Police Ass'n of New Orleans v. City of New Orleans

• Decision Date: 17 January 1995
• Citation: 649 So.2d 951
• Parties: 94-1078 La
• Court: Louisiana Supreme Court

Page 951

649 So.2d 951

94-1078 La. 1/17/95

The POLICE ASSOCIATION OF NEW ORLEANS; Ronald J.

Cannatella; Frank Vacarella; and Mike Conn,

Individually and on Behalf of all

Officers and Employees of the

City of New Orleans v. The CITY OF NEW ORLEANS, a Louisiana Municipality.

NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, et al. v. CITY OF NEW ORLEANS.

No. 94-OC-1078.

Supreme Court of Louisiana.

Jan. 17, 1995.

Avis M. Russell, Kimberly A. Theriot, Bruce E. Naccari, and Jesse J. Marks, New Orleans, for applicant.

Frank DeSalvo, Jeffery M. Lynch, New Orleans, and Louis Robein, Jr., Robein, Urann & Lurye, Metairie, for respondent.

[94-1078 La. 1] HALL, Justice. ^*

In this case, under our appellate jurisdiction, we determine the constitutionality of the City of New Orleans employee domicile ordinance, Municipal Ordinance 15298, as amended by Municipal Ordinance 15420. The trial court found the ordinance, as amended, to be constitutional. The court of appeal reversed, finding the ordinance, as amended, unconstitutional as violating Article 10, Sections 7 and 10, Article 6, Sections 5(E) and 9, and the equal protection and due process guarantees of Article 1, Sections 2 and 3 of the Louisiana constitution. Police Ass'n of New Orleans v. City of New Orleans, 93-1279, 93-2057 (La.App. 4th Cir. 3/29/94), 635 So.2d 380. This court granted the City's writ application seeking review and docketed the case as an appeal. ¹ 94-1078 (La. 5/13/94), 637 So.2d 1059. Because we find that parts of the [94-1078 La. 2] grandfather clause of the ordinance violate the equal protection clause of the Louisiana constitution, we strike those parts of the ordinance as unconstitutional. But finding those provisions severable and the ordinance otherwise valid, we uphold the validity of the balance of the ordinance, and amend the court of appeal judgment accordingly.

I.

In 1973, the New Orleans City Council passed an ordinance which preferred residents of Orleans Parish in initial employment opportunities with the City and required all city employees to "reside" in Orleans Parish. Exemptions were allowed for those employees living outside Orleans Parish at the time of the adoption of the ordinance and for those individuals who obtained an exception from the appointing authority with approval of the Chief Administrative Officer (CAO).

On December 6, 1990, the City Council adopted Municipal Ordinance 14268, which enacted a new Article 22 of Chapter 2 of the City Code, prohibiting city employment to any person whose "domicile" was outside Orleans Parish. A transitional grandfather clause allowed city employees to continue living outside Orleans Parish until January 1, 1994, at which time compliance with the ordinance was required.

In 1991, the Police Association of New Orleans (PANO) filed a class action suit on behalf of its members and all employees of the City, seeking to have the ordinance declared unconstitutional. The trial court granted a temporary restraining order, enjoining the enforcement of the ordinance, and later certified the suit as a class action lawsuit, consolidating it with the lawsuit brought by New Orleans Fire Fighters' Association, Local 632 on behalf of the fire fighters of the City of New Orleans.

[94-1078 La. 3] On March 8, 1991, the trial court issued a preliminary injunction prohibiting the enforcement of the ordinance on the grounds it violated Article X, Section 10(A) of the 1974 Louisiana Constitution by impinging upon the express powers of the City Civil Service Commission. The City appealed and this court reversed, holding the ordinance did not fall within the express or implied powers of the City Civil Service Commission and therefore did not violate Article X, Section 10(A) of the Louisiana Constitution. New Orleans Firefighters Association, Local 632, AFL-CIO v. The City of New Orleans, 590 So.2d 1172 (La.1991). We did not address the plaintiffs' other arguments challenging the validity of the ordinance and remanded the case to the trial court to take additional evidence and to rule on these other arguments. Id. at 1177.

On June 18, 1992, the New Orleans City Council enacted Municipal Ordinance 15298, which amended and reenacted Article 22 of Chapter 2 of the City Code. The basic requirement of domicile was continued, with some changes in the definition of domicile. Also, a provision, entitled "Grandfather Clause," which became Section 2-805 of the City Code, exempted all officers or employees who on December 10, 1990 maintained their actual domicile outside Orleans Parish so long as they maintained the same out-of-city domicile, but with the proviso that these non-domiciliary employees must establish a domicile within the city in order to accept a promotion.

On July 16, 1992, the New Orleans City Council enacted Municipal Ordinance 15420, amending and reenacting the grandfather clause. The new ordinance exempted all officers and employees who on or before August 27, 1973 maintained a domicile outside Orleans Parish, and those who established a domicile outside the city after August 27, 1973 but who obtained written permission to do so from the CAO, from the requirement that one establish a domicile in the city in order to accept a promotion. Those hired subsequent to [94-1078 La. 4] August 27, 1973 and prior to December 10, 1990, who did not have written permission to maintain their domicile outside Orleans Parish were now the only employees subject to that requirement.

Thus, Article 22 of Chapter 2 of the City Code as presently written requires all city employees to be domiciled in the city, but excepts from that requirement all employees who were domiciled outside the city on December 10, 1990, as long as they maintain the same out-of-city domicile, and with the further proviso that those non-domiciliary employees hired after August 27, 1973 and prior to December 10, 1990, who did not have permission from the CAO to live outside of the city, must establish a domicile within the city in order to accept a promotion.

In response to the July 16, 1992 amendment to the grandfather clause, PANO filed a Supplemental and Amended Petition for Declaratory Judgment and a Request for a Temporary Restraining Order against the implementation and enforcement of the ordinance. The temporary injunction and later a preliminary injunction were granted. However, on April 23, 1993, following a hearing on PANO's request for a permanent injunction, the trial court upheld the constitutionality of the ordinance and dismissed PANO's suit.

The court of appeal reversed, finding the ordinance to be unconstitutional because (1) the provisions of the grandfather clause requiring non-domiciliary employees to establish their domicile in the city before accepting a promotion conflicts with Article X, Sections 7 and 10 of the Louisiana constitution giving the Civil Service Commission exclusive authority to regulate promotions; (2) since the provisions relating to promotions conflict with the constitutional provisions governing civil service, they also violate the home rule provisions of Article 6, Section 5(E) and 9(B); (3) the definition of "domicile" contained in the ordinance violates Article VI, Section 5(E), as it conflicts with general law, namely Louisiana Civil Code article 38, which [94-1078 La. 5] defines "domicile"; (4) the denial of promotional rights to certain non-domiciliary employees as opposed to others, does not suitably further an appropriate governmental interest and is discriminatory, and therefore violates the due process and equal protection clauses of the Louisiana constitution, Article I, Sections 2 and 3. The judgment of the court of appeal decreed that municipal ordinance 15298 be declared unconstitutional and that the City be enjoined from enforcing the provisions of ordinance 15298, as amended by ordinance 15420.

II.

The court of appeal held the domicile ordinance unconstitutionally infringed upon the exclusive power of the City Civil Service Commission to adopt rules for the regulation of promotion of city employees under Article X, Section 7 of the 1974 Louisiana Constitution. The court of appeal also relied heavily on Article X, Section 10(A)(1), which gives the Civil Service Commission its general rulemaking powers. These Sections provide:

Section 7. Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as practical, shall be competitive. The number to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.

Section 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety.

[94-1078 La. 6] The court of appeal stated that the domicile ordinance "destroys the competitive...