Opinion
No. 00-1128
June 6, 2001.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT PARISH OF VERMILION, NO. 74333 HONORABLE J. BYRON HEBERT.
Mark Edward Stipe, Skinner Stipe, P.O. Box 52169, Lafayette, La 70505-2169, COUNSEL FOR PLAINTIFFS/APPELLANTS, Acadian Ambulance Service, Inc. and Mark Lege, Theodore Michael Haik, Jr.
Haik, Minvielle Grubbs, P.O. Box 11040, New Iberia, LA 70562-1040 COUNSEL FOR DEFENDANT/APPELLANT Med Express Ambulance Serv., Inc.
Joseph Charles Kosarek P.O. Drawer 489 Abbeville LA 70511-0489, COUNSEL FOR DEFENDANTS/APPELLANTS The City of Abbeville, The Abbeville City Counsel.
Court composed of Ned E. Doucet, Jr., Chief Judge, Oswald A. Decuir, Jimmie C. Peters, Michael G. Sullivan, and Glenn B. Gremillion, Judges.
The plaintiffs, Mark S. Lege and Acadian Ambulance Service, Inc. (Acadian), appeal the judgment in favor of the Defendants, the Abbeville City Council, the City of Abbeville, and MedExpress Ambulance Service, Inc.
After the Abbeville City Counsel voted to grant a permit allowing MedExpress to provide ambulance service in the City of Abbeville, Acadian filed suit alleging violations of the Public Meetings Law contained in La.R.S. 42:7 and asking for a writ of mandamus, declaratory judgment, and injunctive relief against the Council, the City, and MedExpress. Acadian alleges that the Council voted to grant a permit to MedExpress to provide ambulance services within the city of Abbeville at a meeting in April 2000. It argues that this was a violation of La.R.S. 42:7(A)(1)(b)(i) and (ii) because the grant of the permit was not on the Council's agenda. It further argues that the Council's action in granting the permit violated the Council's own code of ordinances since the required "Certificate of Convenience and Necessity" was never issued following a determination that the public convenience and necessity required the additional proposed ambulance service.
MedExpress denied all allegations and reconvened for damages totaling at least $1,000,000.00 for unfair and deceptive trade practices by Acadian in attempting to thwart its efforts to obtain a permit and in protecting its monopoly on ambulance service. The City and the Council filed exceptions of lack of subject matter jurisdiction, improper use of summary proceedings, lack of procedural capacity, improper joinder of parties, no right of action, and no cause of action. The City reconvened alleging that Acadian should be enjoined from operating a private ambulance service within Abbeville because it would violate the City's ordinances.
The trial court granted the Council's exceptions and dismissed it as a party to the litigation. It dismissed Acadian's claim for mandamus, injunction, and declaratory relief as against all parties and denied its oral motion for leave of court to amend its pleadings. Acadian appeals alleging that the trial court erred first, in denying its oral motion to amend their pleadings; second, in granting the City and the Council's dilatory exception of lack of procedural capacity to be named as a party defendant; and, finally, in failing to enjoin the Council from issuing the permit. Although not specifically assigned as error, the Plaintiffs argue that the trial court erred in finding that the Plaintiffs did not have standing to sue.
Additionally, the Defendants have filed a motion to dismiss the appeal as moot.
IS THE CITY COUNCIL A LEGAL ENTITY CAPABLE OF BEING SUED UNDER THE PUBLIC MEETINGS LAW?
The trial court has concluded that the City Council is not a legal entity which may be sued under the public meetings law.
La.R.S. 42:4.2 provides that:
A. For the purposes of R.S. 42:1 through R.S. 42:12:
. . . .
(2) "Public body" means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.
To discover what a municipal body is empowered to do, we must examine the municipality's form of government to determine the powers granted it. See City Council of City of Lafayette v. Bowen, 94-584 (La.App. 3 Cir. 11/2/94); 649 So.2d 611, writ denied, 94-2940 (La. 1/27/95); 650 So.2d 244; Dugas v. City of Breaux Bridge Police Dep't, 99-1320 (La.App. 3 Cir. 2/2/00); 757 So.2d 741, writ denied, 00-0671 (La. 4/20/00); 760 So.2d 1159.
The important determination with respect to the juridical status or legal capacity of an entity is not its creator, nor its size, shape, or label. Rather the determination that must be made in each particular case is whether the entity can appropriately be regarded as an additional and separate government unit for the particular purpose at issue. In the absence of positive law to the contrary, a local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity. 1 Sands Libonati, § 2.18 and authorities cited therein, §§ 2.19, 2.20.
Such a determination will depend on an analysis of specifically what the entity is empowered to do.Roberts v. Sewerage and Water Board of New Orleans, 92-2048, p. 10 (La. 3/21/94); 634 So.2d 341, 346-47. (emphasis added).
The court may take judicial notice of city charters under certain circumstances. In Tull v. City of Baton Rouge, 385 So.2d 343, 345 (La.App. 1 Cir.), writ denied, 392 So.2d 663 (La. 1980) (emphasis added), the court found that:
Under the constitutional mandate, the Parish of East Baton Rouge and the City of Baton Rouge adopted a Plan of Government which became effective January 1, 1949. That Plan of Government has been amended six times, most recently on February 1, 1972. Although the Plan of Government has not been filed in the record, the Plan of Government has been duly filed with the Clerk of this Court and the Parish of East Baton Rouge, and this Court of [Appeal]may take judicial notice of its provisions under the authority of LSA-R.S. 13:3712(B) . (See Bradford v. City of Shreveport, 266 So.2d 254 (La.App. 1972), writ refused 263 La. 364, 268 So.2d 256 (1972).)
La.R.S. 13:3712(B) provides that:
All courts of record in the state shall take judicial cognizance of the municipal ordinances and parochial ordinances which may be enacted by governing authority of any town, city, municipality, or parish within their respective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of said court.
La. Code Evid. art. 202(A) has a similar provision regarding mandatory judicial notice of ordinances which have been filed with the clerk of court. La. Code Evid. art. 202(B) further provides that we must take judicial notice where: "a party requests it and provides the court with the information needed by it to comply with the request, and may take judicial notice without request of a party. . . ."
Therefore, we could take judicial notice of the charter if a certified copy of it had been filed with the clerk of court for Vermilion Parish or if it had been filed into the record. However, we are unable to determine whether the Abbeville City Charter has been filed with the clerk of court for Vermilion Parish. Although the City attached a copy of the charter to its brief, we cannot find any reference in the record to the charter having been admitted into evidence.
Given the importance of this information to the determination at this level, we will remand this matter to the trial court to allow the record to be supplemented with the charter and any other matter significant to the status of the Council.
In the interest of judicial efficiency, we pretermit the consideration of the remaining assignments of error raised by the Plaintiffs until such time as the record has been thus supplemented.
MOTION TO DISMISS
The Defendants have filed a motion to dismiss this appeal as moot, alleging that Acadian has removed its entire ambulance service from Vermilion Parish and as a result Acadian no longer complies with the City's requirements for ambulance service.
A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405 (La. 1980); Coomes v. Allstate Ins. Co., 517 So.2d 436 (La.App. 1 Cir. 1987); State in Interest of Minor Female Child, 470 So.2d 595 (La.App. 1 Cir. 1985).
It is well established that it is the function of appellate courts to render judgments which can be made effective and not to give opinions on moot questions. Savings Bank of Baltimore v. Venture 73, 452 So.2d 395 (La.App. 3 Cir. 1984), writ den., 458 So.2d 487 (La. 1984); Cox v. Watts, 329 So.2d 917 (La.App. 1 Cir. 1976); Brown v. Town of Lake Providence, 200 So.2d 764 (La.App. 2 Cir. 1967).
McCoy v. Calamia, 94-1274, p. 17 (La.App. 3 Cir. 4/5/95); 653 So.2d 763, 773-74, writ denited 95-1091 (La. 6/16/95); 655 So.2d 336, quoting Roland Const. Co., Inc. v. City of Alexandria, 591 So.2d 808, 810 (La.App. 3 Cir. 1991).
Examination of the record reveals that it does not contain sufficient evidence to allow us to determine whether this matter is now moot. Therefore, upon remand, the trial court is to hold a hearing to allow the introduction of evidence on the issue of whether this matter is moot.
CONCLUSION
We remand this matter to the trial court so that the record may be supplemented by the introduction of the Abbeville City Charter and other matters significant to the status of the Council. Further, the trial court is to hold a hearing and allow the introduction of evidence regarding whether this matter has been rendered moot by intervening circumstances.
Gremillion, J., dissents in part and assigns written reasons.
Sullivan, J., dissents for the reasons assigned by Judge Gremillion.
I respectfully disagree with a portion of the majority opinion in this case. Initially, the majority did not address Acadian's assignment of error wherein it claimed that the trial court erred in finding that it did not have standing to sue. It is my opinion that the trial court committed legal error in failing to find that Lege and Acadian had standing to sue regarding both the alleged ordinance violation and the alleged Open Meetings Law violation.
The City, the Council, and MedExpress argue that the peremptory exception raising the objection of no right of action was properly granted because the legislature made "an express grant of authority to municipalities to regulate ambulance service within their boundaries" and that "at no point does the legislature provide or even recommend that a third party have the right to be allowed to contest the granting of a permit."
At the hearing, the trial court relied on Acadian Ambulance Service, Inc. v. Parish of East Baton Rouge, 97-2119 (La.App. 1 Cir. 11/6/98); 722 So.2d 317, writ denied, 98-2995 (La. 12/9/98); 729 So.2d 583, to grant the exception of no right of action. In that case, the exception was granted after the merits of a preliminary injunction had been heard. In this case, we do not have the benefit of a trial on the merits of the preliminary injunction. The trial court simply stated that the facts did not present a question of burden of taxation that would unjustly affect the taxpayer or his property. I disagree. La. Code Civ.P. art. 681 states "an action can be brought only by a person having a real and actual interest which he asserts." In his petition, Lege alleges that he is a part-owner of Acadian and a resident of Abbeville, and asserts that the Council violated the Open Meetings Law and its own ordinances in issuing a permit to MedExpress.
In Louisiana Associated General Contractors, Inc. v. Calcasieu Parish School Board, 586 So.2d 1354, 1357-58 (La. 1991) (citation omitted) (emphasis added), the supreme court held:
Under Louisiana law, a taxpayer may resort to judicial authority to restrain public servants from transcending their lawful powers or violating their legal duties in any unauthorized mode which would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. The fact that the taxpayer's interest may be small and insusceptible of accurate determination is not sufficient to deprive him of the right.
Immediately following the trial court's determination that this was not a burden of taxation case, Lege and Acadian pointed out that the plaintiff in Louisiana Associated knew when it entered the market that it was not the sole provider of emergency ambulance services, whereas in this case Acadian entered the market as the sole provider of ambulance services "relying on the assumption that if some other ambulance service wanted to get into this market that they would have to go through a hearing to determine public convenience and necessity."
Obviously, Lege and Acadia have a strong monetary interest in Acadian maintaining its business status as the sole provider of private ambulance services in the City of Abbeville. Moreover, the East Baton Rouge case relied upon so heavily by the trial court recognized the inherent nature of the property interest that the plaintiff had, though it found there that the interest was not enough to give the plaintiff a procedural due process right. Here, Lege is not alleging a due process violation or any constitutional violation for that matter. Rather, he claims that the Council violated the Open Meetings Law and its own ordinances, thus resulting in damage to him. Furthermore, "proof of an increased tax burden is not the only method by which a taxpaying citizen may seek judicial authority to restrain a public body from alleged unlawful action." Louisiana Ass'n., 586 So.2d at 1358. Thus, "taxpayer plaintiffs seeking to restrain action by a public body are afforded a right of action upon a showing of an interest, however small and indeterminable." Id. Accordingly, I would find that Lege's and Acadian's interests in the present lawsuit are sufficient. They both have an interest in maintaining the integrity of the permit granting process and in assuring that the provisions of the Open Meetings Law are not violated.
Also, La.R.S. 42:10(C) specifically confers standing to: "Any person who has been denied any right conferred by the provisions of R.S. 42:4.1 through R.S. 42:8 or who has reason to believe that the provisions of R.S. 42:4.1 through R.S. 42:8 have been violated may institute enforcement proceedings." (Emphasis added). Lege and Acadian's petition alleges that the Council violated La.R.S. 42:7(A)(1)(b)(i) and (ii) by failing to provide written notice of the meeting to the public and by failing to vote on the approval of the expansion of the agenda to include taking up the granting of the permit in question. Clearly, Lege and Acadian have the necessary standing to move forth with their suit, and I respectfully suggest the granting of the no right of action was improper.
Finally, I respectfully disagree with the majority holding that this case should be remanded to allow the record to be supplemented with the Abbeville City Charter and any other matter significant to the status of the Council only as the holding applies to the alleged violation of the Open Meetings Law. To determine whether the Council is a juridical person for the particular purpose of maintaining an action under the Open Meetings Law, we look to La.R.S. 42:4.2(A)(2), which states:
"Public body" means village, town, and city governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.
The Legislature has set forth the public policy for the open meeting law in La.R.S. 42:4.1(A), which reads:
It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through 10 shall be construed liberally.
In my opinion, the "governing authority" of the City is its Council. It is also my opinion that when La.R.S. 42:4.2(A)(2) is construed liberally the Council is a public body. As mentioned above, La.R.S. 42:10 specifically authorizes the institution of enforcement proceedings for violations of the Open Meetings Law. Thus, I conclude that the Legislature intended that the Council be considered a juridical entity capable of being sued for violations of the Open Meetings Law. I find support for this proposition because legislative policy indicates that citizens should be aware of the performance of its "public officials." It would follow that a claim for an open meetings violation would be instituted against the public officials against whom the claim was made; in this case, the Council, the City's governing authority.
I agree with the majority's decision to remand to allow the filing of the City Charter and the taking of other evidence to determine the Council's juridical status regarding the issue of whether the City violated its ambulance permitting ordinances as well as the issue regarding the question of mootness.
For the foregoing reasons, I respectfully dissent in part from the majority's opinion in this case.