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SUPREME COURT OF LOUISIANA
No. 97-CA-0752 LOUISIANA ASSOCIATED GENERAL CONTRACTORS, INC. v. NEW ORLEANS AVIATION BOARD ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, JUDGE PATRICK J. McCABE

KIMBALL, Justice* The trial court declared La. R.S. 38:2233.2 unconstitutional and defendants lodged a direct appeal in this court pursuant to La. Const. Art. V, Sec. 5(D). Finding the trial court prematurely ruled on constitutional issues, we vacate its judgment and remand the case to the trial court for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY The New Orleans Aviation Board ("NOAB"), a municipal board of the City of New Orleans, adopted a program entitled "Disadvantaged Business Enterprise Plan for the New Orleans International Airport" ("Program") which, by its own terms, established "participation goals, preferences, and set asides on airport and heliport related contracts and procurements for firms owned by socially and economically disadvantaged persons." Under the Program, the NOAB requires that the prime contractor hired to perform under a public construction contract make every reasonable effort to award at least twenty-five percent of the total contract dollars in subcontracts to firms owned and controlled by socially and

*

VICTORY, J., not on panel. See Rule IV, Part 2, Section 3.

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economically disadvantaged persons. The Program, which states it was developed pursuant to 49 CFR Part 23, Subpart D, and in conjunction with the City of New Orleans' "Interim Disadvantaged Small Business Development Ordinance,"1 establishes a rebuttable presumption that individuals in the following groups are "socially and economically disadvantaged: (a) (b) Women; African Americans, which includes persons having origins in any of the Black racial groups of Africa; Hispanic Americans, which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; Native Americans, which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; Asian-Pacific Americans, which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, and the Northern Marianas; and Asian-Indian Americans, which includes persons whose origins are from India, Pakistan, and Bangladesh."

(c)

(d)

(e)

(f)

The NOAB will certify a business as a disadvantaged business enterprise ("DBE") if it is at least fifty-one percent owned and controlled by persons who are socially and economically disadvantaged. The NOAB assumes that business owners who are members of one of the groups listed above are socially and economically disadvantaged and generally will not investigate their actual disadvantaged status unless it is challenged by a third party. If challenged by a third party, a business owned by a member of one of the
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The City of New Orleans' "Interim Disadvantaged Small Business Development Ordinance" states that on any publicly bid public works and/or construction project whose value exceeds $50,000 to which the city is a party, the prime contractor shall be required to make every reasonable effort to award 25 percent of the amount to be subcontracted to firms owned and controlled by socially and economically disadvantaged persons who have a place of business or are licensed to do business in the city. The Ordinance states that individuals claiming social disadvantage must establish their social disadvantage on the basis of clear and convincing evidence which must include certain enumerated elements. Those claiming economic disadvantage must be socially disadvantaged and must prove their ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities based on certain enumerated factors. The Ordinance specifically states in

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