TERRI F. LOVE, Judge.
This appeal arises from whether the hearings conducted from tickets issued as a result of the traffic cameras installed in Orleans Parish violate due process rights. Lee Rand, Jeremy Boyce, Keisha Guichard, and Edmond Harris filed for a preliminary injunction and permanent injunction in the trial court. The trial court found that due process concerns existed and issued a preliminary injunction. The City of New Orleans appealed alleging that the trial court abused its discretion in granting the preliminary injunction because the hearing officers are not employees of the City of New Orleans and do not act as both the prosecutor and judge during the hearing. We find that the hearing officers act as the prosecutor and judge at traffic camera citation hearings and that the hearing officers are compensated by the City of New Orleans, which creates a violation of due process warranting a preliminary injunction. Therefore, we find that the trial court did not abuse its discretion and affirm.
The City of New Orleans ("City"), through its Administration and/or City Council enacted a group of ordinances, codified and promulgated as § 154-1701 through § 154-1704, or Article XVII, which created the Automated Traffic Enforcement System ("ATES"). Pursuant to ATES, citizens would receive notice of a traffic citation, which contained a photo of the license plate of the automobile, a photo of the automobile, the civil penalty, and the name of the registered owner of the vehicle. The citation would also provide the date, time, and location of the alleged infraction. If the citizen chooses to contest the ATES citation, the citizen must appear before the administrative adjudication bureau
Lee Rand, Jeremy Boyce, Keisha Guichard, and Edmond Harris (collectively "Plaintiffs") filed a petition for a preliminary
Following a hearing, the trial court granted the Plaintiffs a preliminary injunction "enjoining, prohibiting, and restraining" the City "from conducting any administrative hearings authorized by the enabling ordinance section 154-1701 et seq." The trial court then stayed its ruling pending a final resolution with this Court. The City filed a notice and intent to apply for writ, which the trial court granted. However, this Court remanded the matter to the trial court to consider the notice of intent as a motion for appeal. See La. C.C.P. art. 3612. The City's devolutive appeal followed.
The City contends that the trial court abused its discretion in granting the Plaintiffs' request for a preliminary injunction by "finding that there are due process considerations in cases adjudicated by hearing officers who are not City employees but perform impartial adjudicative services for the City pursuant to contracts with the City, when the City has a financial stake in the outcomes of the hearings."
"The standard of review for a preliminary injunction is whether the trial court abused its discretion in ruling." Kern v. Kern, 11-0915, p. 6 (La.App. 4 Cir. 2/29/12), 85 So.3d 778, 781. See also A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10-1755, p. 4 (La. App. 4 Cir. 8/24/11), 72 So.3d 454, 456; Choice Prof'l Overnight Copy Serv., Inc. v. Galeas, 11-0034, p. 5 (La.App. 4 Cir. 5/25/11), 66 So.3d 1216, 1219; A to Z Paper Co., Inc. v. Carlo Ditta, Inc., 98-1417, p. 9 (La.App. 4 Cir. 9/9/98), 720 So.2d 703, 708; Oestreicher v. Hackett, 94-2573, p. 3 (La. App. 4 Cir. 5/16/95), 660 So.2d 29, 31; Hall v. Fertility Inst. of New Orleans, 94-1135, p. 5 (La.App. 4 Cir. 12/15/94), 647 So.2d 1348, 1351. "That broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion." Yokum v. Pat O'Brien's Bar, Inc., 12-0217, p. 7 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 80.
"A preliminary injunction is an interlocutory device designed to preserve the existing status pending a trial of the issues on the merits of the case." Oestreicher, 94-2573, p. 5, 660 So.2d at 32. "[A] preliminary injunction may be issued on merely a prima facie showing by the plaintiff that he is entitled to relief." Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 03-2220, p. 9 (La.4/14/04), 875 So.2d 22, 29. "The standard of proof to obtain a preliminary injunction on a prima facie showing is, however, `less than that required for a permanent injunction.'" Yokum, 12-0217, p. 7, 99 So.3d at 80, quoting Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208.
"[T]he requirements to prevail on a hearing for a preliminary injunction are a showing that: 1) the injury, loss or damage mover will suffer if the injunction does not issue may be irreparable; 2) that he is entitled to the relief sought; and 3)
The Louisiana Constitution provides that "[n]o person shall be deprived of life, liberty, or property, except by due process of law." LA. CONST. art. I, § 2. Our constitution also affords every citizen court access by stating that "[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." LA. CONST. art. I, § 22. Additionally, Article II, § 2-202(6) of the Home Rule Charter of the City provides that:
A function of the Department of Public Works is to:
Art. IV, Ch. 8, § 4-901(4) of the Home Rule Charter. As to inconsistent provisions of ordinances and laws, the City's Home Rule Charter provides that:
Art. X, § 10-104.
The City contends that the hearing officers' actions are not controlled by the City because they are independent contractors paid by the City. Further, the City asserts that the hearing officers do not act in a prosecutorial role on behalf of the City. Therefore, the City avers that the trial court abused its discretion in granting the Plaintiffs a preliminary injunction.
Section 154-1702(d)(e)(f) of the New Orleans Code of Ordinances provides that:
The hearing officer presents the City's evidence of the citizen's alleged traffic infraction by playing a DVD and reading from the citation. Then, section 154-1702(d) clearly demonstrates that the hearing officer is also the adjudicator of the hearings because he assesses liability. Further, sections 154-1702(e)(f) place the onus onto the citizen to prove his innocence by a preponderance of the evidence.
The Louisiana Supreme Court stated that "there must be some type of neutral and detached decision maker, be it judge, hearing officer or agency." Wilson v. City of New Orleans, 479 So.2d 891, 901 (La. 1985). The Louisiana Supreme Court held that the lack of a "neutral decision maker" "falls short of due process requirements." Wilson, 479 So.2d at 899. "`[A]n impartial decision maker is essential' to due process." Wilson, 479 So.2d at 901, quoting Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970). Further, "[d]ue [p]rocess requires that a decision maker not have a direct or indirect financial stake which would give a possible temptation to the average person as a decision maker to make him partisan towards maintaining a high level of revenue generated by his adjudicative function." Wilson, 479 So.2d at 901. "Even if an individual cannot show special prejudice in his particular case, the situation in which an official occupies two inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process." Wilson, 479 So.2d at 901-02.
As discussed at the hearing on the preliminary injunction, the City executes a contract between itself and each hearing officer. The City then considers each hearing officer as an independent contractor and is paid by the City. The trial court stated: "I think the problem is, is [sic] that the person [sic] is adjudicating the tickets is also compensated by the City." The trial court further stated:
We agree. The record demonstrates that the hearing officers occupy two inconsistent positions, one as the prosecutor and one as the adjudicator, which violates the right to due process. The denial of due process is irreparable and cannot be compensated monetarily. We find that the trial court did not abuse its discretion because the Plaintiffs presented prima facie evidence that they are entitled to the preliminary injunction and may prevail on the merits. Therefore, we affirm.
For the reasons discussed herein, we find that the trial court did not abuse its vast discretion in granting the Plaintiffs' request for a preliminary injunction due to a denial of due process and affirm.
BELSOME, J., concurs with reasons.
BELSOME, J., concurs with reasons.
I respectfully concur in the result reached by the majority opinion, but write separately to more specifically address the manner in which the hearing procedure implemented by the City violates due process. The fact that the hearing officers are paid by the City may give rise to some concern, but the overriding due process concerns rest with the multiple roles the hearing officer fulfills in the performance of his duties. During the hearings, the hearing officer presents the evidence against the citizen by way of a video tape of the alleged infraction. Further, the hearing officer also elicits a self-incriminating affidavit from the citizen and determines if any further evidence will be allowed. Then, as the trier of fact, the hearing officer presumably weighs the evidence to determine whether the City or the citizen will prevail. I find that this commingling of prosecutorial and adjudicative functions violate the citizen's constitutional right to due process. See, Allen v. Louisiana State Bd. of Dentistry, 543 So.2d 908 (La.1989).