Officer Kevin Bourque v. Ruth Fontenot, Mayor

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1174 and 04-1175

CAPTAIN WILLIAM WOOD, ET AL.

VERSUS
RUTH FONTENOT, MAYOR, CITY OF NEW IBERIA, ET AL.

CONSOLIDATED WITH

OFFICER KEVIN BOURQUE, ET AL.

VERSUS
RUTH FONTENOT, MAYOR, CITY OF NEW IBERIA, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 103068-H C/W103179-H
HONORABLE WILLIAM D. HUNTER, JUDGE
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JIMMIE C. PETERS
JUDGE
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Court composed of Billie C. Woodard, Jimmie C. Peters, and Billy H. Ezell, Judges.

MOTION TO DISMISS APPEALS DENIED.
Daniel L. Avant
Avant & Falcon
P.O. Box 2667
Baton Rouge, LA 70821
(225) 387-4462
Counsel for Captain William Wood &
New Iberia Policeman’s Association,
Officer Kevin Bourque,
Officer Brandon Williams and
Officer David McAnally

Charles L. Patin, Jr.
Keane, Miller, Hawthorne, Darmond,
McCowan & Jarman, LLP
P.O. Box 3513
Baton Rouge, LA 70582
(225) 387-0999
Counsel for Ruth Fontenot, Mayor, City of New Iberia,
City of New Iberia and Board of Trustees of City of New Iberia

Louis L. Robein, Jr.
Robein, Urann & Lurye
P.O. Box 6768
Metairie, LA 70009-6768
(504) 885-994
Counsel for Professional Firefighters

Joseph Ferguson
P.O. Box 9804
New Iberia, LA 70562
(337) 365-6789
and
Henry A. Bernard, Jr. and
Bruce D. Beach
Oats & Hudson
100 East Vermillion St., Ste. 400
Lafayette, LA 70501
(337) 233-2278
Counsel for Iberia Parish Law Enforcement District

PETERS, Judge.
These consolidated matters arise from the action of the Board of Trustees of the
City of New Iberia, Louisiana (City), in implementing Special Ordinance No. 2004-
131-2 (Ordinance). This Ordinance effected a reduction in the size of the City Police
and Communications Departments by amending the annual appropriations ordinance
to reduce the funds appropriated for the affected departments and appropriating
sufficient sums to fund a Cooperative Endeavor Agreement (Agreement) between the
City and the Iberia Parish Law Enforcement District (District). The Agreement
provided that the District would assume the duties of the City Police Department over
the next ten years in exchange for $29,000,000.00 in compensation. The effect of the
Ordinance and Agreement is to eliminate all but ten of the eighty-three city police
positions.
Captain William Wood of the City Police Department and the New Iberia
Policemen’s Association, Local 152 (the Wood plaintiffs), filed a petition for
injunctive relief against the City, its Mayor, and the Board of Trustees (referred to in
the petition as the New Iberia City Council), asserting that the Ordinance is
unconstitutional and in direct conflict with the provisions of the Louisiana
Constitution. The Woods plaintiffs sought a temporary restraining order enjoining
the defendants from applying, implementing or enforcing the Agreement until a
hearing on the preliminary injunction could be held.
In a separate action, City Police Officers Kevin Bourque, Brandon Williams
and David McAnally (the Bourque plaintiffs) also filed for injunctive relief against
the City, the Mayor, the City Board of Trustees, and the District. The Bourque
plaintiffs also asserted that the Ordinance is unconstitutional. The trial court
consolidated the two matters and held a hearing on the requests for preliminary
injunctive relief on July 2, 2004. On July 6, 2004, the trial court issued written
reasons for judgment denying the requests for preliminary injunctions, and on July
8, 2004, reduced that judgment to writing. Both plaintiffs timely appealed that
judgment.
The matter is now before this court because the defendants have moved to
dismiss the plaintiffs’ appeals, asserting that they are moot. The defendants maintain
that after the trial court rendered its judgment, the Mayor effected a reduction in force
or layoff and advised the secretary of the local fire and police civil service board and
the Chief of Police of the action by means of a letter. They further assert that,

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following this action, the Mayor, on behalf of the City, and New Iberia Sheriff Sid
Hebert, on behalf of the District, executed the Agreement. Accordingly, the
defendants argue that the consolidated appeals are now moot and must be dismissed.
As noted by this court in Sutton's Steel & Supply, Inc. v. Bellsouth Mobility,
Inc., 2000-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, 592, writ denied, 2001-
0152 (La. 3/16/01), 787 So.2d 316,
Appellate courts are courts of record, and we must render
judgment based on the record on appeal. La.Code Civ.P. art. 2164;
Willis v. Letulle, 597 So.2d 456 (La.App. 1 Cir.1992). We may not
review evidence that is not in the record, and we may not receive new
evidence. Willis, 597 So.2d 456.

Thus, the evidence submitted by the defendants in support of their motion to dismiss
the plaintiffs’ appeals is not properly before this court. Accordingly, the defendants’
motion to dismiss these appeals is hereby denied.
MOTION TO DISMISS APPEALS DENIED.

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