Forum for Equality v. City of New Orleans

• Decision Date: 30 August 2004
• Docket Number: No. 2004-CA-1521.,2004-CA-1521.
• Citation: 881 So.2d 777
• Parties: FORUM FOR EQUALITY PAC, A Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. Leblanc and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana only, and not Individually.
• Court: Louisiana Supreme Court

881 So.2d 777

FORUM FOR EQUALITY PAC, A Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. Leblanc and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana only, and not Individually.

No. 2004-CA-1521.

Court of Appeal of Louisiana, Fourth Circuit.

August 30, 2004.

Appeal from the Civil District Court, Orleans Parish, No. 2004-11325, Division "C-6", Christopher J. Bruno, Judge Pro Tempore.

John D. Rawls and Regina O. Matthews, Martzell & Bickford and Kenneth Randall Evans, Evans & Clesi, PLC, New Orleans, LA for Plaintiffs/Appellees.

J. Michael Johnson, Shreveport, LA, for Intervenors, Heulette "Clo" Fontenot, State Senator, John J. Hainkel, Jr., State Senator, A.G. Crowe, State Representative, Steve J. Scalise, State Representative, Louisiana Family Forum, Louisiana Family Forum Action, and American Family Association of New Orleans.

Charles C. Foti, Jr., Attorney General of Louisiana, Angie R. LaPlace, Assistant Attorney General of Louisiana, Roy A. Mongrue, Jr., Assistant Attorney General, Thomas S. Halligan, Assistant Attorney General, Baton Rouge, LA, for Defendant/Appellant, W. Fox McKeithen, in His Official Capacity as Secretary of State of Louisiana.

Thomas A. Robichaux, Assistant City Attorney, Deborah M. Henson, Assistant

City Attorney, Ed Washington, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry, City Attorney, New Orleans, LA, for The City of New Orleans.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).

MICHAEL E. KIRBY, Judge.

The Honorable W. Fox McKeithen ("McKeithen"), Louisiana's Secretary of State, appeals a judgment of the Civil District Court for the Parish of Orleans, granting a writ of permanent injunction enjoining him from placing on the September 18, 2004 election ballot a proposed constitutional amendment, Act 926 of the 2004 Regular Session of the Louisiana Legislature (hereinafter, "Act 926"). Act 926, a joint resolution of the legislature, reads in its entirety as follows:

A JOINT RESOLUTION

Proposing an amendment to the Constitution of Louisiana, to enact Article XII, Section 15, relative to marriage; to require that marriage in the state shall consist only of the union of one man and one woman; to provide that the legal incidents of marriage shall be conferred only upon such union; to prohibit the validation or recognition of the legal status of any union of unmarried individuals; to prohibit the recognition of a marriage contracted in another jurisdiction which is not the union of one man and one woman; to provide for submission of the proposed amendment to the electors and provide a ballot proposition; and to provide for related matters.

Section 1. Be it resolved by the Legislature of Louisiana, two-thirds of the members elected to each house concurring, that there shall be submitted to the electors of the state of Louisiana, for their approval or rejection in the manner provided by law, a proposal to add Article XII, Section 15 of the Constitution of Louisiana, to read as follows:

§ 15. Defense of Marriage

Section 15. Marriage in the state of Louisiana shall consist only of the union of one man and one woman. No official or court of the state of Louisiana shall construe this constitution or any state law to require that marriage or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the state of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman.

Section 2. Be it further resolved that this proposed amendment shall be submitted to the electors of the state of Louisiana at the statewide election to be held on September 18, 2004.

Section 3. Be it further resolved that on the official ballot to be used at said election there shall be printed a proposition, upon which the electors of the state shall be permitted to vote FOR or AGAINST, to amend the Constitution of Louisiana, which proposition shall read as follows:

To provide that marriage in this state shall consist of the union of one man and one woman, that legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction which is not the union of one man and one woman. (Adds Article XII, Section 15)

On August 6, 2004, Forum for Equality PAC, a registered Louisiana political action committee, Lawrence E. Best, Jeanne M. LeBlanc, and William A. Schultz (hereinafter collectively, the "plaintiffs") filed suit for declaratory and injunctive relief against the City of New Orleans, McKeithen, and the Attorney General of Louisiana, asserting Act 926 could not constitutionally be placed on the September 18, 2004 ballot because it would violate La. Const. arts. I, §§ 1, 3, 4, 22, and 23, and XIII, § 1.¹ Insofar as the alleged violations of article I, the plaintiffs asserted that the proposed amendment denies them the equal protection of the law; denies a person the right to acquire, own, control, use, enjoy, protect and dispose of private property; impairs the obligations of contracts; denies an adequate remedy through due process of law; and deprives inalienable rights. Relating to article XIII, the plaintiffs assert the proposed amendment violates the Louisiana constitutional prohibition against a proposed amendment addressing more than one object and, further, that the prefiled proposed amendment was so different from that set forth in the joint resolution that was finally adopted that, effectively, the proposed amendment was not properly prefiled.²

By order of August 10, 2004, the trial court set a hearing on the application for preliminary injunction for August 13, 2004 upon "verified pleadings and/or supporting affidavits." See La. C.C.P. art. 3609. Also on August 10, 2004, McKeithen filed peremptory exceptions of no right of action and no cause of action, asserting that the plaintiffs had no real and actual interest in the proposed amendment and that Louisiana law offered the plaintiffs no remedy to prevent the electors from voting on a proposed amendment or from nullifying the date that the legislature set for a referendum.

Following the trial of the preliminary injunction, the trial court granted the preliminary injunction, holding that September 18, 2004 was not a "statewide election" date as that term is used in La. Const. art. XIII, § 1. Further, the trial court noted that Graham v. Jones, 198 La. 507, 3 So.2d 761 (1941), permits courts to review whether a proposed constitutional amendment is properly presented to the electors for adoption. From the judgment, McKeithen appealed. This court dismissed the appeal because the trial court had granted a permanent injunction while the appeal of the preliminary injunction was pending before us; the permanent injunction enjoined McKeithen from placing the proposed constitutional amendment on the ballot, finding September 18, 2004 was not a "statewide" election date under La. Const. Art. XIII, § 1 and finding the proposed amendment was not confined to a single object as required by La. Const. art. XIII, § 1.

On August 23, 2004 and prior to this court hearing oral arguments in Forum for Equality PAC v. City of New Orleans, 2004-1473 (La.App. 4 Cir. 2/24/04), ___ So.2d ___, 2004 WL 2008934 [emphasis added], McKeithen obtained an order from the trial court suspensively appealing the trial court's judgment granting the permanent injunction.

MOTION TO TRANSFER

The plaintiffs have filed a motion to transfer this present appeal to the Supreme Court of Louisiana, asserting that jurisdiction for this appeal properly is with that court. We disagree.

In this same case, on August 17, 2004, the Supreme Court of Louisiana in Forum for Equality PAC v. City of New Orleans, 2004-2104 (La.8/17/04), ___ So.2d ___, 2004 WL 1837924 transferred the appeal of McKeithen, in his capacity as Louisiana's Secretary of State, to this court for consideration of the trial court's judgment preliminarily enjoining the state from placing a proposed constitutional amendment on the ballot for September 18, 2004. The Supreme Court determined that it did not have appellate jurisdiction of the matter pursuant to La. Const. art. V, § 5(D) because no law or ordinance had been declared unconstitutional;³ this court has appellate jurisdiction of the matter by virtue of La. Const. art. V, § 10(A). This court affirmatively agreed with that holding in this same case in Forum for Equality PAC v. City of New Orleans, 2004-1473 (La.App. 4 Cir. 2/24/04), ___ So.2d ___, 2004 WL 2008934 [emphasis added].

Accordingly, we deny the motion to transfer.

DISCUSSION

In this appeal, McKeithen assigns as error that the trial court erred (1) in overruling his peremptory exception of no right of action and (2) no cause of action; (3) in finding Act 926 was unconstitutional for not confining itself to a single object; (4) in finding that September 18, 2004 was not a statewide election for purposes of submitting a proposed constitutional amendment to the electors in violation of the Louisiana Constitution; (5) in granting a permanent injunction preventing him from placing Act 926 on the September 18, 2004 ballot; and (6) in admitting expert testimony of individuals asserted to be experts in Louisiana law.⁴

APPELLANT'S ASSIGNMENTS OF ERROR 1 AND 2

We find that the plaintiffs have a right of action and the trial court was correct in overruling...