Honorable Jacques M. Roy, in His Capacity as Mayor v. Alexandria City Council

• Court: Louisiana Court of Appeal
• Decided: May 7, 2008
• Docket: CW-0007-1322
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CW 07-1322

HONORABLE JACQUES M. ROY, IN HIS CAPACITY AS MAYOR, ET AL.

VERSUS

ALEXANDRIA CITY COUNCIL, ET AL.

**********

ON SUPERVISORY WRITS FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 229,053 HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan, Judges.

WRIT DENIED.

Robert Lawrence Beck, Jr. Rivers, Beck, Dalrymple & Ledet P. O. Drawer 12850 Alexandria, LA 71315-2850 (318) 445-6581 Counsel for Plaintiff/Respondent: Honorable Jacques M. Roy Honorable Jacques M. Roy, in capacity as Mayor, et al.

George Carnal Gaiennie, III Hughes & LaFleur P. O. Box 1831 Alexandria, LA 71309-1831 (318) 443-4090 Counsel for Plaintiff/Respondent: Honorable Jacques M. Roy Honorable Jacques M. Roy, in capacity as Mayor, et al. John Wyeth Scott Attorney at Law P. O. Box 171 Alexandria, LA 71309 (318) 445-1474 Counsel for Defendants/Applicants: Honorable Charles F. Smith, Jr. Honorable Louis Marshall Honorable Myron K. Lawson Honorable Roosevelt L. Johnson Honorable Everett C. Hobbs Alexandria City Council

Toni Rachelle Martin Attorney at Law 6007 Legacy Loop Pineville, LA 71360 (318) 443-3229 Counsel for Defendants/Applicants: Honorable Charles F. Smith, Jr. Honorable Louis Marshall Honorable Myron K. Lawson Honorable Roosevelt L. Johnson Honorable Everett C. Hobbs Alexandria City Council SAUNDERS, Judge.

This case arises from a suit filed by the Mayor of Alexandria seeking a

judgment declaring City of Alexandria Ordinance 231-2007, enacted in August 2007,

invalid and seeking an injunction preventing members of the Alexandria City Council

from acting in furtherance of Ordinance 231-2007. Ordinance 231-2007 allows the

council to enter into contracts for legal services to be provided to the council.

On August 28, 2007, a temporary restraining order, enjoining execution of

Ordinance 231-2007, was signed by the trial court. On August 31, 2007, defendants

filed a motion for summary judgment. The trial court denied the summary judgment

and issued written reasons on October 5, 2007. In addition, the trial court granted a

preliminary injunction.

On October 9, 2007, defendants filed peremptory exceptions of nonjoinder of

a necessary party, no cause of action, and no right of action and also filed dilatory

exceptions of unauthorized use of summary proceeding and improper joinder of

parties. In addition, defendants filed a motion to reconsider the summary judgment

and preliminary injunction. The trial court denied the exceptions and the motion to

reconsider on October 11, 2007. It is from the denial of the peremptory exceptions

that the defendants took writs. No hearings are currently set in this matter, and the

trial court has stayed proceedings pending decision from this court.

For the following reasons, we deny the writ application.

FACTS AND PROCEDURAL HISTORY:

On August 29, 2007, Honorable Jacques M. Roy, Mayor of Alexandria

(“Mayor”), filed suit against the Alexandria City Council and its members

individually (“the City Council members”) who voted for, and also voted to override

the Mayor’s veto of, Alexandria Ordinance No. 231-2007 (“the Ordinance”). The Ordinance authorizes the City Council to appoint or retain legal counsel. The Mayor’s

suit sought to set aside, invalidate, or nullify the Ordinance. The suit also sought to

enjoin the City Council members, individually, from actions in furtherance of the

Ordinance.

The trial court issued a temporary restraining order, enjoining the City Council

members from execution of Ordinance 231-2007, on August 28, 2007. The City

Council members responded by filing a motion for summary judgment on August 31,

2007, which was denied. Further, the trial court granted a preliminary injunction.

On October 9, 2007, the City Council members filed peremptory exceptions of

nonjoinder of a necessary party, no cause of action, and no right of action and also

filed dilatory exceptions of unauthorized use of summary proceeding and improper

joinder of parties. In addition, they filed a motion to reconsider the summary

judgment and preliminary injunction. The trial court denied the exceptions and the

motion to reconsider on October 11, 2007. It is from the denial of the peremptory

exceptions that the City Council members took writs seeking resolution of this issue.

This court responded by asking counsel for the parties to submit briefs on two

issues: (1) Whether the Alexandria City Council is an entity that has the procedural

capacity to sue and/or be sued; and (2) Whether the City of Alexandria is a necessary

party to this action. Further, oral arguments were heard on those two issues.

DISCUSSION OF THE MERITS:

At issue in the instant writ application is whether the trial court erred in

denying defendants’ peremptory exceptions of nonjoinder, no cause of action, and no

right of action. Specifically, defendants seek to have the City of Alexandria named

as a party and argue that the individual council members are not proper parties to this

2 action.

Can the Alexandria City Council be sued:

In the instant case, in order to determine whether the City of Alexandria is a

necessary party, we must first determine whether the Alexandria City Council has

procedural capacity to sue and/or be sued.

We find the case of City Council of Lafayette v. Bowen, 94-584 (La.App. 3 Cir.

11/2/94), 649 So.2d 611, writ denied, 94-2940 (La. 1/27/95), 650 So.2d 244,

instructive on this issue. In Bowen, this court held that the Lafayette City Council did

not have the procedural capacity to sue or be sued as “[t]he [Lafayette] City Council

is not sui juris or juridically independent of the City of Lafayette. It is not an entity

to which the law attributes personality.” Id. at 616. The Bowen court reached this

conclusion based upon the silence of the Lafayette City Charter on whether the City

Council can sue and be sued when it stated:

The City Council is the legislative branch and governing authority of the City of Lafayette. As such, it is vested with all powers of the city except those which are otherwise provided by law or by the Charter.... The City Council is a branch or part of the greater corporate body politic or juridical entity, the City of Lafayette. The Charter (organic law), which clearly grants the City Council broad powers, restricts the City Council’s legal capacity to exercise such powers by establishing it as the legislative branch of city government. In this capacity, the City Council may only exercise its powers as an agency or division of the greater city government.

Id at 616.

In the case before us, Alexandria’s Home Rule Charter provides that “[a]ll

powers of the city shall be vested in the council, except as otherwise provided by law

or this charter, and the council shall provide for the exercise thereof and for the

performance of all duties and obligations imposed on the city by law.” The home rule

charter is silent on the capacity of the council to sue or be sued. The home rule

3 charter further provides that the Mayor is responsible for the supervision and

direction of all divisions. This includes the legal division, of which the city attorney,

appointed by the Mayor and approved by the council, is the head. In fact, the home

rule charter specifically provides that “[t]he city attorney shall serve as chief legal

adviser to the Mayor, City Council. . . .” The home rule charter also states that “[n]o

special legal counsel shall be employed by the city except by written contract and

approval of the City Council.”

Given the above, we find that the Alexandria City Council cannot sue or be

sued. La.Civ.Code art. 24 states that there are two kinds of persons: natural and

juridical. The City Council is neither, and, thus, cannot sue, be sued, or enter into a

contract as any exercise of the Ordinance by the City Council members would

require.

While the Alexandria City Council cannot be sued, the five individual members

who were eventually left in the suit can be sued as they are natural persons. The

injunctive relief sought by the Mayor, and granted by the trial court, was directed to

the individual council members and it restrained them from entering into an invalid

contract on behalf of the City of Alexandria. Whether that injunction can be sustained

without the City of Alexandria as a party to the proceedings is a question that is

answered below.

Is the City of Alexandria a necessary party to this action:

The peremptory exception of nonjoinder of a party is governed by La.Code

Civ.P. arts. 641 and 642. Louisiana Code of Civil Procedure Article 641 provides

that:

A person shall be joined as a party in the action when either: (1) In his absence complete relief cannot be accorded among those already

4 parties. (2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either: (a) As a practical matter, impair or impede his ability to protect that interest. (b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Here, the City of Alexandria does not have to be joined under La.Code Civ.P.

art. 641. Without the City, complete relief can be accorded to the Mayor or the City

Council members. Further, the City’s ability to protect its interest is already being

exercised by the inclusion of representatives of its two branches of government.

Finally, neither the Mayor nor the City Council members would be subject to any

“risk of incurring multiple or inconsistent obligations” as either the City Council

members would be restrained from exercising the Ordinance or the relief sought by

the Mayor would be denied. As such, we find that the City of Alexandria is not a

party that must be joined in the proceedings under La.Code Civ.P art. 641.

Moreover, even if the City of Alexandria did have to be joined as a party under

La.Code Civ.P. art. 641, but could not be made a party, Under La.Code Civ.P. art. 642

the action should still proceed. Louisiana Code of Civil Procedure Article 642

governs the determination made by the court whenever joinder of a party cannot be

made. Louisiana Code of Civil Procedure Article 642 provides a non-exclusive list

of factors to be considered by the Court in its determination as to whether this action

should proceed in the absence of the City of Alexandria. Those factors include the

following:

1. To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present. 2. The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.

5 3. Whether a judgment rendered in the person’s absence will be adequate. 4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Under the factors above, we cannot see any reason why the action cannot

proceed without the City of Alexandria. Any judgment in this case would not be

prejudicial to the City of Alexandria, the Mayor, or the City Council members. The

City Council members have suggested no prejudice which the City might experience

by resolution on the merits in the City’s absence.

Further, any judgment rendered granting the relief sought will be adequate.

Injunctive relief has been ordered by the trial court restraining and enjoining acts

which are impermissible by the members of the City Council under the pertinent laws

without directly declaring the City of Alexandria’s Ordinance invalid.

Finally, the Mayor will have no adequate remedy if the action is dismissed for

nonjoinder. A dismissal of the Mayor’s action will deprive him of his only adequate

remedy, that being injunctive relief against the City Council members enjoining them

from entering into invalid contracts on the City of Alexandria’s behalf.

The City Council members point to La.Code Civ.P art. 1880 to argue that the

City of Alexandria must be present for the proceedings to proceed. Article 1880

provides, in pertinent part:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard. (emphasis added).

While it is clear that Article 1880 requires the City of Alexandria be a party to

6 these proceedings, the appropriate analysis does not end there. The City of

Alexandria, a body politic, has two branches, legislative and executive. Both of these

branches are already in these proceedings, the executive via the Mayor and the

legislative via the City Council members. As such, the goal of Article 1880, that the

municipality be heard or represented, is being met. Further, the City of Alexandria

cannot practically be added as a party herein for to do so would present a party

incapable of securing effective and independent representation. Alexandria’s Home

Rule Charter provides, in pertinent part, the following:

(A) The head of the legal division shall be the city attorney. . . (B) The city attorney shall serve as chief legal advisor to the Mayor, City Council and all divisions or departments, offices and agencies, shall represent the city in all legal proceedings. . . (C) Any assistant city attorneys authorized by the City Council shall be appointed by the city attorney and serve at his pleasure. (D) No special legal counsel shall be employed by the city except by written contract and approval of the City Council.

This provision requires the city attorney, an assistant city attorney, or special

counsel appointed by the city attorney to represent the city if it is a named party. The

facts of this case and the Ordinance at issue clearly indicate that the City Council

members want to enter into a contract with an attorney of their own as they are not

satisfied with the actions of the current city attorney. If the City of Alexandria is

named as a party, the city attorney will represent the City, but the two branches of the

City government, the Mayor and the City Council members, have diametrically

opposed views on the validity of the Ordinance.

Given the above, we find no reason that the proceedings cannot proceed

without the inclusion of the City. Its actual interests are already represented by its

only two components. Its inclusion would add nothing to a fair and just resolution of

the substantive issues presented herein. The issues in this case have been adequately

7 argued by the parties, and as such, the City of Alexandria has been represented and

heard.

Peremptory exceptions of no right of action and no cause of action:

The City Council members raised peremptory exceptions of no right of action

and no cause of action. The trial court did not err in denying these exceptions.

Louisiana Code of Civil Procedure Article 1872 provides that interested parties

whose rights may be affected by a municipal ordinance may have the validity of the

ordinance determined. Here, the Mayor has brought suit in his individual capacity.

As a taxpayer of the City of Alexandria, he is an interested party and thus has a right

of action to bring the suit. With respect to the no cause of action exception, La.Code

Civ.P. arts. 1871 and 1872 do provide a cause of action for bringing suit to obtain a

declaratory judgment when the validity of a municipal ordinance is involved.

CONCLUSION:

We agree with the trial court’s decision to grant the relief sought by the Mayor.

As such, we deny the City Council members’ writ application.