Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGraw v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

March 29, 2017

PIERRE A. MCGRAW
v.
THE CITY OF NEW ORLEANS AND HON. MITCHELL J. LANDRIEU, IN HIS CAPACITY AS MAYOR OF NEW ORLEANS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-00924, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Franklin H. Jones, III McALPINE & COZAD AND Vallerie Oxner AND James R. Logan, IV LOGAN LAW OFFICES, LLC AND John B. Dunlap, III DUNLAP FIORE, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS - PIERRE A. McGRAW

          Adam J. Swensek Chief Deputy City Attorney Cherrell R. Simms Sr. Chief Deputy City Attorney Rebecca H. Dietz City Attorney City of New Orleans COUNSEL FOR DEFENDANT/APPELLEE - THE CITY OF NEW ORLEANS AND MAYOR MITCHELL J. LANDRIEU

          (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)

          Marion F. Edwards, Pro Tempore Judge

         On December 18, 2015, the Honorable Mitchell J. Landrieu, the Mayor of New Orleans, signed into law an ordinance enacted by the New Orleans City Council that provided for the removal from publicly owned property of three monuments depicting General P.G.T. Beauregard, Jefferson Davis, and General Robert E. Lee, in their roles as former leaders of the Confederate States of America.[1] The enactment of the ordinance capped a six-month process of intense public debate and contentious governmental hearings concerning the fate of the three monuments. In enacting the monument removal ordinance, the City Council acted in accordance with City Code section 146-611. This ordinance provides that "[m]onuments, statues, plaques, or other structures, erections, or works of art commemorating an event or individual shall be removed from outdoor display on public property" after a finding by the City Council that such an item "constitutes a nuisance" in that:

(1) The thing honors, praises, or fosters ideologies which are in conflict with the requirements of equal protection for citizens as provided by the constitution and laws of the United States, the state, or the laws of the city and gives honor or praise to those who participated in the killing of public employees of the city or the state or suggests the supremacy of one ethnic, religious, or racial group over any other, or gives honor or praise to any violent actions taken wrongfully against citizens of the city to promote ethnic, religious, or racial supremacy of any group over another;
(2) Has been or may become the site of violent demonstrations or other activities that may threaten life or property; and
(3) Constitutes an expense for maintenance or the provision of security on a recurring basis that is unjustified when weighed against the historical or architectural significance, if any, of the thing and/or the merits of or reasons for outdoor display of the thing.

         Shortly after the removal ordinance's passage, the Monumental Task Committee, Inc., the Louisiana Landmarks Society, and Beauregard Camp No. 130, Inc., brought suit in federal district court against the City and several federal agencies in an attempt to halt the removal of the statues. In the context of this suit, the federal plaintiffs sought a temporary restraining order and preliminary injunction. Their petition asserted twelve causes of action encompassing claims that the defendants' actions violated: 1) federal statues enacted for the protection of historic landmarks; 2) 42 U.S.C. § 1983 and the First, Fifth, and Fourteenth Amendments of the United States Constitution; and 3) Article XII, Section 4 of the Louisiana Constitution; and 4) City Code section 146-611. The federal district court judge denied these plaintiffs' request for injunctive relief on January 26, 2016. See Monumental Task Committee, Inc., et al. v. Foxx, et al., 157 F.Supp.3d 573 (E.D. La. 2016), affirmed sub nom. Monumental Task Committee, Inc., et al. v. Chao, et al., __ Fed.Appx. __, 2017 WL 892492 (5th Cir. 2017).

         On January 27, 2016, Pierre A. McGraw, who is the founder and president of the Monumental Task Committee, filed the present suit for declaratory and injunctive relief in Civil District Court for the Parish of New Orleans against the City and Mayor Landrieu[2] in a further attempt to halt the removal of the statues.[3]Although he argues fewer causes of action than the federal plaintiffs, Mr. McGraw's bases for injunctive relief largely mirror those claims set out by the Monumental Task Committee in its federal petition. Like the Monumental Task Committee, Mr. McGraw argues that unless the City is enjoined from removing the monuments: 1) his substantive due process rights under both the U.S. and Louisiana constitutions will be violated; 2) his procedural due process rights will be violated because the monument removal ordinance did not comply with City Code section 146-611; and, 3) his rights under Article XII, Section 4 of the Louisiana Constitution will be violated. Unlike the Monumental Task Committee, however, Mr. McGraw argues that injunctive relief is also warranted because City Code section 146-611 unreasonably restricts his property rights, thus causing an unreasonable exercise of police power, in violation of Article I, Section 4 of the Louisiana Constitution.

         The City opposed Mr. McGraw's request. The district judge denied Mr. McGraw's request for a temporary restraining order and directed that a hearing be held on his request for a preliminary injunction.[4] At the close of the February 5, 2016 hearing, the district judge denied Mr. McGraw's request for a preliminary injunction:

The Court having heard argument of counsel, having received evidence and I mean I appreciate the passion and interest on both sides and I do not find that the City breached its responsibility under the Ordinance. . . . Again, my personal thoughts aside, the law presented, the evidence presented, the Court would deny the injunction that's been prayed for finding that there is no violation of the Louisiana Constitution that the City followed the strict mandates of its own Ordinance and that there are no property rights specifically that have been inserted and or due process rights which would necessitate the granting of injunction or the finding that plaintiffs have the ability at some point to win on the merits relative to this case.

         The district judge memorialized her oral ruling in a judgment signed on February 5, 2016.

         Mr. McGraw then sought a devolutive appeal of the February 5, 2016 denial of his request for injunctive relief. On appeal, Mr. McGraw argues that the district judge erred in denying his request for injunctive relief. He specifically argues that the district judge erred in refusing to conclude that he had acquired vested property rights in the monuments by operation of the civilian doctrine of negotiorum gestio because he has invested his own time and money in their maintenance and upkeep.[5] He, likewise, argues that the monuments are external symbols of his own distinctive culture, and thus protected by Article XII, Section 4, of the Louisiana Constitution.[6] Because he had acquired such property rights, he contends, the district judge thus erred in refusing to find that damage to the monuments occasioned by their removal and transportation would likewise cause irreparable harm to his rights in the monuments in the absence of injunctive relief. Such irreparable harm, he argues, violates his state and federal substantive and procedural due process rights.[7] He also asserts that the City's actions contravene Article I, Section 4 of the Louisiana Constitution, which guarantees his rights as a property owner to hold this property free of unreasonable statutory restrictions and exercises of police power.[8] And, he argues that the district judge erred in refusing to conclude that the City's removal of the monuments violates the protections afforded by Article XII, Section 4 of the Louisiana Constitution.

         Having reviewed the record and the applicable law, we affirm the February 5, 2016 judgment. Our purpose here is not to sit in judgment upon the propriety, vel non., of the City's political resolutions. The issue before us is not whether the monuments should be removed or left to stand. Rather, we are called upon to decide whether the district judge erred in denying Mr. McGraw's request for a preliminary injunction. In this case, Mr. McGraw has failed to establish that he has acquired any type of property rights in the monuments at issue, all of which are public things owned by the City in its public capacity. The district judge, accordingly, did not err in concluding that Mr. McGraw could not establish that he would suffer irreparable harm in the event the monuments are removed by the City. We now explain our rationale in more detail.

         I

         Before we address Mr. McGraw's assignments of error, we first discuss the ordinance employed by the City to remove the monuments at issue. We then set out the evidence introduced at the preliminary injunction hearing concerning the monuments. We then examine the various affidavits introduced by the parties in support of, and in opposition to, Mr. McGraw's request for injunctive relief.

         A

         In voting to remove the three monuments at issue, the City Council relied upon City Code section 146-611, which is situated within the Article VII of Chapter 146 of the City's codified ordinances. Article VII governs public monuments, while Chapter 146 sets out the City's regulations concerning streets, sidewalks, and other public places. The section itself is entitled "Removal from public property, " and provides in general that "[m]onuments, statues, plaques, or other structures, erections, or works of art commemorating an event or individual shall be removed from outdoor display on public property when required by and in accordance with the provisions of this section." City Code section 146-611(a). Subsection (b) specifically empowers the City Council "[o]n its own motion or upon presentation of a request of an elector of the city . . . [to] conduct a hearing to determine whether or not any monument, statue, or similar thing honoring or commemorating any person or event that is located on property owned or controlled by the city should be removed from public outdoor display." City Code section 146-611(b). Subsection (b) further provides that the "council may, by ordinance, cause the removal of the monument, statue, or other thing located outdoors on city property covered by the provisions of this section upon a finding that the thing constitutes a nuisance" in that the monument or statue:

(1) . . . honors, praises, or fosters ideologies which are in conflict with the requirements of equal protection for citizens as provided by the constitution and laws of the United States, the state, or the laws of the city and gives honor or praise to those who participated in the killing of public employees of the city or the state or suggests the supremacy of one ethnic, religious, or racial group over any other, or gives honor or praise to any violent actions taken wrongfully against citizens of the city to promote ethnic, religious, or racial supremacy of any group over another;
(2) Has been or may become the site of violent demonstrations or other activities that may threaten life or property; and
(3) Constitutes an expense for maintenance or the provision of security on a recurring basis that is unjustified when weighed against the historical or architectural significance, if any, of the thing and/or the merits of or reasons for outdoor display of the thing.
City Code section 146-611(b).

         Subsection (c) directs the City Council, when conducting a hearing in accordance with this section, to "solicit the recommendations of the city planning commission when required by the City Charter and comments and recommendations of the historic district landmarks commission, the Vieux Carré Commission (if applicable), other government or private historical offices or societies, the chief administrative officer, the city attorney, the superintendent of police, and the director of the department of property management." City Code section 146-611(c). This subsection further indicates that the council "shall also provide for the submission of comments and testimony by the public . . . [and] request that public hearings be conducted by and recommendations obtained from the human relations commission or other appropriate agencies." Id.

         In the aftermath of such hearings, "the council may by ordinance declare the monument, statue, or other thing covered by the provisions of this section a nuisance and may provide for the removal of the thing from outdoor public display." City Code section 146-611(d). Subsection (d), nevertheless provides that the removed monument "may then be displayed indoors at an appropriate facility, such as a museum or stored, donated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.