City of New Orleans v. ASSESSORS'RETIREMENT AND RELIEF FUNDCity of New Orleans v. ASSESSORS'RETIREMENT AND RELIEF FUND
Charles C. Foti, Jr., Attorney General, Charles H. Braud, Jr., Christopher D. Matchett, Assistant Attorneys General, Penya Moses-Fields, City Attorney, Joyce G. Joseph, Evelyn F. Pugh, Assistant City Attorneys, Frank Anthony Milanese, Stone, Pigman, Walther, Wittmann, Wayne J. Lee, Barry W. Ashe, Dana M. Shelton, Ashlee M. Robinson, New Orleans, for appellee.
Randy Patick Zinna, Baton Rouge, for amici curiae, Clerks of Court Retirement and Relief Fund, Municipal Employees’ Retirement System, Parachial Employees’ Retirement System, Registrars of Voters
Randy Patrick Zinna, Baton Rouge, and Ellis Paul Adams, Jr., for amicus curiae, District Attorneys’ Retirement System.
WEIMER, Justice.
This matter arises from a challenge to the constitutionality of the statutory funding provisions of the Louisiana Assessors’ Retirement Fund (“Fund“). The case is before us on direct appeal from a judgment declaring
After reviewing the record, the statute, and the constitutional provisions at issue, we find, contrary to the conclusions of the district court, that
We also find that the statute does not distribute revenue sharing funds to an entity not entitled to receive those funds, in contravention of
BACKGROUND FACTS AND PROCEDURAL HISTORY
This dispute arises out of a demand by the Fund for monies allegedly owed to the Fund by the City of New Orleans (“City“). The dispute is not unfamiliar to this court, having been before us on several occasions in related litigation.1
While the related litigation was pending, the legislature passed 2003 La. Acts No. 1276, amending
On September 23, 2003, the City and Mayor C. Ray Nagin, in his individual capacity, instituted the present proceeding, a “Petition for Declaratory Judgment to Invalidate Louisiana Act No. 1276 and for Injunctive Relief.” Filed in the 19th Judicial District Court, the petition seeks a declaratory judgment invalidating Act 1276 and a permanent injunction against enforcement of the statute as amended. The petition alleges that
Before any substantive proceedings could be conducted in this matter, the legislature enacted 2004 La. Acts No. 860, which again amended
The City responded to this legislative action by amending its petition to plead the unconstitutionality of
On March 7, 2005, relying on the provisions of
In response, the City filed a “Motion for Partial Summary Judgment Declaring Louisiana Act No. 860 Unconstitutional and to Enjoin Future Efforts to Divert the City‘s Revenue Sharing Funds, and for Distribution of Funds Being Held in Registry of Court.” The motion, and its accompanying memorandum, avers that
The Board of Commissioners of the Orleans Levee District (“OLD“) intervened in the lawsuit and filed a motion for partial summary judgment, adopting the City‘s arguments. The Fund filed a cross-motion for summary judgment seeking a declaration that
Following a hearing on August 1, 2005, the district court found
Consistent with its findings, the court signed a written judgment in which it: (1) granted in part the motions for partial summary judgment filed by the City and OLD, and declared
On October 3, 2005, the Fund suspensively appealed the district court judgment to this court, which has jurisdiction over the appeal pursuant to
LAW AND ANALYSIS
The issue before this court is whether the funding mechanism of the Louisiana Assessors’ Retirement Fund set forth in
The Fund is one of nine statewide retirement systems. Established by the legislature in 1950,3 the Fund was created to provide retirement allowances and other benefits to the state‘s assessors, their employees, and employees of the Fund.4
In the year following the adoption of
The statute at issue in this case,
The fund shall be financed as set forth hereunder:
(1)(a)(i) Each sheriff and ex officio tax collector of the state of Louisiana, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax rolls to be exempted by virtue of the homestead exemptions of each respective parish, and the city tax collector for the city of New Orleans, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax roll to be exempted by virtue of homestead exemptions, for the city of New Orleans and the parish of Orleans which money each respective sheriff, tax collector, or any other person performing said duties shall remit to the Assessors’ Retirement Fund in a lump sum from first tax collections each year or periodically at the same time said sheriff and tax collector shall disburse funds to the tax recipient bodies of his respective parish. The amount remitted to the Assessors’ Retirement Fund shall be based on the total amount of taxes shown to be collectible on the roll, including that shown on the tax roll to be exempted by virtue of homestead exemption, on the date the tax roll is filed for collection.
(ii)(aa) All tax recipient agencies of ad valorem taxes of each and every parish and municipality of the state of Louisiana, including the police jury, council, commission, school board, levee district, special districts, municipalities and all tax recipients of any nature whatsoever of ad valorem taxes are hereby required to furnish the legislative auditor the authorizing ordinances or resolutions, the tax rolls, and the tax rate to be applied to the assessed values for ad valorem tax purposes no later than June first of every year.
(bb) The board shall certify to each sheriff and ex officio tax collector for the state of Louisiana, other official responsible for such tax collection, or any other person performing such duties for any person, parish, city, or governmental entity that all amounts due the fund have been received. For each payment received, the certification shall include the date the fund received the payment, the amount of the payment, and the jurisdiction remitting the payment.
(cc) The board shall calculate any shortfall in the fund and shall take reasonable steps to ascertain its cause. The board shall certify to the legislative auditor the amount of the shortfall and its cause. In the event the shortfall is due to the failure of any person, parish, city, or other governmental entity to remit all funds required by this Section or any predecessor law, the certification shall so indicate.
(dd) The amounts due to the Assessors’ Retirement Fund pursuant to this Paragraph shall be certified as correct by the legislative auditor.
(iii)(aa) In addition to the payment required pursuant to Item (i) of this Subparagraph, each sheriff and ex officio tax collector for the state of Louisiana, other official responsible for tax collection, or any other person performing such duties for any person, parish, city, or governmental entity certified by the board as having failed to remit all
monies required by this Section, shall remit to the Assessors’ Retirement Fund an amount to be determined by the board not to exceed fifteen percent of revenue sharing monies otherwise due to the delinquent parish, city, or other governmental entity over and above the portion being remitted to the fund by that person, parish, city, or governmental entity on July 1, 2004. The remittance pursuant to this Item shall be paid until the amount of the certified shortfall, including interest and any professional fees incurred through attempts at collection, has been satisfied; however, the board has the authority to negotiate a lesser amount to be paid in satisfaction of this debt. The board shall notify the sheriff and ex officio tax collector for the state of Louisiana, other official responsible for tax collection, or any other person performing such duties by November first that said remittance shall be due for the upcoming year. (bb) Should the sheriff and ex officio tax collector for the state of Louisiana, other official responsible for such tax collection, or any other person performing such duties for any person, parish, city, or other governmental entity fail to comply with Subitem (aa) of this Item, the board of trustees of the Assessors’ Retirement Fund is hereby empowered to make demand upon the state treasurer for the monies due to the fund. The treasurer shall pay such demand before distribution of any revenue sharing dollars to the person, parish, city, or other governmental entity. The board shall submit to the treasurer a resolution certifying the name of the governmental entity, its failure to pay, and the amount owed, and authorizing a designee or designees to act on its behalf.
(cc) The remedies provided in this Item are remedial and curative and may be exercised by the board at any time for any identifiable shortfall in the fund, regardless of when the shortfall initially arose.
As amended by Act 860, the statute provides a method of financing the Fund, at least in part, through ad valorem taxes, as well as a procedure for obtaining amounts due the Fund from governmental entities that fail to make their required contributions. Reduced to its basics, the statute requires the official responsible for tax collection in each parish and in the city of New Orleans to deduct and remit to the Fund one-fourth of one percent of the taxes shown to be collectible by the tax rolls, including the amount shown to be exempted by virtue of the homestead exemption. Each year, the Fund, acting through its board, is required to certify to each official responsible for tax collection that the amounts due to the Fund have been received. In the event that all monies are not received, the Fund, again acting through its board, is required to calculate the shortfall, take reasonable steps to ascertain its cause, and certify that information to the legislative auditor, who in turn must certify that the amount claimed to be due to the Fund is correct. The certified shortfall is to be remitted to the Fund from revenue sharing monies otherwise due to the delinquent parish, city or other governmental entity, in an amount not to exceed fifteen percent of the revenue sharing monies otherwise due. In the event that any official responsible for tax collection in any delinquent parish, city or other governmental entity fails to remit the amount due to the Fund, the Fund‘s board is empowered to make demand upon the state treasurer for payment of the amounts due before distribution of any revenue sharing dollars to the delinquent governmental entity.
In examining the merits of the Fund‘s position and the correctness of the district court ruling, we must keep certain principles of judicial review in mind.
Principles of Review for Constitutionality
This court reviews judgments declaring a statute unconstitutional de novo. State v. All Property and Casualty Insurance Carriers Authorized and Licensed to do Business in the State, 06-2030, p. 6 (La.8/25/06), 937 So.2d 313, 319; Louisiana Municipal Association v. State, 04-0227 at 45, 893 So.2d at 842. In conjunction with this review, certain principles apply. As a general rule, statutes are presumed to be constitutional; therefore, the party challenging the validity of a statute has the burden of proving its unconstitutionality. State v. Citizen, 04-1841, p. 11 (La.4/1/05), 898 So.2d 325, 334; Louisiana Municipal Association, 04-0227 at 45, 893 So.2d at 842; Board of Commissioners of North Lafourche Conservation, Levee and Drainage District v. Board of Commissioners of Atchafalaya Basin Levee District, 95-1353, pp. 3-4 (La.1/16/96), 666 So.2d 636, 639. Because the provisions of the Louisiana Constitution are not grants of power but instead are limitations on the otherwise plenary power of the people, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Louisiana Municipal Association, 04-0227 at 45, 893 So.2d at 842-843; Polk v. Edwards, 626 So.2d 1128, 1132 (La.1993); Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 286 (La.1986). As a result, a party challenging the constitutionality of a statute must point to a particular provision of the constitution that would prohibit the enactment of the statute, and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the statute in question. World Trade Center Taxing District v. All Taxpayers, Property Owners, 05-0374, p. 12 (La.6/29/05), 908 So.2d 623, 632; Caddo-Shreveport Sales and Use Tax Commission v. Office of Motor Vehicles Department Of Public Safety and Corrections of the State, 97-2233, pp. 5-6 (La.4/14/98), 710 So.2d 776, 779; Polk, 626 at 1132. A constitutional limitation on the legislative power may be either express or implied. World Trade Center Taxing District, 05-0374 at 12, 908 So.2d at 632; Caddo-Shreveport Sales and Use Tax Commission, 97-2233 at 6, 710 So.2d at 779-780.
Finally, because it is presumed that the legislature acts within its constitutional authority in enacting legislation, this court must construe a statute so as to preserve its constitutionality when it is reasonable to do so. State v. Fleury, 01-0871, p. 5 (La.10/16/01), 799 So.2d 468, 472; Moore v. Roemer, 567 So.2d 75, 78 (La. 1990). In other words, if a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise grave constitutional questions, the court will adopt the interpretation of the
Diversion of Dedicated and Special Taxes
In ruling on the constitutionality of
Pursuant to
The focal issue before us is a narrow one. The question presented to, and ruled on, by the district court was whether dedicated taxes can be used to finance the Fund. In resolving the City‘s challenge to the constitutionality of the statute, we must constrain our analysis to the issue before us: whether
The diversion of taxes dedicated to a specific purpose is expressly prohibited by
La. Const. Art. VI, § 26. Parish Ad Valorem Tax
(B) Millage Increase Not for General Purposes. When the millage increase is for other than general purposes, the proposition shall state the specific purpose or purposes for which the tax is to be levied and the length of time the tax is to remain in effect. All proceeds of the tax shall be used solely for the purpose
or purposes set forth in the proposition. [Emphasis added.]
La. Const. Art. VI, § 32. Special Taxes; Authorization
Section 32. For the purpose of acquiring, constructing, improving, maintaining, or operating any work of public improvement, a political subdivision may levy special taxes when authorized by a majority of the electors in the political subdivision who vote thereon in an election held for that purpose.
This court has consistently interpreted the constitution to prohibit the use of dedicated and special taxes for purposes other than those for which they were levied. For example, in Orleans Parish School Board v. City of New Orleans, 238 La. 738, 116 So.2d 505 (La.1959), the Orleans Parish School Board challenged the constitutionality of
In the instant case, the City argues that with the exception of a “General Municipal Purposes” tax, every tax on which the legislative auditor based his assessment of the City‘s alleged liability to the Fund for the 2005 tax year is dedicated by the constitution, by statute, and/or by the electorate for a specific purpose and that, to the extent that the language of
The Fund responds to the City‘s assertion with a two-pronged argument.
First, the Fund argues that
For statewide public retirement systems not covered by Paragraphs (A) and (B) of this Section, the legislature shall determine all required contributions to be made by members, contributions to be made by employers, and dedicated taxes required for the sound actuarial maintenance of the systems.
At issue is the meaning of the reference in
As a general rule, articles of the constitution are to be construed and interpreted using the same canons of interpretation applicable to statutes and written instruments. State v. Expunged Record No. 249,044, 03-1940, p. 4 (La.7/2/04), 881 So.2d 104, 107; Louisiana Department of Agriculture and Forestry v. Sumrall, 98-1587, p. 4 (La.3/2/99), 728 So.2d 1254, 1258. Under our well-settled rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute (or by analogy, constitutional provision) to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter.
Applying the foregoing principles in the instant case, we find no conflict between
Viewed in this light, the constitutional provisions complement, rather than conflict with, each other. A “dedicated tax” is, quite simply, a tax that is dedicated for a specific purpose. Under the constitution, taxes dedicated to a specific purpose cannot be used for another purpose. Should the legislature elect to levy a “dedicated tax” to fund the Fund, as authorized by Article X, § 29(E)(3), then Article VI, §§ 26(B) and 32 would protect that dedicated tax and prevent the diversion of its proceeds to other purposes.
As we recognized in Denham Springs Economic Development District, 04-1674 at 14, 894 So.2d at 335, when citizens are presented with a proposition that would impose a special tax for a specific purpose, and they approve the imposition of that tax, a covenant is created which must be respected and upheld. Once citizens vote for a tax dedicated to one purpose, the tax cannot be used for a purpose other than that approved by the citizens. Any alteration of a prior dedication must be by vote of the people. The constitution, at Article VI, §§ 26(B) and 32, respects and upholds this most basic proposition.
The language of Article X, § 29(E)(3) does not authorize the diverting of taxes dedicated by voters for one purpose to another purpose, in contravention of Article VI, §§ 26(B) and 32. Rather, section 29(E)(3) is simply an acknowledgment that taxes dedicated to the financing of statewide public retirement systems are one of the funding mechanisms of such retirement systems. Article X, § 29(E)(3) does not constitute an exception to Article VI, §§ 26(B) and 32 that would permit the financing of the Fund through the diversion of taxes dedicated to other purposes.
Perhaps anticipating this conclusion, the Fund argues secondly, and in the alternative, that
The Fund‘s argument in this regard is primarily one of statutory interpretation. In evaluating that argument, certain principles of statutory construction apply. First and foremost is the rule that legislation is the solemn expression of the legislative will and, therefore, the interpretation of a law primarily involves the search for the legislature‘s intent. Louisiana Municipal Association, 04-0227, p. 35, 893 So.2d at 836; Detillier v. Kenner Regional Medical Center, 03-3259, p. 3
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the legislature‘s intent.
At issue here is the interpretation to be accorded
Each sheriff and ex officio tax collector for the state of Louisiana, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax rolls to be exempted by virtue of the homestead exemptions of each respective parish, and the city tax collector for the city of New Orleans, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax roll to be exempted by virtue of homestead exemptions, for the city of New Orleans and the parish of Orleans which money each respective sheriff, tax collector, or any other person performing said duties shall remit to the Assessors’ Retirement Fund in a lump sum from first tax collections each year or periodically at the same time said sheriff and tax collector shall disburse funds to the tax recipient bodies of his respective parish. The amount remitted to the Assessors’ Retirement Fund shall be based on the total amount of taxes shown to be collectible on the roll, including that shown on the tax roll to be exempted by virtue of homestead exemption, on the date the tax roll is filed for collection.
As enacted, the first sentence of this provision authorizes and requires the official responsible for tax collection in each respective jurisdiction “to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax rolls to be exempted by virtue of the homestead exemptions,” which money each tax collector is directed to “remit” to the Fund “in a lump sum
However, this phrase cannot, consistent with well-settled rules of statutory interpretation, be read in isolation. A statute cannot be interpreted by review of select portions of the statutory scheme. All the words must be read together. As we have repeatedly cautioned, the meaning and intent of a law must be determined by a consideration of the law in its entirety. Moss, 05-1963 at 15, 925 So.2d at 1196; Sultana Corporation, 03-0360 at 4; 860 So.2d at 1116; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129. Moreover, in construing statutes, “courts must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless.” State v. Cunningham, 04-2200, pp. 8-9 (La.6/13/05), 903 So.2d 1110, 1116; State v. Union Tank Car Company, 439 So.2d 377, 382 (La.1983). Thus, if there are two ways to interpret a statute, courts are to interpret the statute in such a manner as to uphold its constitutionality. Cunningham, 04-2200 at 9, 903 So.2d at 1116.
In this case, the sentence which immediately follows the first one elucidates and clarifies the intent of the provision. That sentence explains that “[t]he amount remitted to the Assessors’ Retirement Fund shall be based on the total amount of taxes shown to be collectible on the roll, including that shown on the tax roll to be exempted by virtue of homestead exemption.” (Emphasis supplied.) A plain reading of this sentence, in conjunction with the previous one, demonstrates that the intent of the statute is simply to provide direction as to the method of calculating the amount of each governmental entity‘s obligation to the Fund. The statute does not direct, require, or identify from which source the funds to pay this amount are to be deducted prior to being remitted.
To interpret the statute otherwise would lead to absurd consequences. This is because the statute clearly includes in the amounts from which the “deduction” is to be made those taxes shown to be “collectible” (i.e., taxes which could have been collected as opposed to taxes actually collected), “including that shown on the tax roll to be exempted by virtue of homestead exemption.” Because a tax collector cannot “deduct” and “remit” from taxes he or she does not collect, it is apparent that the statute does not attempt to identify the source of the monies to be remitted to the Fund; it specifies only the method of identifying and calculating the amount due.
This interpretation of the statute is bolstered by the fact that nowhere in the language of the statute is there a directive that the amount required to be remitted to the Fund be paid from dedicated or special taxes. Nor is there a directive that the person responsible for tax collection in each respective jurisdiction deliver less than that full amount of dedicated revenues
To successfully challenge a legislative act as unconstitutional on its face, the challenger must establish that no circumstances exist under which the act would be valid. AFSCME, Council # 17 v. State, Department of Health and Hospitals, 01-0422, p. 8 (La.6/29/01), 789 So.2d 1263, 1269; State v. Powdrill, 95-2307, p. 9 (La. 11/25/96), 684 So.2d 350, 357. As demonstrated above, it is possible to achieve a construction of the statute that renders it constitutional.9
As we explained in Louisiana Municipal Association v. State, “The legislative power includes ‘absolute control over the finances of the state, except as limited by constitutional provisions.‘” Id., 04-0227 at 46, 893 So.2d at 843, quoting Louisiana Public Facilities Authority v. Foster, 01-0009, p. 18 (La.9/18/01), 795 So.2d 288, 301. It is the legislature‘s particular province to determine how the departments of government shall be funded from the public fisc. Id. The Louisiana constitution mandates in
In this case, in enacting
Because we find that the statute can be interpreted in such a manner as to render it consistent, and not in conflict, with the constitutional prohibitions against the diversion of dedicated or special taxes, we reverse the district court‘s ruling declaring
Diversion of Revenue Sharing Funds
In ruling on the constitutionality of
As amended by Act 860,
The City argued, and the district court held, that this portion of the statute violates
At issue are the scope and meaning of
Distribution Formula. The revenue sharing fund shall be distributed annually as provided by law solely on the basis of population and number of homesteads in each parish in proportion to population and the number of homesteads throughout the state. Unless otherwise provided by law, population statistics of the last federal decennial census shall be utilized for this purpose. After deductions in each parish for retirement systems and commissions as authorized by law, the remaining funds, to the extent available, shall be distributed by first priority to the tax recipient bodies within the parish, as defined by law, to offset current losses because of homestead exemptions granted in the Article. Any balance remaining in a parish distribution shall be allocated to the municipalities and tax recipient bodies within each parish as provided by law. [Emphasis supplied.]
The Fund argues that
This principle, most basic to civilian methodology, has been in our Civil Code since 1870: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”
La. C.C. art. 9 ; Cat‘s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186. Therefore when interpreting a constitutional provision, the “starting point” is with the language of the provision. Id. (citing Touchard v. Williams, 617 So.2d 885 (La.1993)).
Louisiana Department of Agriculture and Forestry, 98-1587 at 5, 728 So.2d at 1258.
Giving the straightforward language of
The City defends the contrary ruling by the district court, arguing that the interpretation which we accord to the constitutional provision conflicts with the interpretation presented to the Constitutional Convention that adopted the language. According to the City, there are two plausible interpretations of the language, rendering it ambiguous and necessitating resort to legislative history to ascertain the legislative intent. East Baton Rouge Parish School Board v. Foster, 02-2799, pp. 16-17 (La.6/6/03), 851 So.2d at 996.
The City asserts that the proceedings at the 1973 Constitutional Convention included specific discussion as to exactly what would constitute permissible “deductions in each parish for retirement systems,” and it was explained by one of the delegates that this language referred to “deductions for retirement systems and commissions, as presently authorized by law.” VIII Records of the Louisiana Constitutional Convention of 1973: Convention Trans., November 1, 1973, p. 2064. (Emphasis supplied.) The City points out that what was “presently authorized by law” at that time were deductions to compensate various retirement funds for the repeal of the state ad valorem tax, a recently abolished 5.75 mill levy, of which the Fund was entitled to a tiny variable percentage. According to the City,
The flaw in the City‘s argument lies in its approach to the well-settled rules of construction. The City fails to examine the language of the constitutional provision to determine whether it is clear and unambiguous, and therefore must be applied as written, or whether it is subject to more than one reasonable interpretation, and therefore, ambiguous, authorizing resort to legislative history to discern the legislative intent. The City starts with the legislative history and uses that legislative history to construct an argument for the ambiguity of the constitutional provision. However, it is well-settled in our jurisprudence that the appropriate starting point is the language of the statute itself. Touchard v. Williams, 617 So.2d 885, 888 (La.1993). Where, as here, that language is straightforward and unambiguous, no further interpretation may be made in search of legislative intent.
Had the framers of the constitution, and the voters who enacted it, intended to freeze the deductions for the benefit of retirement systems at levels existing at the time of the ratification of the constitution, they could easily have done so by adding the language the City would have us insert, “as presently authorized by law.” This was not done. As is the case with contractual interpretation, when construing articles of the constitution, this court is not free to create an ambiguity where none exists, or to revise or re-write the language of the constitutional provision under the guise of interpretation where the provisions are couched in unambiguous terms. Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 8-9 (La.5/22/07), 956 So.2d 583, 589. The plain meaning of the unambiguous language of
Separation of Powers
The City also challenges the constitutionality of
The district court rejected the City‘s challenge on this ground, ruling that the legislature has the plenary power to pass any legislation not prohibited by the constitution, irrespective of whether there is an ongoing dispute. Before this court, the City questions the validity of the district court‘s ruling, arguing that Act 860 impairs the City‘s vested right to receive revenue sharing funds appropriated to it by virtue of the Revenue Sharing Appropriations Act and
The argument advanced by the City was addressed previously by this court, and rejected, in Morial v. Smith & Wesson Corporation, 2000-1132 (La.4/3/01), 785 So.2d 1. In that case, the Mayor and City of New Orleans had filed suit against the firearms industry for damages allegedly suffered by the City arising from the manufacture, marketing, promotion, and sale of unreasonably dangerous firearms. Subsequent to the filing of suit, the legislature enacted
This court‘s ruling in Morial answers the argument of the City herein. The separation of powers doctrine is not violated by
Seizure of Public Funds
Additionally, the City contends that
The district court rejected the City‘s argument in this regard, ruling that for the constitutional prohibition against seizure of public funds to apply, there must first be a judgment, and, in this case, there has been no judgment against the City and nothing is being seized as a result of any suit or judgment. The district court‘s ruling in this regard is correct.
Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.
A plain reading of this provision reveals that the prohibition against seizure of public funds applies only when the seizure is the product of a judgment resulting from a lawsuit. Because
Ceiling on State Ad Valorem Tax
The City also assails the constitutionality of
State taxation on property for all purposes shall not exceed an annual rate of five and three-quarter mills on the dollar of assessed valuation.
The City argues that
The Fund responds to the City‘s argument by pointing out that
As noted previously, the legislature may enact any legislation that the constitution does not prohibit. Louisiana Municipal Association, 2004-0227 at 45, 893 So.2d at 843. The fundamental flaw with the City‘s argument is that, notwithstanding the fact that the statute does not impose an additional tax, and thus does not implicate the constitutional provision imposing a 5.75 mill ceiling on state ad valorem taxes, the City fails to demonstrate, or offer any evidence to establish, that the amounts collected pursuant to
Equal Protection Violation
Finally, the City asserts that
In support of its argument alleging disparate treatment, the City introduced into evidence the following: (1) excerpts from the Tax Review Manual of the Legislative Auditor indicating that, in preparing the pension fund contribution report, which it does as a courtesy to the parish tax collectors, municipal taxes are not included; (2) excerpts from the trial testimony of Paulette Jackson, assistant Legislative Auditor, in the related litigation, Louisiana Assessors’ Retirement Fund v. City of New Orleans, No. 94-05896, on the docket of the Civil District Court, Parish of Orleans, confirming that in preparing the pension fund contribution report, municipal taxes are typically excluded from the
After reviewing this evidence and entertaining the argument of the parties, the district court rejected the City‘s challenge to the constitutionality of
The
No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.
Generally, the state constitutional guarantee of equal protection mandates that state laws affect alike all persons and interests similarly situated. Beauclaire v. Greenhouse, 05-0765, p. 5 (La.2/22/06), 922 So.2d 501, 505. This guarantee does not remove from the legislature all power of classification, or require absolute equality or precisely equal advantages; the law merely requires equal application in similar circumstances. Id.
In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094, this court set forth the proper analysis for determining whether an equal protection violation has occurred. We explained:
Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest. [Footnotes omitted.]
Sibley, 477 So.2d at 1107. In this case, the legislative classification that the City challenges is based neither on race, religious beliefs, birth, age, sex, culture, physical condition, or political ideas or affiliations. As a result, the third level of scrutiny applies. Under this third level of scrutiny,
A review of the evidence and argument presented by the City in connection with its summary judgment motion reveals that although the City claims that
All tax recipient agencies of ad valorem taxes of each and every parish and municipality of the state of Louisiana, including the police jury, council, commission, school board, levee district, special districts, municipalities and all tax recipients of any nature whatsoever of ad valorem taxes are hereby required to furnish the legislative auditor the authorizing ordinances or resolutions, the tax rolls, and the tax rate to be applied to the assessed values for ad valorem tax purposes no later than June first of every year.
According to this provision, all tax recipient agencies of ad valorem taxes of each and every parish and municipality are now required to furnish the legislative auditor with the authorizing ordinances or resolutions, the tax rolls and the tax rate to be applied. As amended, therefore, the statute does not appear to single out the municipal taxes of the City of New Orleans for disparate treatment. The documents introduced by the City to establish disparate treatment pre-date the passage of Act 860; thus, their relevance to the instant proceeding, which assails the constitutionality of the statute as amended, is attenuated.13
Further, the Tax Review Manual of the legislative auditor on which the City relies to support its equal protection argument specifically states that “[t]here is no statutory authority for us to generate the pension fund contribution report. We prepare the report as a courtesy to the tax collectors and the eight retirement systems.” There is no indication, and the City offers no evidence, as to what the various tax collectors do with the pension fund contribution report once it is generated by the legislative auditor and to what extent, if any, these tax collectors rely on the report when they make the remittance required by the statute. As a result, there is no evidence establishing that the monies actually being remitted to the Fund by the tax collectors are based on the legislative auditor‘s pension fund contribution report, and the alleged omission of municipal ad valorem taxes for 63 parishes from that report.
The City simply has not offered sufficient evidence to demonstrate either that the statute creates a legislative classification on its face or that it does not suitably further an appropriate state interest. Thus, the City has not carried its burden of proving that
CONCLUSION
For the foregoing reasons, we find that the district court erred in declaring
REVERSED AND REMANDED.
CALOGERO, C.J., dissents and assigns reasons.
JOHNSON, J., concurs in the result.
CALOGERO, Chief Justice, Dissenting.
Because I believe the district court correctly found that the current version of
This case arises out of the legislature‘s apparent effort to meet the requirements of
Given the fact that
In lieu of adopting and dedicating a tax to fund LARF, the legislature adopted
Diversion of special and dedicated taxes
The City argues, and the district court found, that
La. Const. art. VI, §§ 26(B). Parish Ad Valorem Tax
(B) Millage Increase Not for General Purposes. When the millage increase is for other than general purposes, the proposition shall state the specific purpose or purposes for which the tax is to be levied and the length of time the tax is to remain in effect. All proceeds of the tax shall be used solely for the purpose or purpose set forth in the proposition.
La. Const. Art. VI, § 32. Special Taxes, Authorization.
For the purpose of acquiring, constructing, improving, maintaining or operating any work of public improvement, a political subdivision may levy special taxes when authorized by a majority of the electors in the political subdivision who vote thereon in an election held for the purpose.
(Bold emphasis in original; italicized emphasis added.) The above constitutional provisions clearly prohibit the use of dedicated and special taxes for purposes other than those for which they were dedicated or levied. See Orleans Parish School Board v. City of New Orleans, 238 La. 738, 116 So.2d 505 (1959); see also Denham Springs Economic Development District v. All Taxpayers, Property Owners, 2004-1674, p. 35 (La.2/4/05), 894 So.2d 325, 836.
The City‘s argument relative to diversion of dedicated and special taxes addresses itself to a fundamental problem with
Each sheriff and ex officio tax collector of the state of Louisiana, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax rolls to be exempted by virtue of the homestead exemptions of each respective parish, and the city tax collector for the city of New Orleans, or other official responsible for such tax collection, is hereby authorized and required to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax roll to be exempted by virtue of homestead exemptions, for the city of New Orleans and the parish of Orleans which money each respective sheriff, tax collector, or any other person performing said duties shall remit to the Assessors’ Retirement Fund in a lump sum from first tax collections each year or periodically at the same time said sheriff and tax collector shall disburse funds to the tax recipient bodies of his respective parish. The amount remitted to the Assessors’ Retirement Fund shall be based on the total amount of taxes shown to be collectible on the roll, including that shown on the tax roll to be exempted by virtue of homestead exemption, on the date the tax roll is filed for collection.
The clarifying statement in the amount remitted provision is to be “based” on “collectible” ad valorem taxes, rather than ad valorem taxes actually collected, is significant, but not for the reason set forth in the majority opinion, the fallacy of which is fully discussed below. The reason the legislature required that the amount remitted to LARF be based on “collectible” taxes was to insure that LARF would receive a predictable amount of ad valorem taxes each year. Had the legislature based the remittance amount solely on actual collections, the amount would vary from year to year because the amount of ad valorem taxes actually collected depends on a number of factors, including such things as the percentage of taxpayers who actually pay their taxes and whether payments are made in a timely fashion. Of course, the legislature also specifically required that the amount remitted include 0.25 percent of taxes that would have been collected were they not exempted from collection by the homestead exemption.
When all of the pertinent rules of statutory construction are applied to
Significantly, if a given tax-recipient body receives only dedicated and/or special taxes,
The majority decision in this case chooses to ignore this interpretation, the only reasonable interpretation of
As enacted, the first sentence of this provision authorizes and requires the official responsible for tax collection in each respective jurisdiction “to deduct one-fourth of one percent of taxes shown to be collectible by the tax rolls, including that shown on the tax rolls to be exempted by virtue of the homestead exemptions,” which money each tax collector is directed to “remit” to the Fund “in a lump sum from first tax collections each year or periodically at the same time said sheriff and tax collector shall disburse funds to the tax recipient bodies of his respective parish.”
City of New Orleans, 2005-2548 at 21, 986 So.2d at 17-18 (emphasis added). Nevertheless, the majority renders this affirmative directive meaningless in favor of its finding that
According to the majority,
The amount remitted to the Assessors’ Retirement Fund shall be based on the total amount of taxes shown to be collectible on the roll, including that shown on the tax roll to be exempted by virtue of homestead exemption, on the date the tax roll is filed for collection.
According to the majority, the above-quoted sentence makes it clear that
Because the amount remitted provision states that the “amount” is to be “based” on “collectible” taxes, the majority says that the deduct and remit requirement of
According to the majority, my interpretation is possible only if the first sentence of
When it adopted
The majority states that dedicated and special taxes cannot be used to fund LARF, but nevertheless finds that
Of course, as I have already mentioned,
If the statutory language simply sets forth a calculation method for determining the amount of taxes due, how do Louisiana officials responsible for tax collection know what they should do? Since the majority finds that the words “finance,” “deduct,” and “remit,” are essentially meaningless, the statute provides no direction concerning the question of who is to pay and in what percentages. If the statute does not require that some amount be “deducted” and “remitted” from every tax recipient body, then who pays? The fact is that all of the taxes received by some tax-recipient bodies are special and/or dedicated taxes. Does
Finally, I must note that the record in this case contains the Legislative Auditor‘s report showing the calculation of the City‘s alleged liability to LARF for the 2005 tax year. That report conclusively demonstrates that the calculation includes 0.25 percent of all the ad valorem taxes collectible by the City, including dedicated and special taxes. The report further demonstrates that my understanding of
Diversion of dedicated and special taxes is prohibited by
Diversion of revenue sharing funds
The City argues, and the district court found, that
(C) Distribution Formula. The revenue sharing fund shall be distributed annually as provided by law solely on the basis of population and number of homesteads in each parish in proportion to population and the number of homesteads throughout the state. Unless otherwise provided by law, population statistics of the last federal decennial census shall be utilized for this purpose. After deductions in each parish for retirement systems and commissions as authorized by law, the remaining funds, to the extent available, shall be distributed by first priority to the tax recipient bodies within the parish, as defined by law, to offset current losses because of homestead exemptions granted in this Article. Any balance remaining in a parish distribution shall be allocated to the municipalities and tax recipient bodies within each parish as provided by law.
(Emphasis added.)
The City claims that
(ii)(aa) All tax recipient agencies of ad valorem taxes of each and every parish and municipality of the state of Louisiana, including the police jury, council, commission, school board, levee district, special districts, municipalities and all tax recipients of any nature whatsoever of ad valorem taxes are hereby required to furnish the legislative auditor the authorizing ordinances or resolutions, the tax rolls, and the tax rate to be applied to the assessed values for ad valorem tax purposes no later than June first of every year.
(bb) The board shall certify to each sheriff and ex officio tax collector for the state of Louisiana, other official responsible for such tax collection, or any other person performing such duties for any person, parish, city, or governmental entity that all amounts due the fund have been received. For each payment received, the certification shall include the date the fund received the payment, the amount of the payment, and the jurisdiction remitting the payment.
(cc) The board shall calculate any shortfall in the fund and shall take reasonable steps to ascertain its cause.
The board shall certify to the legislative auditor the amount of the shortfall and its cause. In the event the shortfall is due to the failure of any person, parish, city, or other governmental entity to remit all funds required by this Section or any predecessor law, the certification shall so indicate. (dd) The amounts due to the Assessors’ Retirement Fund pursuant to this Paragraph shall be certified as correct by the legislative auditor.
(iii)(aa) In addition to the payment required pursuant to Item (i) of this Subparagraph, each sheriff and ex officio tax collector for the state of Louisiana, other official responsible for tax collection, or any other person performing such duties for any person, parish, city, or governmental entity certified by the board as having failed to remit all monies required by this Section, shall remit to the Assessors’ Retirement Fund an amount to be determined by the board not to exceed fifteen percent of revenue sharing monies otherwise due to the delinquent parish, city, or other governmental entity over and above the portion being remitted to the fund by that person, parish, city, or governmental entity on July 1, 2004. The remittance pursuant to this Item shall be paid until the amount of the certified shortfall, including interest and any professional fees incurred through attempts at collection, has been satisfied; however, the board has the authority to negotiate a lesser amount to be paid in satisfaction of this debt. The board shall notify the sheriff and ex officio tax collector for the state of Louisiana, other official responsible for tax collection, or any other person performing such duties by November first that said remittance shall be due for the upcoming year.
(bb) Should the sheriff and ex officio tax collector for the state of Louisiana, other official responsible for such tax collection, or any other person performing such duties for any person, parish, city, or other governmental entity fail to comply with Subitem (aa) of this Item, the board of trustees of the Assessors’ Retirement Fund is hereby empowered to make demand upon the state treasurer for the monies due to the fund. The treasurer shall pay such demand before distribution of any revenue sharing dollars to the person, parish, city, or other governmental entity. The board shall submit to the treasurer a resolution certifying the name of the governmental entity, its failure to pay, and the amount owed, and authorizing a designee or designees to act on its behalf.
(cc) The remedies provided in this Item are remedial and curative and may be exercised by the board at any time for any identifiable shortfall in the fund, regardless of when the shortfall initially arose.
Reduced to its essentials,
Although
In its discussion of this issue, the majority once again correctly sets forth a number of well-recognized principles of statutory construction that apply, not only to judicial construction of statutes, but also to judicial construction of constitutional provisions. Among those provisions is the rule, set forth in
First, let me say that I disagree with the majority‘s conclusion that
The ambiguity of the phrase “as authorized by law” in
However, when interpreting
In addition to the fact that the meaning of the phrase “as authorized by law” in
It is true that the first rule of statutory construction set forth in Louisiana‘s Civil Code is that clear and unambiguous laws must be applied as written. However, the majority has apparently overlooked the fact that the rules of statutory construction were themselves adopted in order to assist courts to discover the intent of the framers of the law. This principle is at least as well documented in Louisiana jurisprudence
The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government. Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128; State v. Piazza, 596 So.2d 817, 819 (La.1992). Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. Boyter, 99-0761 at p. 9, 756 So.2d at 1128; Cat‘s Meow, Inc. v. City of New Orleans through Dep‘t of Fin., 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. State v. Johnson, 03-2993, p. 12 (La.10/19/04), 884 So.2d 568, 575; Theriot, 95-2895 at p. 3, 694 So.2d at 186.
State v. Dick, 2006-2223, p. 9-10 (La.1/26/07), 951 So.2d 124, 130 (emphasis added).
On the other hand, even if the majority were correct in its conclusion that the phrase “as authorized by law” in
In fact, I believe, this principle is entrenched in the exact principle of statutory construction relied upon by the majority. In applying the rule that clear and unambiguous laws must be applied as written, the majority effectively ignores the express exception to that rule recognized in
This court has previously recognized that “it is to be presumed that the legislature
Because the phrase “as authorized by law” in
Paragraph (D) [current paragraph (C)] of the proposed amendment makes it clear that after deductions for retirement systems and commissions, as presently authorized by law, that there shall be a first call on the monies distributed in each parish by those tax recipient bodies defined by law who suffer losses as a consequence of the homestead exemption.
Records of the Louisiana Constitutional Convention of 1973, vol. 14, p. 2070 (emphasis added).
The intent of the framers of the Louisiana Constitution to limit the “deductions... for retirement systems” to those that were authorized by law in 1973 is further indicated by the following colloquy that occurred during the debates concerning
Mr. Chatelain Delegate Gravel, I‘d like to be cleared up on some things in Section (D) [current section (C)]. First, after deduction for retirement systems and commissions—I think I know what the commissions are: that‘s perhaps the sheriff‘s commission, running his office—but what retirement systems do you have reference to here, sir?
Mr.
Gravel: Mr. Chatelain, I think that Mr. Mire could answer this question correctly. I think there‘s a provision that stems from the old property tax relief fund that something like a quarter or a half of one percent goes into certain state retirement systems, including the assessors‘. What other retirement systems, I don‘t know. But, I do know there is some call on this money for retirement systems.... That‘s what ... this is to authorize the legislature to continue those.
Id. at 2071 (emphasis added).
In fact, at no time during the Constitutional Convention debate concerning
A second reason
Mr. Chairman and ladies and gentlemen of the convention, the proposed amendment... would, in effect, extend the committee‘s revenue sharing concept, and primarily for the purpose of restoring to some extent the shrunken bonding capacity of school boards and the other local governing bodies. I think, throughout the entire time that we have been discussing this article, valid
positions have been taken to the effect that because of the increased homestead exemption, there have been ... has been some encroachment upon (a) the tax base of local governing bodies, and (b) the bonding capacity of local governing bodies.
* * * * *
Paragraph (F) [currently paragraph (E)] provides that these constitutionally approved funds—the revenue sharing fund—are subject to being bonded and that when the bonds are issued and authorized as approved by the State Bond Commission, that they will then carry the full faith and credit of this state. Now, in sum, let me tell you this very clearly. The main reason why these provisions are essential in the constitution is to provide, to the extent herein provided, a bonding capacity which, in effect, has been taken away from local government as a consequence of the homestead exemption. For at least two sessions of the legislature, we have been faced with the very serious problem as to whether we could, by legislative act from year to year, provide for a revenue sharing fund, and then be sure that those funds could be bonded. Bond attorneys and others who are much more knowledgeable in the field than I am have consistently told us that unless there is some constitutional guarantee in this new constitution—such as we have by this proposed amendment, such as we did have prior to 1972 under the property tax relief fund in the Constitution of 1921—that unless such provisions are set forth in the constitution that the bonding capacity of local governing bodies will be substantially curtailed and diminished.
Id. at 2064 (emphasis added).
The above statement makes it very clear that one of the major reasons (in fact, Delegate Gravel indicated it was perhaps the primary reason) the 1973 Constitutional Convention considered preservation of the revenue sharing fund to be an essential part of the Constitution was to restore the bonding capacity of tax-recipient bodies, which had been destroyed, or at least diminished, when those bodies lost the benefits of the taxes that became exempt under the homestead exemption. In fact, that purpose is inherent in
A political subdivision, as defined by Article VI of this constitution, may incur debt by issuing negotiable bonds and may pledge for the payment of all or part of the principal and interest of such bonds the proceeds derived or to be derived from that portion of the funds received by it from the revenue sharing fund, to offset current losses caused by homestead exemptions granted by this Article.
(Emphasis added.)
Despite the concern of the delegates of the 1973 Constitutional Convention that revenue sharing funds be distributed to tax-recipient bodies “by first priority” (after deductions for retirement systems and commissions as then authorized by law) in order to protect the bonding capacity of those tax-recipient bodies, the majority has blessed a legislative enactment that will clearly have the opposite effect of diminishing or impairing the bonding capacity of tax-recipient bodies within the State. The majority‘s finding that
The reason the tax-recipient bodies will be unable to pledge those proceeds is because LARF‘s board of directors is empowered by
Presumably, the Louisiana Legislature, when it adopted
CONCLUSION
For the foregoing reasons,
JOHNSON, J., concurring.
The Louisiana Assessors’ Retirement Fund is a statewide public retirement fund, but not guaranteed by the state. Therefore, the shortfalls in the annual calculation of actuarially required contributions cannot be paid directly by the state treasurer from the state general fund. It is for this reason that the Constitution grants the legislature the power to ensure that each retirement system is actuarially sound.
With respect to statewide retirement systems, such as the Assessors’ Retirement Fund, the legislature authorizes a variety of funding mechanisms to enable the systems to attain and maintain actuarial soundness, such as direct contributions from employers and employees, ad valorem taxes, dedicated taxes, and revenue sharing.
This Court stated in Louisiana Municipal Association v. State of Louisiana and Firefighters’ Retirement System, 04-0227 (La.1/19/05), 893 So.2d 809, 850-851, that:
... the legislative power of the state is vested in the legislature.
La. Const. art. 10, § 3 . “In its exercise of the entire legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit.” The Louisiana Constitution mandates in Section 29(E) that the legislature must attain and maintain actuarial soundness of the state and statewide public retirement systems. The Louisiana Constitutiondoes not dictate how that actuarial soundness is to be accomplished, nor does it prescribe how the state and statewide public retirement systems are to be funded. The mechanism by which actuarial soundness is achieved is left to the discretion of the legislature.
In my view, it is well within the Legislature‘s discretion to determine how shortfalls will be resolved. It is within the Legislature‘s prerogative to identify a source of funding, and to determine the percentage of the contributions owed by the contributors.
(C) Distribution Formula. The revenue sharing fund shall be distributed annually as provided by law solely on the basis of population and number of homesteads in each parish in proportion to population and the number of homesteads throughout the state. Unless otherwise provided by law, population statistics of the last federal decennial census shall be utilized for this purpose. After deductions in each parish for retirement systems and commissions as authorized by law, the remaining funds, to the extent available, shall be distributed by first priority to the tax recipient bodies within the parish, as defined by law, to offset current losses because of homestead exemptions granted in this Article. Any balance remaining in a parish distribution shall be allocated to the municipalities and tax recipient bodies within each parish as provided by law.
The formula for collecting taxes, as provided in
ON APPLICATION FOR REHEARING
Rehearing denied.
CALOGERO, Chief Justice, Would Grant Rehearing and Assigns Reasons.
Because I would grant the application for rehearing filed by the City of New Orleans and the Honorable R. Ray Nagin, Mayor, in His Individual Capacity (hereinafter referred to collectively as “the City“), I respectfully dissent from the majority‘s decision to deny the application. For the reasons set forth in detail in my dissent to the original opinion, I agree with the City‘s arguments that the current version of
In fact, the majority in this case admitted that the Louisiana Legislature is prohibited by the state constitution from diverting dedicated taxes, but nevertheless found that
As discussed below, my dissent sets forth the only reasonable interpretation of
Further, I agree with the City‘s argument that the court‘s holding that
As I stated in my dissent to the original opinion, the only reasonable interpretation of
For the reasons stated in my dissent to the original majority decision, I also believe that
NOTES
1[1] A brief review of that litigation is helpful in understanding the posture of the present case.
Litigation commenced in 1994 when the Fund filed suit against the City seeking to recover amounts allegedly owed by the City pursuant to
On remand, the district court again declared
2[2]
3[3] The Fund was originally created by 1950 Acts. No. 91, § 1 and consisted of
4[4] Today, the Fund‘s membership extends to assessors, full-time permanent employees of assessors, the secretary and regular employees of the Fund, and permanent employees of the Louisiana Assessors’ Association and the Louisiana Assessors’ Insurance Fund.
5[5]
The actuarial soundness of state and statewide retirement systems shall be attained and maintained and the legislature shall establish, by law, for each state or statewide retirement system, the particular method of actuarial valuation to be employed for purposes of this Section.
6[6] The full text of
For statewide public retirement systems not covered by Paragraphs (A) and (B) of this Section, the legislature shall determine all required contributions to be made by members, contributions to be made by employers, and dedicated taxes required for the sound actuarial maintenance of the systems, including the elimination of the unfunded accrued liability as of the end of the 1988-1989 Fiscal Year, under the method of valuation selected under (1) above, by the year 2029, commencing with Fiscal Year 1989-1990.
Notes
7[7] The constitutional attack in this case is directed only at the statutory provisions addressing “dedicated taxes,” and does not extend to the statutory provisions governing employer contributions,
8[8] We cite
9[9] In fact, the record in this case confirms that the statute can be constitutionally applied. In support of its motion for partial summary judgment, the City introduced a letter from the legislative auditor certifying that, based on the 2005 tax roll, the City owed $1,132,016.15 to the Fund. It also introduced evidence establishing that, with the exception of a “General Municipal Purposes” tax, every tax on which the legislative auditor based its assessment of the City‘s liability to the Fund for the 2005 tax year is dedicated by the constitution, by statute and/or by the electorate for a specific purpose. However, the evidence demonstrates that the 14.91 mill tax for “General Municipal Purposes” generated $38,834,734.61 in revenues in 2005. Thus, the City‘s $1,132,016.15 obligation to the Fund could have been paid entirely with tax revenues not dedicated to a special use.
10[10] Neither does a literal interpretation of the words “authorized by law” produce an absurd result, at odds with the stated purposes of the revenue sharing fund, as suggested by the City. While the stated purpose of the revenue sharing fund is to offset losses due to the homestead exemption, the distribution formula of section 26(C) clearly provides for deductions for retirement systems and commissions before distribution of revenue sharing monies to offset losses. In other words, according to the plain language of the constitutional provision, the purpose of the revenue sharing fund is to offset losses due to the homestead exemption, after deductions for retirement systems and commissions “as authorized by law,” not the other way around.
11[11] In support of its argument, the City cites to dicta in a ruling by Judge Tobias in related litigation, Louisiana Assessors’ Retirement Fund v. City of New Orleans, No. 94-5896, on the docket of the Civil District Court, Parish of Orleans. We do not find the cited language from Judge Tobias persuasive, as the comments appear as dicta in reasons for judgment issued in conjunction with a ruling that ultimately ordered the City to supplement and amend the plea of unconstitutionality to conform to the requirements of
12[12] This judgment was subsequently reversed by this court in Louisiana Assessors’ Retirement Fund v. City of New Orleans, 02-1435 (La.2/7/03), 849 So.2d 1227, and remanded to the district court for further proceedings.
13[13] We do not attempt to rule or comment on any issues or matters that arose or occurred before the 2004 amendment to the statute.
14[14] Moreover, while the City argues that including municipal taxes in the required contributions to the Fund by the City and Parish of Orleans while excluding them from the required contributions from other parishes does not treat alike those taxpayers similarly situated, this argument is unconvincing, given that New Orleans has a consolidated city/parish government and thus is not similarly situated to those parishes in which municipal taxes have not historically appeared on the tax rolls. The City offered no evidence to demonstrate that its taxpayers are treated any differently than those in other consolidated city/parish governments in the state with respect to municipal ad valorem taxes.
15[15] In conjunction with this argument, the City also asserts that the alleged disparate treatment
1[1] Rather the legislature declared in
2[2]
3[3] The revenue sharing provision was placed in the Constitution in order to put beyond the power of the legislature the possible enactment of a prospective statute to invade the revenue sharing fund, a fund that is for the benefit of the tax-recipient bodies throughout the state.
Notes
(E)(3) For statewide public retirement systems not covered by Paragraphs (A) and (B) of this Section, the legislature shall determine all required contributions to be made by members, contributions to be made by employers, and dedicated taxes required for the sound actuarial maintenance of the systems, including the elimination of the unfunded accrued l