City of Baton Rouge, Parish of East Baton Rouge VS State of Louisiana, Through The Louisiana Department of Social Services and The Governor's Office of Homeland Security and Emergency Preparedness

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0005 CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE j VERSUS STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT OF SOCIAL SERVICES AND THE GOVERNOR S OFFICE OF HOMELAND SECURITY AND EMERGENCY PREPAREDNESS Judgment Rendered September 14 2007 Appealed from the 19th Judicial District Court Parish of East Baton Rouge State of Louisiana Suit Number 548 592 Honorable Cmiis A E Wade Shows Calloway Judge Counsel for Gwendolyn K Brown Ashley W Beck Baton Rouge La Plaintiff Appellant Charles C Foti Jr Counsel for Attorney General Defendants City of Baton Rouge Parish of East Baton Vma M Subramanian Cherie Lato Myers O Namie Assistant Attorney Generals Baton Rouge La BEFORE CARTER C J Rouge Appellees State of Louisiana through the Depmiment of Social Services and the Governor Security and s Office of Homeland Emergency Preparedness PETTIGREW AND WELCH n CARTER C J The appeals trial a of Baton proceeding The Parish City with its plan Emergency Services Training event of a declared judgment in pmi of East Baton Paris Rougeh Rouge City Parish judgment dismissing its petition for declaratory judgment and court relief injunctive from City state to house Center enjoin the State of Louisiana registered JESTC part and remand the State sexual offenders at the Joint in East Baton For the of emergency vacate in to sought reasons matter Rouge Parish that follow in the affirm the we for further proceedings FACTUAL AND PROCEDURAL HISTORY Act 285 of the 2006 15 2006 housing The Act of emergency the was legislature such as 14 those was d c e with other declared of emergency that a same state More area with other shelter or general population Following housing in of evacuees a an not to the of The stated and to enact sexual offenders from R S 29 726 offender August state declared 15 545 A knowingly be housed if or now after a provides sheltered in the or possible shall be alte1native shelter separate and apmi from the LSA R S 29 726E 14 Governor s office of Social Services concluded that the JESTC site East Baton S particularly LSA passage of the Act the Govelnor Emergency Preparedness a declared state of emergency and that the evacuees of event on relative problems prohibit registered during registered sexual offender shall provided and to f evacuees the reenact R amend and and being housed in effect Hurricanes Katrina and Rita following to went into effOli to address s registered sexual offenders purpose of the Act 29 726 E regular legislative session s c Office of Homeland together with located on the state Security Department owned land in Rouge Parish would be the designated shelter site for registered sexual offenders in the event of a declared state 2 of emergency The JESTC site encompasses a sizable amount of property in Zachary Louisiana and is under the operation and control of the Louisiana State Police utilized as a shelter for approximately 238 registered a it would s Baton for the facility dedicated exclusively offenders during a Councilman City back the Governor registered infonned the a Carter regarding how the shelter for President Mayor Wayne Parish City shelter for house locating housing office State or agreed Parish that it registered was Rouge gather Several 15 8 emergency Parish more s Metropolitan According to the information and repOli as its decision to sexual offenders in the event of the designated Governor days later the standing by an Holden Kip selected the JESTC site had City of officials from the Governor L to of the operating City Parish officials offenders sex Rouge Parish passed sheltering of registered sexual or 15 8 Melvin and other s the location for add Ordinance to Rouge declaration of emergency in East Baton with met Baton the passage of Ordinance Following office East any person from prohibits Baton as amending the Code of Ordinances Rouge and the Parish of Ordinance 15 8 potentially designation of the JESTC site proposed shelter the Metropolitan Council of East resolution in October 2006 as sexual offenders individuals Dissatisfied with the State the In the event the JESTC site is use a s office the JESTC site declared state of emergency In response the Relief City Parish filed for Injunctive the Depmiment of Social Services against stating that the JESTC site is and thus its designation violation of Act 285 2 as a a the State in the a Petition for through Therein it same shelter for area Declaratory Judgment and the Governor sought as 1 a the other registered s Office and declaratory judgment housing for evacuees sexual offenders constituted declaratory judgment stating that the State 3 through s a designation of the JESTC site for registered sexual offenders further constitutes Ordinance 15 8 and the State from enjoin from 3 the issuance of a preliminary housing registered sexual offenders taking steps the at violation of injunction the JESTC site to or in furtherance of that end Attached why and permanent a the to petition plaintiff s request was an for order preliminary injunction should a October 24 2006 the trial court signed November 8 to 2006 forth in LSA C C P presumably art 3602 the order the City authenticity Attorney and granted the matter for hearing took admissibility commencement agreed to a of certain maps Likewise we have stipulation as to the assist the Court in to and just so we can presentation of the case get the record straight I had appreciated that the matter before the Comi today was a hearing on the entire matter the declaratory judgment permanent injunction and that was my understanding Since that time I understand that the State is not willing to move forward in that regard but merely wants to have this in terms of a hearing on a preliminary injunction Attorney That s correct Your Honor The plaintiffs sic in their sic petition request a 3602 hearing a preliminary injunction hearing It was our understanding to set this as soon as possible to have that summary proceeding s The Court Well position is that gentlemen let me state for the record I believe in the earlier discussions this matter would all be heard at the conversation with the same time we also my indicated that I had a telephone and at that time I of lawyers couple days ago but I agreed and decided that we were just agreed to have a preliminary injunction today And I indicated that to going the attorneys during that telephone conversation I also suggested to the attOlneys that they pare down their witness list that had been fulnished to the Comi And it is my understanding that that has been stmied to say a we done Louisiana Code ofCivil Procedure miicle 3602 states in preliminm y injunction shall be on set of the November 8 place between the patiies and the comi We have the State On 1 following exchange Parish setting not be compOli with the temporal requirements The record reflects that upon the hearing requesting that defendants show cause assigned for hearing after service ofthe notice 4 pmi not less than two An application nor more for than ten a days Thus the scope of the hearing was limited to the City Parish s request for a preliminary injunction At the conclusion of the the matter under advisement judgment on the trial court indicated that it would take hearing After issuing written reasons2 November 30 2006 that provided in the trial comi peliinent pari as signed a follows regular assignment on the 8th sic 2006 on a hearing for Preliminary Injunction day filed by the City of Baton Rouge Parish of East Baton Rouge This matter came on pursuant to of November After hearing testimony and reviewing the pleadings the record and memoranda of all parties and considering the law and evidence to be in favor of defendant State of Louisiana through the Louisiana Depariment of Social Services and the Govelnor s Office of Homeland Security and Emergency Preparedness IT IS ORDERED petition of the ADJUDGED AND DECREED that the of Baton City Rouge and Parish of East Baton Rouge for declaratory judgment and pennanent injunction is dismissed with prejudice and the petitioner s request for costs and attorney fees is denied all at the cost of the petitioner City of Baton Rouge Parish of East Baton Rouge From this denying judgment its request for declaratory judgment these arguments in 2 the The written a City Parish appeals asserting that the trial preliminary injunction and permanent injunctive relief reasons judgment praying as for 3 We now its demand for a address each of dated November 16 2006 concluded with the as a matter of law that the JESTC site as violation of Act 285 of 2006 is denied site dismissing erred in turn This comi finds petition and in comi that the the shelter for following language petition for declaratory unique populations is in This comi finds declaratory judgment stating that unique populations to the shelter for the State s as a matter of law the designation of the JESTC be in violation of Ordinance 15 8 is hereby denied This court finds as a matter oflaw that the State be permanently enjoined from housing registered sexual offenders at the JESTC site in the event of a declared state of emergency is denied The comi also denies the petitioner s request for costs and attomey fees and hereby dismisses plaintiffs petition with prejudice and at its cost An preliminary may be taken as a matter of right from final injunction LSA C C P mi 3612B appeal or 5 an order or judgment relating to a LAW AND DISCUSSION I Preliminary Injunction As an initial matter we that the note specifically address the City Parish Generally when was a judgment litigated that issue Rancatore 96 2254 be presumed that injunction 12 3 04 See La City Generally issue and to any 1 Cir 12 29 97 App Barham Arceneaux writ denied Parish contends that the trial court erred in a must 2d So of 1156 Inc party seeking the issuance of loss ineparable injury show entitlement to v Honeywell harm is not restrained is unlawful direct violation of 99 19 10 itself to unless a as required in 749 So 2d 597 when the conduct 599 a sought 906 So 2d 660 Parish of 6 luling be to v not must injunction must be done does by 1 Cir 9 23 05 A 916 showing sought to be enjoined constitutes Jenkins 99 0076 be disturbed Concerned 04 0270 La a Sorrento case 925 So 2d 541 and will Tangipahoa 663 On App preliminary injunction clear abuse of discretion has been shown v preliminary Cir if the App La must 1 the merits of the See Jurisich court a La where the conduct a Thus it v 876 So 2d 87 sought this 06 17 3 The issuance of the sound discretion of the trial damage 04 1884 cases prohibitory law Proper Planning LLC 3 24 05 Int l Inc on so Inc preliminary injunction a or the relief 1163 writ denied 05 2326 La ineparable request for s any issue that Fishing 163 04 0930 La 6 4 04 prima facie showing that the party will prevail Companies 706 So 2d 161 Kozak 02 2325 v or Best rejected Parish City to preliminary injunction a part of a demand the trial court denied the show that he will suffer not as demand is deemed 874 So 2d 228 241 the appeal or is silent request for s issue herein fails at judgment a La addresses on review Citizens for App 1 Cir A Alleged The law to Unlawful Conduct CityIParish the facts adduced it is relieved from a at the an of the application hearing establishes its controlling principles of entitlement to It maintains that because the conduct that it seeks to injunction made maintains that demonstrating ilTeparable harm s Although it maintains designation of the sexual offenders violates LSA R S registered preliminary enjoin is unlawful prima facie showing of irreparable halm nonetheless CityIParish contends that the State a that it Specifically the JESTC site shelter for as a 29 726 and Ordinance 15 8 Violation ofLSA R S 29 726 As of November 2006 there evacuees Agency still JESTC site following in the Renaissance living group site were which is located approximately Village Federal approximately Miracle Place Church which housed Hurricanes Katrina and Rita is located distance from the site and Bethany 1 700 approximately evacuees is located WorId one thousand four hundred Emergency Management 6 5 driving miles from the approximately approximately 3 500 evacuees 7 9 miles driving Prayer Center which housed around 10 6 miles driving distance from the JESTC site The City Parish contends that the proximity of the JESTC site Renaissance Village same as its area designation that statute interpreted s as group site and other that term is and provisions as contemplated by the shelter for registered counters City Parish proposes 7 for evacuees LSA R S The State use as a broadly housing the renders it within the 29 14 726E sexual offenders is that the to term c a area therefore violation of cannot be The When the interpretation of LSA C C the having as 10 mi LSA C C we examine the provides in part 14 and mi context 12 as of different susceptible that best conforms in which Moreover in reference to each other interpreted mind meaning begins with the language of the When the words of a law sought by examining the whole law of the law is language interpreted a are they laws on meanings it the LSA C C their and the same art must text 13 of the law R S 29 726E to contrary the contrary a proposed shelter component in the homeland security and state emergency operations plan effective during a declared state of emergency shall include the following requirements i That registered sexual offender shall not knowingly be housed a sheltered in the ii That same area with other or evacuees registered sexual offender if possible shelter or housing in an alternative shelter separate general population of evacuees a shall be and provided apmi from the d Notwithstanding the provisions of R S 15 542 or any other provision of law to the contrary a proposed shelter component in the homeland security and state emergency operations plan shall include after the termination of the declared state of emergency the following requirements i That a registered sexual offender shall not knowingly be housed or sheltered in shelters hotels Federal Emergency Management Agency trailer parks or any other housing funded by the Federal Emergency Management Agency where the general population of evacuees is staying ii That housing hotels a in registered sexual offender shall be provided shelter an or altelnative location separate and apmi from the shelters Emergency Management Agency trailer parks or any other housing funded by the Federal Emergency Management Agency where the general population of evacuees are staying or Federal 8 a be With these precepts in 15 542 to the law as matter must follows Notwithstanding the provisions ofR S notwithstanding any other provision of be must be meaning subject pertinent language found in LSA c itself the purpose of the law to ambiguous occur statute which and after termination of a declared During e official of personnel state of emergency any federal charitable institution who becomes aware of the fact that there is organization a registered sex offender being housed in any shelter facility shall be person or a state or or required to notifY and disclose to the sheriff of the parish and the chief of police of the municipality the identity of any registered sex offender housed even in a separate area in the shelter facility Emphasis supplied The State contends that the following conclusions pursuant offenders cannot be housed or plain language of the to LSA R S 29 sheltered in the statute 14 726E fUliher in a To credit the places registered to us encompassing of a particular same area shelter R S 29 726E 14 ii c We agree City Parish contention that the location of the JESTC site s sexual offenders within the interpret the an tenn approximately to area seven same area include as an the statute we decline to interpret the term pe1iinent language of the legislature evacuees s intent to so construed statute a single shelter distinctly separate shelter altogether designation and proposed use offenders would result in the the general area physically separate registered either within or of expanse Given the broadly Rather as a would evacuees whole territory as to language of we so find that indicates the sexual offenders from other preferably by housing them Accordingly of the JESTC housing other mile radius of the JESTC site include several distinct shelters located within that radius the lead to the requires that when feasible registered sexual offenders should be housed separate shelter altogether require only i registered sexual c occupied by the general population of evacuees and LSA can site we to cannot house say the State registered of these individuals within the in a s sexual same area as population of evacuees Alternatively the City Parish claims that the State s designation of JESTC site nevertheless violates LSA R S 29 726 because subsections C 9 the through E require the State to cooperate with local officials in addressing such issues CityIParish contends that the State failed to After record a thorough review of the we comply with its duty and site prior to Emergency Preparedness its finalization with local officials that after the registered cooperate to was Moreover address their Rouge Parish Office of Homeland notified of the selection of the JESTC officials from the Governor concerns s office regarding the JESTC site meeting the State ultimately decided to stand by its decision sexual offenders at the JESTC site does not Accordingly that the State cooperate discern no such violation The record indicates that the East Baton Security to s we conclude that the designation of the The equate with City Parish failed JESTC site constitutes a a met The fact to shelter failure to demonstrate to violation of LSA R S 29 726 Violation of Ordinance 15 8 The City Parish clearly within the prohibits next asserts of its scope any person from exclusively for the or or shelter for City Parish claims that the registered in enacting Ordinance operating of sheltering declaration of emergency in East Baton The by virtue of its home rule charter it authority locating housing that an emergency registered sexual 15 8 was which facility dedicated offenders during a Rouge Parish State sexual offenders is a s designation of the JESTC site clear violation of this ordinance as a The State maintains that Ordinance 15 8 is unlawful because it conflicts with LSA R S 29 726 and constitutes Article VI existing an abridgment section 4 home rule charter power to initiate legislation constitution and is not an of the State s police power of the Louisiana Constitution of 1974 allows municipality so long as as is the Baton the ordinance is abridgment of the police 10 a pre Rouge City Parish the not inconsistent with the power of the State Daiquiri Cafe Sherwood 11 09 01 the it has been persons and power extends police s generally described and morals only to police offense an the State La 3 2 99 that A Id legislature that power Id or evil or are reasonable Thus litigant claiming that to a It is as is necessary to s designation sexual offenders constitute a A been as by case case to govern general health The 757 measure police taken under the an were acts 95 well as the as some abrogates the with act an of the public power 11 s police of the City state of Baton 450 14 726E 29 as public The event as a registered whole and preservation of an well of the emergency or fi om sexual offenders have both vital State interests 29 722A state emergency shelter for people of this State in the protection expressly recognized police s s or in the interest of the valid exercise of the State state public health safety welfare of LSA R S as an within to 661 So 2d 445 enactment performed action under the vital interest of the state a 16 10 properly falling degree local ordinance of the JESTC site lives and property of the disaster of operation tends in to preserve a protect exceedingly clear that the the State a Board of Directors of v purpose sustain that its see otherwise Williams 95 0308 La v 1 Cir App inherent power s power must show that the local ordinance conflicts Rouge on 739 So 2d 748 designed to accomplish power courts must be able to morals La power is reasonable when the action is under all the circumstances the scope of the prevent as of New Orleans City measures necessary and reasonably police 00 1745 power of the state is best defined police Louisiana State Museum 98 1170 state Rouge things within constitutional limits for promotion welfare safety Parish of East Baton v 818 So 2d 1 3 Although basis Inc LSA R S 15 540A LSA R S Article XII section 11 the legislature provide in periods of the Louisiana Constitution of 1974 for orderly of emergency and temporary until normal continuity of state reestablished in accordance with the constitution and laws of the Louisiana Homeland LHSEADA meeting In the the dangers to the state and meeting this responsibility to the Governor the Governor issue may of a The Governor is further homeland security of standards and charged with the and State emergency Act responsibility for disasters or executive proclamations and regulations having the force and effect of law 29 724A In the Disaster people presented by emergencies the be can state Security and Emergency Assistance and legislature has delegated government of government processes that requires orders LSA R S preparation and maintenance operations plan and the promulgation requirements for local and interjurisdictional disaster plans LSA R S 29 726B and E 3 Pursuant to LSA R S 29 proposed shelter are physically separated powers bestowed upon emergency to provide a its provision from the to the Governor homeland ensure that availability and LSA R S 29 729E chmier does expressly grant not during a state office must include security registered general population of preparedness agencies by the LHSEADA do for the s and a emergency sexual offenders Notably evacuees the parish presidents and parish homeland security and R S 29 727F evacuees a within component preparedness plan including 14 726E use not include the of temporary emergency More housing impOliantly the City Parish it the exclusive of emergency 12 authority to regulate s the authority See LSA home rule housing of Furthermore 29 726 we find Ordinance 15 8 to be As noted above LSA R S 29 offenders be the possible c that requires and housed apart from the physically separated When evacuees 14 726E in conflict with LSA R S commands that statute registered sexual general population of they be sheltered in a distinctly separate shelter The express language facility dedicated emergency sexual offenders during a of Ordinance Dictionary 565 defines admitting or 1990 as pertaining a Despite the CityIParish ordinance in offenders other at of typical boundaries recognized to the risk from the close the to event as ed 1990 not s t solely subject alone to the an the contrary emergency Law o the further including or it all language other of its registered sexual merely mandates that This would result in the same area as highly personal evacuees sexual offenders management in addition a of well nature evacuees housing of the very scenario to of habitation combined with the lack sharing the confines of a physical proximity 15 542A 2 6th 564 Black Rouge eliminate the increased risk requires that Dictionary Law arguments sexual offenders in the legislature sought LSA R S s be sheltered there Considering part from all others only a s in defined prevents the State from housing any way of registered sheltering or an others the JESTC site in the evacuees registered the no as ppertaining to any is Exclusively Black others exclusive operation of declaration of emergency in the East Baton Emphasis supplied exclusion of all the proscribes exclusively for the housing Parish 6th ed 15 8 arising of sexual offenders and C 2 are The at particular legislature has from such circumstances and report their presence registering shelter at any emergency therefore shelter to the with local law enforcement authorities LSA R S 13 15 543 1 Moreover the legislature by enacting laws prohibiting sexual offenders from coming within certain distances of schools daycares and playgrounds has recognized the need to impose some degree of physical separation between sexual offenders and potential victims Thus from conclude that the State we registered sexual offenders during through other than the means and realized in the State violation of law by the State s designation B Irreparable a the City Parish and offenders manifestly or use declared state agencies irreparable injury if the State persists sex be effectuated cannot R S we of the JESTC site as a 29 726 md no shelter of emergency argues that the evidence establishes that the citizens and However after was time of emergency evacuees Harm Altelnatively registered protecting innocent designation of the JESTC site Accordingly s registered sexual offenders during suffer a interest in physical separation mandated by LSA for hearing s a at thorough erroneous the JESTC site in its in the review of the record in determining that of East Baton we the presented of an cannot say City Parish the Rouge Parish will goal of housing event at or sheltering emergency that the trial court had failed to make prima facie showing of irreparable injury thereby entitling it to a a preliminary injunction Firstly site in City Parish anticipation However it as the of its presented no the erection of tents is seeks to use as a evidence causing it enjoin the State from shelter in the event of demonstrating to suffer any 14 a preparing declared emergency how the State injury the JESTC s site work such Secondly the maintains that the State Parish City JESTC site would be unduly enforcement would have the offenders housed there offenders choose incarcerated in East Baton area enforcement even offenders chose City say the trial Parish failed to abuse of discretion City Parish make the we Notwithstanding assigmnent accord in court duty would exist registered sexual Accordingly we harm attributable to Finding no judgment insofar s not concluding that the ineparable asserts to its Declaratory Judgment its entitlement declaratory judgment peliained solely This emergency shelter for sexual offenders hereby affinn the trial are duty of local law instead enoneous of they as it denies request for a preliminary injunction s City Parish JESTC site but manifestly that note It is the own registered sexual free to go into almost any jurisdictions required showing as an II Dismissal of Claims for the was we are they desire designated the the use of the JESTC site the Parish that court of whether State and thus frequent the vicinity of their to given the fact that local law the JESTC site at custody of the not it regardless enforce the law within their to on actual utilization of the of monitoring the off site activities of the sexual However Rouge if the State had cannot duty be sheltered to in the or burdensome s that the trial and or and Permanent lack thereof court ened in permanent injunction request for a to a preliminary injunction dismissing following preliminary injunction Injunction its a petition for hearing that We find merit in this of enor Designed determination on to preserve the merits order issued in summary a the status quo between preliminary injunction proceedings is the patiies pending essentially an interlocutory incidental to the main demand for 15 a pennanent injunctive relief 2617 La App 111 02 to the trial under 1 Cir Louisiana Inc s 131 01 merits the at So 2d even process the hearing at 263 preliminary authority to though the hearing touch upon on the rule for a An express and permanent unilaterally convert 879 So 2d 186 City Parish and the request for a the trial s cOUli to merits of which hearing See State to submit the the beginning of the CityIParish a a dismiss the can see case On the submit the for for a City Parish s a the final ruling on Bally case s consolidate the to court is without the Burton 03 1001 Bally no trial case may the La into App a 1 807 So 2d at 262 63 s express agreement between the final decision on the City Parish contrary the colloquy that occUlTed only issue before the preliminary injunction Accordingly be detennined only also demonstrates that the hearing request for McCurley v full proceedings preliminary injunction a a as regarding of the merits of the for after only the summary preliminary injunction matter reveals permanent injunction its merits decide issues to a La permanent injunction agreement by the parties 188 189 The record in the present a on injunctions is essential 99 01 0510 writ denied or Bd Gaming Control on parties have expressly agreed judgment of permanent injunction Cir 4 21 04 263 demand for principal preliminary injunction definitively dispose 807 the Louisiana 807 So 2d 257 preliminary injunction may Only when decision The v preliminary injunction is determined ordinary obtain the the Bally 807 So 2d 225 opposed to 4 request for a following a it cOUli s at was was error for permanent injunction the full trial under ordinary process 4 A preliminary injunction merits of a controverted issue La 12 15 06 948 2d So 1051 is only provisional Levine v and is not intended as a resolution of the First National Bank of Commerce 06 0394 06 0439 1056 57 nA 16 the Additionally CityIParish corollary of its request for and Hospitals 1 Cir relief 95 15 12 a In court re also ened in and City Parish we s we dismissing vacate petition for remand this matter declaratory judgment a is the the trial ordinary an City Parish comi s action not 935 So 2d 661 06 s demand for judgment insofar declaratory judgment for further Department demand for permanent a 10 7 La See and a is a of Health of Louisiana 95 1034 La System Like 751 Melancon 05 1702 judgment Accordingly the Retirement declaratory judgment a for permanent injunction 665 So 2d 748 suit for proceeding the trial Teachers v a demand s App injunctive summary 665 Thus a declaratory as it dismisses permanent injunction proceedings consistent with the opinions expressed herein CONCLUSION For all of the foregoing the reasons judgment denying request for a preliminary injunction is affinned is vacated In all other the appeal in the amount of 899 36 are to Parish be shared proceedings equally by the pmiies JUDGMENT AFFIRMED IN REMANDED 17 PART s respects the judgment and this matter is remanded to the trial court for further Costs of this City VACATED IN PART

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