                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #032


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of June, 2015, are as follows:


BY KNOLL, J.:


2014-CA-2506      LEE W. RAND, JEREMY D. BOYCE, KEISHA M. GUICHARD, AND EDMOND J.
                  HARRIS v. CITY OF NEW ORLEANS (Parish of Orleans)

                  Accordingly, because plaintiffs have failed to follow the
                  strictures of motion for summary judgment procedure, we decline
                  to address the merits of plaintiffs’ constitutional challenge.
                  Due to the fatal flaws present in plaintiffs’ motion for summary
                  judgment, we reverse the District Court’s judgment granting the
                  permanent   injunction,  reinstate   the  preliminary  injunction
                  prohibiting the City from undertaking any hearings based on this
                  ordinance, and remand the matter to the trial court for further
                  proceedings.
                  REVERSED; PRELIMINARY INJUNCTION REINSTATED; REMANDED.

                  JOHNSON, C.J., concurs in result.
06/30/15



                     SUPREME COURT OF LOUISIANA

                                NO. 2014-CA-2506

      LEE W. RAND, JEREMY D. BOYCE, KEISHA M. GUICHARD,
                     AND EDMOND J. HARRIS

                                     VERSUS

                           CITY OF NEW ORLEANS

                            ON APPEAL
              FROM THE CIVIL DISTRICT COURT FOR THE
                       PARISH OF ORLEANS

KNOLL, J.

      This direct appeal was lodged in this Court concerning the constitutional

sufficiency of the administrative adjudication procedure which the City of New

Orleans has established for its citizens who challenge tickets that were issued

automatically on the basis of photographic evidence obtained from traffic cameras.

      In 2007, the City of New Orleans (the “City”) enacted a group of ordinances,

codified as Sections 154-1701 through 15-1704 of its Code of Ordinances, which

created the Automated Traffic Enforcement System (“ATES”). In 2011, plaintiffs

filed a “Petition for Preliminary and Permanent Injunction,” alleging the

administrative hearing procedure set out in these ordinances violated Louisiana

State Constitution Article I, § 2 due process rights and Article I, §22 access to

courts rights. Following an adversarial hearing, the District Court granted the

plaintiffs a preliminary injunction “enjoining, prohibiting, and restraining the City

of New Orleans from conducting any administrative hearings authorized by the

enabling ordinance section 154-1701 et seq.” The trial court further ordered that its

ruling would be stayed “pending final resolution of a writ application to the 4th

Circuit Court of appeals [sic] by the City of New Orleans.” In its written reasons
for judgment, the District Court found:

                 The enforcement procedure for the City of New Orleans‟
           („CNO‟s‟) Automated Traffic Enforcement System gives the CNO
           administrative authority to adjudicate violations. (New Orleans, La.
           Municipal Code of 2011, Article XVII, Sec. 154-1701).
                 The CNO, therefore, has a financial stake in the outcome of the
           cases adjudicated by hearing officers in their employ and/or paid by
           them, raising due process considerations.

Thereafter, the City filed a supervisory writ application with the Fourth Circuit

Court of Appeal. The Fourth Circuit affirmed, agreeing with the trial court‟s

assessment of the due process problems inherent in the ATES administrative

adjudication procedure and finding that “the trial court did not abuse its discretion

because the Plaintiffs presented prima facie evidence that they are entitled to the

preliminary injunction and may prevail on the merits.”1 The City filed a

supervisory writ application with this Court seeking review of the District Court‟s

judgment granting the plaintiffs the preliminary injunction. This Court

unanimously denied the City‟s writ.2

           Plaintiffs then filed a motion for summary judgment, arguing there is no

genuine issue of material fact in dispute and they are entitled to summary judgment

granting a permanent injunction as a matter of law based solely “on the affidavits

attached and the opinion of the 4th Circuit Court of Appeals [sic] and the

concurring opinion of Judge Belsom [sic].” Attached to the plaintiffs‟ motion for

summary judgment were (1) the affidavits of plaintiffs, Keisha M. Guichard,

Edmond J. Harris, Lee W. Rand, and Jeremy Boyce, (2) the District Court‟s

judgment granting plaintiffs the preliminary injunction, along with the court‟s

written reasons for judgment, (3) the Fourth Circuit‟s opinion affirming the

judgment granting the preliminary injunction, and (4) this Court‟s action sheet,

denying the City‟s application for supervisory review of the preliminary

injunction. The City opposed the plaintiffs‟ motion, arguing that a motion for

1
    Rand v. City of New Orleans, 12-0348, p. 8 (La. App. 4 Cir. 12/13/12), 125 So.3d 476, 482.
2
    Rand v. City of New Orleans, 13-0119 (La. 3/1/13), 108 So.3d 1178.

                                                           2
summary judgment is not the appropriate procedural vehicle for consideration of a

permanent injunction.3 Following a hearing, the District Court issued a judgment

granting plaintiffs‟ motion for summary judgment with the following additional

language:

              IT IS ORDERED, ADJUDGED AND DECREED, that a
        permanent injunction issue herein, without bond, enjoining,
        prohibiting and restraining the City of New Orleans from conducting
        any administrative hearings by the enabling ordinance section 154-
        1701 et seq.
              IT IS FURTHER ORDERED, ADJUDGED AND
        DECREED,
              1. Declaring the process of hearing unconstitutional and
                  violative of the State Constitution Declaration of Rights
                  article.
              2. Ordering the City to terminate all attempts at hearings until
                  the City corrects the process.
              3. Find [sic] that all hearings held between February 2008 and
                  present be declared in violation of the State Constitution.
              4. All other general and equitable relief and the cost of these
                  proceedings.

        The City‟s direct appeal to this Court followed.

        Louisiana Code of Civil Procedure Article 966 governs the procedure on a

motion for summary judgment. Paragraph F is particularly relevant to our

disposition of the present case. The first two subparagraphs of Paragraph F

provide:

        (1) A summary judgment may be rendered or affirmed only as to
        those issues set forth in the motion under consideration by the court
        at that time.

        (2) Evidence cited in and attached to the motion for summary
        judgment or memorandum filed by an adverse party is deemed
        admitted for purposes of the motion for summary judgment unless
        excluded in response to an objection made in accordance with
        Subparagraph (3) of this Paragraph. Only evidence admitted for
        purposes of the motion for summary judgment may be considered by
        the court in its ruling on the motion.…4

        Upon de novo review of plaintiffs‟ motion for summary judgment and

supporting evidence, we found numerous procedural problems with plaintiffs‟
3
  Although this Court has not addressed this issue, we do not reach the issue in this opinion because the City
abandoned this argument on appeal by failing to assign it as error. See Boudreaux v. State, Dept. of Transp. and
Development, 01-1329, pp.4-5 (La. 2/26/02), 815 So.2d 7, 10-11.
4
  La. Code Civ. P. art. 966(F)(1)-(2) (emphasis added).

                                                       3
offerings. First, although plaintiffs pray for summary judgment “[d]eclaring the

process of hearing unconstitutional and violative of the State Constitution

Declaration of Rights article,” plaintiffs do not attack the constitutionality of the

administrative hearing procedure anywhere in their motion for summary judgment.

Rather, the only argument plaintiffs raise in their motion is that they are entitled to

summary judgment granting a permanent injunction because the Court of Appeal

affirmed the District Court‟s judgment granting them a preliminary injunction. As

the City points out in its brief, the burden of proof a plaintiff must meet to obtain a

preliminary injunction is entirely different than the burden one must meet to obtain

a permanent injunction. As this Court has explained,

        The issuance of a permanent injunction takes place only after a trial
        on the merits in which the burden of proof is a preponderance of the
        evidence, but a preliminary injunction may be issued on merely a
        prima facie showing by the plaintiff that he is entitled to relief.
        Notably, parties may agree to consolidate trial on the merits of a
        permanent injunction with the judgment issuing a preliminary
        injunction.5

The parties in this case did not stipulate to consolidate the trial on the merits of a

permanent injunction with the judgment issuing the preliminary injunction. Indeed,

the Court of Appeal made it very clear in its opinion that it merely found that

plaintiffs “presented prima facie evidence that they are entitled to the preliminary

injunction and may prevail on the merits.”6 Therefore, as a matter of law, plaintiffs

would not be entitled to summary judgment granting a permanent injunction based

solely on the fact that the District Court and the Court of Appeal determined it

made the prima facie showing requisite to obtaining a preliminary injunction.

Therefore, the District Court erred in finding plaintiffs were entitled to summary

judgment on this basis. Because this is the only issue plaintiffs set forth in their

motion for summary judgment, it is the only issue upon which summary judgment


5
  Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, pp. 9-10 (La. 4/14/04), 875 So.2d 22, 29 (internal citations
omitted).
6
  Rand, p. 8, 125 So.3d at 482.

                                                         4
could be rendered or affirmed.7 As such, the constitutionality of the administrative

hearing procedure is not properly before us.

        Moreover, even if we were to countenance plaintiffs‟ prayer for summary

judgment “[d]eclaring the process of hearing unconstitutional and violative of the

State Constitution Declaration of Rights article” as sufficient to place the

constitutionality of the administrative hearing procedure at issue, plaintiffs‟

evidentiary offering “for purposes of the motion for summary judgment”8 was

woefully inadequate. In addition to providing the procedure for admitting evidence

for purposes of a motion for summary judgment, Article 966(F)(2) also plainly

delimits the materials courts may consider on a motion for summary judgment.

Under Article 966(F)(2), “[e]vidence cited in and attached to the motion for

summary judgment or memorandum filed by an adverse party is deemed admitted

for purposes of the motion for summary judgment unless excluded….” (emphasis

added). Here, the only evidence plaintiffs cite and attach to their motion for

summary judgment is plaintiffs‟ affidavits, the District Court‟s judgment granting

the preliminary injunction, the Court of Appeal‟s opinion affirming that judgment,

and this Court‟s action sheet denying the City‟s writ application seeking review of

the judgment granting the preliminary injunction. Likewise, the only evidence the

City submitted in opposition was the District Court‟s judgment, the Court of

Appeal‟s opinion, and this Court‟s action sheet. Although the record on appeal

contains additional materials which would be very helpful if the Court were to take

up the constitutionality of the administrative hearing procedure on its merits, these

materials are not within the field of evidence properly subject to the Court‟s

consideration as “[o]nly evidence admitted for purposes of the motion for summary




7
  La. Civ. Code art. 966(F)(1) (“A summary judgment may be rendered or affirmed only as to those issues set forth
in the motion under consideration by the court at that time.”).
8
  La. Civ. Code. art. 966(F)(2).

                                                       5
judgment may be considered by the court in its ruling on the motion.”9

        Accordingly, because plaintiffs have failed to follow the strictures of motion

for summary judgment procedure, we decline to address the merits of plaintiffs‟

constitutional challenge. Due to the fatal flaws present in plaintiffs‟ motion for

summary judgment, we reverse the District Court‟s judgment granting the

permanent injunction, reinstate the preliminary injunction prohibiting the City

from undertaking any hearings based on this ordinance, and remand the matter to

the trial court for further proceedings.10




REVERSED; PRELIMINARY INJUNCTION REINSTATED; REMANDED.




9
 La. Civ. Code. art. 966(F)(2).
10
  We note in passing that the District Court‟s judgment granting the permanent injunction also granted plaintiffs
declaratory relief even though declaratory relief was not specifically requested by the plaintiffs. On remand, the
parties may amend their petition to seek declaratory relief, if appropriate.

                                                        6
06/30/15



                     SUPREME COURT OF LOUISIANA

                              NO. 2014-CA-2506

       LEE W. RAND, JEREMY D. BOYCE, KEISHA M. GUICHARD,
                      AND EDMOND J. HARRIS

                                   VERSUS

                          CITY OF NEW ORLEANS

                            ON APPEAL
               FROM THE CIVIL DISTRICT COURT FOR THE
                        PARISH OF ORLEANS



JOHNSON, C.J., concurs in the result.
