text:
    Reginald COMMODORE and Managing Change, LLC v. The CITY OF NEW ORLEANS, the City Council of the City of New Orleans, Councilmember Helena Moreno, Councilmember Jason Rogers Williams, Councilmember Joseph L. Giarrusso, III, Councilmember Jay H. Banks, Councilmember Kristin Giselson Palmer, Councilmember Jared C. Brossett, and Councilmember Cyndi Nguyen
    NO. 2019-CA-0127
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2019
    Albert A. Thibodeaux, Charline K. Gipson, DAVILLIER LAW GROUP, LLC, 935 Gravier Street, Suite 1702, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Shawn Lindsay, DEPUTY CITY ATTORNEY, Michael J. Laughlin, ASSISTANT CITY ATTORNEY, Donesia D. Turner, SENIOR CHIEF DEPUTY CITY ATTORNEY, Churita H. Hansell, CHIEF DEPUTY CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, City Hall - Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
    Judge Dale N. Atkins Defendants, the City of New Orleans, the City Council of New Orleans, and the Councilmembers appeal a judgment granting a writ of mandamus and ordering the Councilmembers to adopt and ratify the City Council's May 24, 2018 motion to approve an ordinance authorizing a conditional use permit for Plaintiffs, Reginald Commodore and Managing Change, LLC, to operate a neighborhood commercial establishment for a specialty restaurant. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
    FACTUAL AND PROCEDURAL HISTORY
    Plaintiffs, Reginald Commodore and Managing Change, LLC ("Plaintiffs"), applied to the City Planning Commission ("CPC") for a conditional use permit for property located at 938-940 Louisiana Avenue and 3406 Constance Street to establish an ice cream parlor in a Historic Urban Two-Family Residential District (HU-RD2). The matter was assigned Zoning Docket No. 043/18 and was initiated by City Council Motion No. 18-25.
    In March of 2018, the CPC Staff Report recommended approval of Plaintiffs' request under Zoning Docket No. 43/18 "subject to seven (7) provisos." The report provided that the proposed conditional use was "consistent with the general purpose and intent of the applicable zoning district regulations, would reestablish a very low-intensity commercial use on site, and would bring a vacant property back into commerce while limiting the potential impact on surrounding residences" and was consistent with the "Plan for 21st Century." However, the CPC vote resulted in a recommendation of no legal majority to the City Council.
    On May 24, 2018, the Councilmembers adopted Motion M-18-204 to allow the conditional use request by a vote of six to one. The motion was forwarded to the City Attorney's Office for preparation of a proposed ordinance.
    On July 12, 2018, the ordinance was assigned Calendar No. 32,321 and introduced and included the seven provisos recommended by the CPC. On August 9, 2018, the ordinance was placed on the agenda but was unanimously denied by the Councilmembers.
    Thereafter, on September 10, 2018, Plaintiffs filed a petition against the City, the City Council, and the Councilmembers (collectively, "the City") requesting a writ of mandamus be issued compelling the members of the City Council to adopt the final ordinance ratifying its May 24, 2018 decision to grant a conditional use permit for the ice cream parlor. Plaintiffs amended their petition on September 13, 2018.
    On September 17, 2018, the trial court issued an alternative writ and ordered the City to show cause on October 4, 2018, why a peremptory writ should not issue. In response, the City filed exceptions of prematurity and no cause of action for failure to exhaust administrative remedies.
    The exceptions and mandamus came for hearing before the trial court on October 4, 2018. After arguments, the trial court denied the City's exceptions. The trial court took the mandamus under advisement and on November 2, 2018, the trial court granted the petition for writ of mandamus. Thereafter, the City filed requests for written reasons from the trial court's decision to grant the writ of mandamus. The trial court issued written reasons on December 4, 2018.
    The trial court signed the judgment on the mandamus on December 14, 2018 and the judgment on the exceptions on December 28, 2018. The judgment on the mandamus ordered and compelled the Councilmembers to "perform their ministerial duty" and affirmatively vote on an ordinance introduced "on July 12, 2018 consistent with the council's discretionary May 24, 2018" motion of approval vote and adopt the final ordinance "ratifying the City Council's May 24, 2018, decision that authorized the conditional use permit" for Plaintiffs.
    On December 19, 2018, the City filed a motion for suspensive appeal from the December 14, 2018 judgment. The trial court granted the motion on December 21, 2018. This timely appeal follows.
    JURISDICTION
    Prior to addressing the merits of the appeal, appellate courts have the duty to determine sua sponte whether our appellate court jurisdiction has been properly invoked by a valid final judgment. Bayer v. Starr Int'l Corp. , 2017-0257, p. 3 (La. App. 4 Cir. 8/15/17), 226 So.3d 514, 517-18 (citing Moon v. City of New Orleans , 2015-1092, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ; Tsegaye v. City of New Orleans, 2015-0676, p. 3 (La App. 4 Cir. 12/18/15), 183 So.3d 705, 710 ; Delta Staff Leasing, LLC v. South Coast Solar, LLC, 2014-1328, p. 1 (La. App. 4 Cir. 9/23/15), 176 So.3d 668, 668 ). This Court in Bayer explained:
    "A valid judgment must be precise, definite, and certain. The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment." Urquhart v. Spencer , [20]15-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077, Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc. , [20]10-477, p.13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916 ). A valid final judgment must contain definitive decretal language. Moon , [20]15-1092, p. 6, 190 So.3d at 425 ; Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , [20]14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910 ). This Court holds that the definitive decretal language necessary for a valid final judgment has three components: (1) it must name the party in favor of whom the ruling is ordered; (2) it must name the party against whom the ruling is ordered; and (3) it must state the specific relief that is granted or denied. Freeman v. Phillips 66 Company , [20]16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440 ; Tsegaye , [20]15-0676, p. 3, 183 So.3d at 710 ; Mid City Holdings , [20]14-0506, p. 3, 151 So.3d at 910 ; Palumbo v. Shapiro , [20]11-0769, p. 5 (La. App. 4 Cir. 12/14/11), 81 So.3d 923, 927 ). "In the absence of the necessary decretal language, the judgment is not final and appealable." Urquhart , [20]15-1354, p. 3, 204 So.3d at 1077.
    * * *
    In a case with multiple defendants or plaintiffs, the failure to name the particular party in favor or against whom a ruling is ordered can render the judgment fatally defective if one cannot determine from its face the rights of each party and the relief to which the parties are entitled. La. C.C.P. art. 1841 ; Urquhart , [20]15-1354, pp. 4-5, 204 So.3d at 1078. The relief granted or denied must be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment. Moon , [20]15-1092, p. 6, 190 So.3d at 425-426 ). A judgment which merely decrees that defendants' motion for summary judgment be granted, without stating what claims, issues, or parties are being disposed of or dismissed, lacks necessary decretal language and cannot be considered a valid final judgment. In re Medical Review Panel of Williams v. EMSA Louisiana, Inc. , [20]15-1178, p. 2 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423 ; Contreras v. Vesper , [20]16-318, p. 3 (La. App. 5 Cir. 10/19/16), 202 So.3d 1186, 1188. "In the absence of the necessary decretal language, the judgment is not final and appealable" and this Court lacks appellate jurisdiction to review the merits of this matter. Urquhart , [20]15-1354, p. 3, 204 So.3d at 1077.
    Bayer , 2017-0257, pp. 3-5, 226 So.3d at 517-18.
    The December 14, 2018 judgment, from which the City seeks an appeal, states, in pertinent part:
    THIS CAUSE came for hearing before this Court on Thursday, October 4, 2018, on petitioners Reginald Commodore and Managing Change, LLC's rule to show cause why the alternative writ of mandamus issued by this Honorable Court on September 17, 2018 should not be made peremptory.
    * * *
    IT IS ORDERED, ADJUDGED AND DECREED that the alternative writ of mandamus issued in this proceeding on September 17, 2018 is made peremptory and Councilmember Helena Moreno, Councilmember Jason Rogers Williams, Councilmember Joseph "Joe" I. Giarrusso III, Councilmember Jay H. Banks, Councilmember Kristin Gisleson Palmer, Councilmember Jared C. Brossett, and Councilmember Cyndi Nguyen are hereby ordered and compelled to perform their ministerial duty and, through an affirmative vote on the ordinance that was assigned Calendar No. 32,321 and introduced on July 12, 2018 consistent with the council's discretionary May 24, 2018 Motion of Approval vote, adopt the final ordinance ratifying the City Council's May 24, 2018, decision that authorized the conditional use permit for 938-940 Louisiana Avenue.
    The judgment names Plaintiffs, Reginald Commodore and Managing Change, LLC, as the parties that filed the writ of mandamus and designates the Councilmembers as the parties against whom the mandamus was ordered. Additionally, while the judgment does not explicitly state the writ of mandamus is granted, it does specify the relief as it orders the Councilmembers to act on the ordinance. Moreover, the relief granted is evident from the language of the judgment without reference to other documents. As such, the December 14, 2018 judgment contains sufficient decretal language to confer jurisdiction.
    DISCUSSION AND ANALYSIS
    The City argues that the trial court erred in granting the mandamus and ordering the Councilmembers to vote to approve the request for conditional use because the decision to adopt or not adopt an ordinance falls within the Councilmembers' legislative discretion, and is not a ministerial act which is the subject of a mandamus proceeding. The City also claims that the trial court erred in denying its exception of no cause of action because the petition for writ of mandamus failed to state a cause of action upon which relief may be granted. The City further argues that the trial court erred in denying its exception of prematurity because Plaintiffs failed to timely file an appeal of the City Council's August 9, 2018 decision, which denied their conditional use request. Lastly, the City requests that Plaintiffs be taxed with the court costs it incurred in defending the case.
    Mandamus
    A writ of mandamus may be "directed to a public officer to compel the performance of a ministerial duty required by law." La. C.C.P. art. 3863. A writ of mandamus may be issued in all cases where the law provides no other relief by ordinary means. La. C.C.P. art. 3862.
    "Upon the filing of a petition for a writ of mandamus, the court shall order the issuance of an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary." La. C.C. art. 3865. After the hearing, the court may render judgment making the writ peremptory. La. C.C. art. 3866.
    "Ministerial duties are duties in which no element of discretion is left to the public officer." Lens v. Landrieu , 2016-0639, p. 3 (La. App. 4 Cir. 12/14/16), 206 So.3d 1245, 1248 (citing Hoag v. State , 2004-0857, p. 7 (La. 12/1/04), 889 So.2d 1019, 1024 ). "A ministerial duty is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law." Id. "If a public officer is vested with any element of discretion, mandamus will not lie." Id.
    "Mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief." Lens , 2016-0639, pp. 3-4, 206 So.3d at 1248 (citing Bd. of Trustees of Sheriff's Pension & Relief Fund v. City of New Orleans , 2002-0640, p. 2 (La. 5/24/02), 819 So.2d 290, 292 ). "[M]andamus may not be granted where ... ordinary means afford adequate relief." Lens , 2016-0639, p. 4, 206 So.3d at 1248 (citing Aberta, Inc. v. Atkins , 2012-0061, pp. 3-4 (La. 5/25/12), 89 So.3d 1161, 1163 ).
    Generally, an appellate court reviews a trial court's judgment on a writ of mandamus under an abuse of discretion standard. Lewis v. Morrell , 2016-1055, p. 5 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, 740 (citing Hatcher v. Rouse , 2016-0666, p. 3, n. 2 (La. App. 4 Cir. 2/1/17), 211 So.3d 431, 433 ; Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 2016-0566, p. 12 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037 ). Also, a trial court's findings of fact in a mandamus proceeding are subject to a manifest error standard of review. St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Constr. Co., 2016-0907, p. 4 (La. App. 4 Cir. 4/5/17), 220 So.3d 6, 10. However, questions of law, such as the proper interpretation of a statute, are reviewed by appellate courts under the de novo standard of review, and the appellate court is not required to give deference to the lower court in interpreting a statute. Carver v. Louisiana Dep't of Pub. Safety , 2017-1340, p. 4 (La. 1/30/18), 239 So.3d 226, 230 ; St. Bernard Port, Harbor & Terminal Dist., 2016-0907, p. 4, 220 So.3d at 10.
    The City claims the New Orleans Home Rule Charter and the Comprehensive Zoning Ordinance of New Orleans ("CZO") grant the City Council broad discretionary power to adopt ordinances. The City claims the City Council's vote to approve the motion on May 24, 2018 was not an approval or a final decision of the proposed ordinance to grant Plaintiffs' request for conditional use. It argues that the motion simply directed the drafting of the proposed ordinance. The City claims that the proposed ordinance does not have the effect of law until it is adopted by a vote of majority of all members of the City Council pursuant to Sec. 3-112(10) of the Home Rule Charter. The City argues that the May 24, 2018 motion does not have the effect of law and merely allows more time for consideration. The City states that the vote to approve motion under CZO Sec. 4.3.D.4(c) does not obligate the vote for approval of an ordinance because such a legislative act is an exercise of discretion. Thus, the City claims a mandamus cannot be used to compel the City Council to adopt the request for conditional use.
    Home Rule Charter, Article III, Sec. 3-101(1) provides for the City Council's legislative authority and states "[a]ll legislative powers of the City shall be vested in the Council." Sec. 3-112 outlines the introduction, consideration, and passage of ordinances. It provides, in part:

      The seven provisos related to securing the appropriate rights to use City property for any and all encroachments; submitting an updated site plan, indicating the restoration of the sidewalk and curb along the front of Constance Street and the location of the trash receptacle; proposed signage and permits thereto; the prohibition of outside storage or display; and the hours of operation. It also required that the Department of Safety and Permits issue no building permits or licenses for the project until final development plans were approved by the CPC and recorded with the Conveyance Office and that the "failure to complete the conditional use process by properly recording plans within one year or failure to request an administrative extension" as provided for in Comprehensive Zoning Ordinance would void the conditional use approval.

      The Motion stated, in part:
      BE IT MOVED BY THE COUNCIL OF THE CITY OF NEW ORLEANS,
      That the recommendation of "NO LEGAL MAJORITY" of the City Planning Commission on ZONING DOCKET NO. 43/18 - CITY COUNCIL MOTION NO. M- 18-25 - Requesting a conditional use to permit a neighborhood commercial establishment for a specialty restaurant in an HU-RD2 Historic Urban Two-Family Residential District, on Square 161, Pt. Lot 16 or Lot 16, in the Sixth Municipal District, bounded by Louisiana Avenue and Constance, Delachaise, and Laurel. Streets (Municipal Addresses: 938-940 Louisiana Avenue and 3406 Constance Street), be, and the request is hereby granted, subject to seven (7) provisos as stated in the City Planning Commission's report.
      BE IT FURTHER MOVED, that a copy of the report of the City Planning Commission and of this motion be forwarded to the City Attorney's Office for the preparation of an ordinance to effectuate the request.

      Prior to the denial of the conditional use request, Plaintiffs sent a letter to the Councilmembers urging them to adopt the conditional use ordinance. The letter noted that Councilmember Banks had advised them that the adoption of the ordinance was discretionary but argued that the Comprehensive Zoning Ordinance mandates the adoption thereof.

      See Wolfe v. Atkins , 2011-1481, p. 2 (La. App. 4 Cir. 4/18/12), 90 So.3d 1214, 1214 (the trial court has a mandatory duty to issue the alternative writ of mandamus upon the filing of the petition for writ of mandamus); Naquin v. Iberia Parish Sch. Bd. , 157 So.2d 287, 289 (La. App. 3d Cir. 1963) (the trial court is under a mandatory duty to issue the writ of alternative mandamus, which is the nature of a rule to show cause why the peremptory writ of mandamus should not issue).

      The City also requested written reasons for the trial court's denial of the exceptions, which were issued on November 16, 2018.

      In the reasons for judgment on the mandamus, the trial court stated:
      Plaintiffs allege that the language of the New Orleans Comprehensive Zoning Ordinance (hereinafter "CZO") § 4.3 confers a ministerial duty on the City Council (hereinafter "Council") whilst Defendants maintain otherwise. This Court agrees with Plaintiffs. In River Street Ventures, LLC v. City of New Orleans and the New Orleans City Council (Docket No. 2018-7160), this Court concluded that CZO § 4.3, which governs conditional use ordinance applications, mandates actions upon the Council and exercises a bind on the Council's otherwise unfettered legislative discretion. In reaching that conclusion particular attention was given to the meanings of the words adopt and ratify and this Court resolved that those words place an affirmative or otherwise ministerial duty on the Council to, upon final voting, pass the proposed ordinances that were approved at the initial hearing.
      This case, like River Street , seeks to enforce the language of the CZO as it pertains to the Council adopting and ratifying conditional use ordinances that were approved at the initial public hearing. After the initial vote takes place and a conditional use permit is granted, the Court realizes that the remainder of the CZO procedure for conditional use ordinances prior to the Mayoral veto is ultimately a formality; and the Council must pass the proposed final ordinance and forward it to the Mayor for her to decide whether she will exercise her veto.
      The River Street Ventures case referred to by the trial court is a decision from the Civil District Court and is not contained in the record for appeal. The reasons for judgment parallel the statements articulated by the trial court on November 2, 2018, when it ruled on the writ of mandamus.

      See Neighbors First for Bywater, Inc. v. City of New Orleans/ New Orleans City Council, 2017-0256, --- So.3d ----, 2017 WL 6350339 (La. App. 4 Cir. 12/13/17) (finding that the judgment, which stated petitioners' appeal is denied, indicated the relief afforded and the party against whom relief was denied and thus contained definitive decretal language that was sufficient to confer appellate jurisdiction, even though reasons for judgment were set forth in judgment itself); State through Morrell v. City of New Orleans through Landrieu, 2017-0110 (La. App. 4 Cir. 12/21/17), 234 So.3d 1071, writ denied 2018-0116 (La. 3/9/18), 237 So.3d 1192 (trial court judgment had decretal language to confer appellate jurisdiction in petition for writ of mandamus even though the judgment failed to specify name of party against whom ruling was ordered and failed to state party in whose favor remedy was granted because there were only two parties in the litigation and thus was clear in whose favor the judgment was granted and because the nature of the specific relief could be determined from the judgment without reference to an extrinsic source); but see Moon v. City of New Orleans , 2015-1092, 2015-1093 (La. App. 4 Cir. 3/16/16), 190 So.3d 422 (finding that trial court order stating that "the exceptions filed by the city in the above captioned matter are hereby granted" was not a final appealable order where the trial court failed to state which of the exceptions it was granting and did not expressly dismiss the case).

      Plaintiffs concede in their opposition brief that the City Council is a powerful legislative body with broad discretion and that the CZO spells out the process for conditional use applications, but claim the City Council failed to follow it.

   (1) Proposed ordinances must be complete and in writing and may be introduced by any member at any meeting of the Council. Every ordinance shall embrace but one object except those approving the annual operating and capital budgets and codifications.
(2) After a proposed ordinance has been introduced, copies of it shall forthwith be prepared and distributed to each member of the Council and the Mayor and made available to the public.
* * *
(5) Proposed ordinances on any of the following specified subjects can be adopted only at a regular meeting of the Council and shall not be adopted until at least twenty calendar days have transpired beginning on the day after the date of introduction of the ordinance and not until a notice of the introduction of such proposed ordinance shall have been published in the official journal of the City not less than seven calendar days nor more than fourteen calendar days after the introduction thereof, which notice shall state the substance of the proposed ordinance and the date of the meeting at which the Council shall begin its consideration thereof:
* * *
(b) Imposing any license, requiring any permit, establishing any charge for services rendered, or increasing the rate of any license, fee, or utility charge.
(c) The adoption, amendment, or comprehensive revision of the Master Plan or the Comprehensive Zoning Ordinance, including without limitation text amendments, zoning or rezoning, or changing the zoning districts or classifications.
* * *
(9) Votes at final passage shall be taken by ayes and nays and the names of the councilmembers voting for and against each proposed ordinance or amendment shall be entered upon the journal of proceedings to be kept of all transactions of the Council.
(10) No proposed ordinance shall be adopted except by the affirmative vote of a majority of all members of the Council. [Emphasis added].

New Orleans, Home Rule Charter, Art. III, § 3-112.

CZO Sec. 4.3 addresses applications for conditional use. Sec. 4.3.D.4, which is the provision primarily at issue in this case, provides for action of the City Council after the CPC acts on a conditional use request. It states:

a. The City Council shall hold a public hearing in accordance with its rules and take action by motion of approval , modified approval, or denial sixty (60) days from receipt of a City Planning Commission recommendation. The City Council may not take official action upon any application requiring a recommendation of the City Planning Commission until the report of the Commission has been received or, if the City Planning Commission has failed to act by a vote of the majority of the Commission members, once the application has been forwarded to the City Council without recommendation.
b. If the City Council fails to take action by motion sixty (60) days from receipt of the City Planning Commission recommendation, the application is denied. If the application is forwarded to the City Council without recommendation from the City Planning Commission and the City Council fails to take action by motion sixty (60) days from the date it received the application, the application is denied.
c. If the City Council takes action by motion of approval or modified approval, the City Council shall forward the motion to the City Law Department for preparation of an ordinance. Once the ordinance is introduced by the City Council, the ordinance shall layover a minimum of twenty-one (21) days before the Council may adopt it. The City Council shall adopt the final ordinance ratifying its decision within ninety (90) days of the date that it took action by motion. [Emphasis added].

New Orleans, CZO, § 4.3.

The parties dispute the interpretation of the last sentence of CZO Sec. 4.3.D.4(c). The City claims that Sec. 4.3.D.4(c) simply sets forth the time frame for the City Council to vote and does not require it to adopt an ordinance. Plaintiffs, however, claim there is no ambiguity in the last sentence of the provision and that it clearly states that the City Council "shall adopt" the ordinance ratifying the May 24, 2018 decision to grant conditional use within ninety days. Accordingly, Plaintiffs argue the City Council had a ministerial duty to adopt the conditional use ordinance approved on May 24, 2018. Plaintiffs also maintain the City Council's decision to reverse and deny the ordinance after approving the ordinance was contrary to CZO Sec. 4.3.D.4(c).

The Louisiana Supreme Court discussed the interpretation of statutes in Pumphrey v. City of New Orleans , 2005-0979, pp. 10-11 (La. 4/4/06), 925 So.2d 1202, 1209-10, and stated in pertinent part:

The fundamental question in all cases of statutory interpretation is legislative intent and the ascertainment of the reason or reasons that prompted the Legislature to enact the law. In re Succession of Boyter, [19]99-0761, p. 9 (La. 1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Id.; Stogner v. Stogner, [19]98-3044, p. 5 (La. 7/7/99), 739 So.2d 762, 766. Legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the Legislature's intent. La. [R.S.]1:4 (2004); La. [C.C.] art. 2 (2004) ; Lockett v. State, Dept. of Transp. and Development, [20]03-1767, p. 3 (La. 2/25/04), 869 So.2d 87, 90.
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature. La. [C.C.]art. 9 (2004); Lockett, [20]03-1767 at p. 3, 869 So.2d at 90-91 ; Conerly v. State, [19]97-0871, p. 3-4 (La. 7/8/98), 714 So.2d 709, 710-11. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the words of law must be given their generally prevailing meaning. La. [C.C.] arts. 10 and 11 (2004) ; Lockett, [20]03-1767 at p. 4, 869 So.2d at 91 ; Ruiz v. Oniate, [19]97-2412, p. 4 (La. 5/19/98), 713 So.2d 442, 444. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole, and laws on the same subject matter must be interpreted in reference to each other. La. [R.S.] 1:3 (2004) ; La. [C.C.] arts. 12 and 13 ; Lockett, [20]03-1767 at p. 4, 869 So.2d at 91.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the Legislature in enacting it. Boyter, [19]99-0761 at p. 9, 756 So.2d at 1129 ; Stogner, [19]98-3044 at p. 5, 739 So.2d at 766. The statute must, therefore, be applied and interpreted in a manner, which is consistent with logic and the presumed fair purpose and intention of the Legislature in passing it. Boyter, [19]99-0761 at p. 9, 756 So.2d at 1129. This is because the rules of statutory construction require that the general intent and purpose of the Legislature in enacting the law must, if possible, be given effect. Id.; Backhus v. Transit Cas. Co., 549 So.2d 283, 289 (La. 1989). Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Boyter, [19]99-0761 at p. 9, 756 So.2d at 1129. It is likewise presumed that the intention of the legislative branch is to achieve a consistent body of law. Stogner, [19]98-3044 at p. 5, 739 So.2d at 766.

Using the aforementioned principles, the trial court erred in interpreting CZO Sec. 4.3.D.4(c) as providing for a ministerial duty to definitively adopt a proposed ordinance. A vote to approve the May 24, 2018 motion does not legally bind the City Council to then affirmatively adopt an ordinance as final. Although the last sentence provides the City Council shall adopt the ordinance ratifying the decision within ninety days from the date it acted on the motion, the previous sentence provides the City Council may adopt it after a minimum of twenty-one days from when the City Council approved the motion. Reading the sentences together and in reference to each other, as the rules of interpretation provide, we conclude that the last statement of the CZO Sec. 4.3.D.4(c), sets forth a time period for which the City Council must vote on a proposed ordinance and does not obligate that the City Council to accept it. Otherwise, the second sentence of CZO Sec. 4.3.D.4(c) giving the City Council discretion in which it may or may not adopt an ordinance would be superfluous. A vote to adopt or deny a proposed ordinance thus is within the City Council's discretion, contrary to Plaintiff's assertions, and thus is not a ministerial duty in which a mandamus could be issued. Accordingly, the trial court erred in ordering the City Council to adopt and ratify the proposed ordinance, as it is vested in discretion. See Humane Soc'y of New Orleans v. Landrieu , 2013-1059, p. 4 (La. App. 4 Cir. 2/26/14), 135 So.3d 1195, 1197 (a mandamus is not available to compel performance that requires the exercise of discretion, "however slight").

Additionally, as discussed above, Home Rule Charter, Sec. 3-112(9) provides that votes at final passage of an ordinance shall be taken by a vote of the Councilmembers voting for and against each proposed ordinance. Sec. 3-112(10) also states that no proposed ordinance shall be adopted except by the affirmative vote of a majority of all members of the City Council. These provisions further demonstrate the City Council's authority to accept or deny a proposed ordinance. The Home Rule Charter does not mandate the City Council affirmatively vote in favor of an ordinance.

Pursuant to the Home Rule Charter and the CZO, a vote of the City Council is discretionary and cannot be compelled by a writ of mandamus. Therefore, the trial court erred in granting the writ of mandamus and ordering the Councilmembers to vote to adopt and ratify the proposed conditional use ordinance.

Exceptions of No Cause of Action and Prematurity

The City argues that the trial court erred in denying its exception of no cause of action and its exception of prematurity. However, because we reverse on the mandamus, any discussion on the exceptions is pretermitted.

Court Costs

The City also argues this Court should order and assess all court costs of defending this matter against Plaintiffs under La. R.S. 13:4521(A)(1). This statute addresses temporary deferment of court costs during the pendency of a lawsuit involving a state or its subdivisions, and provides, in relevant part:

Except as provided in R.S. 13:5112, R.S. 19:15 and 116, and R.S. 48:451.3, and as provided in this Subsection, the state, any political subdivision as defined in this Section, and any agent, officer, or employee of any such governmental entity when acting within the scope and authority of such employment or when discharging his official duties may temporarily defer court costs, including cost of filing a judgment dismissing claims against the state, political subdivision, or agent, officer, or employee thereof, in any judicial proceeding instituted or prosecuted by or against the state, any political subdivision, or agent , officer, or employee thereof in any court of this state or any municipality of this state , including particularly but not exclusively those courts in the parish of Orleans and the city of New Orleans... Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment; however, when a final judgment is rendered dismissing all claims against the state, a political subdivision, or agent, officer, or employee thereof and when the judgment taxes costs of the state, political subdivision, or agent, officer, or employee thereof against the opposing party in accordance with the provisions of Code of Civil Procedure Article 1920, the opposing party shall be condemned to pay the temporarily deferred court costs. [Emphasis added].

La. R.S. 13:4521(A)(1).

Here, there is no judgment taxing the City's court costs to Plaintiffs. Moreover, in State, Dep't of Transp. & Dev. v. Lauricella Land Co. , 12-384, p. 10 (La. App. 5 Cir. 12/11/12), 106 So.3d 1124, 1130, the Fifth Circuit determined that "because La. R.S. 13:4521(A) only provides for an exemption of prepayment to the state, its agencies, and political subdivisions of the state of its own incurred court costs , the state, its agencies, and political subdivisions of the state can be made to pay its own incurred costs in a proceeding by or against it. " (emphasis in original). Accordingly, neither the state nor its political subdivisions is immune from court costs unless such immunity is statutorily provided. Jefferson Par. Hosp. Dist. No. 1 v. K & B Louisiana Corp. , 13-508, 13-730, p. 10 (La. App. 5 Cir. 3/12/14), 138 So.3d 51, 56. Additionally, under the provisions of the statute, an opposing party, such as Plaintiffs, is not necessarily required to pay the City's temporarily deferred costs absent a judgment dismissing the claims and taxing the costs of the state agency or political subdivision against it. Further, La. R.S. 13:4521(A)(1), references La. C.C.P. art. 1920, the article providing for the trial court assessment of costs. Thus, it is within the discretion of the trial court to assess costs against the parties. We decline the City's request for an award for costs.

CONCLUSION

For the reasons expressed above, we find that the trial court erred in granting the petition for writ of mandamus and ordering the Councilmembers to affirmatively vote to adopt and ratify the conditional use request. The City Council has the discretion to adopt and enact a proposed ordinance in zoning matters and thus it is not a ministerial act which can be compelled by writ of mandamus. The December 14, 2018 judgment of the trial court is therefore reversed. Further, the City's request for court costs is to be determined by the trial court. Accordingly, we reverse the trial court's ruling and remand the case for assessment of court costs.

REVERSED AND REMANDED

      CZO Sec. 4.3.A provides the purpose of conditional use and states:
      Within each zoning district, the use of land and structures are substantially uniform. However there are certain uses that, because of their unique characteristics, cannot be properly classified in certain districts without consideration, in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location. These uses are allowed as conditional uses within the zoning districts. This section sets forth the standards used to evaluate proposed conditional uses and the procedures for approving conditional uses. The designation of a use in a zoning district as a conditional use does not constitute an authorization or assurance that such use will be approved. No conditional use may be established and no building permit may be issued for any use designated as a conditional use within a zoning district until a conditional use ordinance is adopted by the City Council and final drawings are submitted to and approved by the Executive Director of the City Planning Commission. [Emphasis added].
      CZO Sec. 4.3.B(1) states that the "City Council may initiate a Conditional Use application by adoption of a motion." CZO Sec. 4.3.C then provides that the "City Council, after receiving a recommendation from the City Planning Commission, shall take formal action on requests for conditional uses." Pursuant to CZO Sec. 4.3.D.3 the CPC then votes to approve or deny a conditional use request. Sec. 4.3.D.3(c) provides:
      The City Planning Commission shall recommend approval, modified approval, or denial sixty (60) days from the opening of the public hearing. The City Planning Commission may also vote to defer action within City Charter required timeframes in cases where it discovers applicants have not submitted complete and accurate information, including but not limited to errors or omissions in following the Project NPP. The failure to resolve a finding of incomplete or inaccurate information may be grounds for recommending denial. If the City Planning Commission fails to act by a vote of the majority of the Commission members, the application will be forwarded to the City Council without recommendation of no legal majority. The City Planning Commission's written recommendations, together with the staff report and recommendation, if any, shall be filed with the Clerk of the City Council.

      "Generally speaking, there is no appeal from a judgment overruling exceptions because such a judgment is simply interlocutory in nature." Trahant v. Perez , 2002-1414, pp. 8-9 (La. App. 4 Cir. 3/19/03), 843 So.2d 479, 484 (quoting Allied Nav. Co. v. International Org. of Masters, Mates & Pilots , 272 So.2d 23, 25 (La. App. 4 Cir.1973) ). However, "[a]n appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to them, in addition to the review of the final judgment when an unrestricted appeal is taken." Maqubool v. Sewerage & Water Bd. of New Orleans , 2018-0572, p. 3 (La. App. 4 Cir. 11/14/18), 259 So.3d 630, 632-33 (quoting Orleans Par. Sch. Bd. v. Lexington Ins. Co., 2011-1720, p. 10 (La. App. 4 Cir. 8/22/12), 99 So.3d 723, 729 ).

      The City raised this issue before the trial court. The City argued in the exception of no cause of action that Plaintiffs be condemned to pay the temporarily deferred court costs associated with defending against Plaintiffs' claims. Plaintiffs do not address the City's request for costs in their brief.

      See La. C.C.P. art. 1920 (providing "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause" and that "[e]xcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable"); Jefferson Par. Hosp. Dist. No. 1, 13-508, p. 11, 138 So.3d at 56 (the trial court has great discretion in awarding costs; while it is the general rule that the party cast in judgment should be taxed with costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable).


source: Caselaw Access Project

author: SAUNDERS, JUDGE, dissenting.

license: Public Domain

text:
    Keith KISHBAUGH v. The CITY OF LAFAYETTE GOVERNMENT, et al.
    CA 19-417
    Court of Appeal of Louisiana, Third Circuit.
    June 21, 2019
   Stephen J. Oats, Lawrence E. Marino, Oats & Marino, 100 E. Vermilion, Gordon Square, Suite 400, Lafayette, LA 70501, (337) 233-1100, COUNSEL FOR DEFENDANT/APPELLEE: Louis J. Perret, Lafayette Clerk of Court

Carey Thompson Jones, Emily G. Andrews, Asst. Attorney General, Department of Justice, P.O. Box 94005, Baton Rouge, LA 70804, (225) 326-6000, COUNSEL FOR INTERVENOR/APPELLANT: Kyle Ardoin, as La. Secretary of State

Larry Lane Roy, Brown Sims, 600 Jefferson St., Suite 800, Lafayette, LA 70501, (337) 484-1240, COUNSEL FOR PLAINTIFF/APPELLANT: Keith Kishbaugh

Michael Dean Hebert, Paul David Escott, Becker & Hebert, 201 Rue Beauregard, Lafayette, LA 70508, (337) 233-1987, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish ConsolidatedGovernment, The City of Lafayette, Lafayette Parish Government

Steven T. Ramos, Andrus, Boudreaux, Landry & Coussan, 1301 Camellia Blvd, Ste 401, Lafayette, LA 70508, (337) 984-9480, COUNSEL FOR DEFENDANTS/APPELLEES: Daniel Gillane, Deborah Amy, Harold Bernard, Jr., Dennis Sullivan, Jane Sawvel, Bruce Sawvel

Travis J. Broussard, Gary McGoffin, Durio, McGoffin, Stagg & Ackermann, 220 Heymann Boulevard, Lafayette, LA 70503, (337) 233-0300, COUNSEL FOR DEFENDANTS/APPELLEES: Jane Sawvel, Bruce Sawvel, Dennis Sullivan, Deborah Amy, Harold Bernard, Jr., Daniel Gillane

Court composed of Sylvia R. Cooks, John D. Saunders, and D. Kent Savoie, Judges.

Cooks, Judge.

Plaintiff, Keith Kishbaugh, filed suit against the City of Lafayette Government, the Parish of Lafayette Government, and the Lafayette City-Parish Consolidated Government, (collectively Lafayette City-Parish), challenging the constitutionality of an ordinance that sought to cure deficiencies in certain city and parish council district descriptions set forth in the recent 2018 amendment to the Lafayette City-Parish Consolidated Government Home Rule Charter. Along with its answer, Lafayette City-Parish filed a reconventional demand, seeking a declaration that the ordinance was a valid reapportionment of the council districts. The Secretary of State subsequently intervened as a plaintiff, and several affected residents intervened as defendants (residents/intervenors).

After a bench trial on the merits, the trial court found in favor of Lafayette City-Parish and the residents/intervenors, denying the claims of Plaintiff and the Secretary of State and dismissing, with prejudice, their petitions. The trial court denied as moot all remaining claims and demands not addressed in the judgment.

Finding Plaintiff and the Secretary of State failed to prove that the ordinance was not a valid reapportionment, we affirm the judgment of the trial court.

I.

ISSUE

The validity of the Charter is not contested on appeal. The sole issue presented for this court's review is:

Whether the trial court was correct in failing to find that both the Lafayette Home Rule Charter and the State Constitution mandate that any Charter amendment must be voted on by the people and that the amendment presented must match that put into effect by local government[?]

The Secretary of State sets forth five assignments of error:

(1) The trial court committed legal error by concluding that Lafayette City-Parish Ordinance No. O-042-2019, adopted by the Council but not submitted to the electors of the City and Parish of Lafayette, was an effective and valid amendment of the City Parish Home Rule Charter.
(2) The trial court erred as a matter of law in determining Lafayette City-Parish Ordinance No. O-042-2019 to constitute a reapportionment of the voting population of the City and the Parish of Lafayette in advance of the first election for council members under the Charter Amendment, rather than an ordinance to correct the deficient descriptions of city and parish election districts in the Lafayette City-Parish Charter Amendment that was ratified by the voters on December 8, 2018.
(3) The trial court misapplied the legal principles that give courts the authority to reform a legal instrument to accord with the intent of the parties when clerical errors are found therein.
(4) The trial court erred as a matter of law by resorting to the intent of the City-Parish Council to allow for reformation of the election provisions of the Charter Amendment by ordinance.
(5) The trial court erred in allowing Michael Hefner to testify as an expert witness in this case when Mr. Hefner had a direct stake in protecting his own reputation and work by testifying favorably to the Lafayette City-Parish.

II.

FACTS AND PROCEDURAL HISTORY

In 1996, the Lafayette City-Parish Consolidated Government Home Rule Charter (Current Charter) took effect, under which the governmental functions of the City of Lafayette were consolidated with the governmental functions of the Parish of Lafayette. On December 8, 2018, a majority of voters approved an amendment to the Current Charter (Amended Charter), abolishing the Lafayette City-Parish Council and replacing it with a separate Lafayette City Council and Lafayette Parish Council. Relevant herein, the textual descriptions and boundaries of the Lafayette Parish Council districts and the Lafayette City Council districts were set forth in the Amended Charter, but neither the textual descriptions nor boundaries of the council districts appeared on the ballot.

After ratification and promulgation of the Amended Charter, the Registrar of Voters discovered errors in the district descriptions in that some portions of an existing precinct were inadvertently omitted, effectively disenfranchising three hundred and thirty voters, while some voters were included in more than one district. In March 2019, the Lafayette City-Parish Council attempted to cure the deficient descriptions by adopting Ordinance No. O-042-2019 (Ordinance) to include the omitted portions and voters residing therein and to correct the misidentified precincts and districts.

While the bulk of the Amended Charter provisions would not go into effect until after the first council members elected under the Amended Charter took office, those provisions necessary to carry out the elections became effective upon promulgation, which occurred on December 18, 2018. One such transitional provision, Section 8-01 of the Amended Charter, provides:

Council districts for the election of the first City Council members and Parish Council members for the elections authorized by Section 8-13(D) of this charter shall be as follows, and shall remain as follows until changed by reapportionment:
[City Council Districts and Parish Council Districts are then described by precinct.]

Another transitional provision, Section 8-13(D) of the Amended Charter, mandates, in part: "The first election for City Council members and Parish Council members whose positions are established by the amendments to this charter shall be held at the same time as the primary and general elections for the governor of Louisiana in 2019."

On April 5, 2019, Plaintiff filed suit challenging the constitutionality of the Ordinance. Plaintiff alleged that the Ordinance amounted to an amendment to the Amended Charter prohibited by La.Const. art. 6, § 5 (C). He petitioned for declaratory and injunctive relief to prevent the Ordinance from going into effect for the first election under the Amended Charter. The Secretary of State intervened in the suit similarly alleging the unconstitutionality of the Ordinance. He also sought declaratory and injunctive relief with respect to the Ordinance.

With its answer, Lafayette City-Parish filed a reconventional demand, generally seeking a declaration that the Ordinance was a valid reapportionment of the council districts. Lafayette City-Parish also sought an order directing the Secretary of State as well as the Clerk of Court of Lafayette Parish to perform their respective ministerial duties in regards to the city-parish council election provided for in the Amended Charter. Louis J. Perret, the acting Clerk of Court, was consequently made a defendant-in-reconvention. Six residents of the City of Lafayette also intervened as defendants, petitioning for affirmative relief in the form of a declaratory judgment (1) declaring the Ordinance legal and valid, or alternatively (2) declaring the deficiencies were merely typographical errors that should be disregarded or severed with the corrections to be made by the Lafayette City-Parish Council or the court.

The matter proceeded to a bench trial on May 8, 2019, wherein Michael Hefner, an experienced demographer and reapportionment expert, testified regarding the origins of the discrepancies. Charlene Menard, the Registrar of Voters, also testified as to her discovery of the discrepancies.

Mr. Hefner explained that Lafayette City-Parish originally retained him to draw the new parish and city council districts proposed in Ordinance O-121-2018 (amending ordinance), which detailed the amendments to the Current Charter. Between the time of the introduction of the amending ordinance on July 10, 2018, and the scheduled time for its final adoption on August 7, 2018, there was substantial public debate regarding the appropriate boundaries of the new council districts. In light of the numerous suggestions and instructions as to how the districts should be drawn, Mr. Hefner developed a number of hypothetical plans for discussion purposes. Ultimately, the Lafayette City-Parish Council decided to implement maps known internally to Mr. Hefner as "Plan 2" for the Lafayette Parish Council districts and "Plan 2D" for the Lafayette City Council districts.

As reflected in the minutes of the Lafayette City-Parish Council meeting of August 7, 2018, these maps "could be viewed in the Alcove just outside the door." A summary of the proposed amendments to the amending ordinance stated, in pertinent part: "Section 8-01 revises descriptions of City Council districts to match most current City Council five-district map." Mr. Hefner testified that the "maps" referred to in these minutes are the "Plan 2" and "Plan 2D" maps he prepared and transmitted to the Lafayette City-Parish Council. These maps did not exclude any area from a council district or include any area in more than one council district. They were also posted on the Lafayette City-Parish official website and publicized across local media outlets. The textual descriptions adopted by the Lafayette City-Parish Council, however, did not match these maps due solely to Mr. Hefner's admitted error in failing to use the correct maps when drafting the textual descriptions.

Mr. Hefner also explained that the unintended omission of three hundred and thirty voters from Precinct 74 resulted from the inadvertent inclusion of a dividing line instead of the original precinct boundary. Ms. Menard further explained that, according to the description in the Amended Charter, voters in Precinct 34 would be able to vote twice. She also testified that she discovered the discrepancies when she tried to "follow the verbiage with the map." The map, she explained, "was printed through ... the GIS Division of the Lafayette Consolidated Government." The testimony further revealed that the revised textual descriptions Mr. Hefner drafted for the Ordinance do correspond to the maps.

After presentation of the evidence, the trial judge dismissed the claims of Plaintiff and the Secretary of State, reasoning:

The issues in the case are primarily questions of law. And I think probably on appellate review, which I assume there will be, there will be a de novo review of what are the legal issues in the case. But I think there are some facts that - fact-findings that I need to make, and they influence my decision in a couple of ways.
First, there wasn't anything nefarious about the mistakes being made, it was just an innocent error; a prior iteration of the city map was used instead of the latest one.
I also find that the intent of the council was to have the districts and the precincts conform to Parish Map 2 and City Map 2D. What councilperson would have intentionally left out 330 voters or permitted some folks to vote twice?
So we get to the ordinance. The way the mistakes happened in the textual descriptions of the precincts leads me to conclude that those mistakes are purely clerical. I mean, it was literally the substitution of an erroneous map for the correct one that caused these errors. The council passed the ordinance with reference to those maps.
The ordinance is entitled to a presumption of constitutionality under the law. The charter itself calls for a liberal construction of its terms. And the charter also reserves to the council the reapportionment power.
As always, the reapportionment power, the right to redraw district lines, is always a legislative function and never submitted to the electorate for a decision on those matters.
All of these things have convinced me that the plaintiff and the Secretary of State have failed to prove by clear and convincing evidence that the corrective ordinance violates either the constitution or the charter itself.

On May 16, 2019, the trial court signed the judgment denying the claims for relief sought by Plaintiff and the Secretary of State and dismissing, with prejudice, their claims. The trial court denied as moot all remaining claims and demands not addressed in the judgment. Both Plaintiff and the Secretary of State timely filed for appeal. The Secretary of State also sought expedited consideration, which this court granted, and requested a stay, which is presently before the court.

III.

STANDARD OF REVIEW

An appellate court reviews the factual findings of a trial court under the manifest error-clearly wrong standard of review. Rosell v. ESCO , 549 So.2d 840 (La.1989). The trial court's legal conclusions on questions of law, however, are reviewed de novo. City of Bossier City v. Vernon , 12-78 (La. 10/16/12), 100 So.3d 301.

IV.

LAW AND DISCUSSION

"An ordinance, like a state statute, is presumed to be constitutional and the party attacking the ordinance has the burden of proving its unconstitutionality. An ordinance will be upheld if there exists a reasonable relationship between the law and the public good." Theriot v. Terrebonne Parish Police Jury , 436 So.2d 515, 520 (La.1983). "It is well settled that the burden of proving the unconstitutionality of an act or ordinance is by clear and convincing evidence." Plaquemines Par. Civil Serv. Comm'n v. Plaquemines Par. Council , 17-449, p. 6 (La.App. 4 Cir. 2/14/18), 241 So.3d 1040, 1045.

The test to be applied in determining whether a particular ordinance is a reasonable exercise of a government's police power is whether there is a real and substantial relationship between the regulation imposed and the prevention of injury to the public or the promotion of the general welfare. City of Shreveport v. Curry , 357 So.2d 1078 (La.1978). While an ordinance is accorded a presumption of constitutionality, and the burden of proving invalidity rests with the challenging party, government does not have the unlimited authority to regulate the lives of its citizens and may only pass laws which are reasonably related to protection or promotion of a public good such as health, safety or welfare.

Gilbert v. Catahoula Par. Police Jury , 407 So.2d 1228, 1231 (La.1981).

No one disputes that the council district descriptions contained in Section 8-01 are textually deficient. The dispute is over the proper manner in which to cure the deficiencies, or rather, the constitutionality of the Ordinance through which the Lafayette City-Parish Council sought to cure the deficiencies.

Plaintiff and the Secretary of State seek to rebut the presumption of constitutionality accorded the Ordinance by arguing that it constitutes an amendment to the Amended Charter explicitly prohibited by La.Const. art. 6, § 5 (C), which provides: "A home rule charter shall be adopted, amended, or repealed when approved by a majority of the electors voting thereon at an election held for that purpose." In opposition, Lafayette City-Parish and the residents/intervenors argue the Ordinance is merely a reapportionment of the council districts necessary to uphold the intent and will of the electorate.

The trial court reasoned that Plaintiff and the Secretary of State failed to carry their burden of proving by clear and convincing evidence that the Ordinance was an unconstitutional amendment to the Amended Charter rather than a valid reapportionment. We agree.

Although the city and parish council districts are set forth in Section 8-01 of the Amended Charter, that same section provides for the reapportionment of the districts, explicitly stating that the districts "shall remain as follows until changed by reapportionment." Under Section 2-02 of the Current Charter, the authority to reapportion is vested in the council: "Following official publication of the federal census by the United States Bureau of the Census, the Council by ordinance shall, if necessary, alter, change or rearrange the Council district boundaries so as to provide for population equality among the districts as near as reasonably practicable." The language contained in Section 2-02 of the Amended Charter is identical, except it identifies the governing authorities as "the City Council and Parish Council[.]" Such authority is also granted to the council, as the governing body, under La.R.S. 33:1371 and 33:1411. In all these provisions, the council "shall" "by ordinance" reapportion the districts if there exists an inequity or inequality in population evidenced by a recent census.

Louisiana Revised Statutes 18:532(A) similarly grants to the governing authority of each parish the power to "establish precincts, define the territorial limits for which each precinct is established, prescribe their boundaries, and designate the precincts." This statute mandates that "[t]he governing authority of each parish shall by ordinance adopt the establishment and boundaries of each precinct[.]" Louisiana Revised Statutes 18:532.1(A) further allocates to the council, as the parish governing authority, the "authority ... to change the configuration, boundaries, or designation of an election precinct. Any change so determined shall be adopted by ordinance of the parish governing authority."

While admittedly there are no charter or statutory provisions expressly authorizing reapportionment by ordinance to correct a textual, clerical error in the description of council districts, there are also no provisions that explicitly prohibit reapportionment by ordinance in such circumstances. Moreover, charter and statutory provisions mandate reapportionment by ordinance when inequity or inequality in population is evident and explicitly grant to the governing authority the power to establish and change precinct boundaries by ordinance. This court must decide then whether the Lafayette City-Parish Council's use of its reapportionment power herein was permissible under a fair and reasonable interpretation of the Current Charter and the Amended Charter.

By analogy, the following rules that apply to interpreting our constitution also apply to our interpretation of home rule charters:

In construing a constitutional provision or amendment, a court should ascertain and give effect to the intent of both the framers of the amendment and of the people who adopted it. In carrying out this function, therefore, the court should consider the object sought to be accomplished by the adoption of the provision. Accordingly, effect should be given to the purpose indicated by a fair interpretation of the language employed, and the construction which effectuates, rather than that which destroys a plain intent or purpose of the constitutional provision.

Bd. Of Comm'rs of Orleans Levee Dist. v. Dep't of Nat. Res. , 496 So.2d 281, 298 (La.1986) (on rehearing)(citations omitted).

Section 8-09 of the Current Charter and the Amended Charter mandates that the charters "shall be liberally construed in aid of [their] declared intent which is to establish for the people" of the City of Lafayette, the Parish of Lafayette, and the Lafayette City-Parish Consolidated Government "effective home rule free from legislative interference as to the structure and organization of its local government, and with the power and authority to manage its local affairs." Pursuant to this language, we find a fair and reasonable interpretation of both charters would support a liberal construction of the council's reapportionment power to uphold the intent of both the drafters of the Amended Charter and the people who adopted it.

As the trial court found, the evidence of record, namely the testimony of Mr. Hefner and the August 7, 2018 council meeting minutes, reasonably establishes that the Lafayette City-Parish Council intended for the textual description of the districts to comply with the maps published to the public. It was only a clerical error that resulted in the misidentification of certain precincts. No one disputes that the reapportioned districts comply with the published maps and equally apportion the population, whereas the textual descriptions neither comply with the maps nor equally or equitably apportion the population.

The intent of the majority of the electorate can also be surmised from the proposition they voted in favor of, namely to "abolish City-Parish Council, create the Lafayette City Council and Lafayette Parish Council, as governing authority for Lafayette City-Parish Consolidated Government; establish as governing authority, City Council for City of Lafayette and Parish Council for Parish of Lafayette." While the proposition unequivocally evidences an intent to abolish the Lafayette City-Parish Council and replace it with a separate Lafayette City Council and Lafayette Parish Council, the proposition does not in any fashion describe or refer to the districts from which the new council members would be elected. It is not reasonable to assume, therefore, that the electorate intended to amend the Current Charter to exclude three hundred and thirty voters from the language of the proposition, particularly when the maps published by the Lafayette City-Parish on its website did not contain the disenfranchising discrepancies at issue. Such an assumption also defies common logic and raises the question posed by the trial court as to who would intentionally omit three hundred and thirty voters, while allowing other residents to vote twice.

Therefore, we find that, under a liberal construction of the provisions of the Current Charter and the Amended Charter, the reapportionment at issue herein was a reasonable method whereby the Lafayette City-Parish Council, to whom such authority is granted, could remedy the textual, clerical discrepancies so to uphold the intent of the drafters and voters as well as the voting rights of the electorate.

Notably, our law even contemplates that, through inadvertence and error, unintended mistakes will arise in the drafting of laws. Louisiana Revised Statutes 24:253 grants to the Louisiana State Law Institute, in preparing the printer's copy of recent legislation, the authority to "[c]orrect manifest typographical and grammatical errors, and ... [m]ake any other purely formal or clerical changes in keeping with the purpose of the revision." The supreme court has also long acknowledged that "clerical errors in the use of words or numbers in a statute may be recognized and corrected by the courts whenever necessary to carry out the manifest intention of the Legislature, as gathered from the context of the act." State v. Rogers , 148 La. 653, 658, 87 So. 504, 506 (1921). Thus, Louisiana statutory law and jurisprudence also recognize and support the use of various measures to correct clerical errors so to uphold the intent in the adoption and enactment of laws.

Taking all of this into consideration, we find there does exist a reasonable relationship between the Ordinance and the public good in that the Ordinance remedies the unintentional, clerical discrepancies consistent with the intent of both the drafters of the Amended Charter and the people who adopted it. We, therefore, find the Ordinance is constitutionally sound and was a proper exercise of the reapportionment power granted to the Council so as to uphold the intent of the drafters and the people. Accordingly, we find that the trial court did not err in concluding that Plaintiff and the Secretary of State failed to carry their burden of proving by clear and convincing evidence that the Ordinance was unconstitutional, and we affirm the trial court's judgment. Finally, because the Ordinance properly remedies the discrepancies, all remaining issues are rendered moot, and we pretermit their discussion.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The motion to stay is hereby denied as moot.

Costs of this appeal are assessed to the Plaintiff/Appellant, Keith Kishbaugh.

AFFIRMED; MOTION TO STAY DENIED.

SAUNDERS, J., dissents and assigns reasons.

SAUNDERS, JUDGE, dissenting.

This case arises out of an amendment to the Lafayette City-Parish Consolidated Government Home Rule Charter (Amended Charter), ratified and promulgated in December 2018, that contained deficinecies in certain city and parish council district descriptions. At issue herein is the constitutionality of an ordinance adopted by the Lafayette City-Parish Council to cure these deficiencies. The majority finds the ordinance is a valid exercise of the council's reapportionment power. For the following reasons, I respectfully disagree.

"Just as the Constitution is the supreme law of the state, home rule charters are the supreme law of home rule charter jurisdictions, subordinate only to the constitution and constitutionally allowed legislation." Montgomery v. St. Tammany Parish Gov't by & through St. Tammany Parish Council , 17-1811, p. 7 (La. 6/27/18), --- So.3d ----. As a document founded on the will of the people, a home rule charter can only be amended "when approved by a majority of the electors voting thereon at an election held for that purpose." La.Const. art. 6, § 5 (C). Once approved, an amendment becomes the prevailing law of the land, "to which all legislative acts and all ordinances, rules, and regulations of creatures of the legislature must yield." Caddo-Shreveport Sales and Use Tax Comm'n v. Office of Motor Vehicles Through Dep't Of Pub. Safety and Corr. of the State , 97-2233, p. 6 (La. 4/14/98), 710 So.2d 776, 780.

Although the majority looks to the proposition presented to the voters so to ascertain the voters' intent, the voters did not adopt the proposition. Rather, they adopted the Amended Charter as proposed by the Lafayette City-Parish Council in Ordinance O-121-2018. The language of the Amended Charter in Ordinance O-121-2018, not the language of the proposition, is paramount and prevailing "to which all legislative acts and all ordinances, rules, and regulations of creatures of the legislature must yield." Id. By their vote, a majority of the electors evidenced their will and intention to amend their existing charter in accordance with the language proposed by Ordinance O-121-2018. The Amended Charter, therefore, as a document of the will of the people, cannot be amended without the approval of "a majority of the electors voting thereon at an election held for that purpose." La.Const. art. 6, § 5 (C). Accordingly, I find the ordinance adopted by the Lafayette City-Parish Council must yield to the provisions of the Amended Charter as proposed by Ordinance O-121-2018 and adopted by a majority of the voters. I would, therefore, reverse the judgment of the trial court.

For the foregoing reasons, I respectfully dissent.

      Deborah Amy, Dennis Sullivan, Daniel Gillane, Bruce Sawvel, Jane Sawvel, and Harold Bernard are all "elector[s] of the City of Lafayette and Parish of Lafayette, domiciled and registered to vote in Precinct 74," in the portions of which were omitted in the council district descriptions at issue herein.

      Plaintiff did not attack the validity of the new Home Rule Charter. The Secretary of State has not assigned as error the issue involving the validity of the charter for our review. Even if assigned, the law provides that: "An action contesting an election submitting a proposition to the voters ... shall be instituted not later than 4:30 p.m. of the thirtieth day after the official promulgation of the results of the election." La.R.S. 18:1405(D). A request to invalidate the charter would constitute a collateral attack upon December 8, 2018 election, the official results of which were promulgated on December 18, 2018. Plaintiff's petition filed, on April 5, 2019, would have been prescribed on its face. Therefore, the only timely filed action before the trial court was the challenge to the constitutionality of the ordinance.

      Although the Secretary of State challenges the trial court's acceptance of Mr. Hefner as an expert, we find no merit to this challenge as the trial court's oral reasons show that the trial court, within its broad discretion, merely relied on the factual accounts of Mr. Hefner's testimony as well as Ms. Menard's testimony in concluding the discrepancies were clerical error. The trial court looked to the charters and Louisiana law in holding that reapportionment "is always a legislative function[.]"

      2018 WL 3151290.