NEW ORLEANS V. DUKES 427 U.S. 297 (1976) CASE BRIEF

NEW ORLEANS V. DUKES

427 U.S. 297 (1976)

NATURE OF THE CASE: New Orleans (D) appealed a decision of the Fifth Circuit which reversed a grant of summary judgment in D's favor in Duke's (P) suit challenging an economic ordinance as a violation of equal protection.

FACTS: D's Home Rule Charter grants the New Orleans City Council power to enact ordinances designed to preserve its distinctive charm, character, and economic vitality. Chapter 46 of the Code of the City of New Orleans sets up a comprehensive scheme of permits for the conduct of various businesses in the city. In 1972, the Code was amended. Those occupations, which were to be banned from the Vieux Carre during seasons other than Mardi Gras, were banned subject to a 'grandfather provision' exception. Two who had operated in the Vieux Carre for 20 or more years were qualified under the 'grandfather clause' and continued to operate there. P filed an action eventually challenging the operation of the grandfather clause. The District Court granted D's motion for summary judgment. The Court of Appeals recognized D's authority to regulate business conducted on the public streets and sidewalks of the Vieux Carre in order to preserve the appearance and custom valued by the Quarter's residents and attractive to tourists. Even so, it found D's justification for the 'grandfather' exception as 'insufficient to support the discrimination imposed' and thus deprived P of equal protection. It used the decision in Morey v. Doud, in resolving the case. It focused on the 'exclusionary character' of the ordinance and its concomitant 'creation of a protected monopoly for the favored class member.' There was 'insubstantiality of the relation between the nature of the discrimination and the legitimate governmental interest in conserving the traditional assets of the Vieux Carre.' The court declared the ordinance violative of equal protection and the case was remanded for a determination of the severability of the 'grandfather clause' from the remainder of the ordinance. The Supreme Court granted certiorari.

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LEGAL ANALYSIS:

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