Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Beginning in October 2002, Toyya Braskey operated a state-licensed cat shelter dubbed the Momma Cat within the city of LaMarque. In May 2003, the city issued citations to Braskey for violation of Ordinance No. 587, ��4-8 (the kennel location ordinance). The ordinance prohibits maintaining a kennel within 500 feet of a dwelling, school or church. The Momma Cat shelter, which housed as many as 100 cats at a time, is located within 100 feet of three residences. While criminal charges were pending against Braskey in the municipal court, Braskey filed a civil suit seeking a declaration and an injunction from the trial court. Braskey requested that the trial court declare that the kennel location ordinance does not apply to her, because the ordinance pertains to kennels only, and the Momma Cat is an animal shelter and not a kennel. Further, by contending that enforcement of the ordinance would cause her irreparable harm, Braskey sought an injunction from the trial court that would order the city not to enforce the ordinance against her. Braskey claimed that enforcement of the ordinance would result in the closure of Momma Cat, the death of cats housed at the Momma Cat, possible fines levied against her, her possible confinement and her expenditure of attorneys’ fees. Braskey’s petition alleged that the kennel location ordinance was an ex post facto law that also constituted unlawful taking of property in violation of the due process clause of the 14th Amendment. The trial court 1. issued a judgment that declared that the city’s kennel location ordinance did not apply to Braskey; 2. issued an injunction to prevent the city from enforcing the ordinance; and 3. awarded Braskey attorneys’ fees of $27,500 for the trial, $10,000 for an appeal to the court of appeals and $15,000 for an appeal to the supreme court. On appeal, the city asserted that the trial court had no jurisdiction over Braskey’s suit. HOLDING:Vacated and dismissed. If a court lacks jurisdiction, it must dismiss the cause of action. Generally, the court stated, the meaning and validity of a penal statute or ordinance should be determined by a court exercising criminal jurisdiction. A court of equity does not have jurisdiction to enjoin the enforcement of a penal ordinance or statute unless it is unconstitutional and threatens vested property rights with irreparable injury, the court stated. The issue in this case, the court stated, is not whether Braskey had a property right in the facility, but rather whether her use of the facility as a cat shelter was a vested property right. Property owners, the court stated, do not have a constitutionally protected, vested right to use real property in any certain way, without restriction. Braskey’s asserted harms, the court stated, including closure of her facility, the death of cats housed at the facility, possible fines levied against her for operating the facility, her possible confinement for operating the facility and her expenditure of attorneys’ fees to pursue continued operation of the facility, all concern the use of her property as a facility for cats, which is not a constitutionally protected, vested right. Thus, the court concluded that the ordinance’s restrictions on the use of Braskey’s property as a cat shelter did not constitute threats to vested property rights. The court held that the trial court did not have jurisdiction to hear this suit and, therefore, the 1st Court of Appeals lacked jurisdiction over this appeal. Therefore, the court found, the municipal court is the proper court to hear Braskey’s challenges to the ordinance. OPINION:Alcala, J.; Radack, C.J., and Alcala and Bland, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.