Fed. Dist. Court in LA Holds Depositions of the Councilmembers in FHA and ADA Claims Could Proceed Except as to Privileged Communications in Executive Session

This post was authored by Matthew Loeser, Esq.

Plaintiffs AngeliCare, LLC, C. Moore Therapeutic Group Home, LLC, Dionna Richardson, and Cathy Moore, sought to open two therapeutic group homes, each housing five people with disabilities, pursuant to a Louisiana Department of Health (“LDH”) program. After Plaintiffs were not able to obtain the required licenses, they brought suit alleging that St. Bernard Parish changed its zoning code to exclude group homes after Plaintiffs applied for their licenses, excluded the Plaintiffs’ homes on the basis of the new zoning code, and deliberately refused to grant reasonable modifications to that code. Plaintiffs further contended that St. Bernard Parish and the State of Louisiana violated the Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), and the Louisiana Equal Housing Opportunity Act, by discriminating against Plaintiffs based on the disability of the future inhabitants of the facilities, and for failing to grant a reasonable accommodation. Plaintiff’s Motion to Compel at issue in this case requested the deposition of Parish Legal Counsel McGoey regarding his advice to the Council in the Executive Session of the August 16, 2016 meeting, and the depositions of Parish Councilmembers.

Plaintiffs first contended that the executive session privilege did not apply to the August 16, 2016, Executive Session because confidentiality of executive sessions does not create a protection from discovery because the executive session was not properly called. At the outset, the court found that in executive sessions that concerned prospective litigation, such as the meeting at issue here, an executive session privilege provides a protection from discovery. Plaintiffs argued that even if a federally recognized privilege was available, the Parish failed to meet the conditions here because the executive session was not properly called. Here, however, the court found Plaintiffs’ letter to Defendants could be construed as a formal written demand – as it was writing by their lawyer on his firm’s letterhead, and referenced that he was representing the Plaintiffs. The Plaintiffs’ letter alleged discriminatory acts, and therefore meeting put the Parish on notice of potential litigation.

Plaintiffs next claimed that any attorney-client privilege between the Council and its lawyer McGoey related to the August 16, 2016, meeting had been waived because the Council adopted his advice as public policy. The record failed to reflect any evidence that the Council relied on McGoey’s reasoning in accepting his advice or in making any other decision. The court found that while the quotes of Councilmembers cited by the Plaintiffs indicated that the Councilmembers intended to obtain legal advice, the statements were made before the legal advice at issue here and could not therefore be reasonably described as incorporating that future legal advice into a future decision that had not yet been made. Accordingly, the court found that the attorney client privilege was not waived.

Lastly, the court found that the Parish Councilmembers were acting in a legislative capacity when amending the zoning ordinance and reasonable accommodation ordinance. However, the court found the Plaintiffs’ claims of discrimination were serious, and the disclosure the meeting minutes and videos of the meetings were not a sufficient substitute for the testimony of the Councilmembers. Since the Councilmembers’ intent and motivations were intricately tied to the Plaintiffs’ case, and the Plaintiffs would be unable to obtain evidence of intent through other means, the court held the Councilmembers could be deposed regarding their zoning ordinance and reasonable accommodation ordinance decisions, and their decision to deny Plaintiffs’ request for a zoning change. Thus, the court held the depositions of the Councilmembers could proceed, except as to privileged communications, including the August 16, 2016, Executive Session and related legal advice.

Agelicare, LLC v St. Bernard Parish, 2018 WL 1172947 (ED LA 3/6/2018)