Francis v. Morial
| Citation | 455 So.2d 1168 |
| Decision Date | 10 September 1984 |
| Docket Number | No. 84-CA-0159,84-CA-0159 |
| Parties | Norman C. FRANCIS, et al v. Ernest N. MORIAL, et al. |
| Court | Supreme Court of Louisiana |
Mack E. Barham, John Whitney, Thomas G. Gruenert, Barham & Churchill, George W. Reese, Charles H. White, New Orleans, for plaintiffs-appellees.
H.A. Vondenstein, Parish Atty., James S. Arceneaux, Asst. Parish Atty., George Giacobbe, Kenner, Harry J. Morel, Jr., Dist. Atty., Steve Griffith, Asst. Dist. Atty., William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Melissa F. Keegan, Staff Atty., New Orleans, for defendant-appellants.
Salvador Anzelmo, City Atty., Thomas W. Milliner, Deputy City Atty., for Defendant-Appellees.
We are called upon to decide whether an act of the legislature altering the procedure for selecting members of a home rule municipality's administrative board should be upheld as necessary to prevent abridgement of a reasonable exercise of the state's police power or stricken as an interference with local deployment of home rule charter powers and functions prohibited by the state constitution. A suit was brought by the present members of the municipal board to have the statute declared unconstitutional and to enjoin its enforcement. After a hearing, the trial court declared the act unconstitutional and permanently enjoined its implementation. The attorney general intervened to assert and protect the rights and interests of the state, La.Const., Art. IV, Sec. 8, and appealed directly to this court. La.Const., Art. V, Sec. 5(D). We affirm. The Louisiana Constitution of 1974 delegates powers and functions to home rule charter governments and grants them the discretion to deploy their powers and functions on the local level. The legislature by a general law may deny or revoke the initial delegation of home rule powers and functions; no law may revoke, change or affect a home rule government's discretion to deploy its powers and functions, however, unless it is necessary to prevent an abridgement of the reasonable exercise of the state's police power. The act of the legislature in the present case is prohibited by the constitution because it changes the distribution and organization of home rule powers and functions and is not reasonably necessary and appropriate for the accomplishment of a legitimate object of the police power.
The City of New Orleans, located in the parish of Orleans, owns and operates an airport located in the City of Kenner and the parishes of Jefferson and St. Charles. The New Orleans home rule charter establishes an aviation board consisting of five members to be appointed by the Mayor with the approval of the city council. The charter provides that the functions of the board shall be to administer, operate and maintain all city airports, represent the City in all aeronautical consultations with state, national or international agencies, and appoint an Aviation Director to serve at its pleasure. Charter Sec. 5-702. Before adoption of the 1974 Louisiana Constitution, the legislature by Act 424 of 1972 expanded the board to nine members and prescribed, in effect, that two members must either reside or have a business located in Jefferson and St. Charles Parishes. The constitutionality of this change in composition and residence or principal place of business requirement is not challenged by this lawsuit.
The act in question in this case, Act 25 of 1983, amended and reenacted the prior law by changing and affecting the membership of any airport board of a city located outside the parochial site of its airport, in pertinent part, as follows: (a) the board shall include one additional member, to be appointed by the mayor and approved by the governing authority, from a list of two names submitted by the chief executive of each parish in which the airport is located; (b) if the airport is located within a municipality, the board shall include two additional members to be appointed from a list of four names submitted by the mayor of the municipality in which any part of the airport is located; (c) if the mayor of the city which owns the airport fails to make the appointments timely upon receipt of the lists or if the governing authority fails to approve his appointments timely, the chief executives and the mayor submitting the lists shall make the appointments with approval of their respective governing authorities.
New Orleans is the only city affected by this legislation. In effect, the statute permits the City of Kenner, the Parish of Jefferson and the Parish of St. Charles to choose four of the nine members of the New Orleans aviation board.
Before any appointments were made pursuant to the act, the members of the New Orleans Aviation Board brought this suit to have the statute declared unconstitutional. After a hearing, the trial court declared the statute unconstitutional and enjoined its enforcement. In oral reasons for judgment, the trial court declared the act unconstitutional as an invasion of a home rule charter which changed and affected the structure and organization of the local government. The attorney general intervened and appealed.
Article VI of the 1974 Louisiana Constitution promotes the autonomy of home rule governments by delegating to them broad revocable powers and functions. Section 4 permits each preexisting home rule charter government to retain the powers, functions and duties in effect in its charter when the constitution was adopted, except as inconsistent with the constitution, and to add to its charter any power or function granted by the constitution to other local governments if its charter permits. 1 Section 5 sets forth procedures by which a home rule charter may be adopted and authorizes a home rule government to assume any power or function necessary, requisite or proper for the management of its affairs, not denied by general law or inconsistent with the constitution. 2 Consequently, a home rule charter government possesses, in affairs of local concern, powers which within its jurisdiction are as broad as that of the state, except when limited by the constitution, laws permitted by the constitution, or its own home rule charter.
The constitution in article VI also fosters local self-government by granting to home rule bodies the discretion to deploy their powers and functions on the local level, which may not be revoked, changed or affected by law unless necessary to prevent an abridgement of the reasonable exercise of the state's police power. Section 6 provides that no law shall change or affect the structure and organization or the particular distribution and redistribution of the powers and functions of such local governments. 3 Section 9(B) provides that, notwithstanding any provision of Article VI, the police power of the state shall never be abridged. In the present case, the tension between home rule discretion and state police power calls upon us to reach a more complete understanding of these concepts in order to accommodate these constitutionally protected interests.
Section 6 was added to the local government article to protect home rule charter governments from unwarrantable interference in their internal affairs by state government. It is clear from the convention proceedings and the words of Section 6 that it was intended to prevent the legislature from substituting its judgment for that of the home rule government with respect to the arrangement of the various offices, departments, agencies and elements of the local government, and as to the assignment, allocation or distribution of purposes, work, authority and capacities among them. Unless the constitution elsewhere provides justification for such an intrusion, any state law which changes or affects, i.e., produces an alteration in or material influence upon, the local government's structure and organization or the distribution or redistribution of its powers and functions is prohibited. VII Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 1341, 1361 [hereinafter referred to as Records]. See also Murchison, Developments in the Law, 1982-1983--Local Government Law, 44 La.L.Rev. 373, 389 (1983); Murchison, Developments in the Law, 1979-1980--Local Government Law, 41 La.L.Rev. 483, 485 (1981); Kean, Local Government and Home Rule, 21 Loy.L.Rev. 63, 66 (1975); Comment, Exclusive Powers of Louisiana Home Rule Municipalities and Parishes, 23 Loy.L.Rev. 961 (1977).
As a counterbalance, to preclude the danger that the powers and defenses afforded local government would be used to deprive the state government of its necessary inherent powers, Article VI, Section 9(B) provides that "[n]otwithstanding any provision of this Article, the police power of the state shall never be abridged." This provision is almost identical to formulations set forth in the 1913, 1918, and 1921 Louisiana constitutions. 4 After tentatively adopting a different, perhaps more expansive affirmation of police power 5, the framers of the 1974 Louisiana constitution ultimately opted to retain the traditional language and its more settled meaning. 6
The decisions of this court and others establish principles governing the exercise of the police power and the prevention of its abridgement with which the delegates were familiar. Although the police power is not susceptible to precise definition except on a case by case basis, it has been described generally as the inherent power of the state to govern persons and things, within constitutional limits, for the promotion of general security, health, morals and welfare. Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943); State v. Malory, 168 La. 742, 123 So. 310 (1929); VII Records 1445 (statement of Delegate Avant), 1454 (statement of Delegate Casey). The police power extends only to such measures as are reasonable, however, and all police regulations must be reasonable under all the circumstances. Schwegmann Bros. v. La. Bd. of Alcoholic...
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