UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

GRYPHON‟S NEST GIFTS, INC.

CIVIL ACTION
VERSUS
NO. 08-001-JJB
PARISH OF LIVINGSTON

RULING ON MOTION FOR SUMMARY JUDGMENT

This matter is before the court on a Motion for Summary Judgment (doc. 17) filed by the

Parish of Livingston (hereinafter the “Defendant”). Gryphon‟s Nest Gift‟s Inc., (hereinafter the

“Plaintiff”) opposes this motion (doc. 19). Plaintiff also filed a Motion for Partial Summary

Judgment (doc. 18). Oral argument is not necessary. Jurisdiction exists pursuant to 28 U.S.C.

§ 1331.

Plaintiff filed suit contesting the constitutionality of Livingston Parish Ordinance 07-17,

Section 11-9, which was passed prior to October 29, 2007.1 This matter is before the court on

cross motions for summary judgment. The parties have stipulated to the facts. The Ordinance

prohibits soothsaying, fortune telling, palm reading, clairvoyance, crystal ball gazing, mind

reading, card reading and the like for a fee.2 Plaintiff is a business that caters to the spiritual and

educational needs of Wiccans3 and other pagans by selling movables of religious, spiritual, and

metaphysical nature.4 After Hurricane Katrina, Plaintiff began the process of relocating to

Livingston Parish.5 Plaintiff obtained an occupational license in Livingston Parish and secured

1
Record Document 17-2, page 1.
2
Record Document 16, stipulated fact 5.
3
Defined by Merriam-Webster Dictionary as a person associated with “a religion influenced by pre-Christian beliefs
and practices of western Europe that affirms the existence of supernatural power (as magic) and of both male and
female deities who inhere in nature and that emphasizes ritual observance of seasonal and life cycles”.
4
Record Document 19, page 2.
5
Record Document 19, page 2.

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an oral lease that provided land and a building to operate a new retail outlet in Livingston

Parish.6 Plaintiff decided to expand its business to divination, fortune telling, tarot card reading,

etc. for a fee.7 Plaintiff knew of the passage of the new ordinance and sent a letter to the

Livingston Parish Sheriff‟s Office (LPSO) to determine if they would enforce the Ordinance.8

The letter also advised them of their intentions to conduct divination, fortune telling, tarot card

reading, etc. for a fee as early as the Thanksgiving Holiday.9 LPSO responded to the letter

indicating that they intended to enforce the Ordinance.10 As a result of the Sheriff‟s letter,

Plaintiff curtailed its plan to conduct divination, fortune telling, tarot card readings, etc. for a

fee.11

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. Rule Civ. P. 56(c). The party seeking summary judgment carries the burden

of demonstrating that there is an absence of evidence to support the non-moving party‟s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party may do this by showing

that the evidence is insufficient to prove the existence of one or more essential elements of the

non-moving party‟s case. Id.

6
Record Document 16, stipulated fact 3.
7
Record Document 16, stipulated fact 4.
8
Record Document 16, stipulated fact 6.
9
Id.
10
Id.
11
Record Document 16, stipulated fact 8.

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 I. Defendant’s Motion for Summary Judgment

Defendant claims that Plaintiff lacks standing and as such that Plaintiff‟s claims must be

dismissed. Defendant claims that Plaintiff lacks standing because “the business did not and has

not operated as a business in Livingston Parish.”12 Plaintiff asserts that it has standing.

A. Standing

A party challenging a constitutional provision must have standing. In order to have

standing to challenge the constitutionality of a legal provision, the person bringing the challenge

must have “a personal stake in the outcome of the controversy as to warrant his invocation of

federal court jurisdiction and to justify exercise of the court‟s remedial powers on his behalf.”

Trimble v. City of New Iberia, 73 F. Supp. 2d 659, 664 (W.D. La. 1999) (citing Warth v. Seldin,

422 U.S. 490, 498-499 (1975)).

The constitutional issue of standing contains three elements. Trimble, 73 F. Supp. 2d at

662 (citing Celotex, 477 U.S. at 322-323). The plaintiff must show that (1) he has personally

suffered some actual or threatened injury as a result of the defendant‟s conduct; (2) the injury is

fairly traceable to that conduct; (3) a favorable decision is likely to redress the injury. Trimble,

73 F. Supp. 2d at 662 (citing Valley Forge Christian College v. Americans United for Separation

of Church and State, 454 U.S. 464 (1982)). The Supreme Court made it clear that courts should

not pass upon the constitutionality of a statute “upon complaint of one who fails to show that he

is injured by its operation….” Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936).

Defendant asserts that Plaintiff does not have standing since Plaintiff “did not and has not

operated as a business in Livingston Parish.”13 Defendant further asserts that a plaintiff must

12
Record Document 17-2, page 1.
13
Id. at 2.

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have a personal stake in litigation, and that in this case Plaintiff has no personal stake since it is

not a business affected by Livingston Parish Ordinances.14

Plaintiff asserts that it has standing because if the Ordinance had not been passed, then it

would have already begun business operations.15 Plaintiff alleges that such is evident as it has

obtained an occupational license and has leased a building in Livingston Parish.16 Plaintiff

asserts that it was injured because the Ordinance prevented it from starting operations and

making money in Livingston Parish, as it already had an occupational license and a building.17

Based on the arguments and the stipulated facts, Plaintiff has standing. Plaintiff can

successfully meet all elements. The first element of standing, as stated above, has been met.

The Court agrees that Plaintiff has suffered actual and threatened injury as a result of

Defendant‟s conduct. The parties have stipulated that as a result of the letter sent from LPSO,

Plaintiff has been “curtailed” from expanding its business to Livingston Parish, thus causing

injury to the Plaintiff.18 The injury is actual since Plaintiff is prevented from making money, as a

result of its business being curtailed. The injury is threatened since if the Plaintiff begins

operations, the Sheriff has threatened to enforce the Ordinance, in the letter dates October 31,

2007.19 Therefore, the first element of standing has been met.

The second element of standing, as stated above, has been met. The injuries caused to

Plaintiff are “fairly traceable” to Defendant‟s conduct of passing the Ordinance. According to

Plaintiff, the passing of the Ordinance was the “sole reason plaintiff did not conduct” business

operations in Livingston Parish. Therefore, the injuries suffered by Plaintiff as a result of not

14
Record Document 16, stipulated fact 8 (citing Donelon, Et al. v. Louisiana Div. of Admin. Law ex rel, 522 F. 3d
564 (2008)).
15
Record Document 19, page 6.
16
Id. at 7.
17
Id. at 8.
18
Record Document 16, stipulated fact 8.
19
Record Document 16, Exhibit A.

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operating, was caused by the conduct of Defendant. Since the conduct of the Defendant is fairly

traceable to Plaintiff‟s injury, the second element of standing is met.

The third element of standing, as stated above, has been met. If the Ordinance is deemed

unconstitutional, Plaintiff‟s injuries will be redressed as Plaintiff will be able to operate in

Livingston Parish.

Defendant‟s primary argument is that Plaintiff lacks standing because it “did not and has

not operated a business in Livingston Parish.”20 Plaintiff argues that it has not begun operations

in Livingston Parish because they have been threatened with enforcement of Ordinance 07-17,

Section 11-9, thus preventing them from conducting divination, fortune telling, tarot card

reading, etc. for a fee in Livingston Parish.21 The court finds that Plaintiff does have standing,

despite the fact that it has not yet actually begun operations in Livingston Parish, as this

constitutes a pre-enforcement action. “[T]he chilling effect on First Amendment freedoms by

overly broad and vague statutes is justification for a loosening of the strict requirements of

standing and ripeness to allow plaintiffs to litigate pre-enforcement actions.” Trimble, 73 F.

Supp. 2d at 664 (citing Secretary of State of Maryland v. Joseph H. Munson, Co., 467 U.S. 947

(1984)).

B. Ripeness

“Related to the standing requirement is the question of ripeness.” Trimble, 73 F. Supp.

2d at 664. “In the First Amendment context involving a pre-enforcement challenge, the ripeness

inquiry focuses on how imminent the threat of prosecution is and whether the plaintiff has

sufficiently alleged an intention to refuse to comply with the statute in order to ensure that the

fear of prosecution is genuine and the alleged infringement on First Amendment rights is

20
Record Document 17-2, page 2.
21
Record Document 16, stipulated fact 8.

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concrete and credible as opposed to being speculative or imaginative.” Trimble, 73 F. Supp. 2d

at 664 (citing Babbit v. United Farm Workers Nat‟l Union, 442 U.S. 289 (1979)). In this case,

the pre-enforcement challenge is due to the imminent threat suffered by Plaintiff. Livingston

Parish Sheriff‟s Office sent Plaintiff a letter stating that Plaintiff would be prosecuted if it

operated its business, thus curtailing Plaintiff‟s plans to conduct divination, fortune telling, tarot

card reading, etc. for a fee.22 Plaintiff‟s plans were curtailed in imminent fear of enforcement of

the ordinance.

“While it is not necessary that a plaintiff expose himself to actual arrest or prosecution to

satisfy the ripeness test, the „premise of Marbury v. Madison requires us to insist that an

anticipatory challenge to [a] statute‟s constitutionality grow out of a „real substantial controversy

between parties … a dispute definite and concrete‟‟.” Trimble, 73 F. Supp. 2d at 664 (citing

Eaves, 601 F. 2d 809, 817 (1979)). In this case, there is a dispute which is definite and concrete.

The fear of prosecution is genuine.23

I. Plaintiff’s Motion for Summary Judgment

Plaintiff claims that Livingston Parish Ordinance 07-17, Section 11-9, is unconstitutional

for the following reasons:

1. The Ordinance is a violation of Plaintiff‟s First amendment rights to free speech; and

2. The Ordinance is unconstitutionally vague.

22
Record Document 16, stipulated fact 8.
23
The ripeness inquiry also focuses on how imminent the threat of prosecution is under the Ordinance,
“[a]llegations of a subjective „chill‟ are not an adequate substitute for a claim of specific present objective harm or
threat of a specific future harm.” Trimble, 73 F. Supp. 2d at 665 (citing Laird v. Tatum, 408 U.S. 1 (1972)). In this
case, Plaintiff claims that the [O]rdinance has had a chilling effect on its ability to expand its market and to cater to
customers who would have purchased divination from the plaintiff.” Such specific claims of loss of income are
sufficient to show that the matter is ripe.

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 A. Violation of Plaintiff’s First Amendment Right to Free Speech

Plaintiff asserts that Livingston Parish Ordinance 07-17, Section 11-9, is a violation of

Plaintiff‟s First Amendment right to freedom of speech. The bedrock principle of the First

Amendment is that the government may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable. Trimble, 73 F. Supp. 2d at 667 (citing

Texas v. Johnson, 491 U.S. 397, 414 (1989)). Prohibition of content-based speech is subject to

strict scrutiny. Trimble, 73 F. Supp. 2d at 667. Under strict scrutiny, the government must show

that the ordinance is reasonably necessary to achieve a compelling interest. Id. In this case,

Defendant has failed to respond to this argument. As such, Defendant has failed to show that

the ordinance is reasonably necessary to achieve a compelling interest. Plaintiff uses the Trimble

case to support their argument. This Court agrees with Plaintiff.

In Trimble, the Court found that an ordinance passed by the City of New Iberia, which

ordinance prohibited fortune telling, palmistry, reading fortunes and the like, prohibited speech

based on its content Id. at 667-668. Prohibition of content-based speech is subject to strict

scrutiny. Trimble, 73 F. Supp. 2d at 667 (citing Simon & Schuster v. Members of N.Y. State

Crime Victims Bd., 502 U.S.105, (1991)).

In the instant matter, as stated earlier, Livingston Parish passed an ordinance prohibiting

substantially the same speech as did the City of New Iberia. The United States Supreme Court

has pointed out the existence of adequate content-neutral alternatives undercuts significantly the

government‟s position that its challenged legislation is reasonably necessary to achieve its

interests. Trimble, 73 F. Supp. 2d at 667 (citing R.A.V. v. City of St. Paul, Minnesota, 505 U.S.

377 (1992)). In Trimble, the City stated that its purpose was to protect the consumer. Trimble,

73 F. Supp. 2d at 667. The Court held that the City could have protected its consumers by

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enacting legislation similar to the Louisiana Unfair Trade Practices Act. Id. Because the City‟s

ordinance did not use the least restrictive means to protect the consumer, the Court held that the

City failed to meet its burden of proving that the ordinance was reasonably necessary to achieve

a compelling interest. Id. As a result, the ordinance was declared unconstitutional.

Plaintiff argues, like in Trimble, that Livingston Parish could have used a less restrictive

means as opposed to enacted Ordinance to reach its goal. The Court agrees that the Livingston

Parish Ordinance 07-17, Section 11-9, is unconstitutional and hereby grants partial summary

judgment on this issue.

B. Ordinance is Unconstitutionally Vague

Plaintiff additionally alleges that the Livingston Parish Ordinance 07-17, Section 11-9, is

unconstitutionally vague. The court agrees. The Ordinance fails to provide the kind of notice

demanded by the Due Process Clause of the Fourteenth Amendment. Trimble, 73 F. Supp. 2d at

668. This is evident as the Ordinance contains the phrase “and the like”. Such a phrase, does not

give notice. The Court agrees that the Livingston Parish Ordinance 07-17, Section 11-9, is

unconstitutionally vague and grant partial summary judgment on this issue.

In Trimble, the ordinance at issue qualified the other conduct prohibited with the Phrase

“and the like” leaving only an individual law enforcement officer to decide what particular

conduct qualifies as “and the like”. Id. (citing City of Chicago v. Morales, 527 U.S. 41 (1999)).

The Court found that the ordinance was unconstitutionally vague because it failed to provide the

kind of notice demanded by the Due Process Clause of the Fourteenth Amendment. As in

Trimble, this Court agrees that the subject ordinance containing the phrase “and the like” is

unconstitutionally vague.

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 C. Injunctive Relief

Plaintiff has failed to show that declaratory relief is inadequate protection under the

circumstances of this case, and the Court denies the request for injunctive relief. “To justify …

interference [with state court enforcement] there must be exceptional circumstances and a clear

showing that an injunction is necessary in order to afford adequate protection of constitutional

rights.” Trimble, 73 F. Supp. 2d at 668 (citing Spielman Motor Sales Co. v. Dodge, 295 U.S. 89,

95 (1935)).

Conclusion

Accordingly, Defendant‟s Motion for Summary Judgment (doc. 17) is hereby DENIED.

Plaintiff‟s Motion for Partial Summary Judgment (doc. 18) is hereby GRANTED. As there is

no need for the Court to consider Plaintiff‟s remaining claims pertaining to Unconstitutional

Establishment, a final judgment will be entered pursuant to Fed. Rule Civ. P. 54. Counsel for the

Plaintiff shall submit a form of judgment after having obtained approval as to form from counsel

for Defendant.

Signed in Baton Rouge, Louisiana, on October 7, 2008.


JUDGE JAMES J. BRADY


UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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