FOURTH CIRCUIT COURT OF APPEAL
STATE OF LOUISIANA
NO. 2019-CA-0774 c/w 2019-CA-0775
DEEP SOUTH CENTER FOR ENVIRONMENTAL JUSTICE, VAYLA NEW
ORLEANS, JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB,
MR. THEODORE QUANT, AND MS. RENATE HEURICH
Plaintiffs-Appellees
V.
THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE,
TELECOMMUNICATIONS AND TECHNOLOGY COMMITTEE OF NEW
ORLEANS CITY COUNCIL, JASON R. WILLIAMS, STACY HEAD, SUSAN
G. GUIDRY, LATOYA CANTRELL, NADINE M. RAMSEY, JARED C.
BROSSETT, AND JAMES A. GRAY, II
Defendants-Appellants
ON APPEAL FROM CIVIL DISTRICT COURT,
PARISH OF ORLEANS, NO. 2018-03843 (“I-14”)
HONORABLE PIPER D. GRIFFIN, PRESIDING
APPELLANTS’ BRIEF IN 2019-CA-0774
Corwin M. St. Raymond #31330
Deputy City Attorney
William R. H. Goforth # 33153
Assistant City Attorney
Donesia D. Turner #23338
Sr. Chief Deputy City Attorney
Sunni J. LeBeouf #28842
CITY ATTORNEY
1300 Perdido Street – Room 5E03
New Orleans, LA 70112
Telephone: (504) 658-9800
Facsimile: 504-658-9868
E-mail: cmstraymond@nola.gov
wrgoforth@nola.gov
donesia.turner@nola.gov
sunni.lebeouf@nola.gov

James M. Garner #19589
Debra J. Fischman #5578
Stuart D. Kottle #37194
SHER GARNER CAHILL RICHTER
KLEIN & HILBERT, L.L.C.
909 Poydras Street, Suite 2800
New Orleans, LA 70112
Telephone: (504) 299-2100
Facsimile: (504) 299-2300
E-mail: jgarner@shergarner.com
dfischman@shergarner.com
skottle@shergarner.com

Adam J. Swensek #30751
Executive Counsel
NEW ORLEANS CITY COUNCIL
1300 Perdido Street, Room 1E6
New Orleans, Louisiana 70112
Telephone: (504) 658-1109
E-mail: adam.swensek@nola.gov
ATTORNEYS FOR DEFENDANTS-APPELLANTS

 TABLE OF CONTENTS
Table of Contents ...................................................................................................... ii
Table of Authorities ................................................................................................. iii
Table of Appendices ..................................................................................................v
Jurisdictional Statement .............................................................................................1
Concise Statement of the Case...................................................................................2
Assignment of Alleged Errors ...................................................................................3
Issues Presented for Review ......................................................................................4
Statement of Facts ......................................................................................................5
A. Entergy New Orleans’ application to construct the New Orleans Power
Station. .............................................................................................................6
B. The Utility, Cable, Telecommunications and Technology Committee meeting
of February 21, 2018........................................................................................6
C. The full City Council meeting of March 8, 2018. ...........................................7
D. District Court proceedings. ..............................................................................8
Summary of the Argument.......................................................................................12
Argument..................................................................................................................14
I. The District Court erred as a matter of law in finding that the Open Meetings Law
can be violated when a public body “did nothing wrong” – merely because a
private party pays members of the audience to appear in support of an agenda
item. ....................................................................................................................14
II. The March 8, 2018 City Council’s vote cured any purported violation, which is
denied, of the Open Meetings Law. ....................................................................18
A. The February 21, 2018 committee meeting was not required for the City
Council’s vote on the resolution at the March 8, 2018 meeting....................18
B. Even if the February 21, 2018 committee meeting was required, the District
Court erred because the March 8, 2018 meeting was conducted in full
compliance with the Open Meetings Law. ....................................................20
III.In the alternative, the District Court abused its discretion by imposing the drastic
remedy of declaring the final City Council’s vote to adopt the resolution void
over other available remedies. ............................................................................22
Conclusion ...............................................................................................................26

ii

 TABLE OF AUTHORITIES
Louisiana Revised Statutes:
La. R.S. 42:4.1 ......................................................................................................... 14
La. R.S. 42:11 ......................................................................................................... 14
La. R.S. 42:14 ...................................................................................................... 8, 14
La. R.S. 42:19 ......................................................................................................... 14
La. R.S. 42:24 .......................................................................................................... 19
La. R.S. 42:26 ....................................................................................................12, 21
La. R.S. 42:27 .......................................................................................................... 22
Louisiana Constitution:
Louisiana Constitution Article 12, Section 3 .....................................................13, 14
Louisiana Constitution Annotation Art. 1, Section 7 ........................................15, 16
Louisiana Administrative Code:
La. Admin. Code 55:V.1505(B) ................................................................................ 1
Municipal Code:
New Orleans City Code, Chapter 158, Art. II, Div. 6, § 158 .................................. 16
Home Rule Charter § 3-130(6) ....................................................................13, 18, 19
Louisiana Code of Civil Procedure:
La. Code of Civ. Proc. art. 1911 ................................................................................ 1
La. Code of Civ. Proc. art. 2083(A)........................................................................... 1
La. Code of Civ. Proc. art. 2123 ................................................................................ 1
La. Code of Civ. Proc. art. 2595 .............................................................................. 22
Cases:
A. Copeland Enters., Inc. v. City of New Orleans, 372 So.2d 764
(La. App. 4 Cir. 1979) .................................................................................. 22
Alliance for Affordable Energy, et al. v. Council of the City of New Orleans,
No. 2018-3471 (CDC Div. I-14) ............................................................... 5, 24

iii

 Brown v. Board of Trustees—Municipal Police Employees’ Retirement System,
2017-0295 (La. App. 1 Cir. 12/18/17), 234 So.3d 260 ................................. 20
Brown v. Monroe Municipal Fire & Civil Police Service Board,
52,537 (La. App. 2 Cir. 12/17/18), 262 So.3d 985 ........................................ 20
Causin, L.L.C. v. Pace Safety Consultants, LLC,
2018-0706 (La. App. 4 Cir. 1/30/19) ............................................................. 13
Courvelle v. La. Recreational and Used Motor Vehicle Comm’n,
2008-0952 at *5-6 (La. App. 1 Cir. 6/19/09), 21 So. 3d 340 ........................ 14
Daigre v. Terrebonne Ass’n for Retarded Citizens,
543 So.2d 1108 (La. Ap. 1 Cir. 1989) ........................................................... 21
Delta Dev. Co. v. Plaquemines Par. Comm’n Council,
451 So.2d 134 (La. App. 4 Cir. 1984) ...................................11, 14, 19, 21, 23
Gordon v. Council of City of New Orleans, 9 So.3d 63 (La. 2009) ..................12, 24
Greemon v. City of Bossier City, 2010-2828 (La. 7/1/11),
65 So.3d 1263 ................................................................................................ 14
Hardestry v. Waterworks Dist. No. 4 of Ward Four,
954 F.Supp. 2d 461 (W.D. La. 2013) ............................................................ 20
Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La. 1983) ...................................... 21
Red Stick Studio Dev. L.L.C. v. State ex rel, Dep’t of Econ. Dev.,
2010-0193 (La. 1/19/11), 56 3d 181 .............................................................. 13
State ex Rel. Guste v. Council of the City of New Orleans,
309 So.2d 290 (La. 1975) ........................................................................12, 24

iv

 TABLE OF APPENDICES
Appendix 1

Judge of District Court, dated July 2, 2019…………………….30

Appendix 2

June 14, 2019 Hearing Transcript………...…………………….33

v

 MAY IT PLEASE THE COURT:
JURISDICTIONAL STATEMENT
Jurisdiction over this matter is vested in this Court by the Louisiana
Constitution, La. Const. art. V, § 10, and the Louisiana Code of Civil Procedure, La.
C.C.P. art. 1911, La. C.C.P. art. 2083(A), and La. C.C.P. art. 2123. Pursuant to this
Court’s jurisdiction, Defendants-Appellants,1 the Council of the City of New
Orleans, the Utility, Cable, Telecommunications and Technology Committee of
New Orleans City Council, Jason R. Williams, Stacy Head, Susan G. Guidry, Latoya
Cantrell, Nadine M. Ramsey, Jared C. Brossett, and James A. Gray, II (the “City
Council”), respectfully file their Appellants’ Brief and seek review and reversal of
the District Court’s July 2, 2019 Judgment, which is a final and appealable judgment.
On July 8, 2019, the City Council filed a Motion for Suspensive Appeal. R.
786–788. On July 11, 2019, the District Court signed an order granting the City
Council’s Motion for Suspensive Appeal. R. 789. This appeal is timely.

1

The title of the case as it appears on the docket of the court. Based on the Amended Petition to
Enforce the Louisiana Open Meetings Law, for Declaratory Judgment, Injunction, and Attorneys’
Fees and Costs, R. 137–184, Defendants-Appellants are the Council of the City of New Orleans,
the Utility, Cable, Telecommunications and Technology Committee of the New Orleans City
Council, Jason R. Williams, Helena Moreno, Joseph I. Giarrusso, Jay H. Banks, Kristin Gisleson
Palmer, Jared C. Brossett, and Cyndi Nguyen.
1

 CONCISE STATEMENT OF THE CASE
This lawsuit arises from a legal challenge to the vote from the elected officials
of the New Orleans City Council. Following an extensive, multi-year regulatory
process, a 2018 City Council resolution authorized the construction of a power plant
in New Orleans East. The District Court declared the City Council’s action void
because the proponent of the plant hired citizens to bolster the appearance of public
support at a committee meeting held weeks before the full City Council formally
considered and approved the plan. Despite holding that the City Council “did
nothing wrong” when it approved the power plant, R. 785, the District Court held
that the Open Meetings Law was “undermined” by the appearance of paid actors. R.
786. The District Court’s ruling was premised on private conduct—conduct beyond
the control of the City Council and wholly absent any state action. Based on this
private conduct, the District Court voided the valid and legal vote of a public body.
The District Court’s interpretation of the Open Meetings Law is unprecedented and,
under the District Court’s interpretation, the presence of any paid citizen would
negate an otherwise valid and legal vote taken at a lawful public meeting.
The District Court’s ruling will have a grave impact on the City of New
Orleans and similarly situated public bodies, which will be compelled to question
the motives of audience members at every lawful public meeting. This Honorable
Court should reverse the District Court’s ruling and reinstate the City Council’s valid
vote authorizing the construction of a power plant in New Orleans East.

2

 ASSIGNMENT OF ALLEGED ERRORS
1. The District Court legally erred by declaring the final City Council’s vote to
adopt the resolution void because the public body cannot violate Open Meetings
Law based on the actions of private citizens.
2. The District Court legally erred by declaring the final City Council’s vote to
adopt the resolution void because the presence of paid citizens at a committee
meeting that was not a necessary component to the subsequent meeting at which
the City Council voted to adopt a resolution.
3. The District Court abused its discretion by imposing the drastic remedy of
declaring the final City Council’s vote to adopt the resolution void, over other
available remedies.

3

 ISSUES PRESENTED FOR REVIEW
1. Whether a court can void the vote of an elected public body, in a meeting
compliant with the Open Meetings Law, based on the actions of paid, private
citizens.
2. Whether the presence of paid, private citizens at a prior committee meeting
affects the validity of a vote by the City Council at a subsequent meeting
conducted in full compliance with the Open Meetings Law.
3. Whether a District Court abuses its discretion by imposing the drastic remedy of
voiding a final and valid City Council resolution, which serves the public interest
by providing desperately needed power and energy infrastructure.

4

 STATEMENT OF FACTS
Entergy New Orleans (“ENO”) is the public utility that provides electric and
natural gas service to the citizens of New Orleans. See R. Exhibit A, Resolution R18-65, at 1. After an extensive study by the City Council of ENO’s long-term
resource needs, the City Council identified a great need for a new power source in
New Orleans. See R. Exhibit A, Resolution R-18-65, at 6–9, 120. Based on the great
need for a reliable and new source of electricity, the City Council concluded that
there was a need to construct a new power plant, the New Orleans Power Station
(“NOPS”). See R. Exhibit A, Resolution R-18-65, at p. 188. The City Council found
that NOPS will address a “critical and urgent reliability need” and “the risk of
cascading outages that will leave 49,000 ENO customers without power for extended
periods of time, particularly in New Orleans East.” See R. Exhibit A, Resolution R18-65, at 71, 72. The City Council determined that NOPS “serves the pubic
convenience and necessity and is in the public interest, and therefore prudent.” See
R. Exhibit A, Resolution R-18-65, at 188. The City Council’s action was rationally
related to the legitimate state purpose of providing power and infrastructure to its
citizens. See Alliance for Affordable Energy, et al. v. Council of the City of New
Orleans, No. 2018-3471 (CDC, Div. I-14) (a companion case in which the District
Court found that the City Council’s determination to approve NOPS was
reasonable).
Prior to the study concluding the need for the new power plant, Entergy, Inc.
(“Entergy”), the parent company of ENO, previously operated as a single, integrated
unit with its six subsidiary companies, all of which would share costs, resources and
profits. See R. Exhibit A, Resolution R-18-65, at 3. See id. After years of discussions
and litigation among Entergy, its subsidiary companies, the City Council, and federal
regulators, a settlement was reached between Entergy and the Federal Energy
Regulatory Commission, filed on August 14, 2015 and approved by the City Council
5

 on November 5, 2015. See id., at 3–4. The settlement dissolved the operational and
cost-sharing structure of Entergy. See id., at 6. With ENO being the most affected
by the termination of the operational and cost-sharing structure of Entergy, the
settlement provided that ENO had the option to evaluate and consider building a new
power plant in the City of New Orleans. See id. at 9.
A. Entergy New Orleans’ application to construct the New Orleans
Power Station.
ENO filed its original application to construct NOPS in June 2016, followed
by a supplemental and amending application in July 2017. See R. Exhibit A,
Resolution R-18-65, at 10. The City Council established Council Docket No. UD16-02 to consider matters related to the approval of NOPS. See id., at 9. ENO held
at least 21 public meetings regarding NOPS. See id., at 12. A five-day evidentiary
hearing was held on December 15, and 18–21, 2017, at which parties were given the
opportunity to cross-examine the witnesses who had provided written testimony. See
id., at 14. The City Council received more than 2,700 pages of testimony and
exhibits, as well as extensive post-hearing briefing from the parties. See id., at 15.
Among those parties to Council Docket No. UD-16-02 were Deep South Center for
Environmental Justice, 350 New Orleans, and the Sierra Club, which are three of the
Plaintiffs in this case. See id. The Hearing Officer certified the record to the City
Council on January 22, 2018. See id., at 14.
B. The Utility, Cable, Telecommunications and Technology Committee
meeting of February 21, 2018.
Resolution

R-18-65

was

considered

by

the

Utility,

Cable,

Telecommunications and Technology Committee (“UCTTC” or “committee
meeting”), at its February 21, 2018 meeting. See R. Exhibit D; see R. Exhibit E.
Resolution R-18-65 was the sole item on the UCTTC’s agenda. See R. Exhibit B,
Affidavit of Keith D. Lampkin (Chief of Staff for Councilmember Jason Williams),
at ¶ 5. Each party to the proceedings in Council Docket No. UD-16-02 was given
6

 the opportunity to make closing arguments. See id., at ¶ 6. After two hours of public
comment, the UCTTC voted 4-1 in favor of moving proposed Council Resolution
No. R-18-65 to the full City Council for further deliberation. See id., at ¶¶ 16, 18.
As would later be found, private citizens were paid to attend or speak at the
February 21, 2018 UCTTC meeting in support of ENO and its application for
approval to construct NOPS.2 See R. 595–656. There was no state action involved
in arranging the presence of private, paid citizens at the committee meeting and, at
that time, the City Council was unaware of their presence.
C. The full City Council meeting of March 8, 2018.
On March 8, 2018, the full City Council considered Resolution R-18-65. See
R. Exhibit F; see R. Exhibit H. The meeting occurred at the Council Chamber, which
has a maximum occupancy of 258 people. R. Exhibit C, Affidavit of Alvin Walton,
at ¶ 20. New Orleans police officers monitored and controlled access to the Council
Chamber, allowing the public to be seated on a first-come, first-served basis. See id.,
at ¶ 24. Three officers of the New Orleans Police Department were present at the
meeting to maintain public order. See id., at ¶ 18. According the Alvin Walton,
Executive Security for the New Orleans City Council and employed by the New
Orleans Police Department:
No member of the public was excluded from the March 8
meeting based upon their appearance, personal
characteristics, position held, or whether they were present
to support or oppose any agenda item.
See id., at ¶ 29; see also R. Exhibit C-1, Affidavit of Herman Shushan (Reserve
officer for the New Orleans Police Department), at ¶ 29. The meeting was also
recorded and broadcast live through the City Council’s website for those who could
not attend in person, and it remains available for viewing by any member of the
2

In Council Resolution R-19-78, adopted on February 21, 2019, the City Council approved a
settlement with ENO after a “show cause” proceeding relating to allegations that people were paid
to attend and/or speak at public meetings in connection with ENO’s application to construct NOPS.
R. 670–684.
7

 public to this day. See R. Exhibit G, Affidavit of Lora Johnson (Clerk of Council for
the City Council), at ¶ 9. Comment cards were also submitted and accepted
throughout the meeting. See id., at ¶ 13. The City Council worked through the
comment cards, and a total of 94 people spoke during the public comment period.
See id., at ¶ 14.
After nearly five hours of public comment, compare R. Exhibit G, Johnson
Aff., at ¶ 11 with id., at ¶ 15, the City Council voted to adopt Resolution R-18-65, in
a 6-1 vote. Id. at ¶ 16. The City Council concluded that NOPS “serves the public
convenience and necessity and is in the public interest, and therefore prudent.” R.
Exhibit A, Resolution R-18-65, at 188 (emphasis added).
D. District Court proceedings.
Plaintiffs’ original Petition and Amended Petition to Enforce the Louisiana
Open Meetings Law, for Declaratory Judgment, Injunction, Attorneys’ Fees and
Costs, and Memorandum in Support (the “petition”) and sought a declaration that
the City Council and its members, and the UCTTC and its members, conducted the
February 21, 2018 UCTTC meeting and the March 8, 2018 City Council meeting in
violation of the Louisiana Constitution and the Louisiana Open Meetings Law. R.
1–117; R. 137–184. Based on La. R.S. 42:14(A) and La. R.S. 42:14(D), R. 139–140,
Plaintiffs alleged that persons were denied the right to make comments at the public
meetings and requested that the court declare the City Council’s action approving
ENO’s application void. R. 162–163.
The District Court held a hearing on Plaintiffs’ petition on July 19, 2018. See
R. 2019-CA-0775, Vol. 5 (Transcript of July 19, 2018 Hearing). In considering
Plaintiffs’ claim that persons could not enter the meeting room, the District Court
indicated that such a claim was an extreme interpretation of the Open Meetings Law,
stating:

8

 I do not believe that there was a necessity for everyone that
showed up to get into the room, that is not the law. To say
that is the law would mandate that we build a much larger
City Hall with a much larger Council Chambers that
accommodates any number that could be possible reached,
and that is an unreasonable expectation, period.
R. 2019-CA-0775, Vol. 5, at 49:8–21. The District Court further noted that the
affidavits submitted by Plaintiffs were not based on personal knowledge. See id., at
12:22–26; see also id., at 70:16–24. Nonetheless, the District Court instructed the
parties to submit supplemental memorandum regarding the competency of
Plaintiffs’ evidence and set a special hearing to announce its ruling. See id., at 65:21–
30.
Prior to the District Court announcing its ruling, Plaintiffs sought to delay a
ruling and moved for a continuance. R. 346–347. The City Council opposed a
continuance. R. 343–345. The District Court heard Plaintiffs’ motion for a
continuance on July 24, 2018. See R. 2019-CA-0774, Supplemental Vol. 1
(Transcript of July 24, 2018 Hearing). Although Plaintiffs claimed in their motion
that a continuance would help lead to a resolution between the parties, at the hearing
it became clear that Plaintiffs’ request for a delay was to obtain the report from the
City Council’s pending investigation into the allegations that citizens were paid to
attend or speak at meetings in support of ENO’s application for approval to construct
NOPS. Id. at 17:12–29. The City Council objected and argued that any investigation
of the paid citizens is not material to whether the Open Meeting Law is violated. Id.
The District Court acknowledged that the issue of paid, private citizens is a “red
herring,” id., at 14:2–3, and was “not so sure that it has any . . . bearing on this.” Id.
at 14:3–4, 11. The District Court found, nonetheless, a potential for that issue to
affect its decision and granted a continuance on August 1, 2018. R. 349–351. Due to
the continuance of the investigation, Plaintiffs later moved for two more

9

 continuances, see R. 352–354, see R. 358–363, which the District Court granted on
September 28, 2018, see R. 355, and on November 9, 2018. See R. 363.
On June 14, 2019, nearly a year after the hearings in the summer of 2018,
the District Court announced its ruling and reasons for granting judgment against the
City Council. R. 2019-C-0774, Supplemental Vol. 2 (Transcript of June 14, 2019
Hearing). While expressly affirming the propriety of the action of the UCTTC and
the City Council in conducting both meetings, the District Court concluded that
Entergy’s actions “undermined the Public Meetings Laws.” Id. at 5:25–26. In its
statement of reasons, the District Court stated:
 “I do applaud the City Councilmembers who were there who did their due
diligence,” id, at 4:5–7 (emphasis added);
 “I don’t see that they did anything wrong,” id., at 4:26–27 (emphasis added);
and
 “[T]hat does not mean that, again, that the Council did anything wrong or
that the views ultimately, that the decision ultimately made by the Council
was at all wrong.” Id., at 5:5–7 (emphasis added).
On July 2, 2019, the District Court signed the judgment in favor of Plaintiffs
and against the City Council. R. 784–786. In the Judgment, the District Court
included written statements, repeating its earlier findings, that the City Council “did
nothing wrong,” R. 785, and that “Entergy’s actions undermined” the Open
Meetings Law. R. 786. The District Court found that “the Open Meetings Law was
violated” at the February 21, 2018 UCTTC meeting, but, concerning the March 8,
2018 full City Council meeting, the court noted that it “does not find that the Open
Meetings Law was violated.” R. 786 (emphasis added). Despite the District Court’s
finding that the Open Meetings Law was not violated at the March 8, 2018 meeting
(at which the City Council voted on the Resolution No. R-18-65), the District Court
reasoned that the “February 21, 2018 action” was a “necessary component” of the
full City Council’s decision to adopt Resolution No. R-18-65 and, as a result, the

10

 District Court concluded that action taken later at the full City Council meeting
conducted in compliance with the Open Meetings Law was “void ab initio.” R. 786.

11

 SUMMARY OF THE ARGUMENT
Solely because private, paid citizens appeared and showed support at a
committee meeting, the District Court erred by declaring void the City Council’s
vote, at a subsequent meeting, on a critical resolution.
First, voiding the final City Council’s vote to adopt a resolution based on the
actions of a private, paid citizen is clear legal error and bad public policy. The Open
Meetings Law regulates the conduct of public bodies, not private parties. It requires
only that government business be conducted in a public forum, with adequate notice
and a reasonable opportunity for public comment. That undoubtedly occurred.
Nothing in the law requires a public body to ascertain speakers’ financial, political,
or policy affiliations or invalidates a vote because certain audience members were
paid to attend as audience members. It is not the duty of government to establish
acceptable grounds for citizens to attend public meetings and speak on matters of
public consequence. Indeed, paid citizens have the same right to attend public
meetings as unpaid citizens. The ultimate motivation behind supporters of NOPS—
whether policy-driven or pecuniary—simply has no bearing on whether the City
Council complied with the Open Meetings Law. Correctly finding no misconduct on
the part of any public official, the District Court erred as a matter of law in holding
that private conduct constitutes a violation of the Open Meetings Law and then
ascribing that “violation” to the City Council.
Second, the District Court erred by relying on the presence of paid citizens at
the February 21, 2018 UCTTC meeting as a basis to void the March 8, 2018 vote of
the City Council at a meeting conducted in full compliance with the Open Meetings
Law. See Delta Development Company v. Plaquemines Parish Commission Council.
Delta Dev. Co. v. Plaquemines Par. Comm’n Council, 451 So.2d 134, 138 (La. App.
4 Cir. 1984). The proper legal conclusion for this Court is that the subsequent legal
and valid vote of the full City Council cured any purported deficiency at the prior
12

 committee meeting—a fortiori because the District Court concluded that the City
Council did nothing wrong. R. 785. How can there be any violation of the Open
Meetings Law if the City Council did nothing wrong? There cannot be.
Third, in the alternative to the legal errors raised above, the District Court
abused its discretion because it imposed the sweeping remedy of voiding the City
Council’s vote rather than less drastic remedies provided by statute. Under La. R.S.
42:26, “the court may grant any or all” of the listed forms of relief, including
rendering the action void—but this does not mandate that the action must be voided.
La. R.S. 42:26(A). The District Court erred because (1) its ruling was issued fifteen
months after the City Council voted on the resolution, (2) under the New Orleans
City Code the City Council could not even consider comments from citizens when
making a determination on a resolution involving utilities, (3) the City Council
March 8, 2018 meeting was conducted in compliance with the Open Meetings Law,
and, (4) the City Council’s decision regarding public utilities should have been
afforded great deference by the court. See Gordon v. Council of City of New Orleans,
9 So. 3d 63, 71 (La. 2009); see also State ex. Rel. Guste v. Council of the city of New
Orleans, 309 So. 2d 290, 293 (La. 1975). Under these circumstances, by declaring
the City Council’s vote on the resolution void, the District Court abused its
discretion.
The City Council prays that this Honorable Court reverse the District Court’s
erroneous July 2, 2019 Judgment and dismiss Plaintiffs’ suit with prejudice, at
Plaintiffs’ cost.

13

 ARGUMENT
I.

The District Court erred as a matter of law in finding that the Open
Meetings Law can be violated when a public body “did nothing wrong” –
merely because a private party pays members of the audience to appear
in support of an agenda item.
A.

The standard of review is de novo.

The District Court’s ruling rests atop a misinterpretation of the Open Meetings
Law, and this legal ruling is reviewed de novo. See Red Stick Studio Dev., L.L.C. v.
State ex rel. Dep’t of Econ. Dev., 2010-0193 (La. 1/19/11), 56 So. 3d 181, 187; see
Causin, L.L.C. v. Pace Safety Consultants, LLC, 2018-0706 (La. App. 4 Cir.
1/30/19), 2019 WL 385206, at *6.
B.

The Open Meetings Law requires only that public bodies hold
public meetings and does not contemplate that public officials
should question the financial motives of audience members.

The Louisiana Constitution and the New Orleans Home Rule Charter vest the
City Council with the power to supervise, regulate, and control utilities providing
service within the City of New Orleans. See La. Const. art. 6, §§ 4–6; see Home Rule
Charter, §§ 3-101, 3-130. The District Court’s ruling invalidates a vote of the City
Council because members of the public were compensated to attend a prior
committee meeting. It does so without citing any law or jurisprudence, without
identifying a particular standard that was violated, and without explaining how a
public body can possibly violate a law when it “did nothing wrong.” R. 785. The
District Court has essentially rewritten the Open Meetings Law to impose
requirements that appear nowhere in the statute. More troublingly, the District Court
ruling establishes a rule that allows private conduct beyond the City Council’s
control to delay public action for years even though the City Council has acted
entirely in good faith.
Article 12, Section 3 of the Louisiana Constitution of 1974 provides that “[n]o
person shall be denied the right to observe the deliberations of public bodies and
examine public documents, except in cases established by law.” La. Const. art. XII,
14

 § 3 (emphasis added). This constitutional fiat was codified two years later as the
Louisiana Open Meetings Law, La. R.S. 42:11, et seq. Delta Dev. Co. v.
Plaquemines Par. Comm’n Council, 451 So. 2d 134, 138 (La. App. 4 Cir. 1984).
These laws do not establish an unequivocal right to observe every action of every
public official. To the contrary, these laws are subject to a host of exceptions and
restrictions aimed at balancing the rights of the public with the pragmatic realities of
governance.
In the broadest terms, the Open Meetings Law prohibits public business from
occurring behind closed doors. It is intended “to allow the public to observe and
evaluate public officials, public conduct, and public institutions” and “to protect
citizens from secret decisions made without any opportunity for public input.”
Courvelle v. La. Recreational and Used Motor Vehicle Comm’n, 2008-0952 at *5-6
(La. App. 1 Cir. 6/19/09), 21 So. 3d 340, 345. The requirements of the Open
Meetings Law are straightforward and few:
 Meetings of any public body must be open to the public. See La. R.S.
42:14(A).
 Public bodies may not vote by proxy or use secret ballots. See La. R.S.
42:14(B).
 Votes must be recorded and made public. See La. R.S. 42:14(C).
 Public comment must be allowed prior to action on an agenda item requiring
a vote, subject to reasonable restrictions. See La. R.S. 42:14(D).
 Public meetings must be appropriately noticed. See La. R.S. 42:19.
 Public bodies must keep written minutes. See La. R.S. 42:19.
Consistent with these narrow requirements, the Louisiana Supreme Court has held
that a plaintiff did not allege a violation of Open Meetings Law if there is not an
allegation of an “illegal, closed-door meeting.” Greemon v. City of Bossier City,
2010-2828, p. 10 (La. 7/1/11), 65 So. 3d 1263, 1269.
15

 Because the Open Meetings Law regulates government action and officials,
the conduct of private audience members cannot serve as the basis of a violation.
The duties created by that statute—public meetings, public votes, public notice—are
imposed exclusively upon public bodies, not private parties who fill the chamber.
With respect to private parties, the law requires merely that the public body allow
them an opportunity for public comment in a public forum. That opportunity is not
limited to a subset of the general public with no pecuniary interest in the outcome of
the vote. Indeed, public meetings frequently include comment from lawyers,
employees, consultants, and a host of others who receive compensation for their
appearance.
The District Court ruling erroneously implies that the Open Meetings Law
somehow requires a public body to ascertain the financial motives of public
commenters. The Open Meetings Law requires only that the City Council provide a
reasonable period for public comment. Beyond generic citation to the importance of
access to public meetings (provided in this case), Plaintiffs cannot point to any case
finding a violation under similar circumstances—because there is none.
The District Court ruling renders every City Council vote vulnerable to a
claim that a public commenter failed to disclose a financial affiliation and, thus,
“undermined the purpose of the Public Meeting Law.” R. 786. This represents a real
and present threat to the efficient administration of government, particularly in an
area as vital as utility regulation. The efforts of a private party to create the
appearance of support – whether it is a utility paying actors to show support or a
neighborhood association giving its residents signs and t-shirts expressing
opposition to a zoning matter – are wholly outside the scope of the law.
The District Court ruling also presents troubling First Amendment
implications. See U.S. Const., amend. I; see La. Const. Ann. art. I, § 7. To ensure
that its actions withstand Open Meetings Law scrutiny, the City Council must
16

 aggressively police private speech and the private motives of private speakers. And,
even if the City Council were to do so, it could never know with certainty that its
efforts are sufficient to comply with the Open Meetings Law. This uncertainty
threatens the City Council’s ability to legislate matters of public importance with the
finality required to govern effectively.
Further, even assuming that private actions are germane to the Open Meetings
Law, which they are not, the unique circumstances surrounding these regulatory
proceedings preclude any contention than ENO’s paid supporters undermined the
Open Meetings Law. R. 786. By law, the City Council’s examination of a utility
docket was limited to a record compiled over more than two years of extensive
deliberation. New Orleans City Code Section 158-431(b) provides that no statements
by “members of the public at large who are not parties of record . . . shall, in legal
terms, form (and such matter shall not form) the basis of any council decision in a
contested proceeding.” New Orleans City Code, Chap. 158, Art. II, Div. 6, § 158431(b). While the Open Meetings Law may have required the City Council to
entertain reasonable public comment before voting, the City Council could not base
its decision on that comment, which belies any claim that ENO’s actions—even if
unsavory—affected the outcome or undermined the purpose of the Open Meetings
Law.
The public will suffer if the District Court’s interpretation of the Open
Meetings Law is not reversed. The District Court’s ruling will impose an untenable
burden on public bodies and, by requiring public officials to question the motives of
persons attending public meetings, the burden should not pass constitutional muster.
See U.S. Const., amend. I; see La. Const. art. I, § 7. The District Court erred by
considering the presence of private, paid citizens as a factor relevant to the Open
Meetings Law.

17

 II.

The March 8, 2018 City Council’s vote cured any purported violation,
which is denied, of the Open Meetings Law.
A. The February 21, 2018 committee meeting was not required for the
City Council’s vote on the resolution at the March 8, 2018 meeting.
The District Court’s reasoning that the February 21, 2018 action was a

“necessary component” of the full City Council’s meeting vote ignores the legal
reality that only the City Council’s actions at the March 8, 2018 could constitute
an official act. At the March 8, 2018 meeting, the City Council was aware of
concerns that some people were not heard at the February 21, 2018 UCTTC
committee meeting and a Councilmember was careful to explain at the start of the
March 8, 2018 meeting why those concerns did not compromise the City
Council’s consideration of Resolution R-18-65. Councilmember Williams began
the March 8, 2018 meeting by stating:
First, I know there was some concern about the committee
meeting where this item was preliminarily discussed. I
want to note for the record that that committee vote was
not a legally binding vote. It was, in fact, a mere
recommendation. In this circumstance, only the vote of the
full Council, today, carries the legal weight and is outcome
determinative. Although the committee meeting was
conducted in compliance with the law, it is today’s vote
and today’s public hearing where the rubber meets the
road and a real decision is made.
Exhibit H, Transcript March 8, 2018 Meeting (Excerpts), at 2:23–3:9.
Councilmember Williams further explained that the vote at the UCTTC meeting
was solely to move consideration of Resolution No. R-18-65 to the full City
Council for consideration and that only the City Council is empowered with
regulatory authority. Councilmember Williams stated:
The vote at the Utility Committee meeting was to move
this docket to the full Council for the actual legal vote
which will have determining effect so that all members
of the City Council can vote. The City Council is the
regulatory authority, not the committee.

18

 Exhibit H, Transcript March 8, 2018 Meeting (Excerpts), at 3:22–4:2. Council
Member Williams further addressed that at the meeting the City Council wishes
to hear from all parties and that staff at the meeting would be collecting comment
cards. Councilmember Williams stated:
Today we will hear from all parties. I know there are
several people feel as though they were not heard from at
the committee hearing and that is what today is for.
I have directed my staff, as well as members of the clerk’s
office who are assisting us, who will be collecting public
comment cards from folks in the hallway. We will have a
robust discussion. We will hear from the public. We will
hear from experts. We will hear from Entergy. And we are
here to conduct a full public hearing and receive public
comment on this very important issue.
All comments today will be made party of the formal
record. And if time permits today, we would like to hear
from every single person that wants to weigh in today.
Exhibit H, Transcript March 8, 2018 Meeting (Excerpts), at 4:3–4:19. As evidenced
by the statements of Councilmember Williams, the City Council at the March 8,
2018 meeting unequivocally sought to address any concerns with the prior February
21, 2018 committee meeting.
Moreover, the Home Rule Charter of the City of New Orleans does not require
that the City Council’s utility orders first be approved by the UCTTC. Pursuant to
Charter Section 3-130(6), orders of the City Council in utility matters “shall be upon
a resolution or an ordinance in open council meeting and passed by an affirmative
vote of a majority of all members of the Council.” Home Rule Charter § 3-130(6).
Because the March 8, 2018 meeting is the only meeting at which the full City
Council took binding legal “action” on the proposed Resolution R-18-65, a violation
at the committee meeting could not serve as a basis to void the City Council’s later
action adopting Resolution R-18-65.
By finding that the February 21, 2018 meeting was a necessary component of
the March 8, 2018 meeting, the District Court ignored the City Council’s public
19

 explanation that only the City Council’s actions at the March 8, 2018 would
constitute an official act and ignored that the Home Rule Charter of the City of New
Orleans does not require the UCTTC to approve utility orders.
B. Even if the February 21, 2018 committee meeting was required, the
District Court erred because the March 8, 2018 meeting was
conducted in full compliance with the Open Meetings Law.
Under the Open Meetings Law, “[a]ny action taken in violation of this Chapter
shall be voidable by a court of competent jurisdiction.” La. R.S. 42:24. Because the
language in the statute only provides that an action in violation of Open Meetings
Law is voidable, not void, any action by a public body not in compliance with the
Open Meetings Law is not an absolute nullity and may be cured. Even if this Court
agrees with the District Court’s finding that the February 21, 2018 meeting violated
the Open Meetings Law, which the City Council disputes, the District Court erred
by declaring the City Council’s resolution adopting R-18-65 void because the March
8, 2018 meeting did not violate Open Meetings Law.
The mechanism to cure a violation of the Open Meetings Law at a second
meeting was resolved and described by this Court in its decision in Delta
Development Company v. Plaquemines Parish Commission Council. Delta Dev. Co.
v. Plaquemines Par. Comm’n Council, 451 So.2d 134, 138 (La. App. 4 Cir. 1984).
In Delta Development, “the principle issue [was] whether the Council’s original
resolution, if adopted in violation of the Open Meeting Law, could be ratified or was
it absolutely null and void and insusceptible of ratification.” Delta Dev. Co., 451
So.2d at 136. In that case, a company, Delta, alleged that the Parish Council violated
the Open Meetings Law by adopting a resolution (which authorized the filing of a
suit to recover mineral rights from Delta) in an executive session that fell short of
the Open Meetings Law’s notice requirements. Id. at 136, 138. The Parish Council
met at a second meeting and adopted a resolution ratifying its previous action. Id. at
136. Faced with whether the actions by the Parish Council at the second meeting
20

 cured any defect with the first meeting, this Court addressed La. R.S. 42:9 (later
renumbered as La. R.S. 42:24 on August 14, 2010), which provides that an action
taken in violation of the Open Meetings law “shall be voidable.” Id. at 136.
According to this Court, “[a] simple reading of [the Open Meetings Law] compels
the conclusion that action taken by a public body without compliance with the Open
Meeting law is not an absolute nullity.” Id. at 137.
This Court supported its decision by noting that another provision in the Open
Meetings Law provides that any enforcement proceeding must be brought within
sixty days of the action. If an action in violation of the Open Meetings law is an
absolute nullity, “no purpose would be served by the sixty day provision for bringing
enforcement proceedings.” Id. Applying that provision to its analysis, this Court
found that “[a]ssuming that the Council’s original action [at the first meeting] was
taken in such a way that the public’s constitutional and statutory rights were violated,
the injury or harm to the public was cured when the ratification resolution was
adopted.” Id. at 138.
The rule that a second meeting can cure a defect from a prior meeting has been
echoed by other courts, including the First Circuit, see Brown v. Board of Trustees—
Municipal Police Employees’ Retirement System, 2017-0295 (La. App. 1 Cir.
12/18/17), 234 So.3d 260, 263, the Second Circuit, see Brown v. Monroe Municipal
Fire & Civil Police Service Board, 52, 537 (La. App. 2 Cir. 12/17/18), 262 So.3d
985, 987, as well as a federal court applying Louisiana law. See Hardesty v.
Waterworks Dist. No. 4 of Ward Four, 954 F.Supp.2d 461, 465 (W.D. La. 2013). In
other words, it is settled law that a second meeting can cure a violation from a prior
meeting and the District Court erred by ruling otherwise.
Here, the District Court found that “the Open Meetings Law was violated” at
the February 21, 2018 UCTTC meeting, but, concerning the March 8, 2018 full City
Council meeting, the court noted that it “does not finding that the Open Meetings
21

 Law was violated.” R. 786 (emphasis added). Despite the District Court’s finding
that the Open Meetings Law was not violated at the March 8, 2018 meeting, the
District Court reasoned that the “February 21, 2018 action” was a “necessary
component” of the full City Council’s decision to adopt Resolution No. R-18-65 and,
as a result, the District Court concluded that action taken later at the full City Council
meeting conducted in compliance with the Open Meetings Law was “void ab initio.”
R. 786. The District Court’s reasoning conflicts with this Court’s decision in Delta
Development (and other similar cases) and should be reversed.
III.

In the alternative, the District Court abused its discretion by imposing
the drastic remedy of declaring the final City Council’s vote to adopt the
resolution void over other available remedies.
In the alternative to the legal errors raised above, the District Court abused its

discretion because voiding the City Council’s vote is a remedy that far exceeded the
harm (if any) caused by the presence of paid citizens at the February 21, 2018
committee meeting. “[I]f the trial court’s decision was based on its erroneous
interpretation or application of law rather than a valid exercise of discretion, such an
incorrect decision is not entitled to deference.” Kem Search, Inc. v. Sheffield, 434
So. 2d 1067, 1071–72 (La. 1983).
Under La. R.S. 42:26, in an enforcement proceeding, “the court may grant any
or all” of the listed forms of relief, including rendering the action void—but this does
not mandate that the action must be voided. La. R.S. 42:26(A). Because an action
taken in violation of the Open Meetings Law is not automatically void, a district
court has the discretion to assess the weight of the violation and determine an
appropriate form of relief (or deny relief) based on the intent and purpose of the
Open Meetings Law. See, e.g., Daigre, 543 So. 2d at 1110–11 (refusing to void a
meeting despite technical violations of the Open Meetings Law because plaintiff was
not prejudiced by those violations).

22

 Here, the District Court could have declared a violation of the Open Meetings
Law but, nonetheless, refused to invalidate the City Council’s ultimate vote. Even if
this Court affirms the District Court’s ruling regarding the Open Meetings Law,
which it should not, this Court should nevertheless find that the District Court abused
its discretion by declaring the City Council’s vote to adopt Resolution No. R-18-65
void ab initio—a needlessly draconian remedy rendered more than more than a year
after suit was filed.
First, the District Court’s delay in rendering its ruling on Plaintiffs’ request
should have removed voidance as an available remedy. Actions of a public body,
like the City Council, are entitled to a strong presumption of validity and should not
be easily set aside. See A. Copeland Enters., Inc. v. City of New Orleans, 372 So. 2d
764, 766 (La. App. 4 Cir. 1979). Recognizing this principle, the Open Meetings Law
mandates swift rulings regarding challenges to the validity of public action. It
mandates that Open Meetings Law challenges “shall be tried by preference and in a
summary manner,” La. R.S. 42:27, and, in summary proceedings, “[t]he court shall
render its decision as soon as practicable after the conclusion of the trial of a
summary proceeding and, whenever practicable, without taking the matter under
advisement.” La. C.C.P. art. 2595. By design, the Open Meetings Law limits the time
in which a plaintiff can file suit and accelerates the time in which a District Court
must conduct the proceedings, evidencing the Legislature’s intent that such
proceedings and judicial determinations be conducted quickly. Otherwise, the
validity of public actions remains uncertain and vital public business remains
undone.3
In this case, nearly a year passed between the hearings that occurred during
the summer of 2018 and the District Court’s June 14, 2019 ruling in open court.
3

In addition, La. R.S. 42:27 provides that “[a]ny appellate court to which the proceeding is brought
shall place it on its preferential docket, shall hear it without delay, and shall render a decision as
soon as practicable.”
23

 R. 2019-C-0774, Supplemental Vol. 2 (Transcript of June 14, 2019 Hearing). The
District Court abused its discretion in imposing the remedy of nullifying the City
Council’s vote and resolution and by rendering its decision nearly 15 months after
the date the City Council passed R-18-65. Much of time delay was due to
continuances, requested by Plaintiffs, and delays authorized by the District Court.
By condoning such a delay, the District Court may have recognized that Plaintiff’s
claims were not urgent, yet the District Court later imposed the drastic remedy of
declaring the actions of the City Council void. The Open Meetings Law does not
envision granting judicial authority to impose such a drastic remedy after such a long
passage of time and the District Court abused its discretion by imposing such a
remedy in this case.
Second, based on the New Orleans City Code, the City Council could not
consider comments from citizens when making a determination on a resolution
involving utilities and, therefore, the District Court should not have voided the City
Council’s vote based on the presence of private, paid citizens at the February 21,
2018 committee meeting. See New Orleans City Code Section 158-431(b)
(providing that no statements by “members of the public at large who are not parties
of record . . . shall, in legal terms, form (and such matter shall not form) the basis of
any council decision in a contested proceeding”). Thus, the District Court’s finding
that “the February 21, 2018 action was a necessary component of the full council’s
decision to adopt Resolution No. 18-65,” R. 786, does not square with the New
Orleans City Code’s regulations governing what information may be considered by
the City Council. That is, because the City Council cannot rely on those allegedly
excluded members of the public in forming their decision, the District Court erred
in imposing a remedy to void the City Council’s act.
Third, as stated above, this Court has held that when violations of the Open
Meetings Law are found, “the injury or harm to the public [is] cured when [a]
24

 ratification resolution [is] adopted.” Delta Dev. Co., 451 So. 2d at 138. To the extent
there was any violation of the Open Meeting Law at the February 21, 2018
committee meeting, which the City Council disputes, any injury or harm to the
public was cured when the City Council voted on and adopted the resolution at its
March 8, 2018 meeting.
Fourth, in the companion case, entitled Alliance for Affordable Energy, et al.
v. Council of the City of New Orleans, No. 2018-3471 (CDC, Div. I-14), on June 14,
2019, Judge Piper D. Griffin affirmed Resolution No. R-18-65 and rejected
challenges to the City Council’s approval of NOPS by the Alliance for Affordable
Energy, Deep South Center for Environmental Justice, 350 New Orleans, and the
Sierra Club. The District Court erred in this matter by voiding the decision of the
City Council because doing so contradicts the finding in the companion case that the
City Council’s determination was reasonable.
In the companion case, in its Reasons for Judgment, the District Court
recounted a nearly two-decade history to explain the current need for new energy
generation in Orleans Parish and noted that the decisions under review were
“precipitated by many years of planning, negotiation, trial and error, and
compromise.” CDC Case No. 2018-3471, Reasons for Judgment at 1 (6/14/19). As
recognized by the District Court in that companion case, the City Council’s decision
regarding public utilities should not be overturned unless (1) the decision was
arbitrary and capricious, (2) the decision represented a clear abuse of authority; or
(3) the decision was not reasonably based upon the factual evidence presented. See
CDC Case No. 2018-3471, Reasons for Judgment at 9 (6/14/19); see also Gordon v.
Council of City of New Orleans, 9 So. 3d 63, 71 (La. 2009); see also State ex. Rel.
Guste v. Council of the city of New Orleans, 309 So. 2d 290, 293 (La. 1975). As
such, a reviewing court must limit its review “to a determination of whether the
decision is reasonable and refrain from merely substitute [its] judgment for that of
25

 the Council.” Gordon, 9 So. 3d at 72 (quoting State ex. Rel. Guste, 309 So. 2d at
294). Applying this standard, the District Court in the companion case affirmed the
City Council’s decision to adopt Resolution No. R-18-65. See CDC Case No. 20183471, Reasons for Judgment at 26 (6/14/19).
Because the District Court in the companion case affirmed the City Council’s
decision to adopt Resolution No. R-18-65, the District Court in this case abused its
discretion by voiding the decision of the City Council. Resolution No. R-18-65 is in
the public interest and the City Council’s vote to adopt that resolution was
reasonable. The gravity of such an important resolution should not be undermined
by supposed technical violations of the Open Meetings Law.
In sum, declaring the City Council’s resolution void is a remedy that that far
exceeded the alleged harm and, as a result, the District Court abused its discretion
by ruling that the City Council’s vote to adopt Resolution No. R-18-65 was void ab
initio.
CONCLUSION
The City Council prays that this Honorable Court reverse the District Court’s
legally erroneous July 2, 2019 Judgment and dismiss Plaintiffs’ suit with prejudice,
at their cost.

Respectfully submitted,
/s/James M. Garner
JAMES M. GARNER, #19589
DEBRA J. FISCHMAN #5578
STUART D. KOTTLE #37194
SHER GARNER CAHILL RICHTER
KLEIN & HILBERT, L.L.C.
909 Poydras Street, Suite 2800
New Orleans, LA 70112
Telephone: (504) 299-2100
Facsimile: (504) 299-2300
E-mail: jgarner@shergarner.com
dfischman@shergarner.com
skottle@shergarner.com
26

 Corwin M. St. Raymond #31330
Deputy City Attorney
William R. H. Goforth # 33153
Assistant City Attorney
Donesia D. Turner #23338
Sr. Chief Deputy City Attorney
Sunni J. LeBeouf #28842
CITY ATTORNEY
1300 Perdido Street – Room 5E03
New Orleans, LA 70112
Telephone: (504) 658-9800
Facsimile: 504-658-9868
E-mail: cmstraymond@nola.gov
wrgoforth@nola.gov
donesia.turner@nola.gov
sunni.lebeouf@nola.gov
Adam J. Swensek # 30751
Executive Counsel
NEW ORLEANS CITY COUNCIL
1300 Perdido Street, Room 1E6
New Orleans, Louisiana 70112
Telephone: (504) 658-1109
E-mail: adam.swensek@nola.gov
Attorneys for Defendants-Appellants
the Council Of The City of New
Orleans,
the
Utility,
Cable,
Telecommunications and Technology
Committee Of New Orleans City
Council, Jason R. Williams, Stacy
Head, Susan G. Guidry, Latoya
Cantrell, Nadine M. Ramsey, Jared
C. Brossett, and James A. Gray, II

27

 CERTIFICATE OF SERVICE
In accordance with Rule 2-14.1 and 2-14.2, I hereby certify that a copy of the
above and foregoing has been served to all counsel of record by e-mail this 12th day
of November, 2019. A copy of the above and foregoing will also be mailed to the
District Court.
/s/ James M. Garner
JAMES M. GARNER

28

 SERVICE LIST
William P. Quigley #07769
Loyola University New Orleans
7214 St. Charles Avenue
New Orleans, LA 70118
Telephone: 504-861-5591
quigley@loyno.edu

Alexander “Sascha” Bollag #34447
Green Justice Legal
540 Broadway Street, Room 304
New Orleans, LA 70118
Telephone: 504-913-7740
E-mail: sbollag@greenjusticelegal.org

Counsel for VAYLA New Orleans,
Justice and Beyond, 350 New Orleans,
Sierra Club, Mr. Theodore Quant, and
Ms. Renate Heurich
Susan Stevens Miller
Earthjustice
1625 Massachusetts Ave., N.W.
Suite 702
Washington, D.C. 20036
Telephone: 202-667-4500
E-mail: smiller@earthjustice.org
Pro Hac Vice

Counsel for VAYLA New Orleans,
Justice and Beyond, 350 New Orleans,
Sierra Club, Mr. Theodore Quant, and
Ms. Renate Heurich
Monique Harden #24118
Deep South Center for Environmental
Justice
3157 Gentilly Blvd. – Suite 145
New Orleans, LA 70122
Telephone: 504-510-2943
E-mail: moniquecoharden@gmail.com

Counsel for Deep South Center for
Counsel for VAYLA New Orleans, Environmental Justice
Justice and Beyond, 350 New Orleans,
Sierra Club
W. Raley Alford, III #27354
Timothy S. Gragin #22313
Kathryn W. Munson #35933
Harry Barton #29751
Stanley, Reuter, Ross, Thornton &
Entergy Services, LLC
Alford, L.L.C.
639 Loyola Avenue
909 Poydras Street, Suite 2500
New Orleans, LA 70113
New Orleans, LA 70112
Telephone: 504-576-2603
Telephone: 504-523-1580
Facsimile: 504-576-5579
Facsimile: 504-524-0069
E-mail: tcragin@entergy.com
E-mail: wra@stanleyreuter.com
hbarton@entergy.com
kwm@stanleyreuter.com
Counsel for Entergy New Orleans, LLC
Counsel for Entergy New Orleans, LLC in Docket No. 2019-CA-0775
in Docket No. 2019-CA-0775
Hon. Piper D. Griffin, Judge
Division "I" - Section 14
421 Loyola Avenue, Room 405
New Orleans, LA 70112
Phone: (504) 407-0280
FAX: (504) 558-0950
pgriffin@orleanscdc.com

29

 CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
CASE NO. 18-3843

DIVISION “P

Section 14

THE S o u t h e r n c e n t e r f o r e n v i r o n m e n t a l j u s t i c e , i n c . d ^ /a d e e p
CENTER FOR ENVIRONMENTAL JUSTICE, VAYLA NEW ORLEANS,
JUSTICE AND BEYOND, 350 NEW ORLEANS, SIERRA CLUB,
MR. THEODORE QUANT, A N D MS. RENATE HEURICH

so uth

VERSUS
THE COUNCIL OF THE CITY OF NEW ORLEANS, THE UTILITY, CABLE,
TELEC O M M UN ICA tlO NS A ND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS
CITY COUNCIL, JASON R. WILLIAMS, HELENA MORENO, JOSEPH I. GIARRUSSO,
JAY H. BANKS, KRISTIN GISLESON PALMER, JARED C. BROSSETT, AND CYNDI
NGUYEN

FILED:
Deputy Clerk

JUDGMENT

etitioners’ Amended Petition to Enforce the Louisiana Open Meetings Law, for
Declaratory Judgment, Injunction, and Attorneys’ Fees and Costs came before this Court for
hearing on July 19, 2018.
l^resent at the hearing in court were:
W illiam Quigley, Monique Harden, Alexander Bollag, Susan Stevens Miller, and
Jill Tauber, for petitioners; and
Corwin St. Raymond, William Goforth, and Cherrell S. Taplin, for defendants.
After considering the pleadings and memoranda filed with this Court, the evidentiary
record, and the arguments o f counsel, this Court announced its ruling in open court on June 14,
2019. t h e Court explained this judgment is to make sure that “citizens voices are heard” at City
Council meetings. Regarding the February 21, 2018 meeting o f the Utilities, Cable,
Telecoijuuunications and Technology Committee o f the N ew Orleans City Council (“UCTTC”)
and the March 8, 2018 meeting o f the N ew Orleans City Council (the “Council”), the Court found
that the Council “did nothing wrong.” The Court acknowledged the Council’s own investigatory
finding^ that, as a result o f Entergy N ew Orleans’ actions, “paid citizens were p resen ra t public

'

0030

rV u lri

 meeting!! held on October 16, 2017 and February 21, 2018.

The Court further found that

“Entergy’s actions undermined” the Open Meetings Laws, La. R.S. 42:11, et seq. Finally, the
Court fcund that “the Open Meetings Laws were not adhered to as relates to the meaning and
policy b ihind the Open Meetings Laws.”
Regarding the February 2 1 ,2 0 1 8 meeting o f the Utilities, Cable, Telecommunications and
Technology Committee o f the N ew Orleans City Council, the Court finds that the Open Meetings
Law was violated.
Regarding the March 8, 2018 meeting o f the N ew Orleans City Council, the Court does

n o t find that the Open Meetings Law was violated. However, the February 21, 2018 action was a
necessaiy component o f the full council’s decision to adopt Resolution No. 18-65. As such, the
full council’s vote to adopt the resolution was void ab initio.
IT IS ORDERED, ADJUDGED AND DECREED that, for the reasons stated in open court
on June 14, 2019, there be judgment in FAVOR o f petitioners. The Southern Center for
Environmental Justice, Inc. d/b/a Deep South Center for Environmental Justice, VAYLA New
Orleans, Justice and Beyond, 350 N ew Orleans, Sierra Club, Mr. Theodore Quant and Ms. Renate
Heurich, and AGAINST defendants. The Council o f the City o f New Orleans, the Utility, Cable,
Telecommunications, and Technology Committee o f the N ew Orleans City Council, Jason R.
Williams, Helena Moreno, Joseph I. Giarrusso, Jay H. Banks, Kristin Gisleson Palmer, Jared C.
Brossett, and Cyndi Nguyen; and
T IS FURTHER ORDERED, ADJUDGED and DECREED that, for the reasons stated in
open colirt on June 14, 2019, the action o f the then-sitting members o f the UCTTC at its February
2 1 ,2 0 1 8 meeting is VOID; and
T IS FURTHER ORDERED, ADJUDGED and DECREED that, for the reasons stated in
open court on June 14, 2019, the action o f the then-sitting members o f the N ew Orleans City
Council adopting Council Resolution N o ^ -1 8 -6 5 at a March 8, 2018 meeting is VOID.
N ew Orleans, Louisiana, this ^

day o f

2019.

/

THE HONORABLE PIPER D. GRIFFIN
DISTRICT COURT JUDGE, DIVISION “I” , _

0031

 CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

.I

STATE OF LOUISIANA
NO. 18-:(843

DIVISION “I”

SECTION: 14

THE ¡SOUTHERN C ENTER FOR EN VIR O N M EN TAL JUSTICE, INC. d/b/a DEEP
SO U JH CENTER FOR EN VIR O N M EN TAL JU ST IC E, VAYLA NEW ORLEANS,
JU ST IC E AND BEYOND, 350 NEW O RLEANS, SIERRA CLUB,
MR. TH EO DO RE QUANT, AND MS. RENATE HEURICH
VERSUS
THE CO UNCIL OF THE CITY OF NEW O RLEANS, THE UTILITY, CABLE,
TEL ECO M M U N ICA TIO N S AND TEC H N O LO G Y COM M ITTEE OF THE NEW
o r l e A NS CITY CO U NC IL, JA SO N R. W ILLIAM S, HELENA M ORENO, JOSEPH I.
GIARR IJSSO, JAY H. BANKS, KRISTIN G ISLESON PALM ER, JARED C. BROSSETT,
AND CYNDI NGUYEN

FILED:
DEPUTY CLERK
M O TIO N FOR SUSPENSIVE APPEAL
N o w INTO COURT, through undersigned counsel, come defendants The Council of

the City of New Orleans; The Utility, Cable, Telecommunications and Technology Committee of
the New Orleans City Council; Jason R. Williams; Helena Moreno; Joseph 1. Giarrusso; Jay H.
Banks; Kristin Gisleson Palmer; Jared C. Brossett; and Cyndi Nguyen (hereinafter, the
“Council"), who respectfully move the Court for a suspensive appeal from the Court’s July 2,
2019 Jiulgment in the above-captioned matter, as set forth below;
1.

On July 2, 2019, the Court entered a Judgment in favor of Plaintiffs, finding a violation
o f the Uouisiana Open Meetings Law, La. R.S. § 42:11, el seq. and declaring that the action of
the Utility, Cable, Telecommunications and Technology Committee o f the New Orleans City
Council on Febriuiry 21, 2018 and the March 8, 2018 action o f the New Orleans City Council
adoptin Council Resolution No. R-18-65 are void. See Notice o f Signing o f Judgment, attached
hereto as "E.xhibit A."
2.
The July 2, 2019 Judgment is a final judgment pursuant to article 1841 o f the Louisiana

RIFIED

Code o Civil Procedure.

0032

 

LDOONOW

CIVIL DISTRICT COURT
PARISH OF ORLEANS

STATE OF LOUISIANA

ALLIANCE FOR AFFORDABLE ENERGY, ET AL No.2017-5208
VERSUS CIVIL ACTION
THE COUNCIL FOR THE CITY OF N.o. DIVISION 

Testimony and Notes of Evidence heard in
the above entitTed cause of action her in Open Court

before the HONORABLE PIPER D. GRIFFIN, judge

presiding in Division on FRIDAY, the 14th day of
JUNE of 2019.

Reported By:

SHANNON 

OfficiaT Court Reporter

0033





REPRESENTING PLAINTIFF:
Attorney Monique Harden
FOR DEEP SOUTH CENTER FOR
ENVIRONMENTAL JUSTICE
Attorney Susan Stevens MILLER
FOR ALLIANCE FOR AFFORDABLE

ENERGY AND ORLEANS

REPRESENTING DEFENDANTS:
Attorney BasiTe J. Uddo
Attorney PressTey R. Reed, Jr.

FOR THE CITY OF NEW ORLEANS

Attorney w. RaTey w. A1ford, 

FOR ENTERGY NEW ORLEANS

0034



LDOONG

FRIDAY, JUNE 14, 2019

THE COURT:

We're going to
deai with 2 cases today, everybody knows
that. We're going to dea1 with both the
for Affordab1e Energy et a1 versus
The City Counci1 of New Orieans, 2018?03471
as weii as 2018-03843, Deep South Center
for Environmentai Justice versus The
Councii for The City of New Orieans. First
I was going to have you guys say which one
you wanted to hear first, One is a written
judgment and I know that I?ve taken quite a
bit of time because I wanted to get it what
I considered right.

During the process
I 1earned a iot, a iot about the process
that the City and the City Councii goes
through. I've 1earned that the citizens of
New Orieans are deepiy concerned about,
both the City Councii and the citizens of
New orieans are deepiy concerned about
making sure that we not on1y have the
appropriate energy necessary to power the
City but that we aiso do everything in an
appropriate way. I?m going to first, I
think the counseis in front of me, some of

whom are different from the other case,

-3-

0035





deai with 2018?38436. That's the one that
deais with, among other things, the issue
of the open meetings 1aws. One thing I did
determine, and I wi11 appiaud and ya'11 can
take it the way you wish to take it, I do
appiaud the City Counciimembers who were
there who did their due and make
sure that ya?ii understand the City
understands that my judgment, though
appiauding the City, does ruie against the
City. And 1et me expiain to you why. The
Open Meetings Laws were designed and
continue to be designed to ensure that the
citizens, that their voices be heard and
that they have an opportunity to have a
seat at the tab1e when decisions are made
by those that they've e1ected to make those
decisions. My review of that, I don't get
to decide whether I agree or disagree,
that's not the issue. The issue upon
appeal is whether or not there was a
substantiai comp1iance, the City Councii,
and I guess my judgment wOn't make sense to
everybody since I'm going to make this
statement because I make this
statement, I don't see that they did
anything wrong, but even though they did
nothing wrong the rea1ity becomes this;

the citizens of New Orieans have to be1ieve
in the process and trust the process. And
to beiieve in and trust the process they

have to have an appreciation that the

-4-

0036





process itseif is one in which their voices
are heard. The City's investigation showed
they were paid citizens, that those paid
citizens were present and to some extent
may have skewed the presentation, that does
not mean that, again, that the Councii did
anything wrong or that the.views
uitimateiy, that the decision uitimateiy
made by the Councii was at wrong, but
in making this decision I have to 100k at
and have in my own opinion and iooking at
whether there is substantiai compiiance
make sure that there is in fact
adherence to the poiicy behind the Open
Meetings Laws. And so after having
reviewed a11 the record, and I'm oniy
vacating the judgment because I want to
make sure that as the City Councii has the
meetings that there is no, that the
citizen's voices are heard, that the
citizen's voices are in the room to the
extent they choose to be in the room and
that there is a true appreciation for both
the pros, cons and in essence what I'm
saying is that Energy's actions undermined
the Pubiic Meetings Laws. I can't say it
any differentiy. That being said, that is
my judgment in that case. I wouid ask that
Petitioners simpiy prepare a judgment that
vacates the origina1 ruiing finding that
the Open Meetings 1aws were not adhered to

as reiates to the meaning and poiicy behind

-5-

0037



U1

LDOON05

the Open Meetings Laws.

we now move on to
2018?03471, and that's a written judgment
and we will give, who are the attorneys in
that? Let's change seats. We are copying
that judgment, that judgment is 26 pages
long, it's taking a minute. I'm going to
do for purposes, you will get the judgment,
Tawanda is making one of my staff members
is making a copy. In that instance, in
that case involved whether or not the
City's determination and the Council's
determination in allowing Entergy to build
the plant in some what violated the due
process rights of the Petitioners, it did
not. And in that instance I rule squarely
in favor of the City and find that the
City, in looking at the Resolution and the
settlement agreement and all of the history
that, and you, ya'll will have, the lawyers
will have my judgment to look at. The
reality is this, from what I could see the
City did a very good job of making sure
notice of hearings were had, the City in
it's concern for what was clearly taking
place in the industry meaning that in the
energy industry there were these agreements
there were being massaged, is probably the
best word to say, but they were being dealt
with as Entergy the Corporation bought
several subsidiaries and subsequently

figured out a way to make sure that these

-5-

0038

LUNH



subsidiaries were abie to stand on their
own. Because of these changes the City did
it's due I can't say it any
different, they had muitipie meetings, they
did investigation, they made a
determination based on iots of evidentiary,
iots of evidentiary hearings. This is one
of the things I know and I know that one of
the things the Petitioners says that they
didn't know, c1ear1y the City notified
everybody of what was going on. I don't
think peopie appreciated the magnitude of
what was happening untii the ninth hour.
And it is ciear from what I read and from
the information provided to me that the
City and it's advisors, I know one of the
arguments made by Petitioners is that the
presence of the advisors in some way was
a1so a vioiation of due process, again I
fee1 that it was not. The on1y way that
the City functions is if it has people who
have knowiedge within an area that are abie
to do the investigation necessary. I
iooked at the case 1aw regarding ratemaking
versus ruie determination and determined
that the City as it was acting in this
particuiar matter as the entity responsibie
for the and more specificaiiy for
energy, that it did not, it was not
inappropriate for it to have the advisors
and have the advisors both heip them

through the process and heip them make a

a7-

0039





decision that was good for the citizens at
1arge. The determination of the type of
plant needed was done after much
negotiations, and again, the opinion is 26
pages, and it's 26 pages because I wanted
the Petitioners to understand that I 1ooked
at everything. I didn't want them to think
I did not have an appreciation for a11 of
their arguments and a11 everything that
they said, but I just did not find that
given the circumstances and given the
actions taken by the City that there was
any faiiure by the City to both give
notice, to both act appropriate1y and do a
due investigation and to make a
determination that they be1ieve was in the
best interest of the citizens of New
Orieans. One of the things that the
Petitioners do ta1k about is the faiiure to
consider a11 the a1ternatives as re1ates to
or options other than buiiding a new
it's ta1ked about. Everything
that I beiieve the Petitioners suggest was
not considered, it's in the Reso1ution,
they considered it and they for whatever
reasons, and again, my ro1e is not to
decide that I wou1d have done it better,
that's not my ro1e. My roie is to
determine whether or not they acted
arbitrary and capricious and whether or not
any evidence, whether there is sufficient

evidence up the record to suggest that they



0040

LDOONOV

did something that vioiated again, due
process in not, in making the determination
that they made. I'm not going to go
through a11 26 pages but I am going to say
that is my judgment, it is a written
judgment, it is signed today and if you
want your copy of the judgment we have it
for you, you can take it. We just need you
to sign for it. If you want us to mai1 it
to you we can mai1 it to you. If citizens
want a copy of the judgment we have to
figure that out because it's 26 pages.

Thank you a11 very much
for your patience. I know to some extent,
and I've been very, what's the word,..
genera1, in my comments re1ative to both
judgments but I think that the parties who
are participating understand my ru1ing. If
they don't understand my ru1ing you can
raise your hand and I can try to give you
some 1eve1 of c1arity, but my ru1ings are
what they are. Thank ya'11 very much.

Anybody have any questions? Thank you.

0041



PAGE

I, Shannon Deruise, Officia1 Court Reporter
for Civil District Court, 0r1eans Parish, do hereby
state on the record that due to the interaction and
the spontaneous discourse of these proceedings,
dashes have been used to indicate pauses,
changes in thought, interruptions and/or
simu1taneous speech; that this is the proper method
for a court reporter's transcription of the
proceedings; and that the dashes do not indicate
that words or phrases have been 1eft out of the I
transcript. Any words and/or names which cou1d not
be verified through reference materiai have been

denoted with the phrase 

-10_

0042

AWNH



This certificate is va1id onTy for a transcript
accompanied by my original signature and origina1
required seaT on this page.

I, Shannon Deruise, OfficiaT Court Reporter in
and for the State of Louisiana, empToyed as an
officiaT court reporter by the Parish of OrTeans
CiviT District Court for the State of Louisiana, as
the officer before whom this testimony was taken, do
hereby certify that this testimony was reported by me
in the Stenotype reporting method, was prepared and
transcribed by me or under my direction and
supervision, and is a true and correct transcript to
the best of my abiTity and understanding; that the
transcript format guideTines required by statute or
by ru1es of the board or by the Supreme Court of
Louisiana, and that I am not reTated to counse1 or to
the parties herein nor am I otherwise interested in

the outcome of this matter.

    

 

DERUISE, CCR

OFFICIAL COURT REPORTER

CERTIFICATE NO. 87098

_11m

0043