Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2007 WL 763241 (E.D.La.)
(Cite as: 2007 WL 763241 (E.D.La.))

enforcing a statute is “stripped of his official or rep-
resentative character” and is therefore not permitted
to share the state's Eleventh Amendment immunity
from suit. See id, at 159-60. 28 S.Ct. at 454. The
Court in Ex Parte Young nonetheless cautioned
against reading this immunity exception too broadly
to permit plaintiffs to test the constitutionality of
statutes against state attorneys general and governors
merely because of their status as state officers. See id.
at 157, 28 S.Ct. at 453. Rather, in order to make a
state official a party defendant in a suit to enjoin the
enforcement of an allegedly unconstitutional statute,
“Gt is plain that such officer must have some connec-
tion with the enforcement of the act, or else it is
merely making him a party as a representative of the
state, and thereby attempting to make the state a
party.”/d. (emphasis added). Federal courts have con-
strued Ex Parte Young narrowly and have held that
the requisite connection exists only when the state
official has the authority to enforce the challenged
statute and has shown an intention to enforce it. Fox
v. Reed, 2000 WL 288379 at *3 (E.D.La.2000).

The Fifth Circuit analyzed Ex Parte Young's “some
connection” requirement in Okpalobi v. Foster, 244
F.3d 405(5th Cir.2001). In that case, plaintifis named
as defendants the Attorney General and Governor of
Louisiana. Jd. at_409.The Fifth Circuit, sitting en
banc, held that the Eleventh Amendment barred the
lawsuit from being heard in federal court. It con-
cluded that the Ex Parte Young exception applies
only when the “named defendant state officers have
some connection with the enforcement of the act and
‘threaten and are about to commence proceedings’ to
enforce the unconstitutional act.” Jd, at 416.

*3 In this case, Plaintiffs do not allege that Governor
Blanco is specially charged with the duty of enforc-
ing the statute, nor that she has threatened or is
threatening to enforce the statuteTMRather, Plaintiffs
contend that Governor Blanco's general duty to im-
plement and enforce state law under the Louisiana
Constitution TMTM* is sufficient to establish the requisite
connection to the statute. The Court disagrees. While
enforcement power may be “found implicitly” in
state law other than the challenged statute, it may not
be implied from the general duty of the governor to
faithfully execute state law. Okpalobi, 244 F.3d at
419.

EN4. On the contrary, the duty to enforce

Page 3

the statute would fail upon the chief law en-
forcement officer in Orleans Parish, Super-
intendent Riley. Further, any resulting
criminal prosecution under the statute would
be conducted by the district attorney of Or-
Jeans Parish, Eddie J. Jordan, Jr.

ENS.Article 4, Section 5 of the Louisiana
Constitution of 1974 provides that “[t]he
governor shall be the chief executive officer
of the state ... and shall see that the laws are
faithfully executed.”

[T]he Young principle teaches that it is not merely the
general duty to see that the laws of the state are
implemented that substantiates the required “con-
nection,” but the particular duty to enforce the stat-
ute in question and a demonstrated willingness to
exercise that duty. For a duty found in the general
laws to constitute a sufficient connection, it must
“include [ ] the right and the power to enforce the
statutes of the state, including, of course, the act in
question ...”

Id. at 416-17.

The Court finds that the connection between Gover-
nor Blanco and the enforcement of La. R.S. 13:326 is
too attenuated to invoke the Ex Parte Young excep-
tion. This conclusion is supported by the lack of any
stated intention by Governor Blanco to enforce the
statute against the Plaintiffs or anyone else. See Fox
v. Reed, 2000 WL 288379 (E.D.La.2000); see also
Qusset v. Taylor, 2000 WL 492101 (E.D.La.2000).
Accordingly, the Eleventh Amendment bars Plain-
tiffs' claims against Governor Blanco and mandates
their dismissal.

Til. CONCLUSION

For all the foregoing reasons, IT IS ORDERED that
the Motion to Dismiss filed by Governor Kathleen
Blanco is GRANTED.

E.D.La.,2007.

Social Aid and Pleasure Club Task Force v. City of
New Orleans, Louisiana

Not Reported in F.Supp.2d, 2007 WL 763241
(ED.La)

END OF DOCUMENT

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.


Exhibit 2


Westlaw.
Not Reported in F.Supp.2d

Not Reported in F.Supp.2d, 2007 WL 763241 (E.D.La.)
(Cite as: 2007 WL 763241 (E.D.La.))

Cony the Westlaw citation is currently available.

United States District Court,
ED. Louisiana.
SOCIAL AID AND PLEASURE CLUB TASK
FORCE, et al.

Vv.
CITY OF NEW ORLEANS, LOUISIANA, et al.
Civil Action No. 06-10057.

March 9, 2007.

Carol Anne Kolinchak, Capital Post-Conviction Pro-

ject of Louisiana, Katharine Murphy Schwartzmann,
American Civil Liberties Union Foundation of Lou-

isiana, New Orleans, LA, for Social Aid and Pleasure
Club Task Force, et al.

Victor L. Papai. Jr., Heather M. Valliant, City Attor-
ney's Office, New Orleans, LA, David A. Young,
Louisiana Department of Justice, Civil Division, Ba-
ton Rouge, LA, for City of New Orleans, Louisiana,
etal.

ORDER AND REASONS

KURT_D. ENGELHARDT, United States District
Judge.

*1 Before the Court is the Motion to Dismiss Com-
plaint (Rec.Doc. No. 9) filed on behalf of Defendant
Kathleen Blanco, Governor of the State of Louisiana,
pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. The motion is opposed. Upon re-
viewing the submissions of the parties and the perti-
nent law, the Court finds that Defendant's motion is
well-founded. Accordingly, the Motion to Dismiss is
GRANTED.

I. BACKGROUND

This is an action for declaratory and injunctive relief
and nominal damages brought by Social Aid and
Pleasure Club Task Force," Tamara Jackson, Mi-
chelle Longino, Anthony Hookfin, Letecha Watkins,

Page 1

Herman Palmer, Corey Woods, Joe Stern, Desiree
Jones, Byron Hogan, Sable Lewis, Linda Porter,
Perry Franklin, Nathaniel Willis, Frank M. Allen,
Wendell Jackson, Jenean Sanders, and Cornell
Glasper. Plaintiffs are members of Social Aid and
Pleasure Clubs, organizations that sponsor Second
Line parades in the New Orleans area.

ENL The Social Aid and Pleasure Club
Task Force is a Louisiana non-profit organi-
zation operating in the State of Louisiana
and domiciled in the City of New Orleans.
Plaintiff Tamara Jackson is the President of
the Social Aid and Pleasure Club Task
Force.

On January 31, 2006, following a January 15, 2006
shooting during a Second Line parade, Warren J.
Riley, Superintendent of the New Orleans Police De-
partment, issued a memorandum announcing an in-
crease in police requirements for Second Line pa-
rades “[i]n order to create a safer environment before,
during, and after” the parades. (Rec.Doc. No. 3-3, p.
32). In addition to setting forth increased police pres-
ence requirements, the memorandum stated that
groups seeking to hold a Second Line parade must
prove compliance with the bond requirements set
forth in La. R.S. 14:326.""(Rec.Doc. No. 3-3, p. 32).

FN2.La._R.S. 14:326 makes it a misde-
meanor for any group to hold a parade on
any public thoroughfare in any municipality
unless the group obtains a permit in ad-
vance. Application for the permit must be
made to the mayor and governing authority
of the municipality. Permits may be granted
provided that a $10,000 bond is filed with
the mayor and municipal governing author-
ity as security for any damage or injury
which may occur in connection with the pa-
rade. The statute contains explicit exceptions
for legitimate labor organizations, profes-
sional firefighter or police associations, law-
ful activities of labor unions, parades held or
sponsored by the governing authority of a
municipality or parish, Mardi Gras parades,
school parades, parish parades, and state,
parish, or municipal fairs. The statute only

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works,


Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2007 WL 763241 (E.D.La.)
{Cite as: 2007 WL 763241 (E.D.La.))

applies to parishes with a population of
more than 450,000. The statute carries a
maximum fine of $1,000 and a maximum
term of imprisonment of six months.

On November 16, 2006, the Plaintiffs filed a com-
plaint and motion for preliminary injunction pursuant
to 42 U.S.C. §§ 1983 and 1988 against the City of
‘New Orleans, Ray Nagin, Mayor of New Orleans,
Warren J. Riley, Superintendent of the New Orleans
Police Department, and Kathleen Blanco, Governor
of the State of Louisiana. Plaintiffs seek a prelimi-
nary injunction, declaratory judgment, nominal dam-
ages, and permanent injunctive relief to redress al-
leged violations of Plaintiffs' constitutional tights.
Specifically, Plaintiffs seek judicial review of the
‘New Orleans municipal parade permit scheme and
La. RS. 26 on the grounds that they infringe
upon Plaintiffs’ rights under the under the First and
Fourteenth Amendments to the United States Consti-
tution. Plaintiffs allege that the police escort and
bonding requirements imposed on the Social Aid and
Pleasure Clubs are unreasonable and excessive and
that the enforcement of the statutes governing the
parade permit scheme threaten to eliminate the exis-
tence of the Second Line parade tradition.

On December 11, 2006, Governor Blanco filed the
instant motion to dismiss, asserting that this Court
lacks subject matter jurisdiction over the claims
against her because the Governor is entitled to im-
munity from suit in federal court under the Eleventh
Amendment.

I. LAW AND ANALYSIS
A. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) governs
challenges to a court's subject matter jurisdiction. The
Court must grant a motion to dismiss for lack of sub-
ject matter jurisdiction when it lacks the statutory or
constitutional power to adjudicate the case. See Home
Builders Ass'n of Miss., Inc. v. City of Madison, 143
F.3d_1006, 1010 (Sth Cir.1998) (quoting Nowak v.
Ironworkers Local 6 Pension Fund, 81 F.3d 1182.
1187 (2nd Cir.1996)). A district court may dismiss an
action for lack of subject matter jurisdiction based on
(1) the complaint alone; (2) the complaint supple-
mented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed

Page 2

facts plus the Court's resolution of disputed facts. See
Williamson _v. Tucker, 645 F.2d 404, 413 (5th
Cir.1981); see also Robinson v. TCI/US West Com-
munications Inc. 117 F.3d 900, 904 (5th Cir.1997)
(citations omitted). The party who invokes federal
court jurisdiction bears the burden of showing that
jurisdiction is proper. Dow y. Agrosciences, LLC vy.
Bates, 332 F.3d 323, 326 (Sth Cir.2003). Defendant
Blanco raises a “facial attack” on the complaint. Ac-
cordingly, the Court must examine whether plaintiffs
have sufficiently alleged a basis for subject matter
jurisdiction, taking all of their allegations in the com-
plaint as true. See Menchaca v. Chrysler Credit
Corp., 613 F_.2d 507, 510 (Sth Cir.1980) (citing
Mortensen v. First Federal Savings & Loan, 549 F.2d

884, 891 (3rd Cir.1977)).

B. Analysis

*2 Plaintiffs seek to enjoin Governor Blanco from
enforcing or threatening to enforce La. S.

14:326.TMGovernor Blanco contends that plaintiffs'
claims against her must be dismissed for lack of sub-
ject matter jurisdiction because she is shielded by
Eleventh Amendment immunity. The Eleventh
Amendment precludes actions brought against a state
in federal court by its own citizens or citizens of an-
other state, absent consent, waiver, or abrogation of
the state's sovereign immunity. SeeU.S. Const.
amend. XI; Edelman v. Jordan, 415 U.S. 651, 663.
94 S.Ct. 1347 (1974); Hans v. Louisiana, 134 U.S. 1
13-15, 10 S.Ct. 504 (1890). The Eleventh Amend-
ment also prohibits suits against state officials when
the state is the real party in interest. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101.
104 S.Ct. 900, 908 (1984). However, the Supreme
Court has carved out an exception to Eleventh
Amendment immunity for suits seeking declaratory
or injunctive relief against state officials who violate

federal law. See Ex Parte Young, 209 U.S. 123, 159-
60, 28 S.Ct. 441, 454 (1908).

EN3. Plaintiffs seek to enjoin the City of
New Orleans, Mayor Nagin, and Superin-
tendent Riley from enforcing the City's mu-
nicipal ordinances governing the parade
permit scheme, including and particularly §§
154-1653 and 154-1658.

The Ex Parte Young “fiction” provides that a state
official who violates the United States Constitution in

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.