Moore et al v. Tangipahoa Parish School Board et al

Filing 1528

ORDER AND REASONS: IT IS ORDERED that the 1502 motion is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' 1494 Objections are OVERRULED and the CCO's [1494-1] Recommendation is AFFIRMED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/30/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
M.C. MOORE, ET AL.

CIVIL ACTION

VERSUS

NO. 65-15556

TANGIPAHOA PARISH SCHOOL BOARD, ET AL.

SECTION "B"(1)

ORDER AND REASONS
Before the Court is “Plaintiffs’ Motion to Reconsider and/or
to Alter and/or Amend Order Pursuant to Rule 59(e).” Rec. Doc.
1502. The Tangipahoa Parish School Board filed an opposition. Rec.
Doc. 1504. Plaintiffs’ instant motion relates to previously-filed
objections to a recommendation from the Court Compliance Officer
(CCO). Rec. Doc. 1494. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 1502) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Objections (Rec. Doc.
1494) are OVERRULED and the CCO’s Recommendation (Rec. Doc. 1494-1)
is AFFIRMED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
An election held in Tangipahoa Parish on November 18, 2017,
included

three

taxes

that

would

have

raised

funds

for

the

Tangipahoa Parish School District. See Rec. Doc. 1494-1 at 2-3.
None of the taxes passed. See Rec. Doc. 1494 at 11. On October 10,
2017, prior to the election being held, Plaintiffs raised concerns
about the impending tax election in a formal complaint to the CCO.
See Rec. Doc. 1494-2. In their complaint, Plaintiffs argued that

1

prior court orders required the School District to formally submit
the proposed tax ballot measures for analysis and approval prior
to the election. See id. at 6-7 (referring to Rec. Docs. 325, 612).
The School Board responded, arguing that (1) the proposed taxes
were not governed by the prior court orders, (2) Plaintiffs were
adequately notified of the Board’s plans to put the tax measures
on the ballot, and (3) that the tax measures were consistent with
the Board’s obligations to desegregate the school system. See Rec.
Doc. 1494-4. Plaintiffs then filed a reply that responded to the
Board’s arguments. See Rec. Doc. 1494-10.
At issue in Plaintiffs’ instant objections is the application
of a pair of orders issued in 1977 and 2007 to the three taxes
that were on the ballot in November 2017.1 See Rec. Docs. 325, 612.
The 1977 Order requires the Board to submit for review and approval
“a planning study and analysis” “at least 90 days prior to any
bond election or submission of bids on any capital improvement
other than routine maintenance . . . .” Rec. Doc. 325 at 4. The
2007 Order adds and modifies these obligations by requiring that
“[a]ny expenditure over $125,000.00 must go through the analysis
procedure outlined in the [1977] court order and must be presented
to the plaintiff and the compliance officer . . . at least 180
days prior to the election.” Rec. Doc. 612 at 1.

1

The 1977 Order is also filed in the record at Record Document Number 522-1.

2

On November 3, 2017, the CCO issued a recommendation that
prior court orders regulating Board expenditures do not require
the Board to “provide notice that it intends to call a property
tax election.” Rec. Doc. 1494-1 at 6. The CCO reasoned that the
notice provisions in the prior court orders only apply to a subset
of Board expenditures, not the collection of tax revenue via a
parish-wide tax. See id. Twenty-one days later, on November 24,
2017, Plaintiffs filed objections to the CCO’s recommendation. See
Rec. Doc. 1494. The objections were dismissed as moot because the
election occurred—and the taxes failed to pass—six days before
Plaintiffs filed their objections. See Rec. Doc. 1496. Plaintiffs
then filed the instant motion to reconsider, arguing that the
objections are not moot because the Board might seek to pass a
similar tax measure in the future. Rec. Doc. 1502-1 at 2. The Board
timely filed an opposition. Rec. Doc. 1504.
LAW AND ANALYSIS
Plaintiffs seek reconsideration under Federal Rule of Civil
Procedure 59(e). See Rec. Doc. 1502 at 2. “Rule 59(e) serves the
narrow purpose of allowing a party to correct manifest errors of
law or fact or to present newly discovered evidence.” Templet v.
HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). “A Rule 59(e)
motion . . . is not the proper vehicle for rehashing evidence,
legal theories, or arguments that could have been offered or raised

3

before” the order was issued.2 Id. at 478-79. As a result, the
“extraordinary remedy” available under Rule 59(e) “should be used
sparingly.” Id. at 479. This is one of those rare situations in
which

reconsideration

is

appropriate

because

Plaintiffs’

objections fall within a narrow exception to mootness doctrine.
“Article III of the Constitution limits federal courts to
deciding ‘Cases’ and ‘Controversies,’ and an actual controversy
must exist not only at the time the complaint is filed, but through
all stages of the litigation.” Kingdomware Techs. Inc. v. U.S.,
136 S. Ct. 1969, 1975 (2016). A controversy is moot when “no court
is . . . capable of granting the relief [plaintiff] seeks.” Id. A
court cannot normally grant injunctive or declaratory relief when
the complained-of act has already ended. See id. at 1975-76. This
would seem to foreclose Plaintiffs’ efforts here because the
election has already occurred and the objected-to taxes failed to
pass.
But Plaintiffs allude to an exception to mootness doctrine in
their instant motion. Rec. Doc. 1502-1 at 2. A controversy is not
moot when it “is capable of repetition, yet evading review,” which
means that “(1) the challenged action is in its duration too short
to be fully litigated prior to cessation or expiration, and (2)

2

Plaintiffs’ motion is properly analyzed under Federal Rule of Civil Procedure
59(e) because it was filed within twenty-eight days after Plaintiffs’ objections
were dismissed as moot. See Texas A&M Research Found. v. Magna Transp., Inc.,
338 F.3d 394, 400 (5th Cir. 2003); Fed. R. Civ. P. 6(a)(1)(C).

4

there is a reasonable expectation that the same complaining party
will be subject to the same action again.” Id. at 1976 (citing
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). The Supreme Court has
“held that a period of two years is too short to complete judicial
review of the lawfulness of” an agency’s decision to award a
contract. Id.
Moreover,

the

exception

is

readily

applied

when

the

controversy involves the regulation of elections because elections
occur with relatively short notice and it is difficult for courts
to order relief after the election has occurred. See, e.g., FEC v.
Wis. Right to Life, Inc., 551 U.S. 449, 461-64 (2007); Ctr. for
Individual Freedom v. Carmouche, 449 F.3d 655, 661-62 (5th Cir.
2006). Prompt resolution of election-related controversies is
valuable because, for example, clarifying ”[t]he construction of
[a] statute [regulating an election], an understanding of its
operation, and possible constitutional limits on its application,
will

have

increasing

the
the

effect

of

likelihood

simplifying
that

future

timely

challenges,

filed

cases

thus

can

be

adjudicated before an election is held.” Storer v. Brown, 415 U.S.
724, 738 n.8 (1974); see also Wis. Right to Life, 551 U.S. at 46164; Morial v. Judiciary Comm’n, 565 F.2d 295, 297 n.3 (5th Cir.
1977); Ctr. for Individual Freedom, 449 F.3d at 661-62; Kucinich
v. Tex. Democratic Party, 563 F.3d 161, 164-65 (5th Cir. 2009);
cf. Wilson v. Birnberg, 667 F.3d 591, 596-97 (5th Cir. 2012).
5

The instant dispute about whether the Board was required to
submit planning studies and analyses for the three proposed tax
measures 180 days before the election falls within the “capable of
repetition,

yet

evading

review”

exception

to

the

mootness

doctrine. At most, the Board is required to seek approval of these
tax measures six months prior to the election. See Rec. Doc. 612
at 1. Given that the Supreme Court has held a two year period to
be too short for complete review, a six month period is also too
short. See Kingdomware Techs., 136 S. Ct. at 1976.
The second requirement of the test is also met because there
is a “reasonable likelihood” that the same parties will be involved
in a similar dispute in the future. The notification and approval
requirements at issue here are specific to this case. See Rec.
Docs. 325, 612. And given that the Board will likely need to raise
additional

funds

to

complete

its

obligations

under

the

desegregation orders, it is reasonable to expect that the Board
will put forward similar tax measures in the future. See, e.g.,
Rec. Docs. 927, 935, 956, 1117, 1264 at 12-13. Therefore, under
the

“capable

of

repetition,

yet

evading

review”

exception,

Plaintiffs’ objections to the CCO’s recommendation are not moot.
With the question of mootness resolved, it is time to turn to
the

substance

of

Plaintiffs’

6

objections

to

the

CCO’s

recommendation.3

A

district

court

reviews

a

special

master’s

findings of fact and conclusions of law de novo. See Fed. R. Civ.
P. 53(f)(3)-(4). The CCO concluded that the tax proposals on the
ballot in November 2017 did not implicate the analysis and approval
provisions in Record Documents 325 and 612 because “the proposals
at issue provide for the collection of property taxes, not the
expenditure

of

funds.”

Rec.

Doc.

1494-1

(emphasis

omitted).

Plaintiffs argue that the analysis and approval provisions are
applicable because two of the tax proposals will raise funds to be
used for maintenance and construction of yet-to-be determined
school facilities, activities that could have an impact on the
Board’s obligation to desegregate the school system. See Rec. Doc.
1494 at 8-11.
The first step in reviewing the CCO’s recommendation is to
lay out and examine the text of the orders at issue. In 1977, the
parties entered into a stipulation that, inter alia, created a
framework

for

analysis

and

review

of

capital

improvement

expenditures. See Rec. Doc. 325 at 4. The 1977 Order states the
following:
Recognizing that the law requires that selection of
sites for schools to be constructed in the future, the
selection of schools to be enlarged or altered, and all
3

The Court can evaluate Plaintiffs’ objection based on the briefing before the
CCO, as envisioned by the complaint process established in this case. See Rec.
Doc. 956 at 4 (“The court may either resolve the disagreement [with the CCO’s
recommendation] on its own motion or may direct the party in disagreement to
file an appropriate motion.”); see also Rec. Doc. 612 at 1 (allowing for judicial
review of Plaintiffs’ objections); Fed. R. Civ. P. 53(f).

7

other future construction programs must effectuate the
development and continuation of a unitary school system
serving the educational needs of the parish without
regard to race, the school board, at least 90 days prior
to any bond election or submission of bids on any capital
improvement other than routine maintenance, shall submit
to plaintiffs and the court a planning study and analysis
by which the plaintiffs and the court can objectively
review whether the proposed construction is consistent
with the school board’s affirmative duty to ensure that
the proposed construction or improvements assist in
bringing
about
a
unitary
system
and
prevents
reoccurrence of the dual system. For the purposes of
this section, it shall be presumed, subject to rebuttal,
that any proposed capital expenditure in excess of
$30,000 is for other than routine maintenance.
Id. (internal citations omitted) (emphasis added).
In 2007, the Court issued an order amending the 1977 Order.
See Rec. Doc. 612. The 2007 Order was “issued to assist [the]
parties’ efforts and ongoing affirmative duty to ensure that
proposed capital expenditures bring about a unitary system and
prevent reoccurrence of a dual school system.” Id. at 2 (emphasis
added). It retained the “provisions of [the 1977 Order] . . .
regarding capital improvements and bond elections . . .” with
three amendments. See Rec. Doc. 612. First, it increased the
routine maintenance exemption from $30,000.00 to $125,000.00. See
id. at 1. Second, it explained that expenditures up to $125,000.00
for “general maintenance of existing buildings,” such as “[u]pkeep
of existing building[s],” “[r]eplacing outdated appliances and
fixtures,”

and

“[e]nsuring

compliance

with

state

and

local

building codes[,]” could be made “without court approval[,] but

8

with a letter to plaintiff’s counsel and/or Compliance Officer
advising

of

the

specific

expenditure

. . . .”

Id.

(emphasis

added). Third, it clarified the following:
Any expenditure over $125,000.00 must go through the
analysis procedure outlined in the [1977] court order
and must be presented to the plaintiff and the compliance
officer at least 120 days prior to the expenditure of
the funds. If a public vote is required, the analysis
must be presented at least 180 days prior to the
election. The plaintiffs have 90 days to respond to the
proposal submitted by the school system. The parties
will be required to meet within 60 days of [] receiving
the request for expenditure to determine if the matter
can be resolved.
Id. (emphasis added). The 2007 Order also includes a catch-all
provision stating that, “[r]egardless of the amount to be spent,
if the expenditure will have a significant impact on the continued
enforcement of the court order and the desegregation of the school
system,

the

school

system

will

be

obligated

to

notify

the

plaintiffs, the compliance officer, and the Court.” Id. at 2.
Review of the 1977 and 2007 Orders indicates that the CCO was
correct when he concluded that both are primarily concerned with
the Board’s expenditures and only secondarily regulate how the
Board raises the requisite funds to make those expenditures. See
Rec. Doc. 1494-1 at 6. With one exception, the Board’s obligations
are defined by the size of the anticipated expenditures and the
deadlines for notice and analysis are determined by the timing of
the expenditures. See Rec. Docs. 325, 612. The exception merits

9

further discussion because it appears to have contributed to the
instant disagreement.
The

exception

involves

situations

where

the

notice

and

analysis requirements are triggered by an election. The 1977 Order
declares that, when the Board is required to submit “a planning
study and analysis” for review, those materials are due “at least
90 days prior to any bond election or submission of bids on any
capital improvement other than routine maintenance . . . .” Rec.
Doc. 325 at 4. The 2007 Order modifies this requirement slightly
by requiring that, “[i]f a public vote is required [for the
expenditure], the analysis must be presented at least 180 days
prior to the election.” Rec. Doc. 612 at 1. Therefore, Plaintiffs
are correct that the Board is sometimes obligated to prepare a
planning study and analysis before putting certain fundraising
measures to a vote.
But the full picture of the 1977 and 2007 Orders suggest that
this obligation is limited to situations in which the outcome of
the election will commit the Board to certain expenditures on
specific projects. If that were not the case, and the Board were
required to complete a planning study and analysis before putting
even general fundraising to a vote, the remaining provisions of
the

Court’s

orders

would

appear

largely

irrelevant.

If

all

potential expenditures are analyzed and approved before raising
the funds to pay for said expenditures, then the need to later
10

submit individual expenditures for approval would be a potentially
superfluous layer of review.
On the other hand, the interpretation advanced in the CCO’s
recommendation is reasonable because it ensures that expenditures
are subject to judicial review at least once, but not more than
necessary. When a public vote will commit the board to certain
expenditures on specific capital improvements, the planning study
and analysis are required before the election. But when a public
vote simply authorizes the collection of additional funds that
might

be,

but

are

not

required

to

be,

used

for

capital

expenditures, the planning study and analysis is not required until
the funds are actually be spent.
This distinction also reasonably reflects the fact that a
planning study and analysis is less useful when the exact uses of
the funds have not been identified. This is all the more true when,
as here, the funds will be collected over the course of decades
because the school district’s needs will almost certainly change
over time. None of this is to say that Plaintiffs cannot challenge
the Board’s fundraising efforts on other grounds, such as the
structure and design of the tax itself. The current analysis just
means that the Board is not required to submit a planning study
and

analysis

for

review

before

putting

every

fundraising

initiative to a public vote. Moreover, nothing discussed here
diminishes the Board’s “obligat[ion] to notify the plaintiffs, the
11

compliance officer, and the Court” “if [an] expenditure will have
a significant impact on the continued enforcement of the court
order and the desegregation of the school system . . . .” Rec.
Doc. 612 at 2.
The foregoing analysis is also consistent with the court’s
and

the

parties’

previous

interpretation

of

the

Board’s

obligations under the 1977 Order. In May 2007, the Board filed a
motion seeking approval for three revenue raising measures that
the Board sought to put to a public vote in July 2007. See Rec.
Doc. 531. The proposed measures were as follows: (1) “a 1% sales
and use tax” “to pay the costs of constructing and improving public
school

buildings

and

facilities

therein

and

acquiring

land,

equipment and furnishings therefor[;]” (2) a bond issue to pay for
the construction of a new middle school; and (3) a millage to
“giv[e] additional support to the public elementary schools in the
district

by

providing

funds

for

operating,

maintaining

and

equipping visual and performing arts for all elementary children
and for accelerated curriculum programs and paying salaries and
benefits of teachers and other public school personnel . . . .”
Rec. Doc. 531-1 at 4-5.
After additional briefing and a hearing before the Court,
“the parties agreed” that the bond issue to build a new middle
school would be enjoined pending the requisite planning study and
analysis, but that “the other two elections regarding a parish12

wide sales tax and an assessment . . . concerning an accelerated
curriculum program would proceed, subject to court approval of
expenditures should the tax proposals be approved.” Rec. Doc. 567
at 1. The parties’ stipulation was subsequently memorialized in an
order by the Court. See Rec. Doc. 566. It was only after the Court
approved the parties’ resolution of their dispute about the tax
elections that the Court issued the 2007 Order further clarifying
the Board’s obligations with respect to expenditures. See Rec.
Doc. 612.
Since

2007,

when

the

parties

reached

agreement

on

the

distinction between specific and general fundraising efforts, the
Board has repeatedly sought approval for specific expenditures
(see, e.g., Rec. Docs. 716, 717, 800, 832, 835, 890, 908, 940,
970, 999, 1016, 1074) and very rarely sought approval for tax
elections (see Rec. Docs. 857, 871, 1002). The circumstances
surrounding the Board’s previous motion for approval of a tax
election is readily distinguishable from the presently objectedto tax election. In 2009, the Board sought approval to hold a tax
election to fund the expansion of a magnet program at Hammond
Junior High School. See Rec. Doc. 857. The Court initially denied
the motion “due to [its] concern over approving said election prior
to

approving

a

desegregation

programs.” Rec. Doc. 866 at 1.

13

order

concerning

the

magnet

The Board had previously proposed a desegregation plan for
its magnet programs (see Rec. Doc. 738), but it was not approved
until 2010 (see Rec. Doc. 876). Upon subsequent motion, the Court
ultimately approved holding the election and levying the tax for
one year. See Rec. Doc. 873. In 2012, the Board filed an unopposed
motion to collect the tax for an additional year; the motion was
granted. See Rec. Docs. 1002, 1003. This one example related to
the magnet program tax does not alter the Court’s understanding of
the 1977 and 2007 Orders because the 2009 request was prompted by
the fact that the underlying program was uncertain; the relevant
desegregation plan was pending before the Court when the election
was scheduled to occur. That is not the situation now, as the
objected-to taxes were to be used for a variety of purposes
pursuant to the standing desegregation orders.
Therefore, over a decade ago, the parties agreed that there
is a distinction between fundraising proposals that commit the
board to certain expenditures on specific projects and proposals
that raise general revenue to be used for a variety of projects.
See Rec. Docs. 566, 567. The parties also agreed that the former
require a planning study and analysis, but that the latter do not.
See Rec. Docs. 566, 567. The parties reached this agreement even
though the sales and use tax from 2007 was dedicated to the
construction and maintenance of school facilities and the millage
proposed in 2007 was for new curriculum programs and salaries. See
14

Rec. Doc. 531-1 at 4-5. This decade-old agreement among the parties
supports the CCO’s recommendation that the Board’s obligations
generally depend on whether the Board is making an expenditure or
raising general funds to be spent later.
The final step in reviewing the CCO’s recommendation is to
compare the objected-to tax proposals to the notice and analysis
requirements to ensure that the Board complied with its legal
obligations in this instance. Three parishwide millages were on
the November 2017 ballot, one to “giv[e] additional support for
the

payment

of

teacher

and

support

employees’

salaries

and

benefits[,]” the second to “giv[e] additional support for the
maintenance

of

school

facilities[,]”

and

the

third

to

“give

additional support for the constructing of, new or improving,
renovating

and/or

remodeling

existing

classrooms

and

related

facilities, in order to reduce the number of modular buildings[.]”
Rec. Doc. 1484-3 at 1. None of the millages committed the Board to
certain expenditures on specific projects. All of the millages
would have raised funds that the Board could have used for a
variety of projects. Subject to the 1977 and 2007 Orders, some
expenditures of the funds raised would have been subject to
planning

study,

analysis,

and

court

approval.

In

fact,

the

similarities between the millages placed on the November 2017
ballot and the tax and millage on the 2007 ballot are striking—in

15

both instances the measures were designed to raise money to
generally improve school facilities and the quality of education.
It is also important to note that the Board provided ample
notice of its intent to place these millages on the November 2017
ballot. The Board published a notice of its intent to put the
proposed millages to a public vote on August 15, 2017, a full three
months before the vote was scheduled to occur. See Rec. Doc. 14843. That notice was discussed in and attached to the CCO’s annual
report, which was filed into the record of the above-captioned
matter on September 5, 2017. See Rec. Docs. 1484 at 10, 1484-3.
Plaintiffs, though objecting to the form and timing of notice,
acknowledge that they knew about the millage proposal no later
than August 16, 2017.4 See Rec. Doc. 1494-10 at 10-14. Because the
proposed millages would have raised money to fund a variety of
expenditures, not a certain project, the Board was not required to
present a planning study and analysis for review. The Board’s

4

The CCO states that on August 11, 2017, he provided advance notice to
Plaintiffs’ counsel that the millage proposal would be discussed at the Board’s
meeting on August 15, 2017. See Rec. Doc. 1494-1 at 3. The Board states that it
gave notice of its intent to place the millage proposal on the ballot to
Plaintiffs’ counsel in June 2017. See Rec. Doc. 1494-4 at 3-4.

16

provision

of

notice

to

the

parties,

CCO,

and

the

Court

was

sufficient. If the millages had passed, the 1977 and 2007 Orders
would have governed expenditure of the funds raised from the
millages.
New Orleans, Louisiana, this 30th day of March, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

17