(Bossier Pash clerk of court Filed Sep 09, 2024 3:06 PM cy 73849 | CASSIE MAE ROGERS DOCKET NUMBER: 173,849- F vs 26TH JUDICIAL DISTRICT COURT CITY OF BOSSIER CITY BOSSIER PARISH, LOUISIANA OPINION/ORDER, This matter comes before the Court on a request for a Writ of Mandamus filed by Petitioner, Cassie Mae Rogers. The original Writ request was filed on August 16, 2024, and thereafter was amended by a supplemental filing on August 23, 2024, in which petitioner names not only the City of Bossier City but also all the members of the City Council in their official capacity. An Answer together with Exceptions and Affirmative Defenses was filed by (5) members of the City Council; namely Don “Bubba” Williams, Jeffery “Jeff” Darby, Jeff Free, Vince Maggio, and David Montgomery. Additionally, an Answer was filed by the City of Bossier City through its Mayor in his executive and administrative capacity and an Answer was filed on behalf of Defendant/City Councilmen; namely, Chris Smith and Brian Hammons. This ‘Writ request was set for hearing on Friday, September 6, 2024. Appearing on that date were Petitioner, Cassie Mae Rogers and her attomey of record Dannie P. Garrett, III; Andrew C. Kolb, the attorney on behalf of the five City Councilmen named hereinabove, and Jerald R. Harper, attomey for the other two named City Councilmen and attomey for the City of Bossier City. Separate answers were filed by Mr. Harper for the Councilmen and the City. At the hearing, none of the named Defendants appeared personally; however, they were represented by their attomeys of record. After a hearing was had, the Court deemed the Exception of No Cause of Action filed on behalf of the five named City Councilmen to be submitted for decision and that the request for the Writ of Mandamus be deemed submitted on that date as well. The Court having reviewed the law and evidence now issues the following opinion: At the hearing on September 6, 2024, the Court entertained argument not only on those ‘matters submitted, but also on Mr. Kolb’s Exception of Prematurity. Following arguments made by each attorney regarding the Exception of Prematurity, the Court denied said motion. ‘The Court concluded that the proposals at issue which had been previously submitted to the City Council on August 13, 2024, and August 27, 2021, and had been rejected, served to allowPetitioner to proceed with her Writ request. An argument was made that the City Council was to meet one additional time, namely, September 10, 2024, and could, ifit so desired, favorably pass the proposals, Thus, Mr. Kolb argued that to allow the Writ application to go forward should be deemed premature since by the Petitioner's pleadings it was indicated that sufficient time would exist to get the proposals on the December 10, 2024, ballot. The Court was of the opinion that this argument was circular in nature in that there would always be another Council meeting which could consider, and which may or may not pass the proposals which would, in effect, end this litigation. Since the proposals had been previously considered on (2) occasions, it appeared that any addi nal submissions to the City Council would simply deny Petitioner the right to seek redress in a Court of Law. The Court deemed this matter ripe for the filing of said Writ and accordingly, the Exception of Prematurity was DENIED. ‘The Court next turns its attention to Mr. Kolb’s Exception of No Cause of Action. As the attorneys are aware an Exception of No Cause of Action should be granted only when it appears beyond doubt that Petitioner can prove no set of facts in support of any claim which. would entitle her to relief. If the petition states a cause of action on any ground or portion of the demand, the Exception should generally be overruled. Additionally, every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the Plaintiff the opportunity of presenting evidence at trial. See Stonecipher v. Caddo Parish, 51,148 (La. App. 2 Cir. 4/7/17), 219 So. 34 1187, writ denied, 17- 0972 (La. 10/9/17), 227 So. 3d 830. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. When the Court considers the petition and its sufficiency, the Court finds that Petitioner has indeed stated a cause of action. Accordingly, the Exception of No Cause of Action is hereby DENIED. ‘A hearing was had on the Writ request. Following numerous stipulations which were read into the record, Petitioner called the Registrar of Voters for Bossier Parish, namely, Stephanie Agee, to testify. Ms. Agee identified a copy of the proposals that were submitted to her office for verification of voters’ signatures. Said propositions allegedly signed by a sufficient number of registered voters in and for the City of Bossier City in accordance with the applicable statutes, read as follows:1) Shall the City Charter of Bossier City, LA, be amended to provide for a three-term limit for the Mayor of the City of Bossier City where no person who has been elected to serve as Mayor for three-terms shall be eligible to be elected to an additional term or portion thereof, and all terms to which a person has been elected prior to January 1, 2024, shall be counted toward the limitation provided for herein? 2) Shall the City Charter of Bossier City, LA, be amended to provide for a three-term limit for the City Council of Bossier City where no person who has been elected to serve for the three terms shall be eligible to be appointed or elected to an additional term or portion thereof, and all terms to which a person has been elected January 1, 2024, shall be counted toward the limitation provided herein? On cross examination Ms. Agee also identified the writing set forth on the back of the petition document for the voter's signature. Ms. Agee explained the process of the certification of the registered voter’s names and qualifications and identified her letter in which she reported on July 25, 2024, that the signatures submitted to her for verification had indeed been certified. Ms. Agee also identified information contained on the Louisiana Secretary of State’s website which set forth the election dates and deadlines for 2024. This certification and petitions were then submitted to the Bossier City Council on (2) separate occasions. This Court is of the opinion that there exists no dispute that the petitions had been duly certified, and no issue was raised via answer or by affirmative defense regarding the validity of any of those signatures so certified by the Registrar of Voters that would call in to question the petition’s existence, sufficiency or certification. A copy of the petition which the registrar was requested to certify is maintained in her office as a public record. Although these propositions deal with proposals for term limits for the Office of the Mayor of Bossier City and the Bossier City Councilman, this legal proceeding is not to determine the merits or lack of merit of term limits. ‘This Court is tasked with determining whether the law and evidence warranted the issuance of a Writ of Mandamus. This Court docs recognize that mandamus is an extraordinary remedy, nevertheless, mandamus will lie to compel the performance of a ministerial act where the duty is plain, and no exercise of judgment The City Charter for the City of Bossier City, as adopted in 1976, set forth two means by which the Charter may be amended. Those methods are as follows:Section 21.01, “How propose,” provides as follows: Amendments to the charter may be proposed as follows: (@ By the City Council in the form of an ordinance, except that is shall not be subject to veto, embodying the proposed amendment and providing for the submission to a Charter Review Commission as established in Section 13.02, and then subject to a special election as herein provided; or (b) By petition of electors of the city as outlined in Section 5.01, signed, examined, amended and certified. Additionally, Section 5.01 “Initiating ordinance: Referendum for amendment or appeal,” Provides as follows: Any proposed ordinance may be submitted to the City Council by the petition signed by electors equal in number to thirty-three (33) percent of the votes cast for all candidates for Mayor at the last preceding contested general election. Where the petition contains a request that the ordinance be submitted to a vote of the people, if not passes without veto by the City Council, the City Council shall either pass without vote of the people, if not passed without veto by the City Council, the City Council shall either pass without veto the ordinance without alteration within thirty (30) days after attachments of the certificate of the registrar of voters to the petition; or forthwith after the registrar of voters has attached his/her certificate to the petition, the City Council shall call an election to be held within ninety (90) days thereafter. At the special or general City election, the ordinance shall be submitted without alteration to the vote of the electors of the City. When voting upon the ordinance, the ballots used shall contain these words: “For the ordinance” (stating the nature of the proposed ordinance); “Against the ordinance” (stating the nature of the proposed ordinance). The ordinance shall become operative if a majority of the votes are in favor of it. The Mayor shall have no power to veto ordinance s0 passed At this hearing, all counsel cited the same jurisprudence with slightly different interpretations. In State ex rel. Bussie v. Fant, 216 La. $8 (1949) the Council for the City of Shreyeport had in its “discretion” refused to adopt an ordinance and the question presented to the Court was whether it became the mandatory duty of the Council to submit the ordinance to the electorate. A portion of the Bussie Opinion reads as follows: “As a general proposition of law, the validity or constitutionality of an ordinance will not be determined or passed on by a court until the ordinance is adopted.” 216 La. 58, 43 So.2d 217 (La. 1949). In Javers v. Council of City of New Orleans, So.2d 247 (La.App.4 Cir.1977), this court, as had the Supreme Court in Bussie, held that the denial of a writ of mandamus was appropriate where proposed legislation was invalid on its face. This court noted, however, that the City Council cannot refuse to submit a referendum which it might think unconstitutional. ‘Thus, Mr. Kolb on behalf of the five City Councilmen he represents maintains that the propositions are invalid which would allow the City Council to utilize its discretion in refusing to place said proposals on the ballot. The Court questioned Mr. Kolb as to whether he was maintaining that the proposals, as written, were unconstitutional. Mr. Kolb answered in the negative and the Court, while not commenting on the constitutionality or the unconstitutionalityof the proposed propositions, agrees that it would be inappropriate for the Court to interfere in the legislative process by deciding, before adoption, that a proposed act, ordinance or proposition would be unconstitutional if adopted. First, Mr. Kolb argues that the propositions as written would be invalid since there is no effective date and if the proposals were approved by the voters, then it would become effective on December 7, 2024, Thus, Mr. Kolb maintains that Councilmen Montgomery, Darby and Williams would be forced to resign their seats because each had already served three terms. ‘The Court finds that this argument is somewhat disingenuous in that the propositions read that. “no person who has been elected to serve as Mayor or Councilman for three terms shall be eligible for an additional term,” A plain reading of the proposition would serve to indicate that the current term of any of the Councilman who may or may not be affected by this proposal ‘would not have to resign their Council seat should the proposition pass. Additionally, Louisiana Law provides in LSA-RS 33:1395.6, as follows: ‘No amendment or appeal of a home rule charter shall shorten the term for which any official was elected. Secondly, Mr. Kolb on behalf of his clients argues that the propositions contain an cerroncous date for the election. The flip side of the petition circulated for signature by voters indicated that an election would be held on November 5, 2024. Mr. Kolb maintains that this is a fatal flaw in this instance since the propositions cannot appear on the November 5" ballot. Mr. Kolb further questioned whether the people signing the petition were seeking an election on November 5" for these proposals or were seeking a proposal regarding term limits. The only potential voter called to testify in this proceeding was Petitioner, Cassie Mae Rogers. Ms. Rogers’ uncontroverted testimony indicated she was signing the petition for term limits. This Court will not speculate as to why the voters whose names were certified may have signed the petition. It would appear that since voter initiative is one means by which the City Charter can be amended that the proposition, as certified, seems to mect that requirement. Additionally, not unlike the argument relating to the Exception of Prematurity, any dilatory action on behalf of the City Council could render the propositions outside of some specified date. If passed on to the electorate, the statute sets forth a timeline for the calling of the elections. If, in fact, this matter appears on the December 7, 2024, ballot the timelines would have been met,Considering the arguments put forth by counsel for five of the City Councilman, the Court cannot find the propositions, as proposed, are invalid. Procedures for proposed amendments, whether proposed by the City Council or by petition signed by the requisite percentage of electors are to be submitted in accordance with section 21.04 of the City Charter which reads, as follows: Section 21.04, “Submission of proposed amendments” provides as follows: The City Council shall submit any amendment or amendments as recommended by the Charter Review Commission to the electors of the city. If any amendment is proposed by petition of electors, the City Council shall submit the same to the electors of the city at a special election to be called no less than ninety (90) nor more than one hundred twenty (120) days after the receipt of the registrar's certificate of sufficiency. If authorized by state law, or if not on the next date so authorized. Any member of proposed amendments to this Charter may be submitted at any such general municipal election. ‘Thus, when a duly certified proposition as proposed by the electors which is not invalid the wording of the Charter itself seems to impose a mandatory duty on the Council by utilizing the word “shall.” Accordingly, based upon the evidence before the Court the Writ of Mandamus is hereby issued ordering the City of Bossier City and the City Council of the City of Bossier City to perform its nondiscretionary/mandatory duty of calling an election to submit to the voters the proposed propositions which would serve to amend the City Charter as proposed in this petition. ‘The Court further orders defendants to take all such ministerial actions required to facilitate the calling and conducting of the required election. ‘The Clerk of Court is to provide notice of this OPINION/ORDER to all parties through their attorneys of record. Considering the forgoing opinion: IT IS ORDERED that the Writ of Mandamus is hereby issued ordering the City of Bossier City and the City Council of the City of Bossier City to perform its nondiscretionary/mandatory duty of calling an election to submit to the voters the proposed propositions which would serve to amend the City Charter as proposed in this petition. The Court further orders defendants to take all such, sterial actions required to facilitate the calling and conducting of the required election.IT IS FURTHER ORDERED that the Clerk of Court provide notice of this Spubeke— SE RVE Dannie P. Garrett, IIT Attorney at Law 635 Main Street, Unit #3 Baton Rouge, LA 70801 Andrew C. Kolb Attorney at Law 10518 Kentshire Ct. Baton Rouge, LA 70810 Jerald R. Harper Anne E. Wilkes Harper Law Firm 213 Texas Street Shreveport, LA 71101