Guesnon v. BOARD OF LIQUID., CITY DEBT, NEW ORLEANS

• Citation: 396 F. Supp. 541
• Decision Date: 10 June 1975
• Docket Number: Civ. A. No. 75-109.
• Parties: Mr. and Mrs. Robert F. GUESNON v. BOARD OF LIQUIDATION, CITY DEBT OF the CITY OF NEW ORLEANS, and the Individual members thereof.
• Court: U.S. District Court — Eastern District of Louisiana

396 F. Supp. 541

Mr. and Mrs. Robert F. GUESNON v. BOARD OF LIQUIDATION, CITY DEBT OF the CITY OF NEW ORLEANS, and the Individual members thereof.

Civ. A. No. 75-109.

United States District Court, E. D. Louisiana.

June 10, 1975.

Sidney M. Bach, New Orleans, La., for plaintiffs.

Harry B. Kelleher, James A. Churchill, George Frazier, IV, Trevor G. Bryan, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, La., for the Bd. of Liquidation City Debt, and the individual members of said Bd., defendants.

COMISKEY, District Judge.

This class action, on behalf of all non-caucasian citizens of New Orleans, seeks declaratory and/or injunctive relief pursuant to sections 1981 and 1983 of the United States Code, Title 42. The plaintiffs allege that the defendants Board of Liquidation, City Debt, and its individual members have violated the Fourteenth Amendment guarantees of equal protection and due process in restricting Board membership to caucasians.

The relevant facts may be summarized briefly. The Board sits as a public agency authorized under state law to administer New Orleans' indebtedness, as well as supervise the bond issues of both the city and the Sewerage & Water Board. The body consists of six syndicate members, who serve without pay, and three non-syndicate, ex officio members, who are the Mayor and two City Councilmen. The testimony at trial established that syndicate members fill vacancies according to an essentially discretionary appraisal of candidates' integrity, financial expertise and experience; that the consideration and actual selection takes place at private, informal gatherings of the syndicate membership, with merely pro forma nomination and appointment of the new member occurring at a subsequent, regular meeting; and that a non-caucasian has not served as a member of the Board since its inception in 1880. Also in evidence is a stipulation by all defendants that

at the time or times one or more of the six incumbent syndicate members of the Board . . . were appointed, there were an indeterminant number of persons who were qualified in terms of integrity, financial ability, and financial expertise to become members . . ., some of whom were not members of the Caucasian race.

Some of the Board members testified at trial that, to their personal knowledge, the Board never has even considered any non-caucasians to fill a vacancy.

The Equal Protection Clause requires the equal treatment under law of similarly situated individuals, and it now is axiomatic that a particularly invidious form of disparity is that which burdens a racially-defined group of persons. In such cases, courts will subject the challenged action to the "most rigid scrutiny." See Loving v. Commonwealth of Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1964). That this case presents no overt classification of persons by race, of course, does not free it from the Fourteenth Amendment mandate of equal protection. Nor, in the court's judgment, is the absence of evidence that Board members purposefully excluded non-caucasians from their number fatal to the plaintiff's claim. Several years ago, in a now-famous decision, the Fifth Circuit endorsed an approach which dispenses with the need for such proof in these proceedings:

Equal protection of the laws means more than merely the absence of governmental action designed to discriminate; . . . `we now firmly recognize that the arbitrary quality of thoughtlessness can be as disastrous and unfair to private rights and to the public interest as the perversity of a willful scheme.' citing Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 931 (2d Cir. 1968).

Hawkins v. Town of Shaw, Mississippi, 461 F.2d 1171, 1172-3 (5th Cir. 1972).

It is true, as defendants note, that the court announced this principle in a case involving the denial of municipal services to black citizens. See also United Farm of Fla. H. Proj., Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974). But, perhaps foreseeing attempts to narrow its applicability, Judge Wisdom emphasized the general importance of the decision's holding in his specially concurring opinion. See 461 F.2d at 1175. Moreover, even prior to Hawkins, the Fifth Circuit had laid at least a partial basis for the decision in a case where blacks were excluded from grand and petit juries. In that context, the court found the "objective results" of discrimination sufficient without proof of "ill will, evil motive, or absence of good faith . . ." United States v. Wiman, 304 F.2d 53, 65 (5th Cir. 1962). Nor has the circuit limited Hawkins to its facts since the decision was announced. See Toney v. White, 476 F.2d 203 (5th Cir. 1973) (voter registration). See also Allen v. City of Mobile, 466 F.2d 122, 124 (5th Cir. 1972) (Goldberg, J. diss.).

Defendants argue that this case is distinguishable from the Hawkins progeny since these discretionary appointments to the Board—as among citizens who are not equally entitled to appointment—necessitate discrimination "in its best sense." The Board, however, must be viewed in its performance of a vital public function in which all tax-payers of New Orleans share equal interest. It is an agency of city government, notwithstanding the self-perpetuating nature of the syndicate members. At the very least, all members of the plaintiff class are entitled to a Board allowing equal access to qualified caucasians and non-caucasians. Likewise are qualified non-caucasians as entitled as qualified caucasians to serious consideration when vacancies occur. The equal opportunity to participate in city management is the gravamen of this complaint, and the evidence as a whole establishes a denial of that right which inheres in a neutral scheme—not...