Dukes v. City of New Orleans

• Decision Date: 27 September 1974
• Docket Number: No. 73-3979,73-3979
• Citation: 501 F.2d 706
• Parties: Nancy DUKES, d/b/a Louisiana Concessions, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS and Honorable Moon Landrieu, Defendants-Appellees. Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 706

501 F.2d 706

Nancy DUKES, d/b/a Louisiana Concessions, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS and Honorable Moon Landrieu Defendants-Appellees.

No. 73-3979 Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970 431 F.2d 409, Part I.

United States Court of Appeals, Fifth Circuit.

Sept. 27, 1974.

Joseph Neves Marcal, III, Gen. Counsel, ACLU of La., New Orleans, La., for plaintiff-appellant.

Blake G. Arata, City Atty., Joel P. Loeffelholz, Asst. City Atty., New Orleans, La., for defendants-appellees.

Before WISDOM, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Before January, 1972, plaintiff-appellant Nancy Dukes maintained a pushcart business in the Vieux Carre of New Orleans, selling hot dogs, drinks, confections and novelties. Subsequently the New Orleans City Council revised its ordinances, removing hot dog vendors from the list of specifically permitted pushcart enterprises in the Vieux Carre, but simultaneously allowing all licensed vendors who had continuously operated the same such business in the Quarter for eight years prior to January 1, 1972, to continue selling. ¹ Since Dukes' operation was only a year old, the effect of this revision was to eliminate her from the Vieux Carre market. The other pushcart hot dog vendor in the Quarter, eight year veteran Lucky Dogs, Inc., was thus left with an apparently unchallengeable monopoly.

Dukes brought this action under 28 U.S.C. 2201 & 2202 against the City of New Orleans and its Mayor challenging the application of the revised ordinance's 'grandfather clause' to hot dog sellers in the Vieux Carre as a denial of Equal Protection and praying for an injunction and declaratory judgment. ² Both Dukes and the City moved for summary judgment on the merits of the Constitutional claim. The district court, ruling on the basis of the pleadings, answers to the plaintiff's interrogatories, and uncontested affidavits, found no genuine issue of material fact and entered judgment for the City as a matter of law.

We conclude that the court below erred in its application of Equal Protection principles, and thus reverse. New Orleans retains ancestral entitlement to regulate business so as to maintain the charms of the Vieux Carre. But the Equal Protection Clause of the Constitution reaches beyond Canal Street, and lays its heavy hand when unjustified discrimination scars the Quarter's complexion. The City's purpose in revising its ordinance, fair though it be, cannot support its favoring a venerable hot dog dealer with the skins of eight seasons over franks of a more recent vintage.

I

There is no question of the City Council's legitimate authority generally to regulate business conducted on the public streets and sidewalks of the Vieux Carre in order to preserve the appearance and custom valued by the Quarter's residents and attractive to tourists. The sole dispute is whether the Council has exceeded Constitutional bounds in its discriminations regarding which enterprises are to be permitted and which are to be prohibited.

The Council's classifications are not drawn upon inherently suspect lines such as race or religion. Nor is the personal interest Dukes seeks to protect here one of such Constitutional fundamentality as to give rise to a necessity for strict judicial scrutiny in preserving its equal protection. See, e.g., Harper v. Virginia State Bd. of Elections, 1966, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (voting); NAACP v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (association); NAACP v. Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (access to courts). Rather here

(we) deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be 'reasonable, not arbitrary' . . . and bears 'a rational relationship to a (permissible) state objective.'

Village of Belle Terre v. Boraas, 1974, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797. Under this test the deference to legislative judgment is strong. See, e.g., San Antonio School District v. Rodriguez, 1973, 411 U.S. 1, 17, 40, 93 S.Ct. 1278, 1288, 1300, 36 L.Ed.2d 16, 33, 47; McGowan v. Maryland, 1961, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393, 399; Williamson v. Lee Optical, 1955, 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563, 572-573; Railway Express Agency v. New York, 1949, 336 U.S. 106, 109-110, 69 S.Ct. 463, 465, 93 L.Ed. 533, 538-539. As the Supreme Court restated in Morey v. Doud, 1957, 354 U.S. 457, 463-464, 77 S.Ct. 1344, 1348-1349, 1 L.Ed.2d 1485, 1490, our chief guide in resolving this case,

'1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' Lindsley v. Natural Carbonic Gas Co., (1911,) 220 U.S. 61, 78, 79, 31 S.Ct. 337, 340, 341, 55 L.Ed. 369, 377 . . .

Thus, we view the New Orleans ordinance initially from a traditionally sympathetic perspective. This does not mean, however, that the judicial role of constitutional oversight is to be abdicated. Morey v. Doud also teaches that where the discriminations to be assessed assume an 'unusual character,' we must exercise 'careful consideration to determine whether they are obnoxious' to the Equal Protection Clause. 354 U.S. at 464, 77 S.Ct. at 1349, 1 L.Ed.2d at 1490-1491 (quoting Hartford Steam Boiler Inspec. & Ins. Co. v. Harrison, 1937, 301 U.S. 459, 462, 57 S.Ct. 838, 840, 81 L.Ed. 1223, 1226; Louisville Gas & Elec. Co. v. Coleman, 1928, 277 U.S. 32, 37, 48 S.Ct. 423, 425, 72 L.Ed. 770, 774). Finding the 'grandfather clause' of the New Orleans ordinance here at issue to be facially 'unusual' in its establishment of a closed class of favored enterprises distinguished solely by the length of their tenure as established operations, we proceed to such a 'careful consideration.'

II

In our examination of the nature of the discrimination attacked here, we are guided by two principles consistently reiterated by the Supreme Court. First, 'distinctions in the treatment of business entities engaged in the same business activity may be justified by genuinely different characteristics of the business involved . . .. But distinctions cannot be so justified if the 'discrimination has no reasonable relation to these differences.' Hartford S.B.I. Ins. Co. v. Harrison, (1937,) 301 U.S. 459, 463, (57 S.Ct. 838, 840) 81 L.Ed. 1223, 1226.' Morey v. Doud, 354 U.S. at 466, 77 S.Ct. at 1350, 1 L.Ed.2d at 1492. Second, '(a) classification . . . 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, (1920,)253 U.S. 412, 415, (40 S.Ct. 560, 561) 64 L.Ed. 989, 990.' Reed v. Reed, 1971, 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, 229.

A classification based on tenure may have a legitimate governmental rationale and thus be constitutionally permissible. A zoning ordinance, for example, may be made applicable only to future builders in order to conserve reliance interests. See Sampere v. New Orleans, 1928, 166 La. 776, 117 So. 827, aff'd per curiam, 1929, 279, U.S. 812, 49 S.Ct. 262, 73 L.Ed. 971. Cf. United States v. Maryland Savings-Share Ins. Corp., 1970, 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4. Even a discrimination between established operations based on distinctions in tenure may be proper if rationally connected to a valid legislative purpose. Thus in Watson v. Maryland, 1910, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987, the Supreme Court upheld a Maryland statute exempting physicians who had practiced in the state for four years from taking a licensing examination, upon the reasonable legislative 'theory that those who have acceptably followed the profession in the community for a period of years may be assured to have the qualifications which others are required to manifest as a result of an examination.' 218 U.S. at 177, 30 S.Ct. at 646, 54 L.Ed. at 989. See also Dent v. West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Eslin v. Collins, Fla.1959, 108 So.2d 889.

The New Orleans ordinance challenged here was enacted as part of a series of measures limiting peddling in the Vieux Carre in accordance with the New Orleans City Council's apparent and reasonable belief that the presence of such distractions inhibits tourism. The Council's asserted purpose in permitting only those vendors who had sustained their operations in the Quarter for eight years to remain was to preserve those least likely to disturb 'the unique charm and beauty that is characteristic of the Vieux Carre.' ³ While we are sympathetic to New Orleans' efforts to conserve the traditional complexion of the Vieux Carre and sensitive to the difficulty of consistently aligning tradition with purely reasonable distinctions, ⁴ we nevertheless find the Council's rationale insufficient to support the discrimination imposed.

The pivotal defect here is akin to that exposed by the Supreme Court in Morey v. Doud, supra. Under the...