Bode v. Kenner City
| Citation | 303 F.Supp.3d 484 |
| Decision Date | 19 March 2018 |
| Docket Number | CIVIL ACTION CASE NO. 17–5483 |
| Parties | George BODE, et al. v. KENNER CITY, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Scott L. Sternberg, Keith David–John Naccari, Michael Sam Finkelstein, Sternberg, Naccari & White, LLC, New Orleans, LA, for Plaintiffs.
Thomas P. Anzelmo, Rachel S Guttmann, McCranie, Sistrunk, Anzelmo, Hardy, New Orleans, LA, Deborah A. Villio, Michael L. Fantaci, LeBlanc Fantaci Villio, LLC, Metairie, LA, for Defendants.
In this litigation, Plaintiffs, who are twelve "unclassified civil service" public employees of the City of Kenner, Louisiana,1 seek declaratory relief and an injunction barring the City of Kenner ("the City"), and Chief of Police Michael Glaser in his official capacity ("Chief Glaser")2 from enforcing Kenner City Charter Article I, Section 1.06 (hereinafter, the "Charter Amendment").3 Plaintiffs allege that the Charter Amendment, which provides that non-elected City employees "shall not participate in any political activity on behalf of any city candidate in the City of Kenner elections," violates their First Amendment rights to engage in political speech, is unconstitutionally vague, and is overbroad.4 The City responds that the Charter Amendment is narrowly tailored to achieve the City's compelling interest in maintaining an apolitical workforce.5 Pending before the Court is Plaintiffs' "Motion for Summary Judgment."6 Having reviewed Plaintiffs' motion, the memoranda in support and in opposition, the record, and the applicable law, for the reasons that follow, the Court will grant Plaintiffs' motion for summary judgment and issue a permanent injunction enjoining Defendants and their agents from enforcing Kenner City Charter Article I, Section 1.06 because prohibiting "any political activity" in any City election, by its plain language, provides no room for protected political expression.
Plaintiffs are twelve "unclassified civil servants" employed by the City of Kenner, an instrumentality of the state of Louisiana.8 In particular, Plaintiffs are political appointees who "serve at the pleasure of the Mayor" in various municipal positions, such as the Assistant to the Mayor, the City Prosecutor, and the Clerk of Court.9 "Classified" civil servants in the City of Kenner receive certain employment protections under the Civil Service System.10 By contrast, "unclassified" civil servants are employed at will by the Mayor.11 Thus, newly-elected Mayors may appoint new individuals to fill those "unclassified" positions and replace the individuals selected by the previous administration.12
On June 7, 2012, the Kenner City Council approved Resolution No. B–16261, which called an election to amend the Kenner City Charter to include the instant Charter Amendment.13 The Charter Amendment, titled "Apolitical Workforce," provides: 14 Nonelected employees include both classified and unclassified employees.15 The term "political activity" is not defined in the Charter Amendment.16 On November 6, 2012, 70 percent of the participating voters of the City of Kenner voted in favor of adopting the Charter Amendment and 30 percent voted against it.17 Prior to the enactment of the Charter Amendment, the Kenner City Mayor had vetoed an ordinance in October 2011 seeking to prohibit unclassified employees of the City of Kenner from engaging in any political activity, and a similar attempt to limit City employees' political activity also failed in 1999.18
Prior to the enactment of the Charter Amendment, unclassified City employees were already prohibited from engaging in political activity during regular employment hours pursuant to Section 2–90 of the Kenner Code of Ordinances.19 Section 2–90 directly defined the term "political activities" "[f]or purposes of this section."20 Classified City employees were subject to the specific prohibitions on political activity established by the City's Civil Service System in Section 8.04(B) of the Kenner City Charter as well.21 Section 8.04(B) defines "political activity" "[a]s used in the Part" and lists certain political activities that classified City employees could and could not do under that prior ban.22
As stated in the parties' joint stipulations, although Plaintiffs have "no desire" to engage in political activity during work hours, Plaintiffs "have a genuine desire to express themselves on political issues while outside of work hours, and would like to participate in these elections while 'off the clock.' "23 After the adoption of the Charter Amendment, Plaintiffs were prohibited from supporting local candidates in the 2016 Kenner City mayoral and City Council special election.24 Plaintiffs will also be prevented by the Charter Amendment from supporting City candidates in the upcoming 2018 Kenner City elections.25 Plaintiffs have expressed that they do not know which activities are prohibited by the Charter Amendment's restrictions on engaging in "political activity" and which activities are not.26
The City of Kenner will hold its next primary election for Mayor, Police Chief, and City Council on March 24, 2018, with the general election set for April 28, 2018.27 Qualifying for that election began January 3, 2018.28 To date, there are no known cases where the Charter Amendment's prohibitions have resulted in any adverse employment action in the City of Kenner.29
Plaintiffs filed a complaint in this matter on June 1, 2017.30 On June 20, 2017, Plaintiffs filed a motion for a preliminary injunction.31 On July 5, 2017, the Court held a hearing on Plaintiffs' motion for a preliminary injunction.32 On July 26, 2017, the Court granted Plaintiffs' motion and enjoined Defendants and their agents from enforcing Kenner City Charter Article I, Section 1.06 until there is a final judgment in this case.33
On August 11, 2017, Plaintiffs filed the instant motion for summary judgment.34 On August 22, 2017, the City of Kenner filed an opposition to the motion.35 Also on August 22, 2017, Mayor Ben Zahn and Police Chief Michael Glaser each filed an opposition to the motion, adopting the arguments made by the City of Kenner.36 On August 30, 2017, with leave of Court, Plaintiffs filed a reply memorandum in further support of the motion for summary judgment.37 On February 20, 2018, the Court granted a motion to dismiss filed by Defendant Mayor Ben Zahn.38
In their motion, Plaintiffs seek the following relief: (1) a declaratory judgment that Kenner City Charter Article I, Section 1.06 is unconstitutional; (2) a permanent injunction barring the enforcement of the Charter Amendment; (3) at least, nominal damages; and (4) attorneys' fees and costs.39 Plaintiffs assert that the facts in this case are undisputed, and they are entitled to summary judgment in their favor.40
Plaintiffs argue that the Charter Amendment discriminates based on the content of the speech, i.e. political speech, and therefore must survive strict scrutiny, i.e. that a compelling government interest exists and that the least restrictive means was used to serve that interest.41 Moreover, Plaintiffs contend that Defendants bear the burden of showing that the Charter Amendment is constitutional.42
Plaintiffs assert that the Charter Amendment fails both prongs of the strict scrutiny test.43 Plaintiffs argue that the Charter Amendment is not narrowly tailored to suit any possible compelling interest.44 Plaintiffs point out that the Charter Amendment attempts do ban all political expression related to City of Kenner elections "without any limiting definitions, explanations, or exceptions."45 Plaintiffs aver that the City could simply enforce Section 2–90 of the Code of Ordinances, which already prohibits public employees from engaging in political activity during work hours.46 Plaintiffs also contend that the City could enact less restrictive measures.47 For example, Plaintiffs note that in Wachsman v. City of Dallas , the Fifth Circuit upheld a Dallas statute that prohibited civil service employees from engaging in political activity, but allowed for endorsements of candidates to groups of fifteen or fewer people, placing yard signs or bumper stickers on their property, or political activity by spouses of the employees.48 Plaintiffs also note that the City could employ such measures as those utilized by the federal Hatch Act, which allows federal employees to attend rallies, donate money, and express opinions, as long as the employees are not wearing a government uniform or identifying themselves as federal employees.49 Therefore, "because there was 'little tailoring' of Section 1.06," Plaintiffs assert they are entitled to summary judgment on the basis that Charter Amendment fails the strict scrutiny analysis.50
Second, Plaintiffs argue that the Charter Amendment is unconstitutionally vague, as its prohibitions are not clearly defined and people of common intelligence would differ as to its application and meaning.51 Plaintiffs aver that the Charter Amendment does not define what the term "political activity" covers.52 Furthermore, Plaintiffs argue that the Charter Amendment fails to "clearly define" its terms "or explicitly identify what speech or conduct is allegedly included or excluded in its broad ban."53 Therefore, Plaintiffs argue that they "have sufficiently shown that Section 1.06 risks chilling substantial amounts of their protected speech due to its vagueness."54 Accordingly, Plaintiffs assert that the Charter Amendment "should be declared unconstitutionally vague and enjoined."55
Third, Plaintiffs contend that the Charter Amendment is "overbroad and has no 'legitimate sweep,' as it prohibits a...
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