McGraw v. City of New Orleans

215 So. 3d 319, 2016 La.App. 4 Cir. 0446, 2017 WL 1164945, 2017 La. App. LEXIS 491
CourtLouisiana Court of Appeal
DecidedMarch 29, 2017
DocketNO. 2016-CA-0446
StatusPublished
Cited by4 cases

This text of 215 So. 3d 319 (McGraw v. City of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGraw v. City of New Orleans, 215 So. 3d 319, 2016 La.App. 4 Cir. 0446, 2017 WL 1164945, 2017 La. App. LEXIS 491 (La. Ct. App. 2017).

Opinion

Judge Marion F. Edwards, Pro Tempore

|, 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, Jef[321]*321ferson 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:

|a(l) 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., 678 Fed.Appx. 250, 2017 WL 892492 (5th Cir. 2017).

|aOn January 27, 2016, Pierre A. McGraw, who is the founder and president of the Monumental Task Committee, filed the present suit for declaratory and injunc-tive relief in Civil District Court for the Parish of New Orleans against the City and Mayor Landrieu2 in a further attempt [322]*322to 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 injunc-tive 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.

[4The 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 [323]*323|sHe, 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,

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Bluebook (online)
215 So. 3d 319, 2016 La.App. 4 Cir. 0446, 2017 WL 1164945, 2017 La. App. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgraw-v-city-of-new-orleans-lactapp-2017.