Maher v. City of New Orleans

• Decision Date: 31 July 1975
• Docket Number: No. 74-2022,74-2022
• Citation: 516 F.2d 1051
• Parties: 5 Envtl. L. Rep. 20,524 Paula-Beth Lashley MAHER, Administratrix of the Succession of Morris G. Maher, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1051

516 F.2d 1051

5 Envtl. L. Rep. 20,524

Paula-Beth Lashley MAHER, Administratrix of the Succession

of Morris G. Maher, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS et al., Defendants-Appellees.

No. 74-2022.

United States Court of Appeals, Fifth Circuit.

July 31, 1975.

Harold B. Carter, Jr., Walter M. Barnett, New Orleans, La., for plaintiff-appellant.

Blake Arata, City Atty., Caryl H. Vesy, Asst. City Atty., New Orleans, La., for defendants-appellees.

James G. Derbes, New Orleans, La., for Vieux Carre, etc.

John W. Ormond, New Orleans, La., for Crescent Council, etc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEWIN, DYER and ADAMS ^*, Circuit Judges.

ADAMS, Circuit Judge:

The issues posed in the case at hand, although they concern a municipal ordinance, nevertheless carry implications of nationwide import.

Plaintiff Maher, on the basis of the Fifth Amendment, assails an ordinance of the City of New Orleans that regulates the preservation and maintenance of buildings in the historic Vieux Carre section of that city, ¹ popularly known as the French Quarter. Maher asserts that, on its face, the Vieux Carre Ordinance affronts the due process clause, because it provides no objective criteria to guide the Commission charged with its administration. Maher also contends that the Ordinance, as applied and under the guise of regulation, constitutes a taking of his property without just compensation. ²

After dealing with prefatory issues of res judicata and collateral estoppel, the district court reached the merits and concluded that the Ordinance was valid. ³ We affirm.

I. Factual Background.

By amendment to the Louisiana Constitution in 1936, authority was vested in the City of New Orleans to create a Commission whose purpose was stated to be:

The preservation of such buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value, and which buildings should be preserved for the benefit of the people of the City of New Orleans and the State of Louisiana, and to that end the Commission shall be given such powers and duties as the . . . City of New Orleans shall deem fit and necessary. ⁴

To implement the historical preservation plan, the City enacted the Vieux Carre Ordinance. That Ordinance establishes the Vieux Carre Commission and creates a framework of rules governing its powers, duties and operations. Among its other provisions, the Ordinance stipulates that, to perform construction, alteration or demolition work within the geographic boundaries controlled by the legislation, one must procure a permit approved by the Commission. ⁵

The present controversy centers on the fate of the Victorian Cottage situated at 818-22 Dumaine Street, adjacent to the Maher residence in the Vieux Carre. Mr. Maher, who owned the property until his recent death, ⁶ had sought since 1963 to demolish the cottage and to erect a seven-apartment complex on the site.

Following a preliminary approval of Maher's proposal by its Architectural Committee, the Commission on April 16, 1963, disapproved Maher's application to raze the cottage. Almost from the time of the original application, interested individual neighborhood owners, as well as organized groups including the Vieux Carre Property Owners and Associates, Inc., the French Quarter Residents Association and the Louisiana Council for the Vieux Carre vigorously opposed the Maher plan to tear down the cottage and to develop the property. ⁷

Maher undertook a succession of attempts to secure approval of his plans from the Commission. ⁸ After several refusals, the Commission was finally prevailed upon to issue the permit. Ultimately, however, construction was prohibited when on August 16, 1966, the City Council for New Orleans, on the basis of an appeal, forbade the grant of a demolition permit.

While the proceedings before the Commission and City Council were pending, Maher instituted suit in the Civil District Court for Orleans Parish, Louisiana. Upon the City Council's final refusal to issue a demolition permit, the litigation in the state court was pressed. The relief requested was a declaration that the City Council's action was beyond its statutory authority and, hence, null and void. On February 26, 1968, the Civil District Court granted judgment for Maher.

The Louisiana Court of Appeal reversed, holding tht the City Council's review was proper and, further, that the Ordinance was constitutional both on its face and as applied to the Maher application. ⁹ On appeal, the Louisiana Supreme Court affirmed the judgment of the Court of Appeals that the City Council's action lay within its authority, but held that the constitutionality of the Ordinance had not been pleaded in the trial court and consequently could not be considered on appeal. ¹⁰

Subsequently, in 1971, Maher filed the present federal suit under the civil rights act against the City and its agencies, seeking a declaratory judgment that the Ordinance is unconstitutional and an injunction against its enforcement. ¹¹

The district court held that res judicata and collateral estoppel were not barriers to the litigation, and proceeded to hold the Ordinance constitutional. This appeal followed.

II. Collateral Estoppel and Res Judicata Do Not Foreclose the Suit.

The initial issue before us is whether, because of the prior state court action, the present suit is barred by principles of res judicata or collateral estoppel. ¹² Serving the interest of finality and judicial economy, these doctrines eliminate needless relitigation. Where applicable, res judicata prohibits readjudication of all matters that were, or might have been, litigated respecting the same cause of action between two parties. ¹³ By comparison, collateral estoppel would preclude renewed controversy over an issue decided in an earlier case even when, in a subsequent case, a different cause of action is presented. ¹⁴

Subsumed in the determination whether principles of finalty govern our disposition of the present case is the underlying inquiry whether the issue is one of state or federal law. Different tests are relevant depending whether the choice of law issue is resolved in favor of federal or state rules. However, in the circumstances here, the outcome is unaffected, since we are persuaded that the suit is not barred under either Louisiana or federal finality rules. Louisiana state law, stemming from the French Code Civile, takes a more narrow perspective on doctrines of repose than do jurisdictions whose rules derive from the common law. ¹⁵ Res judicata in Louisiana is stricti juris, ¹⁶ forbidding relitigation only on the ultimate judgment rendered, but not extending broadly to matters that "might have been litigated" and not comprehending intermediate facts. Under the Louisiana view, less weight is attached to finality than in common law jurisdictions, and all doubts are resolved in favor of relitigation. ¹⁷

The district court and the parties have proceeded on the assumption that the applicable law regarding finality is that of Louisiana. We have reviewed the cases relied upon by the district court and by the parties in their briefs and, if Louisiana law controls, the conclusion of the district court that this suit may be maintained does not appear to be erroneous. ¹⁸

Where federal jurisdiction is bottomed on state law, as in a diversity matter, state law principles of collateral estoppel govern, under the rationale of Erie Railway Co. v. Tompkins. ¹⁹ Unlike a diversity case, however, the suit here presents a federal constitutional question to the federal courts for resolution according to principles of federal law. Despite the fact that questions of state law and issues of local importance undeniably play a core role, this case would seem more aptly characterized as a federal matter. In such event, federal notions of repose must provide the guideposts for analysis. ²⁰

In Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., this Court applied federal concepts of finality in an antitrust case springing from certain business practices in Louisiana. ²¹ The Court eschewed rough hewn results, and carefully balanced the interests implicated in finality determinations:

The doctrines (of collateral estoppel and res judicata) must be used, however, not as clubs but as fine instruments, that protect the litigant's right to a hearing as well as his adversary and the courts from repetitive litigation. ²²

Bearing this admonition in mind, we address the City's claims that the present suit should be dismissed.

The argument is advanced that collateral estoppel controls the disposition of this case. However, the constitutional issues posed now by Maher were expressly excluded from consideration by the Louisiana Supreme Court. It is thus difficult to perceive in what manner the state court proceeding can operate in the case sub judice to estop Maher from airing his allegations. We therefore conclude that collateral estoppel does not prohibit this suit. ²³

The contention that res judiciata prevents Maher's presentation to the federal court requires a rather more subtle sifting of the facts and procedures. For res judicata to interdict an action, the rule is that "a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." ²⁴ It is not disputed that the state action in City of New Orleans v. Maher was between parties identical with or privy to the parties here, and the judgment in that case was on the merits and final. The inquiry thus centers on whether the cause of action set forth in the present federal case is identical with that in the prior state case.

There is no per se rule that the existence of earlier litigation between the same parties, predicated on a common fact nucleus, establishes res...