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JAMES H. CONNOLLY FIFTH CIRCUIT
VERSUS COURT OF APPEAL
ROBERT M. STONE STATE OF LOUISIANA
NO. Ol-CA-929
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 560-026, DIVISION "H"
HONORABLE KERNAN J. HAND, JUDGE

JANUARY 15, 2002

MARION F. EDWARDS
JUDGE

Panel composed of Judges Marion F. Edwards,
Susan M. Chehardy and Walter J. Rothschild

CRAWFORD A. ROSE, III
ATTORNEY FOR APPELLANT 503 Rose Street Metairie, Louisiana 70005
MORTON H. KATZ RYAN P. REECE ATTORNEYS FOR APPELLEE
820 O'Keefe Avenue
New Orleans, Louisiana 70113

AFFIRMED
Plaintiff/ Appellant, James Connolly, appeals from the trial court's ruling which granted defendant, Robert Stone's, Exception of No Cause of Action in a suit for defamation. Connolly asserts that the trial court erred in three ways: 1) By granting the exception as a matter of law; 2) By finding that communications made by Stone were subject to an absolute immunity from claims for defamation, and; 3) In finding, based on the plaintiff's petition, that a letter written about Connolly by Stone served as Stone's testimony at a hearing before the Jefferson Parish Board of Election Supervisors. For the following reasons, the judgment of the trial court is affirmed.
This appeal arises from a suit for defamation filed by James Connolly, ("Connolly"), against Robert Stone, ("Stone"), regarding communications that Stone made to the Jefferson Parish Board of Election Supervisors about Connolly, in respect to Connolly's performance of his duties as a Jefferson Parish poll commissioner. Connolly, a "poll Commissioner in Charge", first
alleges that Stone made comments to the Deputy Clerk for Elections in Jefferson
Parish about acts Connolly committed during an election held on March 27,
1999. While the substance of these alleged verbal comments are not part of the petition, Connolly asserts that Stone's "false and unsubstantiated" remarks led to Connolly's suspension from the position, pending a hearing by the Board of Election Supervisors.
On November 2, 1999, the Jefferson Parish Clerk of Court, and Chairman of the Jefferson Parish Board of Election Supervisors, Mr. Jon Gegenheimer, sent a letter to Stone, and others who had worked with Connolly during the March 27, 1999, election. The letter stated that the Board would meet shortly to discuss whether Connolly should continue as a Jefferson Parish poll commissioner in light of complaints about his conduct. The letter further informed that participation was not mandatory, but that "those who have voiced complaints of misconduct must be able to present their complaints in this more formal atmosphere...in order that the board may act on those complaints."
On November 4, 1999, Stone sent a written reply to Mr. Gegenheimer, informing him that he would not be able to attend the hearing, and that therefore he felt it was appropriate to submit his observations about Connolly's conduct on March 27, 1999, in writing. On November 17, 1999, the Jefferson Parish Board of Election Supervisors met to determine Connolly's qualification status as a poll commissioner pursuant to LSA-R.S. 18:434. At the hearing, Stone's letter was introduced in lieu of his testimony and attached to the record of the proceeding. The Board decided to allow Connolly to retain his position as a Jefferson Parish poll commissioner.
On November 2, 2000, Connolly filed the instant suit for defamation against Stone for his alleged comments, and the letter that he sent to the
Jefferson Parish Board of Election Supervisors. Stone filed both an Answer and
an Exception of No Cause of Action, asserting that his communications with the Board were subject to an absolute privilege since the proceeding before the Board was quasi-judicial in nature. On May 8, 2001, the trial court heard Stone's exception, subsequently ruled that the letter and its contents were absolutely privileged, and dismissed Connolly's suit. Connolly timely filed this appeal.
LAW AND ANALYSIS
An appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo. The purpose of this exception is to determine whether the law affords the plaintiff a remedy under the facts alleged in his petition.2 In considering the exception, all reasonable inferences are made in favor of the non-moving party and all well-pleaded facts in the petition are accepted as true.3 The moving party has the burden of showing that the plaintiff has not stated a cause of action. The exception must be overruled, unless plaintiff has no cause of action under any evidence admissible under the pleadings.4
In his first assignment of error, Connolly asserts, citing Farria v. La Bonne Terrebone ofHouma, Inc.,' that the trial court used Stone's exception of No Cause of Action to, in effect, grant summary judgment on the issue of Stone's
Taylor v. Shoney's, Inc., 98-810 (La.App. 5 th Cir. 1/26/99), 726 So.2d 519; writ denied, 99-0540 (La. 1999), 740 So. 2d 635.
2
City ofNew Orleans v. Board ofDirectors ofLouisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748.
3
Id
4 Schulingkamp v. Ochsner Clinic, 99-558 (La.App. 5 Cir. 1/25/00), 752 So.2d 275, 278; writ denied, La. 2000-0618 (La. 2000), 760 So. 2d 348; appeal dismissed, 00-1129 (La. App. 5 Cir. 2000), 777 So. 2d 550.
' 476 So.2d 474, (La. App. 1 Cir. 1985).
immunity. The court in Farria addressed the issue of qualified immunity of communications made by employers about an employee, and held that the protection afforded an employer by the defense of qualified privilege may be raised in a motion for summary judgment, but could not be raised on an exception of no cause of action.6 We find that Farria is distinguishable from the
present case in one important respect: the alleged remarks, as will be discussed shortly, were made to a quasi judicial entity, and therefore would have qualified for an absolute privilege. The jurisprudence shows that Louisiana courts have upheld a trial court's determination to grant Exceptions of No Cause of Action in defamation cases, where absolute immunity for communications to a judicial or quasi-judicial entity are at issue.' Accordingly, we find appellant's first assignment of error to be without merit.
In his second assignment of error, Connolly asserts that the trial court erred in finding that Stone's conduct was subject to an absolute immunity. In this case, Connolly has filed a suit for defamation. The elements of an action for defamation are: (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury." We do not dispute the trial court's finding that Connolly's petition, if read liberally, does allege a cause of action in defamation. In Bienvenue v. Angelle, however, the Louisiana Supreme Court explained how an absolute privilege exists against defamation for communications made in judicial or quasi-judicial proceedings.
6
Id. at 475.
7

See Goldstein v. Serio, 496 So.2d 412 (La.App. 4'" Cir. 1986); writ denied 501 So. 2d 208, (La. 1987); writ denied 501 So. 2d 209, (La. 1987); Lauga v. McDougal, 463 So.2d 754 (La.App. 4'" Cir.1985).
6 Albarado v. Abadie, 97-478 (La.App. 5 Cir. 11/12/97), 703 So.2d 736, 739, writ denied, 97-C-3081 (La.2/13/98), 709 So.2d 756.
* 223 So.2d 140, (La. 1969).
"It is true that communications made in judicial or quasi-judicial proceedings carry an absolute privilege...The privilege is extended to an administrative agency only when that agency is exercising judicial or quasi-judicial functions.
Black's Law Dictionary, Fifth Edition, defines "quasi judicial" as: A term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. LSA R.S. 18:434, E (2) provides for the discernment of qualifications for polling commissioners by the parish board of election supervisors: Upon a finding by the parish board of election supervisors that a certified commissioner has performed his duties in a negligent manner, after appropriate hearing and opportunity for the commissioner to be heard, the board shall disqualify the
commissioner from service as a commissioner... In this case, acting on the statutory mandate, the Jefferson Parish Board of Election Supervisors investigated Connolly to determine his qualifications as a polling commissioner. We find, therefore, that the Jefferson Parish Board of Election Supervisors, as they conducted their inquiry of Connolly to determine the veracity of the allegations against him, exercised a quasi-judicial function.
Connolly alleges in his petition that Stone's letter, which was sent to the Board of Election Supervisors in connection with their investigation, forms part of the basis for the alleged defamatory conduct perpetuated by Stone. In Goldstein v. Serio,

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