Eastern District of Louisiana
TOGA SOCIETY, INC., d/b/a Krewe of Aladdin
v.
Harry LEE,
No. CIV.A. 03-2981.
June 18, 2004
ORDER AND REASONS
DUVAL,
District Court J.
Before
the Court are a Motion for Partial Summary Judgment filed by Toga Society, Inc.
d/b/a the Krewe of Aladdin (“Toga” or “Aladdin”) and a Motion to Dismiss filed
by William Lazaro, Jr., Jefferson Parish
Carnival/Mardi Gras & Special Events Office Director, in his official
capacity (“Lazaro”), and the Parish of Jefferson
(“Jefferson Parish”). This dispute arises out of a Jefferson Parish ordinance
that required the payment of security costs to obtain a Mardi Gras parade
permit and its application with respect to Toga. Defendants are Jefferson
Parish, Lazaro, and Jefferson Parish Sheriff Harry
Lee (“Lee”), sued both individually and in his official capacity. Lee has not
filed any motion. Since the time the motions were filed, the subject ordinance
was revised by the Parish of Jefferson Parish eliminating the security costs
requirement. This action on the part of Jefferson Parish has rendered some of
the issues before the Court moot. As to the remaining claims, the Court finds
as follows.
I. BACKGROUND
Prior
to Lee's election to office of Jefferson Parish Sheriff, 100 % of the costs of
all Carnival parades in Jefferson Parish was funded by the Jefferson Parish
Council through the general fund.FN1 Sometime in the early 1980's, Lee informed
the Parish that the Sheriff's budget could and would absorb those costs.
Consequently, the Council stopped paying for police protection for Carnival parades.
FN1.
This background information is taken from plaintiff's uncontested facts. Where
there is ambiguity or disagreement with those uncontested facts, it is so
noted.
In
1985, Lee approached three newly formed Mardi Gras “krewes” FN2 (Vulcan, Saturn
and Mercury) to inform them that he would require them to pay for police
protection. None of them did. Until 1996, Lee apparently absorbed 100% of the
cost of police protection for all Carnival parades rolling in Jefferson Parish.
Thus, no money was ever demanded from or paid by any of the fifteen krewes
parading each year from 1984 through 1996.
FN2.
This term refers to the organizations which parade during Mardi Gras.
In
1990, ordinances dealing with Mardi Gras were passed and continued to be
revised, culminating with the following ordinance adopted in 1995 which stated
in relevant part:
Sec.
6-88 Permits
Each
float parade and truck parade shall annually be required to obtain the proper
permit for the Office of Carnival and Special Events.
Sec.
6-90 Application for permit
(a)
Application for float parade permits must be received by the Office of Carnival
and Special Events between June 1st and 15th of each year preceding annual
parade.
(b)
At least sixty (60) days prior to the start of the Carnival/Mardi Gras season,
Mardi Gras krewes shall provide written documentation to the Office of Carnival
and Special events, specifying that all financial agreements have been met with
bands, dance groups, sheriff's office and providers of the floats that will be
used in each parade, and that indeed the floats will be available for the
parade at the stipulated date and time.
(c)
In any event, based on the submission of the application and the documentation
regarding financial arrangements, a permit will be issued with the proviso that
the issued permit is subject to revocation, if any violation of the ordinance
comes to light prior to the start of the parade season.
Jefferson
Parish Ord. §§ 6-88, 6-90 (emphasis added).
In 1997,
Lee decided that any krewe formed after 1996 would have to pay for police
protection. Lee has testified that he arrived at this decision and implemented
it on his own initiative. Lee has admitted that he did not consider asking
Jefferson Parish to bear the cost, and he did not consider any other
alternative other than to create the two classes of krewes-“old” and “new”.
Thus, any krewe formed after 1996, was to be compelled to pay fees for police
protection. This criteria is not in the ordinance itself.
Aladdin
filed its first application for a parade permit for Carnival 2000. Allegedly,
the Office of Carnival/Mardi Gras & Special Events (“OCSE”)
informed Aladdin that it needed written documentation from Lee confirming that
all financial obligations with Lee had been met prior to its issuing a permit. OCSE allegedly stated that it did not know the amount of
the fee and that it varied according to guidelines and criteria “known only to
Lee.”
Aladdin
attempted to meet with Lee and received a letter from Deputy Chief Gerald Guidroz, stating that the police protection fee for the
2000 Aladdin parade would be $15,000.00 payable by cashier's check. In
addition, the Captain of Aladdin alleges that he met with Guidroz,
and he was told that the $15,000 was to be a one-time fee which would not have
to be paid for any subsequent years. Aladdin payed
the fee, and it was issued parade permits for 2000. The cost apparently for
police protection was actually $11,928.00 ($3,072.00 less than the amount paid)
which fact Aladdin did not learn until December 5, 2003.FN3 Aladdin was issued
permits for 2001 and 2002 without any request for further payments. Lee
contends this was simply an administrative mistake. Furthermore, no credit was
given for the 2000 overpayment.
FN3.
It is alleged that this information was learned when taking the deposition of
Paul Rivera and thus plaintiff did not know that the security costs were
actually considered a “deposit” for which it was entitled to a refund until
December 5, 2003.
On
February 13, 2003, 9 days prior to the Aladdin's parade date, Lee notified
Aladdin by letter that the police protection for the 2003 Aladdin Parade would
be $27,600 which Lee contends was a deposit as the actual charges could not be
determined until after the parade.
On
February 14, 2003, Lee held a press conference stating that he would require
$20,000 to be paid by Aladdin. Later that day, Lee stated at another news
conference his requirement for payment but gave a different amount. He also
stated unequivocally that he decided “who pays.”
Of
the 15 krewes that paraded only 2 were asked to pay for 2003-Aladdin and
Excalibur. Indeed, Lee wrote to OCSE and stated that
the cost of police protection for the 2003 Aladdin parade was $24,000 and
stated “Please ensure your office does not issue a parade permit to the Krewes
of Aladdin and Excalibur until my staff advises you of the prepayment of the
estimated security costs.” (Uncontested Issue of Fact No. 26). Aladdin
allegedly could not find a sponsor or the money, so it appeared that the parade
would be canceled as the OCSE would not issue a
permit without proof of payment.
On
February 18, 2003, Lee stated he would accept any payment that Aladdin could
afford and that he would personally make up the difference. A letter to OCS
from Lee was sent stating that he had “worked out payment” so that Aladdin
could receive its permit. Aladdin was able to raise $3,485 which was paid to
Lee. Lee allegedly stated that he would not “bail out” the krewe next year and
Aladdin would be billed for whatever the police protection for the 2003 parade
cost for 2004. On April 1, 2003, Lee sent an invoice to Aladdin in the amount
of $9,934 for police protection for the 2003 parade which apparently remains
unpaid.
In
September 2003, Toga contends that Lazaro informed
Aladdin that the anticipated cost to parade in 2004 would be $26,00 or
$13,161.00 if it “piggy-backed” behind another parade. Aladdin further contends
that on September 26, 2003, Lazaro informed plaintiff
that 2004 protection fee was $13,161 without any mention of piggy-backing.
In
the fall of 2003 the subject ordinances were amended to read:
6-88:
Each
float parade and truck parade shall annually be required to obtain the proper
permit from the office of carnival and special events.
6-90
(a)
Application for float parade permits shall be received by the office of
carnival and special events between June 1st and 15th of each year preceding
the annual parade. At the time of the receipt of the application by the office
of carnival and special events, the office shall give notice to the applicant
of the amount, if any, to be provided by the applicant to the sheriff's office
for the provision of security for the parade. This security cost information is
to be provided to the office of carnival and special events by the sheriff's
office for each Carnival/Mardi Gras season by June 1st of the year prior to
each such season.
(b)
At least ninety (90) days prior to the start of the Carnival/Mari Gras season,
Mardi Gras Krewes shall provide written documentation to the office of carnival
and special events specifying that all financial agreements*784 have been met
with the sheriff's office and providers of the floats that will be used in each
parade, ..
(d) Upon
the submission of the application and the documentation regarding financial
arrangements in accordance with the provisions of this article, the office of
carnival and special events shall issue a parade permit to the applicant....
The
original complaint in this matter was filed on October 24, 2003. With respect
to the amended ordinance, Aladdin contends that there was no schedule, criteria
or other factors to consider for the fee to be established. Furthermore,
plaintiff contends that there was no legal mechanism established in the
ordinance or otherwise for administrative or other appeals from the monetary
demand of Sheriff Lee. Ostensibly unless a krewe acquiesced to Lee's demands, a
krewe was denied its permit. While the matter was pending and prior to a
hearing, an agreement was reached by the parties whereby the defendants issued
parade permits to the new krewes for 2004.
A
Second Amended Complaint was filed on January 25, 2004, wherein plaintiff
contends that Aladdin was damaged by Lee's statements in 2002 and 2003 that
Aladdin could not parade if the police protection fees were not paid in full.
Aladdin contends these statements caused serious loss of membership, revenue,
business reputation and public image. Plaintiff contends that Aladdin lost more
than 800 members from 2001 to 2003. Thus, it maintains that it suffered loss of
dues, loss of profit on the purchase of throws, loss of funds from fund raisers
caused by the loss of membership and the general loss of morale resulting from
the controversy.
The
subject Motion for Partial Summary Judgment was filed on January 22, 2004, and
the Motion to Dismiss was filed on February 3, 2004. Oral argument was held on
February 18, 2004.
Plaintiff
seeks in its motion judgment that:
(1)
Section 6-88 and 6-90 of Chapter 6, Article V of the Jefferson Parish Code are
unconstitutional as written and as applied;
(2)
Aladdin is entitled to a refund of all sums paid by the plaintiff to defendant
Lee for 2000 and 2003 parade permits as a result of demands based on the
Jefferson Parish Code sections noted above;
(3)
Plaintiffs are entitled to an award of attorneys' fees pursuant to 42 U.S.C. § 1988 for work done thus far and that done for the
instant motion;
Jefferson
Parish and Lazaro contend in their motion:
(1) Plaintiff's
§ 1983 claims for actions occurring prior to October 24, 2002 are time barred;
(2)
Plaintiff's equal protection claim fails because the ordinance does not create
any classifications; and alternatively, there is a rational basis for the way
the costs are charged;
(3)
Plaintiff's due process claims fail because no allegations are made against
Jefferson Parish and the law provides plaintiff with due process through an
appeal;
(4)
Plaintiff's free speech claims fail because plaintiff is not engaged in an
activity protected by the First Amendment;
(5)
Detrimental reliance claim fails against Jefferson Parish and Lazaro because it did not make the alleged material
misrepresentation;
(6)
The Ordinance does not violate plaintiff's constitutional rights as a less
stringent standard should be used as Jefferson Parish's regulation is unrelated
to the suppression of expression; and
(7)
Mandamus is not an available remedy.
Prior
to ruling on these motions, the Court was informed that Jefferson Parish
intended to amend the ordinances in question which measures were adopted on
April 28, 2004. The new amendments have now become effective. The new ordinance
eliminates the security costs requirement from the statute. Thus, certain
issues are now moot.
II. CLAIMS THAT ARE MOOTED BY AMENDMENT OF ORDINANCE
A
parsing of plaintiff's Complaint, First Amended Complaint and Second Amended
Complaint provide the following list of claims made in the instant suit:
1)
denial of equal protection as only the “new” crews are assessed the security
costs;
2)
denial of procedural due process because of the arbitrary nature of the
determination of the assessment of the security costs as there was no
opportunity prior thereto for notice and hearing;
3)
denial of substantive due process because of the arbitrary and capricious
nature of the assessment as it was based on actual cost;
4)
violation of the right to free speech;
5)
individual responsibility on the part of Lee for the violation of the
aforementioned constitutional rights;
6)
violation of the Louisiana Constitution for violations of due process, equal
protection of the laws and freedom of speech;
7)
payment of a thing not due;
8)
detrimental reliance and request for specific performance as to Lee and Jefferson
Parish; and
9)
writ of mandamus.
Based
on these claims, plaintiff seeks judgment in its Second Amended Complaint in
its favor and against the defendants, jointly, severally, and in solido, in
amounts both actual and punitive, only as set forth therein against Sheriff
Lee, costs, interest and reasonable attorney's fees and, in addition, as
follows:
1)
declaring that defendants have violated 42 U.S.C. §
1983 by denying plaintiff its right to equal protection of the laws, procedural
due process, substantive due process, freedom of speech, and its property and
property rights without due process of law;
2)
issuing a permanent injunction prohibiting the continuation of the
unconstitutional actions with respect to security fees and permits; FN4
FN4.
This request was rendered moot by the agreement reached for the 2004 parades by
Jefferson Parish and plaintiff's Second Amended Complaint.
3)
costs and attorneys fees pursuant to 42 U.S.C. §
1988;
4)
awarding plaintiff general damages for loss of business reputation, public
image, membership and revenue;
5)
ordering the return of the monies paid for the 2000 and 2003 including but not
limited to $3,072.00 overpayment for 2000 and the $3,485 in 2003; or
6)
alternatively ordering specific performance with respect to the $15,000 being a
one time fee; and
7)
all just and equitable relief.
Considering
that the ordinance has now removed the security cost provisions, the requests
for all prospective relief and specific performance are moot. Thus, the issues
before the Court are:
1)
the § 1983 claims as the ordinances were applied from 1999 to 2003;
2)
entitlement to any refund for any moneys paid;
3)
entitlement to general damages; and
4)
entitlement to attorneys' fees and costs under 42 U.S.C.
§ 1988.
With
this analysis in mind, the Court will now consider the subject motions.
III. APPLICABLE STANDARDS
A.
Standard for Motion to Dismiss
When
a defendant attacks the complaint because it fails to state a legally
cognizable claim, Rule 12(b)(6) provides the appropriate challenge. The test
for determining the sufficiency of a complaint under Rule 12(b)(6) is that “ ‘a
complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’ ”
The
Fifth Circuit explained:
Subsumed
within the rigorous standard of the Conley test is the requirement that the
plaintiff's complaint be stated with enough clarity to enable a court or an
opposing party to determine whether a claim is sufficiently alleged. Elliott v.
Foufas, 867 F.2d 877, 880 (5th Cir.1989). Further,
“the plaintiff's complaint is to be construed in a light most favorable to
plaintiff, and the allegations contained therein are to be taken as true.”
Oppenheimer v. Prudential Securities, Inc. 94 F.3d 189, 194 (5th Cir.1996).
This is consistent with the well-established policy that the plaintiff be given
every opportunity to state a claim. Hitt, 561 F.2d at
608. In other words, a motion to dismiss an action for failure to state a
claim” admits the facts alleged in the complaint, but challenges plaintiff's
rights to relief based upon those facts.” Tel-Phonic Servs.,
Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th cir.1992). Finally, when
considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
district court must examine the complaint to determine whether the allegations
provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994).
B. Standard for Motion for Summary Judgment
Summary
judgment is proper only if “there is no genuine issue as to any material fact
and... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)
The
party seeking summary judgment bears the exacting burden of demonstrating that
there is no actual dispute as to any material fact in the case... in assessing
whether the movant has met this burden, the courts
should view the evidence introduced and all factual inferences from that
evidence in the light most favorable to the party opposing the motion.... All
reasonable doubts about the facts should be resolved in favor of the non-moving
litigant.... Summary judgment may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that should be
drawn from these facts.... If reasonable minds might differ on the inferences
arising form undisputed facts, then the court should deny summary judgment.
Martin
v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir.1987)
(quoting Impossible Electronic Techniques, Inc. v. Wackenhut Protective
Systems, Inc., 669 F.2d 1026, 1031 (5th Cir.1982). The Court will now turn to
the Motion to Dismiss.
IV.
A. Prescription of § 1983 claims prior to October 24,
2002
[1]
Jefferson Parish and Lazaro contend that plaintiff's
§ 1983 claims arising from action prior to October 24, 2002 (one year prior to
the filing of this suit) are prescribed. As stated by the United States Court
of Appeals for the Fifth Circuit:
Federal
courts borrow state statutes of limitations to govern claims brought under
section 1983. See Burge v. Parish of St. Tammany, 996 F.2d 786, 788 (5th
Cir.1993) (citing Hardin v. Straub, 490
Harris
v. Hegmann, 198 F.3d 153, 156-57; Wallace v. King,
2003 WL 22852216 (E.D.La. Nov.25, 2003). In
[2]
Facially, all constitutional claims arising under § 1983 arising prior to
October 24, 2002 are prescribed. Thus, plaintiff bears the burden of proving
interruption or suspension of prescription. Curtis v. City of
[3]
Plaintiff relies on
(1)
[W]here there was a legal cause which prevented the courts or their officers
from taking cognizance of or acting on the plaintiff's action; (2) where some
condition coupled with the proceedings prevented the creditor from suing or
action; (3) where the debtor has done an act to prevent the creditor for using
the cause of action; (4) where the cause of action is not known or reasonably
knowable by the plaintiff, even though he is not induced by the defendant.
[4]
As noted by Judge McNamara in Curtis, “As a judicial exception to the statutory
rule of prescription, Louisiana courts strictly construe this doctrine and only
extend its benefits up to ‘the time that the plaintiff has actual or
constructive knowledge of the tortious act.’ ”
Curtis, at *2 citing Eldredge v. Martin Marietta
Corp., 207 F.3d 737, 743 (5th Cir.2000). “Constructive notice is found at the
point at which ‘the plaintiff has information sufficient to excite attention
and prompt further inquiry.’ ”
B. Equal Protection Claim
Plaintiff
contends that there was a denial of equal protection under the Fourteenth
Amendment the purpose of which is to “secure every person within the States
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through
duly constituted agents.”
(1)
a defendant created two or more classifications of similarly situated persons
that were treated differently and
(2)
the classification had no rational relation to any legitimate governmental
objective. Stefanoff v.
Plaintiff
argues that the “old” krewes are the favored class since they pay no fees while
the “new” krewes are disfavored because they must pay fees ranging from $11,000
to $20,000 a year. The focus of this argument is the fact that Lee has created
these different classes.
[5]
Furthermore, plaintiff contends that because First Amendment rights are at
issue, strict scrutiny standard is applicable to the ordinance. Ronald D.
Rotunda & John E. Nowak,Treatise
on Constitutional Law-Substance &
Procedure, § 14.7 at 566-67 (3d ed.1999). Strict scrutiny applies when the law
in question (either as written or as applied) either (1) is based upon a
suspect classification or (2) involves fundamental rights. Id. Gideon v.
Wainwright, 372 U.S. 335, 340, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963) (right to counsel); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to interstate
travel); Harper v. State Bd. of Elections, 383 U.S. 663, 86 S.Ct.
1079, 16 L.Ed.2d 169 (1966) (right to vote is fundamental right); Forsyth
County Ga. v. The Nationalist Movement, 505
[6]
Jefferson Parish and Lazaro move to dismiss this
claim because the ordinances in question do not create any classifications
failing the first prong of the test. Stefanoff, 154
F.3d at 526. It is only in Lee's application of the ordinance that Lee
potentially violates the equal protection clause. Thus, on its face, this claim
fails, and Jefferson Parish and Lazaro's motion must
be granted in this regard.
C. Due Process Claims
1. Procedural Due Process.
Aladdin
contends that procedural due process may require governmental assurance that
individuals are given certain procedural safeguards before being deprived of
life, liberty or property. Frazier v. Garrison I.S.D.,
980 F.2d 1514, 1528 (5th Cir.1993). Thus, plaintiff maintains that procedural
due process concerns are triggered if an ordinance is not implemented in a fair
manner Caballero v. Caplinger, 914 F.Supp. 1374 (E.D.La.1996) and can arise from an
administrative act.
However,
as stated in Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d
1070 (5th Cir.1989), the dispositive inquiry with respect to a procedural due
process claim is whether the ordinance was a legislative or an administrative
action. If it was administrative, Aladdin might have been owed some level of
procedural due process. “However, it is well established law that once an
action is characterized as legislative, procedural due process requirements do
not apply.”
[7]
The Court finds that the ordinance in question clearly constitutes legislative
action. This ordinance was passed by the Jefferson Parish Council, a
legislative body, and the ordinance affects a general class of persons, people
who parade during Mardi Gras in Jefferson Parish. As such, all of those
individuals received procedural due process in that legislative process. Thus,
the motion to dismiss the procedural due process claims must likewise be
granted.
2. Substantive Due Process
[8]
Plaintiff argues that substantive due process may require courts to void
certain types of government action that infringe on individual rights and
individual freedom of action. Frazier v. Garrison I.S.D.,
980 F.2d 1514, 1528 (5 th Cir.1993). Where
governmental power is used to arbitrarily deprive individuals of
constitutionally protected rights, then there is a denial of substantive due
process. Here, plaintiff contends that the ordinances give unconstitutional
discretionary power to Lee. Thus they are “void for vagueness” Smith v. Goguen, 415
[9]
However, the Supreme Court has stated unequivocally:
“[w]here
a particular Amendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for
analyzing these claims.” Albright v. Oliver, 510
D. First Amendment Violation
1. Parade Constitutes Protected Speech
Plaintiff
contends that the requirement of the payment of a police protection fee as a
prerequisite to obtaining a parade permit was an impermissible prior restraint
of free speech. This position is further buttressed by the unfettered
discretion that was given to Lee under the statutory scheme to determine amount
of the security cost fee and who would be required to pay. Plaintiff also
alleged that the ordinances*790 were overly-broad and void under the First,
Fifth and Fourteenth Amendments.
Relying
on
Jefferson
Parish and Lazaro contend that the parade ordinance
in question does not constitute protected speech under the First Amendment.
Relying on City of
[10]
The Court finds such an argument unavailing. A parade implicates the First
Amendment.
“A
parade is, by its nature, a pristine form of speech.”
“Parades
are thus a form of expression, not just motion, and the inherent expressiveness
of marching to make a point explains our cases involving protest marches.”
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of
Not
many marches, then are beyond the realm of expressive parades, and the
2. Prior Restraint of Speech
[11]
This Court concurs in plaintiff's contention that where an ordinance
provides*791 an administrator unbridled discretion to issue a permit, that
constitutes a prior restraint of speech. City of
The
Forsyth County ordinance requiring a permit and a fee before authorizing public
speaking, parades, or assemblies in “the archetype of a traditional public
forum,” Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420 (1988), is a prior
restraint on speech, see Shuttlesworth v. Birmingham,
394 U.S. 147, 150-151, 89 S.Ct. 935, 938-939, 22
L.Ed.2d 162 (1969); Niemotko v. Maryland, 340 U.S.
268, 271, 71 S.Ct. 325, 327, 95 L.Ed.
267 (1951). Although there is a “heavy presumption” against the validity of a
prior restraint, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963), the Court has
recognized that government, in order to regulate competing uses of public
forums, may impose a permit requirement on those wishing to hold a march,
parade, or rally, see Cox v.
3. Degree of Scrutiny
The
next inquiry is the degree of scrutiny required which depends on whether the
restriction is a function of the content of the expression or if the
restriction is content neutral. Ward v. Rock Against Racism, 491
Again,
as explained in Ward:
[A]
regulation of the time, place, or manner of protected speech must be narrowly
tailored to serve the government's legitimate, content-neutral interests but
that it need not be the least restrictive or least intrusive means of doing so.
Rather the requirement of narrow tailoring is satisfied “so long as the ...
regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation.”
Ward,
491 U.S. at 798-99, 109 S.Ct. at 2757-58; see
International Society for Krishna Consciousness of New Orleans, Inc. v. City of
Baton Rouge, 876 F.2d 494, 497 (5th Cir.1989); Wexler v. City of New Orleans,
267 F.Supp.2d 559 (E.D.La.2003).
4. Narrowly Tailored
As noted,
“[t]he doctrine forbidding unbridled discretion requires that the limits the
city claims are implicit in its law be made explicit by textual incorporation,
binding judicial or administrative construction, or well-established practice.”
City of
“It
is well established that where a statute or ordinance vests the government with
virtually unlimited authority to grant or deny a permit, that law violates the
First Amendment's guarantee of free speech.” See Saia v. People of State of
MacDonald
v. City of Chicago, 243 F.3d 1021, 1026 (7th Cir.2001).
[12]
In the case before the Court, Lee is given no bounds or criteria to use to
determine the amount to demand. Indeed, his application of this ordinance
demonstrates precisely how “unbridled” his discretion is in that he implemented
this statute by creating two classes of krewes which were not contemplated in
the statute-old krewes which were exempt from its requirement for payment and
new krewes that would be asked to pay security costs. Now apparently, he has
further interpreted the statute to require a “deposit” for those costs, and has
never refunded the money owed to Aladdin with respect to the 2000 parade
payment.
Based on this analysis, the Court must
deny
D. Detrimental Reliance Claim
Jefferson
Parish and Lazaro seek the dismissal of the
detrimental reliance claim. That claim arises from representations allegedly
made by Deputy Chief Guidroz, Lee's employee, that
the $15,000 payment for the 2000 parade permit was a “one-time fee”.
[13]
To state a claim for detrimental reliance in
Having
dispensed with the Motion to Dismiss, the Court will now turn to
plaintiff's*793 Motion for Partial Summary Judgment.
V. MOTION FOR PARTIAL SUMMARY JUDGMENT
Because
of the foregoing findings, the Motion for Partial Summary Judgment is moot as
to all three parties with respect to the § 1983 claims arising prior to October
24, 2002, since they are prescribed. Likewise, Aladdin's Motion for Partial
Summary Judgment as to Lazaro and Jefferson Parish,
with respect to the denial of equal protection of the law and the denial of due
process are moot as those claims are dismissed as to those two parties. As to
the motion for partial summary judgment on the violation of the right of free
speech, the motion is granted for the reasons set forth above as to Lazaro, in his official capacity and Jefferson Parish. The
Court now turns to the remaining claims, beginning with the equal protection,
due process and First Amendment claims with respect to Sheriff Lee in his
official capacity.
Sheriff
Lee, either in his official capacity, or in his individual capacity, did not
file a Motion to Dismiss with respect to any of the claims. Furthermore, his
opposition to plaintiff's motion does not address the issues presented therein
in a cogent, discrete fashion.
The
following is a synopsis of the relevant portions of Sheriff Lee's opposition to
plaintiff's motion:
(1)
Lee only demands reimbursement for the cost of overtime compensation required
under the Fair Labor Standards Act; he paid for a part of the costs out of the
Sheriff's budget out of his sense of largesse;
(2)
The fact that these costs vary does not make his actions “arbitrary or
capricious;”
(3)
The “actual cost recovery standard” is content neutral with respect to any
expressive activity of the Mardi Gras parade organization;
(4)
To the extent that the costs “exceed his subsidy to the Parish” he is entitled
to reimbursement;
(5)
Aladdin has no federal right to free overtime services from Sheriff Lee's
deputies;
(6)
Sheriff Lee does not issue Mardi Gras krewe permits;
(7)
The Parish has chosen to Shift to the krewes the cost of Mardi Gras law
enforcement services in excess of Sheriff Lee's subsidy to the Parish;
(8)
Sheriff Lee has implemented a rational and reasonable seniority system method
for recovering the cost of providing Mardi Gras law enforcement services in
excess of his subsidy to the Parish;
(9)
The principles of
(10)
Mardi Gras is a government sponsored entertainment medium over which Jefferson
Parish retains content control; therefore, Aladdin does not have a First
Amendment right to participate; and
(11)
Sheriff Lee did not make any agreement with Aladdin to charge a one-time fee.
In
making these sweeping arguments, the Sheriff did not grace the Court with any
legal analysis based on any case law or statute. Thus, the Court is left in the
awkward position of trying to formulate the Sheriff's actual legal arguments in
opposition to plaintiff's cogent and extremely well-briefed motion.
A. Equal Protection Claim
In
order to prevail on a claim against Lee in his official capacity based on a
violation of the equal protection clause, it must be proved that:
(1)
a defendant created two or more classifications of similarly situated persons
that were treated differently and
(2)
the classification had no rational relation to any legitimate governmental
objective.
Stefanoff v. Hays County, Texas, 154
F.3d 523, 526 (5th Cir.1998) (prisoner rights case). It is uncontroverted that
Lee created two classifications-old krewes and new krewes in applying the
security cost ordinance in 2003. However, Lee contends that his actions were
based on a rational and reasonable seniority system method, apparently relying
on City of New Orleans v. Nancy Dukes, 427 U.S. 297, 96 S.Ct.
2513, 49 L.Ed.2d 511 (1976), albeit the case citation does not appear in Lee's
brief.
In
Dukes, the Supreme Court had to determined whether a municipal ordinance that
prohibited vendors from selling foodstuffs from pushcarts in the French Quarter
(except for those who had continuously operated the same business for eight or
more years prior to the ordinance's enactment) violated the equal protection
clause. The Supreme Court held that the “ordinance including the “grandfather
provision” was solely an economic regulation aimed at enhancing the role of the
French Quarter's tourist-oriented charm in the economy of New Orleans.”
When
local economic regulation is challenged solely as violating the Equal
Protection Clause, this Court consistently defers to legislative determinations
as to the desirability of particular statutory discriminations ... Unless a
classification trammels fundamental personal rights or is drawn upon inherently
suspect distinctions such as race, religion, or alienage,
our decisions presume the constitutionality of the statutory discriminations
and require only that the classification challenged be rationally related to a
legitimate state interest.... In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations made in area that neither affect fundamental
rights nor proceed along suspect lines.
Herein
lies the problem with the applicability of Dukes to the situation at hand. Lee
is not a legislative body making an economic decision; rather, he is an
individual, duly elected albeit, who is engaging in the creation of classes of
citizens. Furthermore, as noted above, the Court has found that a fundamental
right is involved here-that of free speech-and as such Dukes is equally
unavailing. Based on the foregoing, the Court finds that plaintiff's motion for
summary judgment with respect to a violation of the equal protection clause
must be granted as to Lee's actions in his official capacity after October 24,
2002, as there is no evidence that the classification have any rational
relation to a legitimate government objective. Every Carnival parade results in
additional expenses for Jefferson Parish and the Sheriff's office, and it is
arbitrary to only require the “new” krewes to pay and give the old krewes a
free ride.
B. Due Process
1. Procedural Due Process
Again,
procedural due process may require governmental assurance that individuals are
given certain procedural safeguards before being deprived of life, liberty or
property. *795Frazier v. Garrison I.S.D., 980 F.2d
1514, 1528 (5th Cir.1993). As such, plaintiff argues that procedural due
process concerns are triggered if an ordinance is not implemented in a fair
manner.
As
stated in Mathews v. Eldridge, 424
“
‘Due process' unlike some legal rules, is not a technical conception with a
fixed content unrelated to time, place and circumstances.” Cafeteria Workers v.
McElroy, 367
In
the instant case, there is no administrative process to review. Lee acted
unilaterally. As such, the Court is not persuaded that the violations at issue
are susceptible to a procedural due process review. Furthermore, because of the
Court's finding that Lee violated the equal protection clause, the Court will
not rely on this theory to find Lee liable in his official capacity.
2. Substantive Due Process
For
the reasons noted above in the context of Jefferson Parish and Lazaro, as the Court finds that Aladdin's First Amendment
rights are implicated, the Court will forgo and application of this theory as
required by County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714, 140 L.Ed.2d 1043 (1998).
C. First Amendment Violation
The
Court finds that the analysis with respect to plaintiff's claims against Lazaro and the Parish of Jefferson as regards a violation
under § 1983 of Aladdin's First Amendment rights is equally applicable to Lee
in his official capacity. Thus, the Motion for Partial Summary Judgment will be
granted in this regard as to Lee in his official capacity for the reasons noted
above.
D. Individual Responsibility of Sheriff Harry Lee
Aladdin
seeks summary judgment against Harry Lee personally on the § 1983 claims. To do
so, Aladdin must prove that Lee, acting under color of state law, caused the
deprivation of a federal right. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct.
358, 116 L.Ed.2d 301 (1991). However, officials sued in their personal
capacities, unlike those sued in official capacities, may assert personal
immunity defenses such as objectively reasonable reliance on existing law or
qualified immunity. Id. Considering the paucity of briefing in this respect,
the Court will deny this portion of motion. Lee is ordered to file a motion as
to the issue of qualified immunity on or before July 20, 2003.
E. Payment of a Thing Not Due
Citing
La. Civ.Code art. 2298-2300, plaintiff contends that
since the ordinances were unconstitutional, Lee is required to return all payments.
The relevant articles read:
Art.
2298 Enrichment without cause; compensation
A
person who has been enriched without cause at the expense of another person is
bound to compensate that person. The term “without cause” is used in this
context to exclude cases in which the enrichment results from a valid juridical
act or the law. The remedy declared here is subsidiary and shall not be
available if the law provides another remedy for the impoverishment or declares
a contrary rule.
The
amount of compensation due is measured by the extent to which one has been
enriched or the other has been impoverished, whichever is less.
The
extent of the enrichment or impoverishment is measured as of the time the suit
is brought or according to the circumstances, as of the time the judgment is
rendered.
Art.
2299 Obligation to restore
A
person who has received a payment or a thing not owed to him is bound to
restore it to the person from whom he received it.
Art.
2300 Obligation that does not exist
A thing
not owed when it is paid or delivered for the discharge of an obligation that
does not exist.
Art.
2303 Liability for the person receiving payment
A
person who in bad faith received a payment or a thing not owed to him is bound
to restore it with its fruits and products.
Plaintiff
relies on these articles alone and does not cite a single case dealing with
their application in the context of a security cost charge that is determined
to be unconstitutional. During oral argument, plaintiff conceded there were
questions of fact precluding judgment at this time. Thus, the Court will deny
the motion in this respect.
F. Detrimental Reliance
There
are significant factual disputes as to whether Guidroz
stated that the $15,000 was to be a one time payment. Furthermore, to the
extent that now there is no requirement for payment in the statute, the claim
might be moot. Accordingly, summary judgment is inappropriate as to this claim.
Thus, the Motion for Partial Summary Judgment in this regard will be denied as well.
G. Overpayment of $3,072.00 for 2000
Lee
admitted at oral argument that as Lee only sought reimbursement for FLSA overtime payments, Aladdin was due $3,072.00 from its
2000 payment; however, it was made clear that this would not be based on any
legal theory save overpayment. As such, the motion for partial summary judgment
is granted on the basis of overpayment.
H. Damages and Attorneys' Fees
As
concerns damages and an award of attorneys' fees based on being a prevailing
party, the Court will defer on these issues. While it seems clear that
plaintiff's are entitled to refunds with respect to the $3,072.00 overpayment
in 2000, precisely what damages are due by virtue of the defendants' violation
of § 1983 is not clear and has not been briefed with any detail. Furthermore,
because of the outstanding claims based on disputes concerning material facts
as to the detrimental reliance claim and Lee's personal liability, entering
judgment in that regard would be premature.
Furthermore,
as to attorneys' fees, 42 U.S.C. § 1988 provides in
relevant part that “[i]n any action or proceeding to
enforce a provision of [42 U.S.C. § 1983], .. the
court, in its discretion, may allow the prevailing party, other than the
IT IS ORDERED that all claims for
prospective relief and mandamus are MOOT.
IT IS FURTHER ORDERED that Motion to Dismiss filed
by William Lazaro, Jr., Jefferson Parish
Carnival/Mardi Gras & Special Events Office Director, in his official
capacity and the Parish of Jefferson is GRANTED with respect to any claims
under 42 U.S.C. § 1983 arising prior to October 24,
2002, the equal protection claim, the due process claims, the detrimental
reliance claim and DENIED with respect to the First Amendment claim.
IT IS FURTHER ORDERED that the Motion for Partial Summary
Judgment filed by Toga Society, Inc. d/b/a the Krewe of Aladdin is GRANTED with
respect to the First Amendment claim as against Lazaro,
Jefferson Parish and Lee; GRANTED with respect to the Equal Protection claim as
to Lee and DENIED with respect to Lazaro and
Jefferson Parish; DENIED with respect to Due Process as to Lazaro,
Jefferson Parish and Lee; DENIED with respect to the personal liability of Lee;
DENIED with respect to the claim for payment of a thing not due as to all three
defendants; DENIED with respect to the detrimental reliance as to Lee; and
GRANTED with respect to a refund of $3,072.00 for 2000 and DENIED with respect
to other damages and attorneys' fees.
IT IS FURTHER ORDERED that Lee, in his individual
capacity, shall file a Motion to Dismiss based on qualified immunity on or
before July 20, 2004 to be noticed for hearing on August 4, 2004 at 9:30 a.m.
E.D.La.,2004.
Toga
Soc., Inc. v. Lee
323
F.Supp.2d 779
END
OF DOCUMENT