Petition for Writ of Certiorari — Chabert v. City of Westwego

Supreme @ourt, U.S,

.SFILED

FEB 17 1971

E. ROBERT SEAVER, CLERK

ene

IN THE

Supreme Court of the United States

OCTOBER TERM 1970

13862

No. 30,248

WOODROW W. CHABERT, PAUL A. CLEMENT,

ET AL,

Plaintiffs-Appellants

versus

CITY OF WESTWEGO, ET AL,

Defendants-Appellees

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT J. STAMPS

Attorney for Plaintiffs-Appellants

504 Security Homestead Building

219 Carondelet Street

New Orleans, Louisiana 522-1672

INDEX

Page

Opinions Below - RRL SE aI K PRR Orne ee 1

Jurisdiction 2

ara Te 2

Constitutional Provisions Involved =. 3

Statement of Facts __ = 5

Ane 7

Conclusion ____. 17

Certificate ____. ve 18

AUTHORITIES CITED

Page

Baker v Carr

82 S Ct 691, 7 L Ed. 2d 663 13

Dusech v Davis

387 US 112, 18 Law Ed 2d 656, 87S Ct. 1154 _____. 15

Moody v Flowers

387 US 97, 18 L Ed. 2d 648, 87 S Ct. 1544 15

Pointer v Texas

380 US 400, 85 S Ct. 1065, 18 L Ed. 2d 923 11

Reynolds v Sims

84 S Ct. 1862, 377 US 533 13, 14

Louisiana Constitution Act 7 Sec. 51 (B) 3, 7

Louisiana Revised Statutes RS 33:382 _.____. 4,6, 11,13

Louisiana Revised Statutes RS 33:401 4

Louisiana Revised Statutes RS 33 :423 15

United States Constitution — 5th Amendment ___.____. 3

United States Constitution — 6th Amendment ___. 3,11

United States Constitution — 14th Amendment _ 3,10, 11

Appendix A — Judgment of Trial Court 19

Appendix B — Judgment of

5th Circuit Court of Appeals 28

II

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1970

No. 30,248

WOODROW W. CHABERT, PAUL A. CLEMENT,

ET AL,

Plaintiffs-Appellants

versus

CITY OF WESTWEGO, ET AL,

Defendants-Appellees

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners Woodrow Chabert, Paul A. Clement

and others similarly situated pray that a writ of certiorari

issue to review the opinion and judgment of the United

States Court of Appeals for the Fifth Circuit rendered

in these proceedings on November 20, 1970.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit, as yet unreported, appears as Appendix A page

2

28. The opinion of Federal District Court for the

Eastern District of Louisiana is unreported as appears

as Appendix B page 30. The United States Court of

Appeals for the Fifth Circuit affirmed the judgment

of the District Court on the summary docket.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was rendered on November 20,

1970. See Appendix A. This petition for certiorari was

filed less than 90 days from the date aforesaid. The

jurisdiction of this Court is invoked under 28 USCA

Sec. 1254.

QUESTIONS PRESENTED

The two plaintiffs and others similarly situated filed

this suit seeking injunctive relief and requesting a three

judge court. The issues presented are as follows:

(1) Whether the mayor is qualified and auth-

orized to sit as judge of the Municipal Court

of the City of Westwego while the State

Constitution permits the election of a quali-

fied lawyer-judge.

(2) Whether the election procedures of the City

of Westwego are constitutionally permis-

sible. The aldermen are elected at large;

their election at large is contrary to the

Louisiana Constitution and the Louisiana

Revised Statutes.

(3) Whether the unlawful action of the City

Marshal is constitutionally permissible.

3

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V

“No person shall ... . be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty or property, without due

process of law. . .”

Constitution of the United States, Amendment VI

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial .. .

and to be informed of the nature and cause of

the accusation; to be confronted with the wit-

nesses against -him; to have compulsory process

for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.”

Constitution of the United States, Amendment XIV

“. . + nor shall any state deprive any person of

life, liberty or property without due process of

law. . .”

Louisiana Constitution Article 7, Sec. 51 (B)

“(B) Jurisdiction of City Courts

The legislature may pass laws also conferring

civil jurisdiction of City Courts in cities where

the combined population of the city and the ward

or wards of the parish where situated is more

than ten thousand inhabitants, but less than

twenty thousand, concurrent with that of the

District Court, where the amount in dispute, or

the value of the movable property involved, does

not exceed Five Hundred Dollars, exclusive of

interest and attorney’s fees. .. .”

4

RS 33: 382

“Each city shall be divided into four wards, as

near equal in population as can be conveniently

provided, the territory of which shall be conti-

guous. The boundaries of wards may be changed

by ordinance passed by a vote of at least two-

thirds of all the aldermen elected. When fixed by

ordinance the boundaries of the ward shall not

again be changed for a period of two years, ex-

cept for the purpose of uniting thereto territory

added to the city limits. No change in the bound-

ary of a ward shall be made, however, less than

one year before a municipal electic.. In case a

city is not divided into wards before the first

election under this Part, all the aldermen may be

elected from the city at large.

“The mayor and board of aldermen of a town

shall determine if the town is to be divided into

wards; if divided, the whole of this Section

shall apply. Where not divided the municipality

shall be treated as constituting one ward within

the provisions of this Part concerning the sub-

ject of registration and elections.”

RS 33: 401

“Powers of mayor and aldermen; ordinances

authorized.

“A. The mayor and board of aldermen of every

municipality shall have the care, management,

and control of the municipality and its property

and finances. They shall have power: _...______.

“(6) To make all police regulations necessary

for the preservation of good order and the peace

of the municipality; and to prevent injury to,

5

destruction of, or interference with public or

private property.

“(31) ‘To provide for the removal of officers

and discharge of employees for misconduct or

neglect of duty, subject to any applicable civil

service law.”

STATEMENT OF FACTS

The relevant facts presented in this petition are as

follows:

The two petitioners Woodrow Chabert and Paul A.

Clement are policemen in the City of Westwego. This is

a class action on behalf of these two petitioners and

other's similarily situated in the City of Westwego.

One petitioner Paul A. Clement was suspended as a

policeman by the Marshal of the City of Westwego. He

presented his case to the Civil Service board of the City

of Westwego. The Civil Service Board exonerated him

and directed his return to duty as a policeman. The

Marshal has refused to honor the ruling of the City

Civil Service Review Board.

The other petitioner Woodrow Chabert was dismissed

from duty for failure to bid the Marshal the time of day.

He demanded a hearing by the City Civil Service Board

and he also was exonerated. He was reinstated to duty

but has been constantly harassed in official duties.

This suit is an outgrowth of the dissatisfaction of

these two petitioners and others similarly situated. They

are tax paying residents of the City of Westwego. As

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6

per the stipulations on the trial of the rule to show

cause Westwego has a population between 10,000 to

20,000 persons. However this population may exceed

20,000. At first inspection this suit appears as a political

struggle between two factions. On closer evaluation, it

discloses a power entente which engenders itself.

According to the Louisiana Constitution this city is

entitled to a City Court with criminal jurisdiction. over

misdemeanors and civil jurisdiction over a controversy

which does not exceed $500.00 exclusive of interest and

attorney’s fee. The present mayor’s court is constitution-

ally and statutorially unpermissible. The provisions of

law have not been implemented. Petitioners contend that

this is an unconstitutional application of a constitutional

law.

Under the Laws of Act of 1898 Codified as Louisiana

Revised Statute RS 33: 382 which provides that:

“... each city shall be divided into four wards... .”

the city has an option not to be divided into four wards,

but the City of Westwego has never exercised this option.

Further the statute provides that each ward shall elect

an alderman and one alderman shall be elected at large.

In the City of Westwego all of the aldermen are elected

at large, even though the Board of Aldermen has not

passed an ordinance not to be divided into four wards.

Petitioners filed suit in the Federal District Court

for the Eastern District of Louisiana seeking injunctive

relief. A three judge court was requested. A rule to

show was granted before Lansing Mitchell. The matter

was heard and then dismissed. Petitioners filed for a new

7

trial; a new trial was granted; reargument on a motion

to dismiss resulted in another dismissal. The matter was

appealed to the Fifth Circuit Court of Appeals: the appeal

was dismissed on the summary docket.

ARGUMENT

Plaintiffs are seeking to have an injunction issued

enjoining the municipal government as it is presently

constituted for the following reasons. Under the Louisi-

ana Constitution Article 7, Sec. 51, a city which has a

population in excess of 10,000 is entitled to a city court

with civil jurisdiction concurrent with that of the district

court over the movables which do not exceed $500.00 ex-

clusive of interest and attorney’s fees, and shall also have

criminal jurisdiction not extending beyond trials punish-

able by imprisonment at hard labor. Under the stipula-

tions on the trial of the rule to show cause the City of

Westwego had a population between 10,000 and 20,000

persons so that, therefore, the City of Westwego was

entitled to a City Court as set forth under the Louisiana

Constitution. The provisions of the Constitution are con-

sidered enabling provisions; it is stated that the legisla-

ture shall have the power to create such city courts.

Plaintiffs showed through the testimony that the persons

who appear before the Mayor’s court do not receive a

fair and impartial trial and that more specifically that

the Mayor judicates several types of cases in which he

has no jurisdictional authority.

Testimony of Woodrow Chabert, Appendix p. 37-40

“(12) Q. Sir, would you identify that piece of

paper that you hold in your hand?

PERT ER IS FLORENCE ee sees

8

A. That is a Warrant of Arrest, City of West-

wego, State of Louisiana — Parish of Jeffer-

son, Mayor’s Court.

Q. And what is that Warrant of Arrest for?

A. A Mynus Aizen, who lives in Daigle’s Apart-

ments in Marrero. It was issued on the 22nd

of November ’68.

Q. And what was it for? What was the Warrant

issued for?

A. For failing to make payment of accident reg-

ular.

MR. STAMPS:

Your Honor, at this time, I would like to make

this as Plaintiff—1.

THE COURT:

Are you going to introduce it into evidence?

MR. STAMPS:

Yes, Your Honor.

THE COURT:

Offer it.

MR. STAMPS:

Your Honor, at this time, I offer, introduce and

file in evidence as Plaintiff—1, a copy of a

Warrant of Arrest directed to a Mynus Aizen

for, as it states, failing to make payments of

accident regular.

THE COURT:

All right.

MR. STAMPS:

I mark it and introduce it into evidence.

MR. CURRAULT: .

I would like to object to this, Your Honor. I

would like to see the document.

THE COURT:

Show it to opposing counsel, Mr. Currault.

MR. CURRAULT:

I would like to object to that, Your Honor, it

hasn’t (14) been verified as a true document of

the City of Westwego.

THE COURT:

Well, how did you get this?

THE WITNESS:

Well, could I go into detail?

THE COURT:

Yes.

THE WITNESS:

All right. To my knowledge, this man stole a

vehicle in Marrero and he got into-an accident

10

in the parish of Jefferson and he got into an

accident on Highway 90, and this is also in the

parish of Jefferson.

Now, we was instructed by the Marshal that

if this man had a bill to pay every —I believe

it’s every 2 weeks or every week when he got

paid. This man happened to fall down and he’s

sort of crippled, he’s kind of not normal, he fell

down at Avondale and hurt himself and we had

to pick this man up when payments was due for

Mr. Adams that lives on West Drive, which is

good friends with the Marshall, and we had to

pick him up several times, on several occasions

we had to pick him up on this particular War-

rant, so I had made (15) a copy of it. I had it

in my possession.

THE COURT:

That warrant was given to you in your posses-

sion?

THE WITNESS:

It was in my possession, yes, Sir.

THE COURT:

The original of it?

THE WITNESS:

Yes, Sir.”

Plaintiffs contend that the citizens of the City of

Westwego are denied their constitutional rights under

the due process and equal protection clauses of the 14th

Amendment and more specifically due process under the

11

6th Amendment of the United States Constitution. Plain-

tiffs allege that the State of Louisiana has constitutional

authority to remedy these problems but that the State

refused to act. Said refusal to act constitutes a violation

of the federal constitutional rights of these plaintiffs

and other persons similarly situated.

This Court in Pointer versus Texas 380 US 400 85

Supreme Court 1065 and 13 Law Ed. 2d 923 held that

the guarantees of the Sixth Amendment for the right

of confrontation of witnesses and also to a fair and

impartial trial should be enforced under the Fourteenth

Amendment in state proceedings. In this specific case

the Louisiana law provides for a city court, but through

a non-application of this law the citizens of the City of

Westwego are being denied same and are being denied

rights under the Sixth Amendment. For a detailed evalua-

tion of same reference is made to the testimony of Officer

Chabert in the evidentiary hearing on the rule to show

cause.

The second point is the refusal of the State of Louisiana

to implement the provisions of the Lawrason Act, R.S.

33 :382 which provides that:

“. .. each city shall be divided into four wards. .. .”

Under cross-examination:

The testimony of Mayor Ernest J. Tassin under cross-

examination is pertinent as follows: (Appendix p. 51-53)

(64) | :

Q. Sir,.can:you explain to the Court why under

12

the provision of the Lawrason Act your city

has not attempted to district into wards?

I can’t answer that question directly, because

I am not too familiar with it. This would

probably have to come under the Committee-

men that set up the elections for the city of

Westwego. :

All right, Sir. Let me ask you another ques-

tion: To your knowledge, has the city of

Westwego ever passed an ordinance or a rul-

ing that Westwego shall not be broken down

into wards?

No, Sir, not to my knowledge, no Sir, not as

long as I have been Mayor there since ‘65.

Sir, have you ever received an opinion from

the Attorney General or from your City At-

torney in regards to (65) Revised Statutes

382 in regard to the creation of wards?

No, Sir, I haven’t.

Sir, if I were to read you that first part:

‘Each city shall be divided into four wards,’

would you consider — ‘well would you ex-

plain to the Court why your city has not

followed the mandate of that statute and

divided it into wards?

I would say ignorance to the law.

Ignorance of the law, Sir?

Yes, Sir, I’m not too familiar with it, I

I haven’t read that statute.

All right, Sir. Now, I redirect to one question

13

you answered prior. Has your city ever pas-

sed an ordinance that Westwego shall not

be broken down into wards?

A. Repeat that, please.

Q. Has your city or your council ever passed an

ordinance or law that Westwego shall not be

broken down into wards?

A. Since 1965, since I have been Mayor, no Sir,

we haven’t, maybe before. I couldn’t answer

that.

Q. Do you know if the city of Westwego ever

had, Sir?

A. ‘I don’t believe. I was on the City Council

prior to becoming Mayor and I don’t remem-

ber any ordinances (66) as such.”

Under cross-examination Mayor Tassin admitted that

the aldermen in the city of Westwego are elected at

large; that they do not follow the provisions of La. Re-

vised Statutes R.S. 33:382 that to his knowledge the city

of Westwego has never passed an ordinance exempting

it from the provisions of La. R.S. 33:382.

Plaintiffs contend that the inaction of the State of

Louisiana, in not requiring the city of Westwego to fulfill

the statutory requirements in election procedures denies

to them equal protection under the laws. The inaction of

the state creates a federal constitutional issue which is

now before this Honorable Court.

That under the cases of Baker versus Car 82 SCt.

691 7 L Ed. 2d 663 and more specifically Reynolds versus

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Sims 84 S Ct. 1362, 377 US 533 the Supreme Court has

determined the rule of law of “one man one vote.” In the

opinion of Reynolds versus Sims 377 US 533 84 S Ct. 1362

decided in 1964 the following has application to this case:

“The Alabama constitution required the legisla-

ture be apportioned decennially; growth of Jef-

ferson Parish Alabama from 1900 to 1960. Jef-

ferson Parish was victim of discrimination.”

This case is applicable to the present case because the

Alabama constitution required the legislature be appor-

tioned every ten years to account for changes between

rural and urban population growths; however, the Ala-

bama legislature from the year 1900 to 1960 refused to

follow the Alabama constitutional mandates. In our case

the constitution and statutes of Louisiana require that

the city of Westwego be divided into wards and that each

ward elect an alderman to represent that specific ward.

The Louisiana legislature and the election governing

bodies have done nothing to implement nor enforce these

constitutional and statutory provisions.

Further in Reynolds versus Sims on Page 570 the

following excerpts has application to this case:

“Legislative inaction, coupled with the unavail-

ability of any: political judicial remedy, had re-

sulted, with the passage of years in the perpetu-

ated scheme becoming little more than an an-

chronism. Consistent failure by the Alabama

legislature to comply with state constitutional

requirements as to the frequency of reapportion-

ment and the basis of legislative representation

resulted in a minority stranglehold on the state

legislature.” :

15

In this particular case Westwego was incorporated

prior to 1898 under the provisions of the Lawrason Act

which has been formulated and made law in LSA RS

33 :321 through 481.

Further, under the case of Dusch versus Davis 387 US

112 18 Law Ed 2d 656 and 87 S Ct 1154 the provisions

of Reynolds versus Sims has been applied to apportion-

ment with municipal corporations.

In Moody versus Flowers 387 US 97 18 Law Ed 2d 643

and 87 S Ct 1544 it was held that a corporation appor-

tionment suit did not require a three-judge court in that

the charter was only local and did not have a state-wide

application.

Dusch versus Davis concerned the election procedures of

the five boroughs of Virginia Beach, Virginia and attacked

the city’s consolidation plans. The Dusch versus Davis

case decided under the principles of Reynolds versus Sims

seemingly give this court jurisdiction to entertain this

case under its supervisory jurisdiction.

Plaintiffs allege that R.S. 33:428 defines. the duties of

the mayor and aldermen; sub-paragraph 6 states that the

mayor and aldermen shall have the anes as follows:

“401: Powers of mayor: and aldermen ; ordi-

“nances authorized ~ i s +

“A. The saldpad: and board of: aldermen of

every municipality shall have the: care,

management, and control of the munici-

16

pality and its property and finances.

They shall have power: .. .”

“( 6) To make all police regulations necessary

for the preservation of good order and

peach of the municipality; and to pre-

vent injury to, destruction of, or inter-

ference with putlic or private prop-

3 te

(31) To provide for the removal of officers and

discharge of employees for misconduct or

neglect of duty, = to any applicable

civil service law. .

The action of the Marshal of the city of Westwego in

suspending Chabert and Clement, two police officers,

supersedes his authority under the charters of said corp-

oration. Even after these men had been cleared by the

Civil Service Commission which inquire into their sus-

pensions, the Marshal had refused to rehire Mr. Clement

and has constantly harassed and impeded Officer Chabert

in his official capacities as a police officer. This action

to your petitioners violates all canons of due process and

further the petitioners have no remedy after reinstate-

ment is ordered by the Civil Service Commission and the

Marshal refuses to allow them to function in their capa-

cities as policemen.

Under the provisions of the Revised Statutes above men-

tioned, the actions of the Marshal of the City of Westwego

in firing employees without the approval of the mayor

and board of aldermen are in contravention of the Loui-

siana statutes and such conduct of the Marshal is flagrant

disregard of the rights of citizens of Westwego to equal

protection under the laws of the United States.

17

CONCLUSION

It is respectfully submitted that plaintiffs and other

persons similarly situated in the City of Westwego are

entitled to a city court as set forth under Article 7,

Section 51 of the Louisiana State Constitution; they are

entitled to have their city broken down into wards and

entitled to elect an alderman to represent their ward

on the city government as provided for under R.S. 33:382.

Lastly, the Marshal of the City of Westwego should be

prohibited from acting in derogation of their rights

under R.S. 33:401, sub-paragraphs 6 and 31.

Plaintiffs contend that the judgment of the trial court

should be reversed. That a three-judge court should be

convened and that the government as presently consti-

tuted in the City of Westwego should be enjoined, then

a new election shall be called in conformity with the

provisions of Louisiana law.

Respectfully submitted,

ROBERT J. STAMPS

Attorney for Plaintiffs-Appellants

504 Security Homestead Building

219 Carondelet Street

New Orleans, Louisiana 522-1672

PON NTE OEE NEON One ae enn pT steno

PENNE Fe

18

CERTIFICATE

I certify that a copy of the foregoing brief was served

by mail on the attorney for the City of Westwego, Nestor

L. Currault, Jr., at his address at 211 Derbigny Street,

Gretna, La. 70053 this day of February, 1971.

ROBERT J. STAMPS

19

APPENDIX A

MINUTE ENTRY MITCHELL, J. JUNE 12, 1970

CIVIL ACTION NO. 70-266 SECTION F

WOODROW W. CHABERT, ET AL

| versus

CITY OF WESTWEGO, ET AL

This matter came before the Court on a former date

on plaintiffs’ motion for a preliminary injunction. After

considering the testimony, the arguments and briefs sub-

mitted by counsel, plaintiffs’ petition for injunctive relief

is denied.

Plaintiffs in this action are residents and taxpayers

of the City of Westwego, Louisiana, who purport to sue

on behalf of themselves and all who are similarly situ-

ated. Based upon their contention that the present method

of electing aldermen, the existence of a mayor’s court

and failure of city officials to follow the state laws

deprive them of their rights under the United States Con-

stitution, plaintiffs now move to enjoin defendants from

“proceeding with the municipal government and mayor’s

court as presently constituted’.

Under Louisiana law, municipal corporations are di-

vided into cities, towns and villages. Those having 5000

or more inhabitants are cities.!

1 La. R.S. 33:322.

ar ee ee Ae

20

We took judicial notice of the fact that the City of

Westwego, Louisiana has a present population of more

than 10,000 and less than 20,000 inhabitants.

In 1898 the Louisiana Legislature passed Act 136,

commonly known as the Lawrason Act, which was a

general legislative charter for all municipalities created

after July 29, 1898. This statute set up the form of

government for municipal corporations and defines their

powers and duties.”

Under the present Louisiana law, there are three prin-

cipal forms of municipal government — the Mayor-Board

of Alderman Form, the Commission Plan and the Com-

mission Manager Plan.*

Under the Alderman’s form of government the elected

officers consist of a mayor, a variavle number of alder-

men and a marshal. The distinguishing feature of the

Aldermanic form is that aldermen are, as a rule, elected

from various wards in the municipality rather than

from the municipality as a whole, whereas the distinctive

feature of the Commission Plan of Government is that

the governing body is elected at large.*

The City of Westwego operates under the Aldermanic

form and its municipal council is composed of the mayor

and five aldermen who are elected at large for a term

of four years. Each voter in the city is entitled to vote

for five aldermen.

Plaintiffs contend that under the state law, Westwego

2R.S. 33:321 et seq.

3 Chapman v. Bordelon, 138 So.2d 1 (1962).

4La. R.S. 33:501 et seq.

21

should be divided into wards, each of which would have

one alderman elected and representing it and that the

present method of electing these officials is constitu-

tionally impermissive.

Louisiana law provides:

“Each city shall be divided into four wards...

In case a city is not divided into wards before

the first election under this Part, all the alder-

men may be elected from the city at large.

“The mayor and board of aldermen of a town

shall determine if the town is to be divided into

wards; if divided, the whole of this Section shall

apply. Where not divided, the municipality shall

be treated as constituting one ward .. .”5

Westwego is approximately 50 years old; and the city

has never been divided into wards, the aldermen hav-

ing always been elected at large.*

Where the Board of Aldermen have not divided a town

into wards, aldermen are to be elected at large.”

It should be noted here that there is no claim that any

eligible citizen in Westwego is being denied the right

to cast his vote in any election, nor do plaintiffs main-

tain that the state statute is unconstitutional. On the

contrary, plaintiffs contend that the Louisiana law is

constitutional; that Westwego must be divided into wards

and defendants, by ignoring state law and employing the

‘at large’ system of electing aldermen, have denied plain-

5 La. R.S. 33:382.

6 Testimony of Mayor Tassin.

7Op. Atty. Gen. 1944-46 p. 617.

22

tiffs the right of one-man, one-vote representation in

their city government. Plaintiffs’ contention is that by

an ‘at large’ election they are being denied a representa-

tive form of government in that they cannot elect, by

their own votes, an alderman from their particular dis-

trict who would be favorable to their particular interests

and needs.

The right protected by the one-man, one-vote rule is

that whenever persons are selected by popular election

to perform governmental functions, the Equal Protec-

tion Clause of the 14th Amendment requires that each

qualified voter has a constitutional right to have his

vote be given substantially equal weight to that of other

voters.®

This principle not only applies to elected legislative

bodies at state level but also to those elected at local

levels, such as cities and towns.’

Concededly, the municipal council is the legislative

body enacting laws affecting the City of Westwego.

Clearly, in the present system, each vote has exactly

the same weight as any other.

The system of electing legislative bodies in an ‘at

large’ system election is quite commonly used. There are

advantages and disadvantages to the use of either the ‘at

large’ system or the ward system of election. One sup-

posedly ensures the election of an official who can com-

8 Reynolds v. Sims, 84 S. Ct. 1362 (1964).

9 Avery v. Midland County, Texas, 88 S. Ct. 1114 (1968); Kapral v.

Jepson, 271 FS 74 (D. Conn.-1967); Ellis v. Mayor & City Council of

Baltimore, 352 F2d 123 (CA 4-1965); Martmolich v. Dean, 256 FS 612

(SD Miss.-1966).

23

mand wide support throughout the entire community

and will be representative of and responsive to the needs

of the community as a whole. His tenure depends upon

the city-wide electorate and he must be vigilant to

serve the interests of all the people in the city and not

merely those of a particular ward. The other is designed

to ensure representation of the particular interests of

the separate geographical segments of the community.

It may well be that one who would be elected under one

system might not be able to win election under the other.

There are many considerations which may justifiably

lead a city to adopt one method of election rather than

the other.

It has clearly been held that the at large system -is

not, per se, unconstitutional.”

The constitutional test under the Equal Protection

Clause is whether there is an invidious discrimination."

It might well be that in a particular circumstance, an

at large system would be invalid. However, where the

requirements of Reynolds v. Sims are met, apportion-

ment schemes will constitute an invidious discrimination

only if it can be shown that an ‘at large’ system under

the circumstances of a particular case would Operate to

minimize or cancel out the voting strength of racial or

political elements of the voting population.’? That issue

was not presented here. We find that the present method

10 Fortsen v. Dorsey, 85 S. Ct. 498 (1965): Dusch v. Davis, 87 S. Ct.

1554 (1967); Owens v. School Comm. of Boston, 304 FS 1327 (DC Mass.-

1969).

11 Baker v. Carr, 82 S. Ct. 691; Reynolds v. Sims, supra.

12 Burns v. Richardson, 86 S. Ct. 1286 (1966); Chavis v. Whitcomb,

305 FS 1364 (SD Ind.-1969).

RE Seite tht dere BED EE Ra ak Se SAN LG aR AL mai

ab Rei palit dee De L ea aeieei 2h

24

of electing aldermen in the City of Westwego does not

violate plaintiffs’ constitutional rights.

We have been shown no evidence of any discrimina-

tion, purposeful or otherwise, against any group of voters

in the ‘at large’ election system in Westwego and, in the

absence of such a showing, petitioners are not entitled

to any relief on the basis of this claim.

Ernest J. Tassin is the duly elected mayor of Westwe-

go and serves as Judge of the Mayor’s Court. Petition-

ers contend that, because of Westwego’s population, it

is entitled to a city court with an elected judge.

Mayor’s Courts were created by the Louisiana Legis-

lature in 1898 by passage of the Lawrason Act.”

Although the Louisiana Constitution authorizes the

legislature to abolish justice of the peace courts and create

in their stead district courts in cities equal in popula-

tion to that of Westwego,’* that same section of the con-

stitution authorizes Mayor’s Courts."®

We have been unable to find any law, nor has any

been cited which states that the abolition of justice of

the peace courts abolishes Mayor’s Courts as well.

The City of Westwego comprises a portion of the

Fourth Ward for the Parish of Jefferson. Pursuant to

13 L.R.S. 33:441 Mayor’s Court: ... there shall be a Mayor’s Court

in the municipality, with jurisdiction over all violations of municipal

ordinances. The mayor may try all breaches of the ordinances and

impose fines or imprisonment, or both, provided for the infraction

thereof.

14 laa. Const. Art. 7, Section 51B.

15 La. Const. Art. 7, Section 51E.

25

constitutional authorization," the state legislature enact-

ed laws creating a parish court system in Jefferson

Parish in lieu of a city courts system.”

There is no evidence in the record of this case which

would cause us to find that because there exists a Mayor’s

Court in the City of Westwego, petitioners are being

denied their rights under the laws and the Constitutions

of the State of Louisiana or of the United States.

Jefferson Parish is composed of numerous municipali-

ties, each having its own Mayor’s Court which hears

violations of City ordinances and the right to appeal an

adverse decision therein is vested by the Louisiana Con-

stitution.'®

We conclude that the existence of a Mayor’s Court in

the City of Westwego does not deny petitioners equal

protection of the laws or due process of law under the

14th amendment nor any constitutional rights guaranteed

them under the 6th 2inendment to the United States

Constitution.

Petitioners are policemen who were employed by the

City of Westwego; defendant Sidney Guillot is the

elected marshal.

Because of the large turnover of employees in the

Police Department," on July 1, 1965, the Mayor and the

Board of Aldermen passed a resolution delegating to

16 La. Const. Art. 7, Sec. 51A.

17 La. R.S. 13:2561.1 et seq; La. R.S. 13:2562.1 et seq.

18 La. Const. Art. 7, Section 36.

19 Testimony of Mayor Ernest Tassin.

A ee APE TRC RTE. PE,

26

Marshal Guillot the power, as Chief of Police, to suspend,

hire and fire police officers.”

Pursuant to this authority, he suspended petitioner

Chabert and fired petitioner Clement.

Under the remedies afforded by state law,”' both pe-

titioners were exonerated by the Civil Service Commis-

sion and although petitioner Chabert was reinstated, Mar-

shal Guillot refused to rehire petitioner Clement.

There is presently pending in state court a writ of

mandamus, brought by petitioner Clement, ordering the

City to rehire him as a police officer.”

It is petitioners contention that the resolution of the

Board of Aldermen* was an illegal delegation of power

since, under the Lawrason Act, only the Mayor and the

Board have the authority to hire and fire city employees,”

and since the state, acting through the municipality, has

failed to take any action to curb Marshal Guillot or to

take any positive action to al'viate law enforcement

problems existing in the muni pality, petitioners have

been denied equal protection of the laws and due process

as guaranteed them by the 14th Amendment to the

United States Constitution.

The Mayor and the Board of Aldermen exercise the

governmental powers of the municipality and are re-

20 Exhibit P-2.

21 La. R.S. 33:2531 et seq.

22 Docket No. 124,453; 24th Judicial Dist. Court for the Parish of

Jefferson, State of Louisiana.

23 Exhibit P-2.

24La. R.S. 33:321 et seq.

27

sponsible for policing the city.2° The Marshal is the Chief

of Police; his duties are defined neither by statute or

jurisprudence but, because of the nature of his office,

he is the chief law enforcement officer of the city and

as such has supervision of the police department.”°

Under the law the Mayor and the Board have the

authority to prescribe the duties of all officers and em-

ployees o*% the City and the Marshal has the duty to

perforin all duties required of him by ordinance.*"

We conclude that there is nothing in the Lawrason Act

that precludes the Board of Aldermen from granting to

the Chief of Police the power to supervise the police de-

partment, which necessarily entails the hiring and firing

of the employees within the department.

No evidence was presented from which we could estab-

lish that petitioners’ constitutional rights were violated.

Adequate state remedies were available and petitioners

have made use of them.

25 LSA R.S. 33:362; 33:401; 402(4) and 404.

Pi LSA R.S. 33:423; Lentini v. City of Kenner, 211 So.2d 311 (La.

1968).

27 LSA 33:401(a) (30); 33:423.

28

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1970

No. 30,248

SUMMARY CALENDAR

D. C. DOCKET No. 70-266

WOODROW W. CHABERT, PAUL A. CLEMENT,

ET AL.,

Plaintiffs-Appellants,

versus

CITY OF WESTWEGO, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

Before GEWIN, GOLDBERG and DYER, Circuit

Judges.

29

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Eastern District of Louisiana, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the

same is hereby, affirmed;

It is further ordered that plaintiffs-appellants pay to

defendants-appellees, the costs on appeal to be taxed by

the Clerk of this Court.

November 20, 1970

Issued As Mandate: December 14, 1970

~ ee

;

‘

e

§

i

at atte 5

Feta Cte OE

30

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 30,248

SUMMARY CALENDAR*

WOODROW W. CHABERT, PAUL A. CLEMENT,

ET AL.,

Plaintiffs-Appellants,

versus

CITY OF WESTWEGO, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

(November 20, 1970)

Before GEWIN, GOLDBERG and DYER,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.!

*Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York, et al., 5th Cir., 1970, _.... F.2d _....., Part I [No. 29278,

August 14, 1970].

1See NLRB v. Amalgamated Clothing Workers of America, 5 Cir.

1970. _ F.2d _.... [No. 28680, August 12, 1970].