Mortillaro v. State of Louisiana

• Decision Date: 10 August 1972
• Docket Number: Civ. A. No. 72-1868.
• Citation: 356 F. Supp. 521
• Parties: Steve J. MORTILLARO v. The STATE OF LOUISIANA, Through the Honorable Edwin EDWARDS, Governor, and the New Orleans City Civil Service Commission.
• Court: U.S. District Court — Eastern District of Louisiana

356 F. Supp. 521

Steve J. MORTILLARO v. The STATE OF LOUISIANA, Through the Honorable Edwin EDWARDS, Governor, and the New Orleans City Civil Service Commission.

Civ. A. No. 72-1868.

United States District Court, E. D. Louisiana.

August 10, 1972.

COPYRIGHT MATERIAL OMITTED

Irwin R. Sanders, New Orleans, La., for plaintiff.

William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., Marcel Armagnac, Asst. Atty. Gen. of La., Blake G. Arata, City Atty., Michael Starks, Asst. City Atty., Ralph D. Dwyer, Atty. for New Orleans Civil Service Commission and its Members, New Orleans, La., for defendants.

Moise W. Dennery, Atty. for La. State Dept. of Civil Service, New Orleans, La., amicus curiae.

Before WISDOM, Circuit Judge, and BOYLE and WEST, District Judges.

BOYLE, District Judge:

I. THE CASE

This action was originally instituted by the plaintiff, Steve Mortillaro, a classified employee within the Civil Service of the City of New Orleans, individually and as "a representative of all persons similarly situated." Subsequently, twelve other persons, also alleging to be classified employees in the Civil Service of the City of New Orleans, intervened as plaintiffs.¹

Hearing on all issues presented in this litigation² was held on July 26, 1972 by the statutory Court which took the matter under submission. Jurisdiction is asserted under 28 U.S.C. §§ 1343, 2201 based upon causes of action under 42 U. S.C. §§ 1983, 1985.

Plaintiffs declare intentions "to seek a nonpartisan elective position" without identification of such position. However, it is undisputed that the office is that of delegate to the Constitutional Convention provided in Act 2 of the 1972 Regular Session of the Louisiana Legislature, approved May 25, 1972, to be called and convened on January 5, 1973.

Mortillaro alleges that he had sought and obtained an advisory opinion from the Civil Service Commission for the City of New Orleans which held that he was prohibited by Article 14, Section 15(N)(7) of the Constitution of Louisiana of 1921, by Section 4-1504 of the Charter of the City of New Orleans and by Section 6 of the Code of Ethics of the City of New Orleans, Ordinance Calendar No. 2625, MCS, from seeking the aforesaid office.

Following review sought by Mortillaro, the Fourth Circuit Court of Appeal for the State of Louisiana on July 12, 1972 held that "Within the context of Art. 14, Sec. 15(N)(7) of the Constitution of Louisiana the position of delegate to this Constitutional Convention is a public office and a Civil Service Employee is prohibited from being a candidate for election thereto." Mortillaro v. Civil Service Commission, No. 5430. The Supreme Court of Louisiana denied review on July 17, 1972. Mortillaro v. Civil Service Commission, et al, 263 So. 2d 906.³

It should be noted that the state actions involved only the validity of the Civil Service Commission's advisory ruling. No constitutional issues were raised by Mortillaro in those actions.

Plaintiffs here, however, do raise constitutional issues and ask this Court to redress the deprivation under color of law by the State of Louisiana, the City of New Orleans, and agencies thereof, of a right or rights secured by the Constitution of the United States, and more particularly, Amendments 1, 5, 14 and 15 thereof.

Specifically, plaintiffs pray for the empaneling of a statutory Court to hear the matter, judgment declaring the Louisiana Constitutional and the City of New Orleans Charter and Ordinance provisions unconstitutional and injunctive relief against enforcement "of the state statute."

The originally named defendants were the State of Louisiana and the New Orleans City Civil Service Commissions. The individual members of the City Civil Service Commission and the City of New Orleans were made additional defendants by an amended complaint.

By joint stipulations filed at the hearing it is established that all plaintiffs have filed their statements of candidacy as required for qualification to run for election to the office of delegate to the Convention,⁴ and that all plaintiffs, in their efforts to be elected, will participate and engage in those activities ordinarily and usually associated with candidacy for an elective office, including:

a.) Public Announcement of candidacy in any of the available news media, Newspaper, Radio, Television, and the like;

b.) Distribute printed material, by hand, through the mails, and otherwise, announcing their candidacy;

c.) Make personal appearances before groups, individually or as a member of a panel;

d.) Join with other candidates to issue joint announcements, or to exchange support;

e.) Post signs announcing their candidacy;

f.) And, all such other activity which may become necessary and proper within the district which each candidate is registered.

(See Record Document No. 15).

g.) Will pay any pro-rata share or assessment by a political organization(s) or quasi-political organization, e. g. so-called Civic or Social Groups, for a place on their "ticket" or ballot to be distributed to the public and on which said ballot are listed candidates for other political office in the up-coming Democratic primary election, e. g. U. S. Senator, Candidates for the Louisiana State Supreme Court, Appellate, District and Juvenile Courts.

h.) Will take part in the political campaign of any other candidate who is seeking another office, as set forth in stipulation (g) above, when on the same ticket or ballot and will jointly contribute to the dissemination of any political material, e. g. flyers, broadsides etc., by paying for same and by actually participating in the delivery of said material to potential voters.

i.) Will work to disseminate this "ticket" or ballot in conjunction with other members on this ballot, their organizations, allies, friends and paid employees or agents, e. g. canvassing house to house, distribution at shopping centers and similar acts.

j.) Will actively seek a place on such a "ticket" ballot by courting the position thereon through whatever legal means necessary, e. g. appearing before a caucus.

k.) When making public appearances, or speeches, or attending rallies and similar political gatherings, will talk on, discuss and debate any and all issues concerned with the Constitution of the State of Louisiana, including by way of example and not of limitation, election laws, tenure of office of public officers, law relative to Home-Rule and all other aspects concerning the political involvement of municipal, parochial and state officers.

l.) Will engage in advertisement, including radio and television and newspaper to promote their candidacy.

m.) Will actively seek the endorsement of elected officials and seek the support of their political organizations.

n.) Will actively seek contributions to their campaign for office.

o.) Will engage in every and all acts whatsoever, necessary and proper, and in any way connected with political campaigning practices and methods and political activity with the end in view to obtaining the office for which the petitioners have respectively qualified all as are practiced by those persons seeking elective office in the United States of America and on a local, parochial, and State level at the time of this hearing.

(See Record Document No. 16).

In addition to oral argument, briefs were submitted by all parties and an amicus curiae brief was filed, under leave granted by the Court, on behalf of the Louisiana Department of State Civil Service.

The defendants urge (1) that the Court lacks jurisdiction because the plaintiffs have failed to exhaust State administrative and judicial remedies; (2) that this Court should abstain under the rule of the Younger v. Harris sextet; (3) that no statute of statewide application is involved and if it is, because the City of New Orleans Charter and Code of Ethics Ordinance, being of local application, the matter is one that must be decided by a single judge Court; (4) that no substantial federal question is presented requiring adjudication by a statutory Court; (5) that the complaint fails to state a claim upon which relief can be granted and (6) that the State Constitutional and the City Charter and Ordinance provisions, under attack, are valid.⁵

We consider first the issues of whether or not a statute of statewide, rather than purely local, application is involved and, if the former, whether or not a substantial federal question is presented requiring adjudication by a statutory Court.

II. STATEWIDE vs. LOCAL APPLICATION

Defendants contend that the provisions under attack have local rather than statewide application. Both the original and amended complaints pray that we declare unconstitutional Article 14, Section 15(N)(7) of the Constitution of Louisiana of 1921, Section 4-1504 of the Home Rule Charter of the City of New Orleans, and Section 6 of the Code of Ethics for the City of New Orleans, Ordinance Calendar No. 2625, Mayor Council Series, and that we enjoin defendants from enforcing said provisions.

Section 2281, Title 28, United States Code, provides for a three-judge court when the enforcement of a state statute is sought to be enjoined. While the term "statute" does embrace state constitutional provisions, American Federation of Labor v. Watson, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873 (1946), it does not encompass municipal ordinances or state statutes, and thus state constitutional provisions, having only local application. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1966).

The Louisiana Constitution of 1921 in Article 14, Section 15(A)(1) commands that a system of classified civil service be set up for the state and for cities having a population of over two hundred fifty thousand.⁶ The provisions of Article 14, Section 15 are self-executing (Article 14, Section 15, (X) and reserve to the Legislature the right to amend or repeal "all existing laws relating to the State or City Civil Service System" or to adopt new...