.]
On June 24, 2019, the Commissioner of the trial court recommended that
Stewart' s suit be dismissed with prejudice for failure to state a claim upon which
relief may be granted. The Commissioner' s Report stated in pertinent part:
Upon reviewing the statutes addressing clemency and parole
considerations,
it is clear that there is no right to appeal in any
jurisdiction in this state the clemency decisions made by the Board of
Pardons. The Petitioner points to numerous alleged deficiencies in the
hearing process but cites no law or authority which allows this Court,
in its appellate capacity, to review any decision of the Board of
Pardons. This pleading is clearly a request for judicial review of the
board' s decision despite the Petitioner' s attempt to seek relief in the
form of mandamus.
A mandamus is extraordinary relief, available only under
limited circumstances. The Petitioner provides no evidence
establishing this Court' s ... authority to review the hearing process or
decisions of the Board of Pardons relative to clemency requests nor
has the Petitioner shown that mandamus relief is available. Thus, this
Court is without jurisdiction to consider the merits of the Petitioner' s
claims. I suggest that the Petitioner' s application for writ of
mandamus be dismissed with prejudice at the Petitioner' s cost as the
Petitioner has failed to state a claim upon which relief may be granted.
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Regarding Robert' s Rules of Order, Stewart contended that " Lofton" was unable to pronounce the names of the
people present at the hearing, and therefore Stewart did not know of all of the people present that were willing to
speak on her behalf. Stewart further asserted that the room in which the hearing was held was of insufficient
capacity for speakers and supporters of persons coming before the Board. Stewart alleged that the small room size
prohibits speakers and supporters from being in the room when the hearing is taking place.
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On July 22, 2019, the trial court signed a judgment dismissing Stewart' s
application for writ of mandamus with prejudice and at the Petitioner' s costs for
failing to state a claim upon which relief may be granted. The trial court adopted
the Commissioner' s Report as reasons. This appeal followed.
ASSIGNMENT OF ERROR
Stewart asserts the following as error:
1) The lower court erred in the determination to deny relief as failure
to state a claim upon which writ should be granted.
STANDARD OF REVIEW
On appellate review of a trial court' s judgment in a suit for judicial review
under La. R.S. 15: 1177, no deference is owed by the court of appeal to the factual
findings or legal conclusions of the trial court, just as no deference is owed by the
Louisiana Supreme Court to factual findings or legal conclusions of the court of
appeal. As such, the de novo standard of review shall be applied. Greenhouse v.
Louisiana Department of Public Safety and Corrections, 2017- 0316 ( La. App. 1
Cir. 11/ 1/ 17); 2017 WL 4946864, at * 2 ( unreported), writ denied, 2017- 2122 ( La.
1/ 8/ 19); 259 So. 3d 1021.
DISCUSSION
Stewart asserts that the trial court erred in dismissing her application for writ
of mandamus with prejudice for failure to state a claim upon which relief may be
granted. We first note that Stewart' s pleading appears to be incorrectly labeled as
a writ of mandamus. The substance of the pleading indicates that the pleading is a
petition for judicial review. The Commissioner of the trial court concluded the
same, finding the pleading to be " a request for judicial review of the board' s
decision despite [ Stewart' s] attempt to seek relief in the form of mandamus." A
pleading is construed for what it really is, not for what it is erroneously called.
Duret v. Louisiana Department of Public Safety and Corrections, 2016- 1214 ( La.
M
App. 1 Cir. 4/ 12/ 17); 2017 WL 1376567, at * 1 n. l, citing Buras v. Parish of
Tangipahoa, 2008- 2429 ( La. App. 1 Cir. 9/ 23/ 09); 28 So. 3d 1066, 1070. Thus, we
will treat Stewart' s pleading as a petition for judicial review. Proceedings for
review may be instituted by filing a petition for review in the trial court within
thirty days after receipt of the notice of the final decision by the agency. La. R.S.
15: 1177( A)( 1)( a). Stewart was informed of the Board' s final decision in a letter
dated March 25, 2019. Because Stewart filed her pleading on April 23, 2019,
Stewart timely instituted proceedings for review.
In her Report, the Commissioner found that there is no right to appeal the
Board' s clemency decisions. The Commissioner' s Report indicated that Stewart
had pointed out numerous alleged deficiencies in the hearing process, but that
Stewart had cited no authority which would allow the trial court, in its appellate
capacity, to review the Board' s decision. The Commissioner' s findings were based
on La. R.S. 15: 572. 6, which provides that "[ n] o person shall have a right of appeal
from a decision of the board of pardons or the governor regarding clemency."
We look to Hoffpauir v. State, Department ofPublic Safety and Corrections,
1999- 1089 ( La. App. 1 Cir. 6/ 23/ 00); 762 So. 2d 1219, writ denied, 2000- 2230 ( La.
10/ 27/ 00); 772 So.2d 652, for guidance. In Hoffpauir, the family of a murder
victim challenged the process by which their relative' s killer was granted clemency
and paroled from the custody of the Department of Corrections. Hoffpauir, 762
So. 2d at 1220. The Hoffpauirs alleged that the Board did not follow a legal
procedure under the Open Meetings Law in issuing a recommendation that the
inmate at issue be granted clemency. This court acknowledged La. R.S. 15: 572. 6,
but further stated:
Nevertheless, we do not consider Plaintiffs' action to be an appeal
from the decisions of the Pardon Board or the governor. Plaintiffs do
not attack the substance of the decision to commute [ the convicted
felon' s] rather, they urge that the Pardon Board did not
sentence;
follow a legal procedure under the Open Meetings Law in issuing its
Wi
recommendation. In other words, they argue that there is no valid
recommendation upon which [ the governor] could base his grant of
clemency.
Although this court ultimately determined that the Hoffpauirs' Open Meetings Law
arguments were perempted, it still found that the Hoffpauirs had the right to
appeal. Id. at 1221- 22.
This reasoning applies to the case before us as well. Stewart asserted several
different arguments in her application for writ of mandamus. The arguments
pertaining to whether the Board followed legal procedure under the Open Meetings
Law are reviewable. See La. R.S. 42: 14( A). Any arguments attacking the
substance of the Board' s decision are not reviewable.
Although some of Stewart' s arguments attack the substance of the Board' s
decision, some do not. The allegations of Stewart' s petition which appear to
ostensibly implicate the Open Meetings Law are as follows: ( 1) information had
been provided to the Board outside of the hearing process by judicial and/or law
enforcement; (
2) the Board denied entrance to the hearing to a person speaking on
Stewart' s behalf because the person did not arrive at the institution by 7: 00 a.m.
due to a delayed flight; ( 3) the Board violated Robert' s Rules of Order when
Lofton" was unable to pronounce the names of the people present at the hearing,
and therefore Stewart did not know of all of the people present who were willing to
speak on her behalf; (4) the rooms in which the hearings are held are of insufficient
capacity for the public and supporters to attend; and ( 5) website notifications of the
Board' s decision were not updated timely and Stewart did not receive notification
of the Board' s decision until a month after the hearing. Accordingly, these
arguments are reviewable pursuant to Hoffpauir, 762 So. 2d 1219.
We must also determine whether Stewart' s Open Meetings Law claims are
perempted. Louisiana Revised Statutes 42: 24 provides that "[ a] ny action taken in
violation of [ the Open Meetings Law] Chapter shall be voidable by a court of
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competent jurisdiction. A suit to void any action must be commenced within sixty
days of the action." The sixty- day time limit for commencement of a suit to void
an illegal action is peremptive, not prescriptive. Hoffpauir, 762 So. 2d at 1222; see
also Norwood v. Layrisson, 451 So.2d 1338, 1339 ( La. App. 1 Cir. 1984); Kennedy
v. Powell, 401 So. 2d 453, 457 ( La. App. 2 Cir. 1981), writ denied, 406 So. 2d 607La. 1981). Peremption may not be renounced, interrupted, or suspended. La. Civ.
Code art. 3461. Each of Stewart' s procedural arguments relates to actions that
took place on or after February 25, 2019, when the hearing occurred. Stewart' s
suit to void those actions was filed on April 23, 2019. Accordingly, Stewart' s suit
was filed within sixty days of the action it seeks to void and is not perempted.
The trial court' s judgment dismissing Stewart' s application for writ of
mandamus with prejudice is reversed. We remand this case so that Stewart' s
procedurally -based arguments, which are indicated above, may be addressed by the
office of the Commissioner and the trial court.
DECREE
For the above and foregoing reasons, the judgment of the Nineteenth
Judicial District Court dismissing Angela Stewart' s application for writ of
mandamus with prejudice for failing to state a claim upon which relief may be
granted is reversed. This matter is remanded to the trial court with instructions to
consider the aforementioned arguments asserted in Angela Stewart' s application
for writ of mandamus. Costs in the amount of $ 721. 00 are assessed to the
Louisiana Department of Public Safety and Corrections.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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