The fight over a proposed expansion to the city jail has been ongoing for more than a decade. Credit: Richard A. Webster/Verite News.

The latest legal challenge to block a controversial expansion of New Orleans’ jail is headed to federal court following a Tuesday hearing in state court, where it was originally filed. 

Criminal justice reform group Voice of the Experienced on Friday filed the suit in Orleans Parish Civil District Court against New Orleans Mayor LaToya Cantrell. The group seeks to stop the construction of a new mental health and medical building for the city’s jail, known as Phase III. It alleges that a recent $32 million budget allocation to pay for Phase III was illegal because it was made without City Council approval, which is required by city law. 

The Cantrell administration has long opposed building Phase III — estimated to cost $109 million — but a federal judge overseeing the jail’s long-running consent decree has ordered the city to move forward with construction nonetheless.

Attorneys for VOTE and Cantrell met for a brief hearing on Tuesday before Civil District Court Judge Kern Reese but did not argue the merits of the case. Reese instead announced that the administration had filed a motion to move the case to federal court, arguing that VOTE was improperly attempting to circumvent the federal order by filing suit in state court. 

An attorney representing VOTE, Emily Posner, said the group intends to fight to bring the case back to Civil District Court.

“We look forward to being back in front of you, judge,” Posner said. 

The new lawsuit is only the most recent court battle in a years-long debate over whether New Orleans should proceed with a jail expansion — all of which have been unsuccessful so far. 

Sheriff Susan Hutson, who successfully ran for office promising to oppose Phase III, earlier this summer asked U.S. District Judge Lance Africk, who is presiding over the consent decree, to reconsider his earlier order for the facility to be built. But on Tuesday morning, Affrick denied that request

“Any further delay in the construction of Phase III shall not be tolerated by the Court and any party’s failure to abide by this Court’s orders shall result in severe sanctions,” Africk wrote.  

Cantrell’s office did not respond to a request for comment on the VOTE lawsuit. But in its motion to move the case to federal court, the administration cited Affrick’s previous warnings about the potential for fines and contempt charges if construction doesn’t move forward. 

Phase III has been in the works for more than a decade. Former Sheriff Marlin Gusman was an ardent supporter of using post-Katrina FEMA funds to construct a third building on the jail’s campus.

Gusman originally envisioned a large jail building with the capacity to hold hundreds of people. But shortly after he approved the consent decree in 2013, Africk learned that the main jail — then under construction — was not was not designed to care for detainees with acute mental illness. The consent decree, adopted to bring the long-troubled jail into compliance with constitutional standards, requires the jail to be able to house any class of detainee. And under agreements inked in 2017 during Mayor Mitch Landrieu’s administration, Phase III evolved into its current design: an 89-bed mental health and medical ward.  

Opposition to Phase III has grown over time as new government officials were elected. The plan has now been explicitly condemned by Cantrell, Hutson, the City Council and numerous local advocacy groups, who argue that Phase III is the wrong way to handle mental health issues, is poorly designed and will require the city to take money away from vital priorities.

On the other side, Affrick, federal consent decree monitors and lawyers from the MacArthur Justice Center, who represent jail detainees in the consent decree case, have continued to argue the expansion is necessary to provide constitutionally-guaranteed levels of care.

In Tuesday morning’s ruling, Affrick wrote that if any party to the consent decree cited funding or contractual issues “as a basis for delaying this project any longer, that party be cited for contempt.”

The budget allocation

VOTE’s lawsuit follows a status update the Cantrell administration filed in federal court last month, claiming the city had reallocated $32 million in the capital budget to help fund the $109 million project cost. 

The problem, according to the lawsuit, is that the City Council never voted on that. Amendments to the capital budget have to be approved by the council, according to city law

“The City does not have an unfettered right to spend money as it wishes on capital projects,” the lawsuit said. “Rather, its Home Rule Charter specifically outlines a democratic process that the City must follow.” 

According to the suit, VOTE submitted a public records request to the city for documents related to the recent allocation. The city provided an internal document laying out the reallocation plans. 

According to that internal document, the city planned to take away millions from a number of initiatives to fund the jail expansion, including parks and playground improvements, building repairs, energy efficiency programs and public safety improvements. The document only lays out $21.5 million of funding. It’s unclear where the remainder of the $32 million comes from. 

The city last year also separately allocated $26 million for the jail by defunding various park, public safety and library projects. That puts the total city allocation at $58 million. The city also has $39 million in federal Katrina relief aid for the project, for a total of $97 million. The total construction cost for the project is estimated at $109 million. 

But unlike the 2022 allocation, the 2023 allocation was never voted on nor approved by the council. 

The VOTE lawsuit asks the court to prohibit the city from using those “illegally appropriated” funds to pay for the jail. 

Councilman Joe Giarrusso, who chairs the council’s Budget Committee, told The Lens last month that he didn’t believe the council was required to take a vote on the allocation, despite city law, because the construction was ordered by a federal court. He said the city couldn’t afford potential fines or having government officials being held in contempt of court.

Giarrusso declined to comment to Verite on the issue, citing the pending litigation. 

While it’s unclear how long the lawsuit could take, VOTE asked for a temporary injunction against the city to block the use of the funds until the lawsuit is finished. If granted, that could potentially interfere with the current construction schedule, which has already been delayed multiple times. In a recent federal filing, the Cantrell administration said it planned to issue a notice to proceed with construction by Sept. 15.

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Before joining Verite, Michael Isaac Stein spent five years as an investigative reporter at The Lens, a nonprofit New Orleans news publication, covering local government, housing and labor issues. During...