4th Circuit rules for Charter Comm.Oct 14th, 2010 | By Frank McCormack | Category: news
In a 3-2 decision, the Louisiana 4th Circuit Court of Appeal ruled Oct. 8 in favor of the Plaquemines Parish Charter Commission in its suit against the Plaquemines Parish Council. The suit seeks to force the council to submit the commission’s proposed charter to the voters of the parish.
The Appeal Court ruling now sends the case back to the 25th District Court of Plaquemines Parish and calls for Judge Pro Tempore James Cannella to order the council to place the proposal on a ballot.
Robert Barnett, attorney for the Parish Council, said last Friday that he had seen neither the Appeal Court panel’s majority opinion nor the dissenting judges’ opinion. However, he said that, under normal circumstances, defendants such as the council have 30 days to ask for a hearing either before the Appeal Court or the Supreme Court.
The ruling late last week was the latest chapter in more than a year of legal wrangling between the parish council and the charter commission, which the council formed by resolution in December 2007.
Charter Commission recap
The saga of the parish’s charter commission began Dec. 13, 2007, when the Plaquemines Parish Council passed a resolution “creating a Charter Commission … for the purpose of addressing inconsistencies in the Charter for Local Self-Government.” The appointed 10-member commission began meeting soon thereafter to assess the parish’s charter. By April 2009, the group completed a draft of the proposed charter and scheduled three public meetings. The commission approved the proposed charter May 11, 2009, and delivered copies of the document to the council and parish president the next day.
Two days later, though, “the Plaquemines Parish Council attempted to revoke and annul [the 2007 resolution that formed the Charter Commission] by adopting Resolution 09-179,” the 4th Circuit judges wrote in their majority opinion. The council then passed an ordinance to form a “charter committee” in place of the commission.
The charter commissioners then filed suit in an attempt to force the council to put the proposed charter to a vote. The crux of the lawsuit, according to the 4th Circuit, was Louisiana revised statute 33:1395.2 which says that calling an election on a proposed charter prepared by a charter commission is “mandatory.”
In trial court in August 2009, members of the council – specifically District 8 Councilwoman Lynda Banta and District 6 Councilman Burghart Turner – said they did not understand the legal consequences of forming a “commission” and that they believed the commission would merely review the current charter. Council secretary Melissa Leblanc also testified that she accidentally drafted the legislation as a resolution and that she believed an ordinance was needed. Judge Cannella ruled with the council and denied the commissioners’ request for a mandamus.
But the Appeal Court saw it differently.
4th Circuit’s opinion
The 4th Circuit judges, unlike Cannella, did not view the council’s misunderstandings regarding the commission to be pertinent to the case. Louisiana law sets a specific mechanism for charter commissions – they meet, hold public meetings, advertise their recommendations, then their recommendations are voted on. Local government leaders have no power over the process and no choice but to put the recommendations on a ballot, according to Louisiana law.
In response to Banta and Turner’s testimony, the 4th Circuit judges wrote, “the fact that the creation of such a commission had legal consequences that neither Ms. Banta nor Mr. Turner foresaw in no way changes the legal consequences.”
And in an ironic twist, the 4th Circuit judges actually sited Leblanc’s testimony for leading them in part to their conclusion. Leblanc testified that “when she drafted the resolution she did so pursuant to a directive ‘to prepare legislation … creating a Charter Commission,’” the judges wrote. “Therefore, we find that Ms. Leblanc’s testimony supports the conclusion that the resolution was drafted for the purpose of creating a charter commission.”
The court’s end message: Once the council voted to form the charter commission, the commission took on a life of its own free from council input, according to state law. In short, the proposed charter going to a vote does not depend on the council.
Where the case goes from here, though, does.