Bode, et al v. Kenner City, et al

Filing 60

ORDER granting 50 Motion for Summary Judgment & that Dfts & their agents are enjoined from enforcing Kenner City Charter Article I, Section 1.06. FURTHER ORDERED that Dfts shall pay Plas the sum of $100, plus attorneys fees & costs. FURTHER ORDERED that on or before 4/20/2018, Plas are to file a specific request for attorneys fees & costs consistent w/ this Circuits precedent on prevailing hourly rates, etc. Signed by Judge Nannette Jolivette Brown on 3/19/2018. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE BODE, et al.

CIVIL ACTION

VERSUS

CASE NO. 17-5483

KENNER CITY, et al.

SECTION: “G” (5)
ORDER

In this litigation, Plaintiffs, who are twelve “unclassified civil service” public employees
of the City of Kenner, Louisiana,1 seek declaratory relief and an injunction barring the City of
Kenner (“the City”), and Chief of Police Michael Glaser in his official capacity (“Chief Glaser”)2
from enforcing Kenner City Charter Article I, Section 1.06 (hereinafter, the “Charter
Amendment”).3 Plaintiffs allege that the Charter Amendment, which provides that non-elected
City employees “shall not participate in any political activity on behalf of any city candidate in the
City of Kenner elections,” violates their First Amendment rights to engage in political speech, is
unconstitutionally vague, and is overbroad.4 The City responds that the Charter Amendment is
narrowly tailored to achieve the City’s compelling interest in maintaining an apolitical workforce.5

1

Rec. Doc. 1 at 3–4. In particular, Plaintiffs are: (1) George Bode, the City of Kenner’s Assistant Director
of Inspections and Code Enforcement; (2) Adam Campo, the City of Kenner’s Clerk of Court; (3) Gerald Dillenkoffer,
an employee of the City of Kenner’s Public Works Department; (4) Wendi Folse, the City of Kenner’s Director of
Personnel; (5) Mary-Sharon Howland, the Assistant to the Mayor, Defendant Ben Zahn; (6) Kenneth Marroccoli, the
City of Kenner’s Director of Parks and Recreation; (7) Theresa Nevels, the City of Kenner’s Director of Purchasing;
(8) Stephen Petit, Jr., an Assistant City Attorney and Kenner City Prosecutor; (9) Johnie Sullivan, an employee of the
City of Kenner’s Recreation Department; (10) Ronald Vitellaro, the City of Kenner’s Director of Fleet Management;
(11) Richard Walther, the City of Kenner’s Director of Inspections and Code Enforcement; and (12) Mike Wetzel, the
City of Kenner’s Director of Finance. Id.
2

On February 20, 2018, the Court granted a motion to dismiss filed by Mayor Ben Zahn. Rec. Doc. 59.

3

Id. at 1–2.

4

Id. at 2.

5

Rec. Doc. 15.

1

Pending before the Court is Plaintiffs’ “Motion for Summary Judgment.”6 Having reviewed
Plaintiffs’ motion, the memoranda in support and in opposition, the record, and the applicable law,
for the reasons that follow, the Court will grant Plaintiffs’ motion for summary judgment and issue
a permanent injunction enjoining Defendants and their agents from enforcing Kenner City Charter
Article I, Section 1.06 because prohibiting “any political activity” in any City election, by its plain
language, provides no room for protected political expression.
I. Background
A.

Factual Background7
Plaintiffs are twelve “unclassified civil servants” employed by the City of Kenner, an

instrumentality of the state of Louisiana.8 In particular, Plaintiffs are political appointees who
“serve at the pleasure of the Mayor” in various municipal positions, such as the Assistant to the
Mayor, the City Prosecutor, and the Clerk of Court.9 “Classified” civil servants in the City of
Kenner receive certain employment protections under the Civil Service System.10 By contrast,
“unclassified” civil servants are employed at will by the Mayor.11 Thus, newly-elected Mayors

6

Rec. Doc. 50.

7

The facts of this case are largely undisputed, as the parties filed joint stipulations of fact into the record
before the preliminary injunction hearing. See Rec. Doc. 18. The following facts, based on Plaintiffs’ Statement of
Uncontested Facts, the parties’ joint stipulations of facts, and evidence introduced at the preliminary injunction
hearing, constitute the Court’s “findings of fact” for purposes of Federal Rule of Civil Procedure 65(d). Moreover, to
the extent that the City argues that there are disputed issues of fact preventing summary judgment, the Court finds that
these contested facts are not material to the constitutional issues presented here. See Rec. Doc. 51-1 (Statement of
Contested Facts).
8

Rec. Doc. 4-1 at 1–2; Rec. Doc. 18 at 2; see also Rec. Doc. 1 at 3–4.

9

Rec. Doc. 18 at 2; see Rec. Doc. 4-1 at 2; Rec. Doc. 1 at 3–4.

10

Rec. Doc. 4-1 at 4, 14; see also Rec. Doc. 18 at 2; Rec. Doc. 1 at 5–6, 15–16.

11

See Rec. Doc. 4-5 at 2; see also Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

2

may appoint new individuals to fill those “unclassified” positions and replace the individuals
selected by the previous administration.12
On June 7, 2012, the Kenner City Council approved Resolution No. B-16261, which called
an election to amend the Kenner City Charter to include the instant Charter Amendment.13 The
Charter Amendment, titled “Apolitical Workforce,” provides: “Section 1.06. The nonelected
employees in the employment of the City of Kenner shall not participate in any political activity
on behalf of any city candidate in City of Kenner elections.”14 Nonelected employees include both
classified and unclassified employees.15 The term “political activity” is not defined in the Charter
Amendment.16 On November 6, 2012, 70 percent of the participating voters of the City of Kenner
voted in favor of adopting the Charter Amendment and 30 percent voted against it.17 Prior to the
enactment of the Charter Amendment, the Kenner City Mayor had vetoed an ordinance in October
2011 seeking to prohibit unclassified employees of the City of Kenner from engaging in any
political activity, and a similar attempt to limit City employees’ political activity also failed in
1999.18
Prior to the enactment of the Charter Amendment, unclassified City employees were
already prohibited from engaging in political activity during regular employment hours pursuant

12

See Rec. Doc. 4-5 at 2; Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

13

Rec. Doc. 18 at 3.

14

Id.; see Rec. Doc. 1-1.

15

Rec. Doc. 1-1.

16

Rec. Doc. 18 at 3.

17

Id.

18

Id. at 4. See Rec. Doc. 1 at 9.

3

to Section 2-90 of the Kenner Code of Ordinances.19 Section 2-90 directly defined the term
“political activities” “[f]or purposes of this section.” 20 Classified City employees were subject to
the specific prohibitions on political activity established by the City’s Civil Service System in
Section 8.04(B) of the Kenner City Charter as well.21 Section 8.04(B) defines “political activity”
“[a]s used in the Part” and lists certain political activities that classified City employees could and
could not do under that prior ban.22

19

Rec. Doc. 4-3. Section 2-90 of the Kenner Code of Ordinances provides in full:

No elected official, director, supervisor, or other employee of the City of Kenner shall hire,
fire, promote, refuse to promote, or take any other job action against any City of Kenner employee
or job applicant because of that employee's participation, or refusal to participate, in any election or
other political activities.
No elected official, director, supervisor, or other employee of the City of Kenner shall coerce
or threaten any employee with any job action because of that employee’s participation, or refusal to
participate, in any election or other political activities.
(a) For purposes of this section, political activities include, but are not limited to, support
or nonsupport of any candidate for public office, fundraising activities, support or
nonsupport, of any referendum or millage or similar proposition, or participation in
the activities of any political party.
(b) Provided, however, that no employee is allowed to engage in political activity while
performing their job duties for the City of Kenner during regular employment hours.
20

Id.

21

See Rec. Doc. 31. In particular, Section 8.04(B) provides:

B. Party Membership; Elections. No member of the Kenner City Civil Service Board, or
employee covered under this Section shall participate or engage in political activity; be a candidate
for nomination or election to public office or be a member of any national, state, or local committee
of a political party or faction; make or solicit contributions for a political party, faction or candidate;
or take active part in the management of the affairs of a political party, faction, candidate or any
political campaign, except to exercise his right as a citizen to express his opinion privately, to serve
as a commissioner or official watcher at the polls, and to cast his vote as he desires.
(1) Contributions. No person shall solicit contributions for political purposes from any
classified employee or use or attempt to use his position in City service to punish or coerce the
political action of a classified employee.
(2) Political Activity Defined. As used in the Part, “political activity” means an effort to
support or oppose the election of a candidate for political office or to support a particular political
party in an election.
22

Id. at 61.

4

As stated in the parties’ joint stipulations, although Plaintiffs have “no desire” to engage in
political activity during work hours, Plaintiffs “have a genuine desire to express themselves on
political issues while outside of work hours, and would like to participate in these elections while
‘off the clock.’”23 After the adoption of the Charter Amendment, Plaintiffs were prohibited from
supporting local candidates in the 2016 Kenner City mayoral and City Council special election.24
Plaintiffs will also be prevented by the Charter Amendment from supporting City candidates in
the upcoming 2018 Kenner City elections.25 Plaintiffs have expressed that they do not know which
activities are prohibited by the Charter Amendment’s restrictions on engaging in “political
activity” and which activities are not.26
The City of Kenner will hold its next primary election for Mayor, Police Chief, and City
Council on March 24, 2018, with the general election set for April 28, 2018.27 Qualifying for that
election began January 3, 2018.28 To date, there are no known cases where the Charter
Amendment’s prohibitions have resulted in any adverse employment action in the City of
Kenner.29

23

Rec. Doc. 18 at 2.

24

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

25

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

26

See Rec. Doc. 4-4 at 1–2 (Plaintiff concurring with the facts alleged in the Plaintiffs’ complaint and stating
that the Charter Amendment fails to give him notice as to what activity is prohibited); Rec. Doc. 4-5 at 1–2 (same);
Rec. Doc. 4-6 at 1–2 (same); see also Rec. Doc. 1 at 8, 10 (Plaintiffs alleging that they are fearful of retribution for
violating the Charter Amendment and are unclear on what the Charter Amendment prohibits).
27

Rec. Doc. 18 at 2.

28

Id.

29

Id. at 4.

5

B.

Procedural History
Plaintiffs filed a complaint in this matter on June 1, 2017.30 On June 20, 2017, Plaintiffs

filed a motion for a preliminary injunction.31 On July 5, 2017, the Court held a hearing on
Plaintiffs’ motion for a preliminary injunction.32 On July 26, 2017, the Court granted Plaintiffs’
motion and enjoined Defendants and their agents from enforcing Kenner City Charter Article I,
Section 1.06 until there is a final judgment in this case.33
On August 11, 2017, Plaintiffs filed the instant motion for summary judgment.34 On August
22, 2017, the City of Kenner filed an opposition to the motion.35 Also on August 22, 2017, Mayor
Ben Zahn and Police Chief Michael Glaser each filed an opposition to the motion, adopting the
arguments made by the City of Kenner.36 On August 30, 2017, with leave of Court, Plaintiffs filed
a reply memorandum in further support of the motion for summary judgment.37 On February 20,
2018, the Court granted a motion to dismiss filed by Defendant Mayor Ben Zhan.38

30

Rec. Doc. 1.

31

Rec. Doc. 4.

32

Rec. Doc. 30.

33

Rec. Doc. 42.

34

Rec. Doc. 50.

35

Rec. Doc. 51.

36

Rec. Docs. 52, 53.

37

Rec. Doc. 57.

38

Rec. Doc. 59.

6

II. Parties’ Arguments
A.

Plaintiffs’ Motion for Summary Judgment
In their motion, Plaintiffs seek the following relief: (1) a declaratory judgment that Kenner

City Charter Article I, Section 1.06 is unconstitutional; (2) a permanent injunction barring the
enforcement of the Charter Amendment; (3) at least, nominal damages; and (4) attorneys’ fees and
costs.39 Plaintiffs assert that the facts in this case are undisputed, and they are entitled to summary
judgment in their favor.40
Plaintiffs argue that the Charter Amendment discriminates based on the content of the
speech, i.e. political speech, and therefore must survive strict scrutiny, i.e. that a compelling
government interest exists and that the least restrictive means was used to serve that interest.41
Moreover, Plaintiffs contend that Defendants bear the burden of showing that the Charter
Amendment is constitutional.42
Plaintiffs assert that the Charter Amendment fails both prongs of the strict scrutiny test.43
Plaintiffs argue that the Charter Amendment is not narrowly tailored to suit any possible
compelling interest.44 Plaintiffs point out that the Charter Amendment attempts do ban all political
expression related to City of Kenner elections “without any limiting definitions, explanations, or
exceptions.”45 Plaintiffs aver that the City could simply enforce Section 2-90 of the Code of

39

Rec. Doc. 50-1 at 6.

40

Id. at 10.

41

Id.

42

Id. at 10–11.

43

Id. at 11.

44

Id. at 11–12.

45

Id. at 12.

7

Ordinances, which already prohibits public employees from engaging in political activity during
work hours.46 Plaintiffs also contend that the City could enact less restrictive measures.47 For
example, Plaintiffs note that in Wachsman v. City of Dallas, the Fifth Circuit upheld a Dallas
statute that prohibited civil service employees from engaging in political activity, but allowed for
endorsements of candidates to groups of fifteen or fewer people, placing yard signs or bumper
stickers on their property, or political activity by spouses of the employees.48 Plaintiffs also note
that the City could employ such measures as those utilized by the federal Hatch Act, which allows
federal employees to attend rallies, donate money, and express opinions, as long as the employees
are not wearing a government uniform or identifying themselves as federal employees.49 
Therefore, “because there was ‘little tailoring’ of Section 1.06,” Plaintiffs assert they are entitled
to summary judgment on the basis that Charter Amendment fails the strict scrutiny analysis.50
Second, Plaintiffs argue that the Charter Amendment is unconstitutionally vague, as its
prohibitions are not clearly defined and people of common intelligence would differ as to its
application and meaning.51 Plaintiffs aver that the Charter Amendment does not define what the
term “political activity” covers.52 Furthermore, Plaintiffs argue that the Charter Amendment fails
to “clearly define” its terms “or explicitly identify what speech or conduct is allegedly included or

46

Id.

47

Id.

48

Id. at 13 (citing Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983)).

49

Id.

50

Id.

51

Id.

52

Id. at 15.

8

excluded in its broad ban.”53 Therefore, Plaintiffs argue that they “have sufficiently shown that
Section 1.06 risks chilling substantial amounts of their protected speech due to its vagueness.”54
Accordingly, Plaintiffs assert that the Charter Amendment “should be declared unconstitutionally
vague and enjoined.”55
Third, Plaintiffs contend that the Charter Amendment is “overbroad and has no ‘legitimate
sweep,’ as it prohibits a substantial amount of protected expression.”56 According to Plaintiffs, the
Charter Amendment restricts speech unrelated to both the City’s goals and Plaintiffs’
employment.57 Moreover, Plaintiffs aver that the Charter Amendment is subject to various
interpretations, “leading it to exclude even voting or privately expressing an opinion from its
overbroad reach.”58 Accordingly, Plaintiffs assert that they are entitled to summary judgment
stating that the Charter Amendment is unconstitutionally overbroad.59
Fourth, Plaintiffs argue that they are entitled to declaratory relief because the Court’s
preliminary injunction is the only reason the Charter Amendment is not currently being enforced
against Plaintiffs.60 Plaintiffs aver that they are entitled to a permanent injunction barring the
enforcement of the Charter Amendment because all four requirements for a permanent injunction
are met: (1) success on the merits; (2) that a failure to grant the injunction will result in irreparable

53

Id.

54

Id. at 16.

55

Id.

56

Id.

57

Id. at 17.

58

Id.

59

Id.

60

Id. at 18.

9

injury; (3) that said injury outweighs any damage that the injunction will cause the opposing party;
and (4) that the injunction will not disserve the public interest.61
Plaintiffs contend that they will suffer irreparable harm if the permanent injunction is not
granted, as Plaintiffs aver that the Supreme Court has determined that the loss of their First
Amendment freedoms “for even minimal periods of time” constitutes irreparable injury.62
Plaintiffs further assert that the potential for injury to Plaintiffs’ rights if injunctive relief is not
granted “substantially outweighs” any harm if a permanent injunction is granted.63 Plaintiffs aver
that the City has no interest in enforcing an unconstitutional law that deprives Plaintiffs of their
First Amendment rights, whereas Plaintiffs would be deprived of their rights to freedom of
expression if a permanent injunction is not granted.64 Furthermore, Plaintiffs argue that granting a
permanent injunction here will serve, rather than hurt, the public interest, as it will protect
Louisiana citizens’ rights to freedom of speech and provide Plaintiffs with the basic protections of
due process before conclusively restricting their rights to engage in political activity.65
Fifth, Plaintiffs contend that they are entitled to at least nominal damages based on the
violation of their constitutional rights. 66 Finally, Plaintiffs assert they are entitled to attorneys’ fees
and costs pursuant to 42 U.S.C. § 1988.67

61

Id. at 19.

62

Id. at 20 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).

63

Id.

64

Id. at 20–21.

65

Id. at 21–22.

66

Id. at 22 (citing Williams v. Kaufman County, 352 F.3d 994, 1014 (5th Cir. 2003)).

67

Id. at 23.

10

B.

The City’s Arguments in Opposition to the Motion for Summary Judgment
In opposition, the City of Kenner argues that Plaintiffs’ motion for summary judgment

should be denied because there are multiple genuine issues of material fact in dispute.68 The City
notes that the Section 8.04(B)(2) of the City Charter defines the term “political activity,” as “an
effort to support or oppose the election of a candidate for political office or to support a particular
political party in an election.”69 Additionally, the City argues that the public records Plaintiffs cite
to support the unconstitutionality of the Charter Amendment are inapposite because Opinion 110256 from the State of Louisiana Department of Justice does not consider the constitutionality of
the 2011 amendment.70 Furthermore, the City contends that the Fifth Circuit has rejected Plaintiffs’
argument that only classified employees may be subject to political restrictions.71
The City contends that the Charter Amendment survives strict scrutiny because it has
fulfilled its burden of showing that less restrictive means are inadequate.72 The City contends that
“Plaintiffs’ proposed less restrictive alternatives, such as only restricting political activities during
work hours, are far less effective” than the Charter Amendment.73 The City argues that such a
restriction “would allow for after work hours’ political performance to affect employment and
advancement.”74 The City asserts that “[t]he Supreme Court has held that a statute that limits a
public employee’s right to undertake any political activity other than exercising his right as a

68

Rec. Doc. 51 at 1.

69

Id. at 2.

70

Id. at 2–3.

71

Id. at 3 (citing McCormick v. Edwards, 646 F.2d 173, 179 (5th Cir. 1981)).

72

Id. at 4.

73

Id. at 4–5.

74

Id. at 5.

11

citizen to privately express his opinion and cast his vote is constitutional and is not impermissibly
vague or overbroad.”75 Therefore, the City argues that Plaintiffs have no basis in law or fact to
contend that the Charter Amendment is unconstitutional.76
Next, the City argues that the Charter Amendment is narrowly tailored to fulfill the
compelling interest of avoiding the politicization of its public employees.77 The City avers that the
Charter Amendment conforms to the Supreme Court’s decision in Broadrick v. Oklahoma, is more
narrowly tailored than the law authorized by the Supreme Court, and applies only to employee
participation in partisan city candidate elections.78 Moreover, the City avers that the Charter
Amendment does not prevent Plaintiffs from supporting candidates in elections that do not involve
a city candidate.79 Thus, the City argues that the Charter Amendment is narrowly tailored to serve
the City of Kenner’s compelling interests in “maintaining the loyalty, efficiency, and
nonpartisanship of its employees.”80 The City also argues that the Charter Amendment does not
prohibit Plaintiffs from engaging in political activity on other issues such as “non-partisan charter
amendments, bond issues, referendum, or other ballot measures.”81 By contrast, the City contends
that Plaintiffs want to engage in the very partisan political activity that the Hatch Act and other
cities have tried to prevent, e.g., “to keep the employee from being involved in the politics that

75

Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 603 n.1, 606, 618 (1973)).

76

Id.

77

Id.

78

Id. (citing Broadrick, 413 U.S. at 601).

79

Id. at 8–9.

80

Id. at 10.

81

Id.

12

elect his boss.”82 Therefore, the City asserts that Plaintiffs are not entitled to summary judgment
because the Charter Amendment is narrowly tailored.83
The City next asserts that the Charter Amendment is not vague.84 The City asserts that
“Plaintiffs quibble about the meaning of the term ‘political activities’, without taking into account
Supreme Court and Fifth Circuit case law allowing such limitations.”85 The City argues that
Plaintiffs’ reliance on the Fifth Circuit case Hobbs v. Thompson is misplaced, considering
subsequent Supreme Court decisions in Broadrick and United States Civil Service Commission v.
National Association of Letter Carriers AFL-CIO. 86 Furthermore, the City notes that the vagueness
argument in Hobbs dealt with the undefined phrase  “prominently identify,” which the City
contends is distinct from the phrase “political activity” at issue here.87 According to the City,
Broadrick stands for the proposition that “a statute that limits a public employee’s right to
undertake any political activity other than exercising his right as a citizen to privately express his
opinion and cast his vote is constitutional.”88
The City also contends that the Charter Amendment is not overbroad.89 The City argues
that “the Fifth Circuit continues to follow the Supreme Court’s decisions in Letter Carriers and

82

Id. at 10–11 (quoting Villejo v. City of San Antonio, 485 F. Supp. 2d 777 (W.D. Tex. 2007)).

83

Id. at 6.

84

Id. at 11.

85

Id. at 12.

86

Id. at 12–13.

87

Id. at 13.

88

Id.

89

Id.

13

Broadrick, limiting political activities of public employees in a manner similar to that provided in
Section 1.06 of the City of Kenner’s Charter.”90
Based on the foregoing, the City also argues that Plaintiffs are not entitled to a declaratory
judgment because as a matter of law the Charter Amendment is not unconstitutional, vague, or
overly broad.91 Moreover, the City asserts that Plaintiffs have not met the four requirements for a
permanent injunction.92 Specifically, the City contends that, for the reasons discussed, Plaintiffs
do not succeed on the merits.93 According to the City, Plaintiffs face no injury here because the
Charter Amendment is constitutional.94 By contrast, the City argues that the threatened harm to
the City if a permanent injunction is granted is great, as the City has an interest in preventing City
employees from taking part in partisan local political activities and enforcing the will of the
voters.95 The City also contends that granting a permanent injunction will disserve the public
interest, as the majority of the participating voters in Kenner approved the Charter Amendment
“based on their vested interest in independent and efficient government employees.”96
Finally, the City asserts that Plaintiffs are not entitled to nominal damages or attorneys’
fees because Plaintiffs should not prevail on the merits.97 Alternatively, the City contends, there is
a genuine issue of material fact as to these issues because “there is no evidence in the record that

90

Id. at 13–14 (citing Phillips v. City of Dallas, 781 F.3d 772, 782 (5th Cir. 2015)).

91

Id. at 14.

92

Id. at 15.

93

Id.

94

Id. at 16.

95

Id.

96

Id. at 17.

97

Id. at 18.

14

the City of Kenner has undertaken, or authorized any agents or employees to undertake, the actions
alleged by Plaintiffs, including, but not limited to, antagonizing actions, attempted investigations,
and media campaigns.”98
C.

Plaintiffs’ Arguments in Further Support of the Motion for Summary Judgment
In reply, Plaintiffs argue that the City is attempting “to change the facts of this case by

misstating and confusing several issues.”99 Plaintiffs assert that a question of law, not fact, is before
the Court.100 Plaintiffs note that, although the City argues that there are contested issues of material
fact, it has not submitted any evidence to support such an assertion.101 Plaintiffs further contend
that the Supreme Court has held that the facial validity of a statute is a question of law.102
Plaintiffs argue that the City cannot meet its burden of showing that the Charter
Amendment is constitutional.103 Plaintiffs contend that the Charter Amendment is not narrowly
tailored, and they note that the City has not offered any evidence to support its assertion that less
restrictive means would not be adequate.104 Likewise, Plaintiffs argue that the City’s reliance on
Broadrick is misplaced because, there, the law defined a broad range of political activities that
were prohibited but also allowed civil servants to express a private opinion.105

98

Id.

99

Rec. Doc. 57 at 1.

100

Id. at 2.

101

Id.

102

Id. at 3 (citing Vill. Of Hoffman Estates, Inc. v. Flipside, Hoffman Estates, Inc., 477 U.S. 242, 249 (1986)).

103

Id. at 4.

104

Id. at 5.

105

Id. at 6 (citing 413 U.S. at 605–06).

15

Plaintiffs also assert that the issue of whether the Charter Amendment is unconstitutionally
vague is a question of law.106 Plaintiffs contend that the Charter Amendment’s terms remain
undefined and subject to differing interpretations.107
Finally, Plaintiffs assert that the issue of whether the Charter Amendment is overbroad is
a question of law.108 Plaintiffs contend that the City’s reliance on Phillips v. City of Dallas is
misplaced because that case dealt with discipline against a fireman who wanted to run for office,
not the “complete elimination of the plaintiff’s ability to exercise his constitutional rights.”109
III. Legal Standard
A.

Legal Standard on a Motion for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”110 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”111 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

106

Id. at 8 (citing United States v. Gonzalez-Longoria, 813 F.3d 225, 229 (5th Cir.), on reh’g en banc, 831
F.3d 670 (5th Cir. 2016); United States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009)).
107

Id.

108

Id. (citing Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1258 (5th Cir. 1995); Village of Schaumburg
v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980)).
109

Id. (citing 781 F.3d 772 (5th Cir. 2015)).

110

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
111

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

16

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”112
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.113
“[A] nonmoving party is not entitled to rest on his pleadings, but must carry his burden of
providing evidence of a genuine issue of material fact.”114 “That burden can be met by depositions,
answers to interrogatories and admissions on file and affidavits.”115 The Fifth Circuit has
“repeatedly held that self-serving affidavits, without more, will not defeat a motion for summary
judgment.”116 However, a nonmovant’s deposition testimony is often considered by a court in
recognizing that a genuine issue of material fact exists, which precludes summary judgment.117
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.118 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence

112

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

113

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

114

King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992) (citing Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.
1991)); see also Celotex, 477 U.S. at 325; see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998).
115

Id. (citing Fed. R. Civ. P. 56(c)).

116

Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed.Appx. 306, 307 (5th Cir. 2011) (per curiam) (citing
DirectTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005); United State v. Lawrence, 276 F.3d 193, 197 (5th Cir.
2001)).
117

See, e.g., Vetter v. Frosch, 599 F.2d 630 (5th Cir. 1979); see also, e.g., King, 974 F.2d at 656 (5th Cir.

118

Celotex, 477 U.S. at 323.

1992).

17

supports his claims.119 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.120 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”121 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.122
B.

Legal Standard on a Request for Declaratory Judgment
Declaratory relief is appropriate where there exists an Article III controversy.123 Such a

controversy exists where “threats of prosecution [are not] imaginary, speculative or chimerical.”124
It “is irrelevant whether plaintiffs were successful in obtaining monetary or injunctive awards and
that, instead, declaratory judgment relief is a proper way for individuals to proceed to ensure that
their constitutional rights are protected.”125

119

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

120

Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248–49 (1996)).
121

Little, 37 F.3d at 1075.

122

Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

123

Brister v. Faulkner, 214 F.3d 675, 681 (5th Cir. 2000) (citing High Ol’ Times, Inc. v. Busbee, 621 F.2d
135, 139 (5th Cir. 1980)).
124

Id. (citing Steffel v. Thompson, 415 U.S. 452 (1974)).

125

Id. (citing Steffel, 415 U.S. at 452).

18

C.

Legal Standard on a Request for a Permanent Injunction
“The party seeking a permanent injunction must satisfy a four-part test: it must show (1)

success on the merits; (2) the failure to grant the injunction will result in irreparable injury; (3) the
injury outweighs any damage that the injunction will cause the opposing party; and (4) the
injunction will not disserve the public interest.”126 “A plaintiff must allege ‘specific facts’ to
support a finding of irreparable injury.”127
“A permanent injunction is generally only granted where . . . a full trial on the merits has
occurred.”128 However, a permanent injunction may be granted on a motion for summary judgment
where there is no genuine dispute of any material fact, and the plaintiffs are entitled to judgment
as a matter of law because they have established the necessary elements for a permanent
injunction.129 “‘[T]he scope of injunctive relief is dictated by the extent of the violation
established,’ and an injunction must be narrowly tailored to remedy the specific action
necessitating the injunction.”130 Regardless of whether the request for injunctive relief is granted
or denied, Federal Rule of Civil Procedure 52(a) requires the Court to “state the findings of fact
and conclusions of law that support its action.”131

126

United Motorcoach Assoc., Inc., v. City of Austin, 851 F.3d 489, 492–93 (citing VRC LLC v. City of Dallas,
460 F.3d 607, 611 (5th Cir. 2006)).
127

ITT Educational Services, Inc. v. Arce, 533 F.3d 342, 347 (5th Cir.2008) (citing Kemlon Prods. & Dev.
Co. v. United States, 638 F.2d 1315, 1322 (5th Cir. 1981)).
128

Id. (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 396 (1981)).

129

O'Connor v. Smith, 427 F. App’x 359, 367–67 (5th Cir. 2011).

130
Fiber Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006) (quoting John Doe #1 v.
Veneman, 380 F.3d 807, 818 (5th Cir. 2004)).
131

Fed. R. Civ. P. 52(a)(1), (2).

19

IV. Analysis
In their motion, Plaintiffs seek the following relief: (1) a declaratory judgment that Kenner
City Charter Article I, Section 1.06 is unconstitutional; (2) a permanent injunction barring the
enforcement of the Charter Amendment; (3) at least, nominal damages; and (4) attorneys’ fees and
costs.132 Accordingly, the Court addresses each of these issues in turn.
A.

Whether Plaintiffs are Entitled to Declaratory Judgment that the Charter Amendment is
Unconstitutional
Plaintiffs contend that they are entitled to declaratory judgment that the Charter

Amendment is unconstitutional.133 The Charter Amendment provides that the “nonelected
employees in the employment of the City of Kenner shall not participate in any political activity
on behalf of any city candidate in City of Kenner elections.”134 Plaintiffs assert that the Charter
Amendment violates the First and Fourteenth Amendments of the United States Constitution
because it is: (1) a regulation on political speech that cannot survive strict scrutiny;
(2) unconstitutionally vague; and (3) overbroad.135 In response, the City argues that Plaintiffs are
not entitled to a declaratory judgment because, as a matter of law, the Charter Amendment is not
unconstitutional.136 Therefore, the Court addresses each of the constitutional challenges raised by
Plaintiffs in turn.

132

Rec. Doc. 50-1 at 6.

133

Id. at 18.

134

Rec. Doc. 1-1 at 2.

135

Rec. Doc. 50-1 at 10–18.

136

Rec. Doc. 51 at 14.

20

1.

Whether the Charter Amendment can Survive Strict Scrutiny

The First Amendment, applicable to the States through the Fourteenth Amendment,
prohibits the enactment of laws “abridging the freedom of speech.”137 As an initial matter, the
Court notes that the parties do not dispute that the Charter Amendment is subject to strict scrutiny
as a content-based regulation on Plaintiff’s political speech.138 To survive strict scrutiny, the City
bears the burden of proving that the Charter Amendment is “narrowly tailored” to serve a
“compelling interest.”139 In the instant motion, Plaintiffs do not contest that the City has a
compelling governmental interest in ensuring a nonpartisan employee workforce.140 Accordingly,
the only issue before the Court is whether the Charter Amendment is narrowly tailored to serve
that interest. “In considering this question, a court assumes that certain protected speech may be
regulated, and then asks what is the least restrictive alternative that can be used to achieve that
goal.”141 Therefore, the Court must consider “whether the challenged regulation is the least
restrictive means among available, effective alternatives.”142
In their motion, Plaintiffs argue that the Charter Amendment is expansive, as it restricts
“any political activity” without defining the term “political activity” or providing a clear list of

137

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2228 (2015) (quoting U.S. Const. amend. I).

138

See Prelim. Inj. Tr., July 5, 2017, at 4:12–4:18 (the City confirming that it is “correct” that “there isn’t a
dispute that this is an attempt to regulate political speech and that strict scrutiny applies”); see also Rec. Doc. 42 at
24–28 (determining that the Charter Amendment’s content-based prohibition on Plaintiffs’ political speech is subject
to strict scrutiny).
139

Reed, 135 S. Ct. at 2228.

140

Rec. Doc. 50-1 at 12.

141

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).

142

Rec. Doc. 50-1 at 12.

21

easily identifiable political activities that are and are not prohibited.143 Plaintiffs also assert that
there are a number of less restrictive alternative measures that the City could adopt to accomplish
its compelling interests, such as a law similar to the Federal Hatch Act or the Dallas Charter
approved by the Fifth Circuit in Wachsman v. City of Dallas.144
In opposition, the City contends that the Charter Amendment survives strict scrutiny
because it has fulfilled its burden of showing that less restrictive means are inadequate since the
alternatives proposed by Plaintiffs, such as only restricting political activities during working
hours, are less effective.145 The Court finds this argument unavailing. Although Plaintiffs do argue
that one available alternative would be enforcement of Kenner Code of Ordinances Section 2-90,
which restricts political activity during working hours, Plaintiffs also argue that other available
alternatives exist. For example, Plaintiffs note that the Dallas Charter approved by the Fifth Circuit
in Wachsman allowed for endorsement to groups of less than 15, yard signs, bumper stickers, and
allowed spouses of city employees to publically endorse candidates.146 Plaintiffs also note that the
Federal Hatch Act allows federal employees to attend rallies, donate money, and express opinions,
as long as they are not wearing a government uniform or identifying themselves as federal
employees.147 The City presents no argument as to how these less restrictive means are inadequate.

143

Id. at 12–13.

144

Id.

145

Rec. Doc. 51 at 4–5.

146

Rec. Doc. 50-1 at 13 (citing Wachsman, 704 F.2d at 162, n.3).

147

Id. (citing Rec. Docs. 27-1, 27-2).

22

Next, the City asserts that the Charter Amendment is narrowly tailored because it conforms
to the Supreme Court’s decision in Broadrick v. Oklahoma.148 In Broadrick, the Supreme Court
upheld an Oklahoma statute that restricted “the political activities of the State’s classified civil
servants in much the same manner that the Hatch Act.”149 The Oklahoma statute prohibited
classified civil service employees from participating in “a broad range of political activities and
conduct,” including soliciting campaign donations, becoming “a member of any national, state or
local committee of a political party,” or participating “in any political campaign, except to exercise
his right as a citizen privately to express his opinion and to cast his vote.”150
The Charter Amendment at issue here provides that nonelected City employees such as
Plaintiffs are prohibited from participating in “any political activity on behalf of any city candidate
in the City of Kenner elections.”151 No definition of “political activity” is provided in the Charter
Amendment itself that might limit the scope of the restricted conduct. Nor does the Charter
Amendment set out a specific list of conduct that is prohibited and not prohibited such that the
broad sweep of covered political expression may be narrowed, unlike the provisions restricting
public employees’ political activity in Broadrick and the other cases cited by the City.152
Such a broad, limitless ban appears to extend to a wide range of political conduct that is
either unrelated to the City’s compelling interests or so attenuated that the City could achieve its
compelling interests by adopting less restrictive means. For example, “any political activity on

148

Rec. Doc. 51 at 5.

149

413 U.S. 601, 602 (1973).

150

Id. at 605–07.

151

Rec. Doc. 1-1 at 2 (emphasis added).

152

See Broadrick, 413 U.S. at 602; Letter Carriers, 413 U.S. at 556; Phillips, 781 F.3d at 776–77; Wachsman,
704 F.2d at 175.

23

behalf of any city candidate in the City of Kenner elections” appears to extend to a private
conversation regarding a Plaintiff’s support or non-support of a city candidate, regardless of where
it occurs or whether it is between a Plaintiff and a single individual, a small group, or a large
audience. Likewise, it appears to also prohibit Plaintiffs from attending informational forums or
private events involving a city candidate, driving another family member’s vehicle with a city
candidate’s bumper sticker on it, or posting, liking, or sharing social media posts or general news
articles on social media related to a city candidate in any undefined way or circumstance.
Therefore, the Charter Amendment appears to prohibit employees from privately expressing their
opinions.
The City next argues that the Charter Amendment is narrowly tailored because it is limited
to City elections involving City candidates.153 Thus, according to the City, Plaintiffs are not
prohibited from engaging in political activity during parish, state, or federal elections or from
becoming involved in other public issues, such as non-partisan charter amendments, bond issues,
referendums, or other ballot measures.154 The City relies on Hickman v. City of Dallas, a case
decided by a district court in the Northern District of Texas, to support this assertion.155
In Hickman, the plaintiff, an employee of the City of Dallas, challenged a city charter that
prohibited him from becoming a candidate for a position on the DeSoto City Council, a city within
Dallas County.156

The district court found that the City of Dallas’ compelling interest in

maintaining the loyalty, efficiency, and nonpartisanship of its employees, was sufficient to restrict

153

Rec. Doc. 51 at 8–9.

154

Id. at 8–10; Rec. Doc. 51-1 at 2.

155

Rec. Doc. 51 at 8–9 (citing 475 F. Supp. 137 (N.D. Tex. 1979)).

156

475 F. Supp. at 139.

24

the rights of its employees to become candidates for public office.157 The district court found that
the charter was unconstitutional as applied to the plaintiff because there was not “the necessary
nexus between Dallas’ compelling public objectives and its consequent right to burden First
Amendment activities to accomplish such objectives (on the one hand), and Plaintiff's proposed
candidacy . . . (on the other hand).”158
Unlike Hickman, the City argues that the Charter Amendment has a reasonable correlation
to the compelling public objectives of the City because “it restricts a non-elected City of Kenner
employee from undertaking political activities in support or opposition of a city candidate
exclusively in an election in the City of Kenner.”159 The Court finds this argument unpersuasive.
Whereas Hickman involved only a restriction on the plaintiff’s right to run for political office, the
Charter Amendment at issue in this case can be interpreted as a complete ban on Plaintiff’s
participation in elections of city candidates. Although the Charter Amendment does not prohibit
City employees from participating in elections other than those involving City candidates, such is
not a remedy to the complete ban on Plaintiffs’ participation in elections involving the City. This
Court knows of no authority, nor has the City pointed to any, which allows a total ban on political
speech directed to a particular type of election.
Finally, the City contends that the Charter Amendment is narrowly tailored because it only
applies to partisan elections.160 The City attempts to distinguish this case from Villejo v. City of
San Antonio, where a district court in the Western District of Texas enjoined the City of San

157

Id. at 140–41.

158

Id. at 141.

159

Rec. Doc. 51 at 9.

160

Id. at 10–11.

25

Antonio from enforcing a city directive preventing city employees from participating in a bond
election.161 This argument is equally unavailing. The court in Villejo did note that there is a
distinction between bond measures and partisan candidate elections, stating that the government’s
interests in regulating speech related to issues such as bonds are not as compelling as its “interests
in regulating the free speech and associational rights of employees to participate in elections []
dealing with their potential supervisors.”162 However, this distinction does not absolve the City of
its burden here. Plaintiffs do not dispute that the City has a compelling governmental interest in
ensuring a nonpartisan employee workforce.163 Nevertheless, the City bears the burden of
establishing that the Charter Amendment is narrowly tailored to serve that interest, a burden it has
not carried.
At the preliminary injunction hearing previously held in this matter, the City argued that
the Charter Amendment does not prevent voting in City elections, participating in private political
conversations with spouses, or informing others who a Plaintiff will be voting for during a City
election.164 However, the City’s argument is undercut by the text of the Charter Amendment itself,
which offers no such limitations on its extensive reach. Instead, the term “any political activity”
means precisely what it says: all political activity involving City candidates, in any manner or
circumstance, is prohibited. By contrast, the City has not adequately explained how the plain text

161

Id. at 11 (citing 485 F. Supp. 2d 777 (W.D. Tex. 2007)).

162

485 F. Supp. 2d at 782.

163

Rec. Doc. 50-1 at 12.

164

See, e.g., Prelim. Inj. Tr., July 5, 2017, at 28:9–28:16 (the City representing that, “as an example,” the
Charter Amendment allows employees to cast votes and express their personal opinions to a spouse).

26

of the Charter Amendment can be interpreted such that it does not include the act of voting or
simply stating who one is voting for in a City election.
In its statement of contested facts, the City argues that the term “political activity” is
defined in Section 8.04 of the Kenner City Charter, which states, “[a]s used in the Part,” political
activity is “an effort to support or oppose the election of a candidate for political office or to support
a particular political party in an election.”165 The Charter Amendment does not adopt this definition
or incorporate it by reference. Furthermore, the Court notes that in its prior opposition to Plaintiffs’
motion for a preliminary injunction, the City argued that at least four additional definitions of the
term “political activity” could be applicable.166 Therefore, although the City represents that the
Kenner City Charter includes its own definition of “political activity;” that definition, contained
in Section 8.04(B)(2) of the Kenner City Charter, explicitly states that it only applies to that Part
and the restrictions on “political activity” in Section 8.04(B),167 and the City has not presented any
evidence demonstrating that it applies to the Charter Amendment in Section 1.06 of the Kenner
City Charter. As such, Defendants have not met their burden of establishing that the Charter
Amendment is narrowly tailored to serve a compelling state interest.
Finally, the City cites to cases that upheld various restrictions on the political activities of
government employees in support of its contention that the Charter Amendment is
constitutional.168 However, the limitations on public employees’ political expression imposed in

165

Rec. Doc. 51-1 at 1; see also Rec. Doc. 31 at 61.

166

See Rec. Doc. 42 at 34–36.

167

See Kenner City Charter § 8.04(B)(2) (“As used in the Part, ‘political activity’ means an effort to support
or oppose the election of a candidate for political office or to support a particular political party in an election.”); Rec.
Doc. 31 at 61.
168

Rec. Doc. 51 at 4–11.

27

those cases are clearly distinguishable from the Charter Amendment at issue here, as they either:
(1) provide a list of specific political activities that are prohibited, such as running for office,
actively participating in political campaigns, using official positions to influence an election, or
making campaign donations; or (2) include a list of political activity that is explicitly not
prohibited, such as voting in elections or engaging in private political discussions.169 Indeed, in
Wachsman v. City of Dallas, the Fifth Circuit upheld certain restrictions on city employees’
political activity where the ban left “unregulated a considerable scope of city employee political
activity,” and “city employees [were] limited only to an extent that furthers their ability to perform
optimally.”170 The Charter Amendment, by contrast, clearly extends to all political activity,
regardless of its connection to the City’s compelling interests or Plaintiffs’ employment with the
City. Indeed, contrary to the City’s assertion that the Charter Amendment is narrowly tailored, it
appears that there was little tailoring involved in drafting the Charter Amendment’s blanket
prohibition on “any political activity” with regard to City elections.171
The City has not presented any evidence to meet its burden of showing the less restrictive
means of achieving the City’s compelling government interests are inadequate. Accordingly,
because there is no genuine issue of material fact in dispute, the Court finds that Plaintiffs are

169

For example, the federal Hatch Act imposes far more limited and specific prohibitions against federal
employees taking “any active part in political management or in political campaigns” or using their “official authority
or influence for the purpose of interfering with or affecting the result of an election.” See Mitchell, 330 U.S. at 94–95;
Nat'l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. at 550. See also Wachsman v. City of Dallas, 704 F.2d 160, 162
(5th Cir. 1983) (upholding more limited restrictions on the political speech of government workers, particularly after
the city had “authoritatively reinterpreted” the provision so that it did not prohibit such conduct as endorsing a
candidate to groups of fifteen or fewer people, placing signs or bumper stickers on personal property, and working in
campaign headquarters).
170

Id. at 174.

171

See generally Hobbs v. Thompson, 448 F.2d 456, 470–71 (5th Cir. 1971) (holding that “a blanket
prohibition upon political activity, not precisely confined to remedy specific evils, would deal a serious blow to the
effective functioning of our democracy”).

28

entitled to judgment as a matter of law declaring that the Charter Amendment is a violation of
Plaintiffs’ free speech rights under the First Amendment, and is therefore unconstitutional.
2.

Whether the Charter Amendment is Unconstitutionally Vague

Next, Plaintiffs assert that the Charter Amendment is unconstitutionally vague under the
First and Fourteenth Amendments, as the Charter Amendment’s prohibitions are not clearly
defined and people of common intelligence would differ as to its application and meaning.172 In
response, the City asserts that the Charter Amendment is not impermissibly vague, as it clearly
restricts political activities on behalf of City candidates in City of Kenner elections.173 Moreover,
as discussed supra, the City argues that the term “political activity” is not vague, as it is defined
in the Kenner City Charter and would not include casting votes or privately discussing who one
may be voting for.174
A law or policy is void for vagueness if it “either forbids or requires the doing of an act in
terms so vague that people of common intelligence must necessarily guess at its meaning and differ
as to its application.”175 The Fifth Circuit has held that, because the First Amendment needs
“breathing space,” laws regulating speech “must be drawn with some specificity.”176 The
government must ensure prohibitions are “clearly defined” and should “articulate its aims with a

172

Rec. Doc. 50-1 at 13.

173

Rec. Doc. 51 at 11–13.

174

Id. at 13.

175

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926); see also Roberts v. U.S. Jaycees, 468 U.S. 609,
629 (1984) (applying the same test); Allen v. Bartholomew Cty. Court Servs. Dep’t, 185 F. Supp. 3d 1075, 1080–81
(S.D. Ind. 2016) (applying the same void for vagueness test in a First Amendment challenge to a policy prohibiting
court employees from engaging in political activity).
176

Serv. Employees Int'l Union, Local 5, 595 F.3d at 596 (citing Howard Gault Co. v. Tex. Rural Legal Aid,
Inc., 848 F.2d 544, 559 (5th Cir. 1988)).

29

reasonable degree of clarity.”177 While a law may be written to be flexible, it must provide “fair
notice” so that “its prohibitions may be avoided by those who wish to do so.”178 According to the
Fifth Circuit, the purpose of the vagueness doctrine is to prevent the government “from chilling
substantial amounts of speech and facilitating discriminatory and arbitrary enforcement.”179 That
is, the vagueness doctrine addresses laws where citizens cannot predict which actions are
prohibited and where “discriminatory and arbitrary enforcement” is possible.180 Thus, to succeed
on their vagueness challenge, Plaintiffs must show that the Charter Amendment: (1) reaches a
substantial amount of constitutionally protected conduct; and (2) “fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or
“authorizes or even encourages arbitrary and discriminatory enforcement.”181
In Hobbs v. Thompson, the Fifth Circuit held that a provision in a city charter that
prohibited fire department employees from taking an active part in any election, contributing
money to any candidate, or “prominently identifying themselves in a political race with or against
any candidate for office” was unconstitutionally vague.182 The Fifth Circuit noted that it was
unclear where the regulation stopped or if it prohibited displaying bumper stickers, discussing
candidates with friends, or writing letters to newspapers in support of candidates.183 The Fifth

177

Roberts, 468 U.S. at 629; Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

178

Id. at 596–97 (citing Grayned v. City of Rockford, 408 U.S. 104, 110–12 (1972)).

179

Asgeirsson v. Abbott, 696 F.3d 454, 466 (5th Cir. 2012).

180

Id.

181

Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 761 (5th Cir. 2010); see United States v. Clark, 582
F.3d 607, 612 (5th Cir. 2009).
182

448 F.2d 456, 471 (5th Cir. 1971).

183

Id.

30

Circuit further concluded that it was “simply inconceivable to us that one acting in good faith under
this regulatory scheme would readily know what conduct was prohibited and what conduct was
permitted,” and therefore the provision would likely chill the plaintiffs’ speech.184
The Charter Amendment plainly reaches a “substantial amount of constitutionally
protected conduct,” e.g., Plaintiffs’ political speech.185 Moreover, as explained supra, the Charter
Amendment fails to define what conduct or speech constitutes “political activity,” rendering it both
unconstitutionally vague and overly broad. Unlike the regulations on public employees’ political
activities upheld by the Supreme Court and the Fifth Circuit,186 the Charter Amendment does not
“clearly define” its terms or explicitly identify what speech or conduct is allegedly included or
excluded in its broad ban.187 The Charter Amendment does not incorporate the definition of
“political activity” found at Section 8.04(B)(2) of the Kenner City Charter, leaving Plaintiffs to
guess as to the definition and creating a serious risk of “discriminatory and arbitrary enforcement”
depending on the definition adopted by a given enforcer. 188 If the City itself cannot point to a
definitive authority to interpret and define the boundaries of the Charter Amendment’s intrusions
into Plaintiffs’ political speech and activity, then it appears to also be true that “[people] of
common intelligence must necessarily guess at its meaning.”189

184

Id.

185

See Clark, 582 F.3d at 612; see also Allen, 185 F. Supp. 3d at 1080–81 (finding that a policy prohibiting
all political activity by public employees clearly reaches a “substantial amount of constitutionality protected
conduct”).
186

See Letter Carriers, 413 U.S. at 556; Wachsman v. City of Dallas, 704 F.2d 160, 162 (5th Cir. 1983).

187

Roberts, 468 U.S. at 629; Grayned, 408 U.S. at 108.

188

Asgeirsson, 696 F.3d at 466.

189

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926).

31

As such, Plaintiffs have shown that the Charter Amendment risks chilling substantial
amounts of their protected speech.190 For example, Plaintiffs point out that the Charter Amendment
is vague as to whether a City employee can attend her private civic organization’s meetings when
a mayoral candidate is invited to speak,191 or how a spouses’ private political activity in a shared
home can be distinguished from the City employee.192 Indeed, the fact that the City argues that the
Charter Amendment excludes voting in elections and private political conversations from its
prohibitions on any political activity, an exclusion that is not found anywhere in the text of the
Charter Amendment, exacerbates the ambiguity as to what conduct is now prohibited. The chilling
effect of the Charter Amendment and the possibility of arbitrary enforcement of its provisions are
further increased by the fact that Plaintiffs are unclassified civil servants who lack the same job
protections that classified civil servants receive.193

190

See, e.g., Rec. Doc. 4-1 at 11 (Plaintiff Mary-Sharon Howland, who is an officer in several private civic
organizations, asserting that it is unclear what the Charter Amendment would prohibit her from doing if a mayoral
candidate attended or spoke at one of those organizations’ meetings, e.g., it is unclear if she would be precluded from
attending the meeting with mayoral candidates or clapping during a candidate’s speech).
191

See Rec. Doc. 4-1 at 11 (asserting that it is unclear if Plaintiff Howland would be precluded from attending
a meeting for her civic organization when mayoral candidates are speaking or whether she may clap during a
candidate’s speech); Rec. Doc. 4-5 at 1–2.
192

See Rec. Doc. 4-1 at 12 (Plaintiffs arguing that the Charter Amendment is vague as to whether its
prohibitions would apply if a City employee drives a family car with a political bumper sticker on it placed by a family
member or if a spouse made a campaign contribution to a City candidate); Rec. Doc. 4-4 at 2 (Plaintiff Stephen Petit
stating in his Declaration that he features a window sticker on his vehicle supporting a current Kenner City Councilman
in an upcoming election for Jefferson Parish Council). Moreover, at the preliminary injunction hearing, the City also
could not clarify whether the Charter Amendment prohibits a Plaintiff from attending a fundraiser for a City candidate
hosted by his or her spouse in their private home, or at what point a private conversation about City candidates between
a Plaintiff and a single individual or small group would cross the line from permissible to impermissible under the
Charter Amendment. See Prelim. Inj. Tr., July 5, 2017, at 30:4–30:23 (the Court asking if an employee could tell stand
up at a spouse’s dinner party and tell others who he or she is voting for, and the City responding that it depends on
whether the person is “actively campaigning” at the dinner party or not).
193

See Rec. Doc. 4-5 at 2; see also Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

32

Therefore, based on the foregoing, the Court concludes that Plaintiffs have shown that the
Charter Amendment’s wide prohibitions and undefined terms are so vague that people of common
intelligence must necessarily guess at its meaning and differ as to its application.194 Accordingly,
the Court finds that there is no genuine issue of material fact and Plaintiffs are entitled to judgment
as a matter of law that the Charter Amendment is unconstitutionally vague.
3.

Whether the Charter Amendment is Overbroad

Plaintiffs also contend that the Charter Amendment is overbroad.195 Plaintiffs argue that it
has no “legitimate sweep,” as there is no basis for the City to enforce content-based regulations on
all political activity related to City elections.196 In opposition, the City argues that “the Fifth Circuit
continues to follow the Supreme Court’s decisions in Letter Carriers and Broadrick, limiting
political activities of public employees in a manner similar to that provided in Section 1.06 of the
City of Kenner’s Charter.”197
As the Fifth Circuit has noted, for a law to be overbroad, it must “reach[ ] a substantial
amount of constitutionally protected conduct.”198 According to the Fifth Circuit, a government’s
legitimate purpose to validly control or prevent some expressive conduct cannot be accomplished
“by means which sweep unnecessarily broadly and thereby invade the area of protected

194

Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926); see also Roberts v. U.S. Jaycees, 468 U.S. 609,
629 (1984) (applying the same test); Allen v. Bartholomew Cty. Court Servs. Dep’t, 185 F. Supp. 3d 1075, 1080–81
(S.D. Ind. 2016) (applying the same void for vagueness test in a First Amendment challenge to a policy prohibiting
court employees from engaging in political activity).
195

Rec. Doc. 50 at 16–17.

196

Id.

197

Rec. Doc. 51 at 13–14 (citing Phillips v. City of Dallas, 781 F.3d 772, 782 (5th Cir. 2015)).

198

Asgeirsson, 696 F.3d at 464–65.

33

freedoms.”199 “Facial overbreadth scrutiny emphasizes the need to eliminate an overbroad law’s
deterrent impact on constitutionally protected expressive activity.”200
In Hobbs v. Thompson, the Fifth Circuit held that a city charter provision prohibiting fire
department employees from taking an active part in any election, contributing money to any
candidate, or “prominently identifying themselves in a political race with or against any candidate
for office” was overbroad.201 The Fifth Circuit determined that the city’s prohibitions “sweep too
broadly and proscribe a great deal of political activity which is unrelated to the effective workings
of the fire department” or the “proper performance of its firemen’s employment duties.”202 The
Fifth Circuit opined that the “very fact that the scheme has been construed to forbid political
bumper stickers—a particularly innocuous form of political activity—points out clearly the
broadside nature of the Macon prohibitory regulations.”203 The Fifth Circuit in Hobbs further cited
approvingly to the California Supreme Court’s decision in Fort v. Civil Service Commission of
Alameda County, where the court invalidated a county charter provision that prohibited public
employees from taking part in a political campaign or an election except to vote or privately
express an opinion.204 The California Supreme Court in Fort concluded that the First Amendment
does not permit “wholesale restrictions on political activities merely because the persons affected

199

Hobbs v. Thompson, 448 F.2d 456, 459–60 (5th Cir. 1971); see also Serv. Employees Int'l Union, Local 5
v. City of Houston, 595 F.3d 588, 598 (5th Cir. 2010).
200

Hobbs, 448 F.2d at 459–60.

201

Id. at 474.

202

Id. at 471.

203

Id.

204

Id. (citing Fort v. Civil Serv. Comm’n of Alameda Cty., 61 Cal. 2d 331, 333 (1964)). The Fifth Circuit
further noted with approval the holdings of state courts in City of Miami v. Sterbenz and De Stefano v. Wilson enjoining
overbroad restrictions on public employees’ political rights. Id. (citing City of Miami v. Sterbenz, 203 So. 2d 4, 5 (Fla.
1967); De Stefano v. Wilson, 96 N.J. Super. 592, 597, 233 A.2d 682, 685 (Law. Div. 1967)).

34

are public employees,” and because the county charter provision “encompassed both valid and
invalid restrictions on free speech,” it was overbroad.205
The Charter Amendment plainly reaches a “substantial amount of constitutionally
protected conduct,” e.g., Plaintiffs’ political speech.206 While the City points out that limited
restrictions on public employees’ political activities have been upheld in other cases, the Charter
Amendment “sweep[s] too broadly” by going well beyond targeted restrictions on political
activities and including a substantial amount of protected political expression that is either
unrelated to or attenuated from the City’s goals and the Plaintiffs’ employment duties.207 Indeed,
unlike the laws challenged in Hobbs and Fort, the Charter Amendment fails to even exclude voting
or privately expressing an opinion from its overbroad reach. Accordingly, the Court finds that there
is no genuine issue of material fact and Plaintiffs are entitled to judgment as a matter of law on
their claim that the Charter Amendment is unconstitutionally overbroad.
B.

Whether Plaintiffs are Entitled to a Permanent Injunction
Plaintiffs seek a permanent injunction barring the enforcement of the Charter

Amendment.208 In opposition, the City essentially only argues that Plaintiffs are not entitled to a
permanent injunction because the Charter Amendment is not unconstitutional.209 As noted above,

205

Fort, 61 Cal. 2d at 338–39.

206

See Clark, 582 F.3d at 612; see also Allen, 185 F. Supp. 3d at 1080–81 (finding that a policy prohibiting
all political activity by public employees clearly reaches a “substantial amount of constitutionality protected
conduct”).
207

Hobbs, 448 F.2d at 460, 471 (holding that even if “the interests a statute promotes may justify some
infringement upon First Amendment rights, the overbreadth doctrine condemns those means to that legitimate end
which comprehend too broad an incursion upon the realm of First Amendment activity”).
208

Rec. Doc. 50-1 at 19–22.

209

Rec. Doc. 51 at 15–18.

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“[t]he party seeking a permanent injunction must satisfy a four-part test: it must show (1) success
on the merits; (2) the failure to grant the injunction will result in irreparable injury; (3) the injury
outweighs any damage that the injunction will cause the opposing party; and (4) the injunction
will not disserve the public interest.”210 For the reasons previously discussed, Plaintiffs succeed
on the merits of their claims insofar as the Charter Amendment violates the First Amendment
because it is not narrowly tailored, and is unconstitutionally vague and overbroad and there are no
material facts in dispute on these issues. Therefore, Plaintiffs meet the first element necessary to
obtain a permanent injunction.
As for the second element, the Supreme Court has opined that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.”211 In Opulent Life Church v. City of Holly Springs, Mississippi, the Fifth Circuit
determined that a church challenging a ban on using a public courthouse square had satisfied the
irreparable harm requirement because it had alleged violations of its First Amendment rights.212
Here, the Charter Amendment precludes the exercise of Plaintiffs First Amendment freedoms and
chills their protected speech. Therefore, the failure to grant the injunction will result in irreparable
injury.
As to the third element, in Opulent Life Church, the Fifth Circuit noted that, after
concluding that the plaintiff’s harm to its religious liberties rights under the First Amendment was
irreparable, the defendant “would need to present powerful evidence of harm to its interests to

210

United Motorcoach Assoc., 851 F.3d 489, 492–93 (citing VRC LLC, 460 F.3d at 611).

211

Elrod v. Burns, 427 U.S. 347, 373 (1976).

212

697 F.3d 279, 295 (5th Cir. 2012).

36

prevent [the plaintiff] from meeting this requirement.”213 The City presents no evidence of a harm
to its interests to prevent Plaintiffs from meeting this requirement. Therefore, the Court finds that
the injury to Plaintiffs outweighs any damage that the injunction will cause the City.
Finally, as to the fourth element, in Opulent Life Church, the Fifth Circuit held that
“injunctions protecting First Amendment freedoms are always in the public interest.”214 Therefore,
the Court finds that granting a permanent injunction here will not do disservice to the public
interest. Accordingly, Plaintiffs have established all four requirements for a permanent injunction
banning enforcement of the Charter Amendment.
C.

Whether Plaintiffs are Entitled to Nominal Damages and Attorneys’ Fees
Plaintiffs contend that they are entitled to at least nominal damages based on the violation

of their constitutional rights. 215 Plaintiffs also assert they are entitled to attorneys’ fees and costs
pursuant to 42 U.S.C. § 1988.216 In response, the City argues that Plaintiffs should not prevail on
these requests because the Charter Amendment is not unconstitutional.217
“The law is well-established in this Circuit that plaintiffs may recover nominal damages
when their constitutional rights have been violated but they are unable to prove actual injury.”218
In Williams v. Kaufman County, the Fifth Circuit approved an award of $100 as nominal

213
697 F.3d at 297 (ultimately remanding the case to the district court to allow the defendant to put on
evidence as to the third prong, as the district court had denied the motion for a preliminary injunction on the second
prong).
214
697 F.3d at 298. See also Ingebretsen v. Jackson Public School District, 88 F.3d 274, 280 (5th Cir. 1996)
(determining that because the “School Prayer Statute” challenged in that case was unconstitutional, “the public interest
was not disserved by an injunction preventing its implementation”).
215

Rec. Doc. 50-1 at 22 (citing Williams v. Kaufman Cnty., 352 F.3d 994, 1014 (5th Cir. 2003)).

216

Id. at 23.

217

Rec. Doc. 51 at 18.

218

Williams, 352 F.3d at 1014.

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damages.219 Accordingly, the Court concludes that $100 is an appropriate nominal damages award
in this matter.
Pursuant to 42 U.S.C. § 1988(b), the Court, in its discretion, may allow a prevailing part in
any action brought under Section 1983 “a reasonable attorney’s fee as party of the costs.” Plaintiffs
have prevailed on their Section 1983 claims regarding the constitutionality of the Charter
Amendment. Accordingly, the Court, in its discretion, finds that Plaintiffs are entitled to reasonable
attorney’s fees and costs.
V. Conclusion
For the reasons stated above, the Court concludes that there are no genuine issues of
material fact and Plaintiffs are entitled to judgment as a matter of law declaring that the Charter
Amendment violates their First Amendment rights to engage in political speech, is
unconstitutionally vague, and is overbroad. Plaintiffs have also carried their burden on all four
factors identified by the Fifth Circuit to prevail on a request for a permanent injunction. Therefore,
the Court hereby grants Plaintiffs’ motion for summary judgment and enjoins Defendants and their
agents from enforcing Kenner City Charter Article I, Section 1.06. The Court also concludes that
Plaintiffs are entitled to nominal damages in the amount of $100, reasonable attorneys’ fees and
costs. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion for Summary Judgment”220 is
GRANTED and that Defendants and their agents are enjoined from enforcing Kenner City Charter
Article I, Section 1.06.

219

Id.

220

Rec. Doc. 50.

38

IT IS FURTHER ORDERED that Defendants shall pay Plaintiffs the sum of ONE
HUNDRED DOLLARS ($100), plus attorneys’ fees and costs.
IT IS FURTHER ORDERED that on or before April 20, 2018, Plaintiffs are to file a
specific request for attorneys’ fees and costs consistent with this Circuit’s precedent on prevailing
hourly rates, etc.221
NEW ORLEANS, LOUISIANA, this 19th day of March, 2018.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

221

See Portillo v. Cunningham, 872 F.3d 728, 741–42 (5th Cir. 2008) (citing Combs v. City of Huntington,
Tex., 829 F.3d 388, 391 (5th Cir. 2016)).

39