Bussie v. Long

• Decision Date: 26 October 1973
• Docket Number: No. 9519,9519
• Citation: 286 So.2d 689
• Parties: Victor A. BUSSIE et ux. v. Blanche Revere LONG and Louisiana Tax Commission et al.
• Court: Court of Appeal of Louisiana — District of US

Page 689

286 So.2d 689

Victor A. BUSSIE et ux. v. Blanche Revere LONG and Louisiana Tax Commission et al.

No. 9519.

Court of Appeal of Louisiana, First Circuit.

Oct. 26, 1973.

Rehearing Denied Nov. 26, 1973.

Writ Refused Jan. 25, 1974.

Kenneth C. DeJean and P. J. Laborde, Asst. Attys. Gen., Baton Rouge, for appellants.

J. D. DeBlieux and Frank Simoneaux, Baton Rouge, and Helen S. Kohlman and Helen Riley, New Orleans, for plaintiff-appellee.

J. Barry Mouton, Lafayette, for intervenor Mouton.

Before LANDRY, ELLIS and PICKETT, JJ.

LANDRY, Judge.

The Louisiana Tax Commission (Commission) appeals from judgment, rendered in this class action brought by plaintiffs, Victor A. and Gertrude Bussie, ordering the Commission to perform duties allegedly imposed by the Constitution and laws of Louisiana regarding the assessment of property at actual cash value for ad valorem tax purposes and equalization of property taxes, effective beginning with all tax rolls submitted subsequent to January 1, 1975. We affirm with an amendment extending compliance time to begin with assessment rolls filed subsequent to January 1, 1976.

This case was filed June 27, 1967, against the then members of the Commission praying that the Commission be mandated to: (1) assess all property in the state at actual cash value for ad valorem tax purposes; (2) fix the percentage of actual cash value on which state ad valorem taxes must be collected and paid, and (3) carry out all provisions of law requiring equalization of assessments. Plaintiffs also requested orders restraining the Commission from approving tax rolls which assessed property at less than actual cash value, and further restraining the Commission from engaging in any actions in concert with parish assessors contrary to law regarding the assessment of property and equalization of taxes.

The named plaintiffs sue on behalf of themselves individually, as citizens and property taxpayers of the State of Louisiana, and on behalf of all other persons similarly situated. They alleged that the rights asserted are common to all property taxpayers who are assessed and pay ad valorem taxes. On July 27, 1967, J. Barry Mouton, Lafayette, Louisiana, intervened on behalf of the Commission .

Defendants filed peremptory exceptions based on plaintiffs' failure to file a sworn itemized list of plaintiffs' property as required by LSA-R.S. 47:1998 and Dixon v. Flournoy, 247 La. 1067, 176 So.2d 138, and plaintiffs' alleged failure to exhaust the right to administrative review as provided for by LSA-R.S. 47:1992. Additionally, defendants filed (1) a dilatory exception based on plaintiffs' failure to allege their domicile; (2) an exception to venue on the ground that Caddo Parish is the correct forum; (3) failure to join indispensable parties on the ground that the assessors in each parish were not made defendants herein, and (4) an exception of no cause of action premised on plaintiff's failure to allege that the assessments of plaintiffs or any member of the class represented exceeded 100% Of actual cash valuation.

Initially the trial court overruled defendants' exception to the venue but sustained the peremptory exceptions based on failure to exhaust the right of administrative review and failure to attach a sworn itemized list of property to plaintiffs' petition. On appeal this court affirmed the decision of the trial court. Bussie v. Long, et al., La.App., 236 So.2d 68. However, writs were granted by the Supreme Court which reversed the decision of this court and the trial court and remanded this matter for trial on the merits. Bussie v. Long, et al., 257 La. 623, 243 So.2d 776 (1971).

On August 25, 1971, the League of Women Voters, a nonprofit corporation, intervened on behalf of plaintiffs. Trial below was held December 13, 1972, at which time all exceptions not theretofore passed upon were overruled by the trial court. On March 22, 1973, the trial court rendered judgment: (1) Decreeing the present system of administering the ad valorem tax laws as contained in La.Const. Article X, Section 1, and numerous statutes, violates the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and Article I, Section 2, of the State Constitution; (2) enjoining the Commission from approving any assessment roll pursuant to LSA-R.S. 47:1993, unless all property listed thereon is assessed at actual cash value, effective commencing with all rolls submitted to the Commission after January 1, 1975; (3) mandating the Commission to immediately take steps to comply with laws requiring assessment of property at actual cash value for ad valorem tax purposes, to secure uniformity and equalization in the assessment of all taxable property throughout the state, and devise and submit to the assessors throughout the state a plan for establishment of actual cash value as the criteria for assessment of property and the achievement of uniformity and equalization of taxes throughout the state. The judgment accorded the Commission a delay until January 1, 1975, to implement the decree.

The Commission has not reurged any of the exceptions overruled by the lower court at the commencement of trial. Both in the trial court and on this appeal, the Commission contends the entire matter has become moot because of the passage of numerous acts by the 1972 general and special sessions of the legislature, all of which will be subsequently considered in detail. In effect, the Commission maintains there is no longer a statewide ad valorem tax, neither is there a constitutional or statutory requirement for assessment of property at actual cash value. The Commission further argues that the mandamus issued herein was improvident in that its directives are impossible of attainment because of the Commission's limited staff and personnel.

The record was lodged in this court on May 22, 1973. Two exceptions of no right of action were filed herein by the Commission on June 15, 1973. The first is based on plaintiff's failure to allege and establish that class members were afforded proper notice and opportunity to either join or oppose the action. It is also claimed that plaintiffs have failed to establish adequate class representation as required by our class action statute.

The Commission's second exception of no right of action is founded on plaintiffs' alleged failure to assert a real and actual interest in the subject matter of this litigation or in the judgment prayed for. The Commission notes that plaintiffs allege the rights sought to be enforced are common to all taxpayers in the state who are assessed and pay ad valorem taxes pursuant to the unlawful and discriminatory practices followed by defendants as claimed by plaintiffs. The Commission notes the 1972 repeal of the state wide ad valorem tax which leaves in force and effect only parish and special district property taxes involving individual parishes or taxing districts composed of one or more parishes. Therefore, the Commission urges, plaintiffs no longer have a common interest with taxpayers outside plaintiffs' parish or such special taxing districts in which plaintiffs own no property.

THE EXCEPTION OF NO RIGHT OF ACTION BASED ON FAILURE TO GIVE NOTICE AND PROVE ADEQUATE CLASS REPRESENTATION

The Louisiana Class Action Statute is contained in LSA-C.C.P. arts . 591--597, inclusive. Article 591 provides as follows:

'A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:

(1) Common to all members of the class; or

(2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.'

The source of the foregoing statute is Rule 23 of the Federal Rules of Civil Procedure. However, the official revision comment to Article 591, above, makes it clear that Louisiana has not adopted the Federal Class Action in its entirety, but has sanctioned only the 'true class action' provided for under Federal Rules. A true class action requires community of interests between the plaintiff and the class he seeks to represent. Verdin v. Thomas, La.App., 191 So.2d 646; Caswell v. Reserve National Insurance Company, La.App., 234 So.2d 250.

An additional requisite for maintenance of a class action is that the member or members bringing suit shall adequately represent the entire class. LSA-C.C.P. art. 592.

A definitive judgment rendered in a properly conducted class action is binding on all members of the class, whether joined or not, provided the members who were joined constitute adequate representation of the class as a whole. LSA-C.C .P. art. 597.

The Commission cites federal authority for the rule that notice is required in all class actions. Conversely, plaintiffs maintain that federal jurisprudence holds notice to be required only in the case of a spurious class action as provided for by F.R.C.P. Rule 23(b)(3), which type of proceeding is not permitted in Louisiana. Therefore, plaintiffs argue, notice is not necessary in the F.R.C.P. 23(b)(1) or true class action, in which category the instant matter falls.

In view of our finding that the exception in question is a dilatory exception of lack of procedural capacity which has been waived because of defendants' failure to plead same prior to answer, it is unnecessary to resolve the conflict noted.

A peremptory exception of no right of action challenges the alleged interest of plaintiff in the subject matter of the litigation. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328. The peremptory exception defeats plaintiff's action. It is not waived by failing to plead it prior to answer as is the case in regard to a dilatory...