Burstein v. Morial

438 So. 2d 554, 1983 La. LEXIS 11361
Supreme Court of Louisiana·Decided September 6, 1983·No. No. 83-CC-1842·Published·Cited by 5 cases

Opinions

DENNIS, Justice.

We granted certiorari to consider two important questions which have arisen in the interpretation of the Charter of the City of New Orleans: (1) whether the Charter permits more than one attempt by the Council to override a Mayor’s veto; and (2) whether the appointment of a councilman to serve as acting mayor effectively reduces the size of the Council by one member so as to diminish the number of votes required to override a mayor’s veto.

There is more at stake, of course, than the fate of the particular ordinance which stirs the present controversy. Unless the Charter is subsequently amended, the fundamental balance of power between the legislative and executive branches of government, and the basic safeguards surrounding the city’s legislative process, depend on our efforts to discern the meaning of the Charter. Moreover, it is equally clear that the wisdom of the particular ordinance and the procedure followed in its enactment are not the concern of the courts. If a challenged action does not violate the Charter or other pertinent law, it must be sustained; and, by the same token, the fact that a given ordinance or procedure is efficient, fair, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Charter.

The facts in this case, which are not in dispute, were well stated by the trial court and repeated by the court of appeal, as follows:

Plaintiff-appellants are citizens, voters, and taxpayers of the City of New Orleans, who filed a Petition for Declaratory and Injunctive Relief on July 20, 1983, seeking a judgment declaring the vote of the Council of the City of New Orleans on July 7, 1983, to override the mayor’s veto of Ordinance No. 9237 M.C.S., to be ineffective, and to enjoin the Mayor, the City Council, five individual Council members, the Clerk of Council, the Commissioner of Elections, and the Secretary of State from taking any action in furtherance of the invalid Ordinance. On July 22, 1983, the Petition was amended to join the City of New Orleans as a defendant and to delete the name of one of three original plaintiffs.
The subject ordinance called for an election to submit to the voters of the City of New Orleans a proposal to amend Article IV of the Home Rule Charter of the City of New Orleans (the “Charter” or the “Home Rule Charter”) to allow for unlimited Mayoral terms beginning in 1987. The effect of the proposed amendment would be to allow unlimited terms to anyone except the current mayor. It was passed by the Council on June 16, 1983.
On June 24, Mayor Morial vetoed the proposed Ordinance, pursuant to Section 4r-206(2)(d) of the Home Rule Charter, which Section gives the mayor the power to veto ordinances. Proposed Ordinance 9237 M.C.S. was again presented to the [556] Council at its next regular meeting, July 7, 1983, pursuant to Section 3-113(3) of the Home Rule Charter, which provides that:
Ordinances vetoed by the Mayor shall be presented by the Clerk to the Council at its next regular meeting and should the Council then or at its next regular meeting adopt the ordinance by an affirmative vote of two-thirds of all its members, it shall become law. (emphasis supplied).
Since the Council consists of seven members, five votes are required to override a veto.
At the July 7 meeting of the Council, Mayor Morial appeared and delivered his veto message on proposed Ordinance Ño. 9237 M.C.S., responded to a question by Councilman Boissiere, and left the Council Chambers, nineteen minutes before the override vote on Ordiance 9237 M.C.S. Immediately upon leaving the Council Chambers, the Mayor stepped into a waiting automobile and was driven directly to New Orleans International Airport where he took the first available flight to Dallas, Texas. He returned on July 8.
Shortly after the Mayor had left the Council Chambers, Councilman Giarrusso gave a speech, during the course of which Ann Wheeler, an employee of the Mayor’s office, handed Councilman Barthelemy a letter informing the Councilman of the Mayor’s absence and of the Councilman’s appointment as Acting Mayor. Thereafter, Ms. Wheeler distributed copies of the letter to the other Councilmen and it was read into the record of the Council.
At that point the Clerk announced the reconsideration of Ordinance 9237 M.C.S., and the Council voted on the question: ‘Shall the Ordinance pass the objection of the Mayor notwithstanding?’
Section 3-107 and 4-204(3) of the Home Rule Charter prohibit a councilman who has been appointed Acting Mayor from voting, and Councilman Barthelemy was so advised at the time by City Attorney Salvador Anzelmo. Nevertheless, Acting Mayor Barthelemy voted on Ordinance 9237. His vote, subsequently held invalid by the Trial Court, appeared to give the proponents of the override a 5 to 2 margin. Later that afternoon, after conducting further business, the Council adjourned.
On July 21, 1983, the day after the present suit was filed, the Council met again. The minutes of the July 7 meeting were approved and adopted. After conducting some preliminary business, the Council began discussing another vote to override the Mayor’s veto, as insurance against the possibility that the July 7 vote might be held invalid. Councilman Boissiere moved that the Council ‘go to reconsider the vote on last week’s override of the vetoed Ordinance.’ That motion to reconsider carried 5 to 1. Mr. Anzelmo advised the Council that the override vote could not be reconsidered again because the Council’s Rules forbade reconsideration of a motion to reconsider. At that point, Councilman Early moved to suspend the Rules and Regulations of the Council (the “Rules”). The motion passed, 5 to 1. Councilman Boissiere then moved ‘to reconsider the vote on this override of the vetoed ordinance.’ The vote was 5 to 1 in favor of the override.
On the morning of trial, the Council, five individual Council members, and the Clerk of Council, filed an Answer, Exceptions of No Cause or Right of Action, and a Motion to Dismiss. The Answer denied that the Mayor had indeed been absent from the City at the time the vote was taken, urged that Councilman Barthele-my’s appointment as Acting Mayor was therefore invalid and consequently that the the July 7 vote was valid, so that the veto was successfully overridden on July 7. In the alternative, the Answer alleged that Sections 3-107 and 4-204(3) (the Acting Mayor provisions) of the Home Rule Charter are unconstitutional.

The trial court found that the mayor was in fact absent from the city on July 7, 1983 when the vote to override the veto was taken and held that this attempt to override failed because Councilman Barthelemy’s vote was invalid. The trial court concluded, [557] however, that the ordinance was properly adopted over the veto at the council’s July 21, 1983 meeting and therefore could be submitted to the voters at the October 22, 1983, election. The Court of Appeal reversed, holding that the ordinance had not been validly adopted at either meeting because a councilman is prohibited by the Charter from voting while he is serving as acting mayor, and because the Charter authorized but one attempt by the Council to override a mayor’s veto. We granted writs to consider the relators’ two principal arguments against the court of appeal’s decision.

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Burstein v. Morial, 438 So. 2d 554, 1983 La. LEXIS 11361 (La. 1983).

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