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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 15 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 17th day of March, 2006 , are as follows:

BY KIMBALL, J.: 2005-CA-0612 C/W 2005-CA-0719 LLOYD BADEAUX AND LAURA M. BADEAUX v. SOUTHWEST COMPUTER BUREAU, INC.(Parish of Ascension) For all the above reasons, we find plaintiffs have not stated a cause of action for defamation under La. R.S. 18:1463 and have not stated a cause of action for the general tort of defamation. However, this case is remanded to the district court to allow plaintiffs to amend their petition to state a cause of action for the general tort of defamation. Therefore, the district court's judgment granting Southwest's exceptions of no right of action and no cause of action is reversed. The district court's declaration of unconstitutionality was premature and is therefore vacated. REVERSED IN PART; VACATED IN PART; AND REMANDED. Retired Judge Robert J. Klees, assigned as Associate Justice Ad Hoc, for Chief Justice Pascal F. Calogero, recused; and Retired Judge Lemmie O. Hightower, assigned as Associate Justice Ad Hoc, for Associate Justice John L. Weimer, recused.

03/17/2006

SUPREME COURT OF LOUISIANA
No. 05-CA-0612 c/w 05-CA-719 LLOYD BADEAUX & LAURA M. BADEAUX v. SOUTHWEST COMPUTER BUREAU, INC.
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, FOR THE PARISH OF ASCENSION, HONORABLE PEGRAM MIRE, JR., JUDGE

KIMBALL, Justice* This matter was appealed directly to this court because of a district court's judgment declaring La. R.S. 18:1463 unconstitutional. Because we find plaintiffs' petition did not adequately present a cause of action for defamation under La. R.S. 18:1463 and because the petition did not adequately present a cause of action for general defamation, we conclude that plaintiff should have been granted leave to amend the petition to state a cause of action for the general tort of defamation, without consideration of the constitutionality of La. R.S. 18:1463. Accordingly, we find the district court's declaration of unconstitutionality was premature. Facts and Procedural History On February 5, 2004, Lloyd and Laura Badeaux ("plaintiffs") filed a petition for damages against Southwest Computer Bureau, Inc. ("Southwest"). In their petition, plaintiffs alleged that on October 2, 2003, Southwest mailed out an Retired Judge Robert J. Klees, assigned as Associate Justice Ad Hoc, for Chief Justice Pascal F. Calogero, recused; and Retired Judge Lemmie O. Hightower, assigned as Associate Justice Ad Hoc, for Associate Justice John L. Weimer, recused.
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anonymous letter to Lafourche Parish residents and registered voters that contained "libelous and/or fraudulent statements and/or intentionally misleading statements about Lloyd Badeaux that were malicious and in reckless disregard as to the truth." Plaintiffs asserted that Southwest acted independently or as an employee of an unknown person in the mailing of the letter. Plaintiffs also alleged that Southwest's actions damaged their reputation and business and caused them emotional harm and a loss of consortium. The petition additionally alleged that Southwest and the unknown person disseminated the anonymous letter to Lafourche Parish residents and registered voters "recklessly and negligently in violation of La. R.S. 18:1463."1
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La. R.S. 18:1463 provides in its entirety: A. The Legislature of Louisiana finds that the state has a compelling interest in taking every necessary step to assure that all elections are held in a fair and ethical manner and finds that an election cannot be held in a fair and ethical manner when any candidate or other person is allowed to print or distribute any material which falsely alleges that a candidate is supported by or affiliated with another candidate, group of candidates, or other person, or a political faction, or to publish statements that make scurrilous, false, or irresponsible adverse comments about a candidate or a proposition. The legislature further finds that the state has a compelling interest to protect the electoral process and that the people have an interest in knowing the identity of each candidate whose number appears on a sample ballot in order to be fully informed and to exercise their right to vote for a candidate of their choice. The legislature further finds that it is essential to the protection of the electoral process that the people be able to know who is responsible for publications in order to more properly evaluate the statements contained in them and to informatively exercise their right to vote. The legislature further finds that it is essential to the protection of the electoral process to prohibit misrepresentation that a person, committee, or organization speaks, writes, or acts on behalf of a candidate, political committee, or political party, or an agent or employee thereof. B.(1) No person shall cause to be printed or assist in the distribution, transportation, or transmission by any means (continued...)
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(...continued) of any facsimile of an official ballot or cause to be printed, distributed, transported, or transmitted any unofficial sample ballot with the number of a candidate unless the name of the candidate to whom the ballot number was assigned is correctly listed on the ballot. (2) No person shall cause to be printed or assist in the distribution, transportation, or transmission by any means of any facsimile of an official ballot, or cause to be printed, distributed, transported, or transmitted any unofficial sample ballot containing a photograph, or likeness of any person which falsely alleges, with an intent to misrepresent, that any person or candidate, or group of candidates in an election is endorsed by or supported by another candidate, group of candidates or other person. C.(1) No person shall cause to be distributed, or transmitted, any oral, visual, or written material containing any statement which he knows or should be reasonably expected to know makes a false statement about a candidate for election in a primary or general election or about a proposition to be submitted to the voters. (2) Paragraphs (1) and (3) of this Subsection shall not apply to: (a) Statements which merely express support for or opposition to a candidate or proposition. (b) Statements on bumper stickers, lapel pins and stickers, lawn signs, hat bands, badges, ribbons, or to balloons, matchbooks, pens, pencils, and similar paraphernalia. (c) Radio and television broadcasters who broadcast paid political announcements or paid advertisements that include the voice or picture of a candidate for public office. (3) If an individual, association, organization, committee, or corporation is responsible for or causes the distribution or transmission of any statements relative to candidates or propositions which do not fully disclose the name of the individual or the name of the association, organization, committee, or corporation, and the full and correct name and address of its chairman or other chief administrative officer and whether or not such individual, association, organization, committee, or corporation supports or opposes such candidate or proposition, such individual, (continued...)
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While it appears Lloyd Badeaux was a candidate in the 2004 Lafourche Parish presidency race, the petition itself does not allege his candidacy status.2

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(...continued) association, organization, committee, or corporation shall report all expenditures incurred in relation to the publication, distribution, transportation, or transmission in accordance with R.S. 18:1491.7, 1495.5, or 1501.1. (4)(a) No person shall misrepresent himself or any committee or organization under his control as speaking, writing, or otherwise acting for or on behalf of any candidate, political committee, or political party, or any employee or agent thereof. (b) No person shall willfully and knowingly participate in or conspire to participate in a plan, scheme, or design to misrepresent himself or any committee or organization under his control or under the control of any other participant in the plan, scheme, or design as speaking, writing, or otherwise acting for or on behalf of any candidate, political committee, or political party, or any employee or agent thereof. (c) A radio or television broadcaster who broadcasts a paid political announcement or advertisement, the content of which the broadcaster had no input in or control over, is not subject to the provisions of this Paragraph. D.(1) An affected candidate or voter shall be entitled to an injunction to restrain future violations of Subsections B and C of this Section. (2) In the event a permanent injunction is granted, reasonable attorney fees shall be allowed the petitioner by the court which shall be taxed as costs to be paid by the defendant. E. Whoever violates any provision of this Section may be punished by a fine not to exceed five hundred dollars or be imprisoned for not more than six months, or both.

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In fact, plaintiffs have stated that Lloyd Badeaux was a candidate in an election for president of Lafourche Parish at all times during Southwest's alleged tortious conduct, and have conceded that their petition fails to mention this fact. Plaintiff has suggested that the court should allow them leave to amend their petition to allege this fact.
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On March 29, 2004, Southwest filed an answer and exceptions of no right of action and no cause of action. In its answer, Southwest generally denied the allegations of plaintiffs' petition, and, alternatively, alleged that the pertinent provisions of La. R.S. 18:1463 unconstitutionally impinged upon its constitutional right of free speech and expression. In its exceptions, Southwest asserted that plaintiffs' petition asserted neither a right of action nor a cause of action against it. Southwest's memorandum in support of the exceptions largely focused on the provisions of La. R.S. 18:1463 and their alleged unconstitutionality. The Attorney General was served with notice of the constitutional challenge to La. R.S. 18:1463, and filed a response. Plaintiffs opposed the exceptions, arguing their petition stated a cause of action for defamation that does not rely on the allegedly unconstitutional statute. Additionally, plaintiffs argued they relied on La. R.S. 18:1463 to show Southwest's actions were negligent per se, and that the statute does not unconstitutionally infringe upon the right of free speech. After a hearing on Southwest's exceptions, the district court issued a judgment sustaining the exceptions of no right of action and no cause of action and declaring La. R.S. 18:1463 unconstitutional. Consequently, it dismissed plaintiffs' claims with prejudice. In its oral reasons for judgment, the district court stated: Well, in your petition, you allege that Southwest Computer Bureau, Incorporated was in violation of Louisiana Revised Statute 18[:] 1463. A plain reading of the statute obviously shows that you have no civil remedy in this particular case under these particular allegations, and the Court does agree with the courts in the past that the anonymous letter portion of its is unconstitutional, so, therefore, I'm . . . going to grant the exception. Following this judgment, both the State, through the Attorney General, and plaintiffs filed motions for new trial, which were denied by the district court.
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Subsequently, the State moved for a suspensive appeal returnable to this court, and plaintiffs moved for a devolutive appeal returnable to the Court of Appeal, First Circuit. The district court granted both motions. After review, the court of appeal ordered transfer of plaintiffs' appeal to this court based upon the district court's ruling that La. R.S. 18:1463 is unconstitutional. This court, which has appellate jurisdiction over these matters pursuant to La. Const. art. V,

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