GREATER NEW ORLEANS EXP. COM'N v. Olivier, 2004-CA-2147.
| Decision Date | 19 January 2005 |
| Docket Number | No. 2004-CA-2147.,2004-CA-2147. |
| Citation | 892 So.2d 570 |
| Parties | GREATER NEW ORLEANS EXPRESSWAY COMMISSION v. Honorable Rebecca M. OLIVIER, Judge, First Parish Court, Division "A" and Honorable George W. Giacobbe, Judge, First Parish Court, Division "B". |
| Court | Louisiana Supreme Court |
McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Thomas P. Anzelmo, Sr., Burgess E. McCranie, Jr., Kyle Paul Kirsch, Metairie, for applicant.
Stanley, Flanagan & Reuter, LLC, Richard Charles Stanley, Jennifer L. Thornton, William M. Ross, Donald H. Knecht, Jr., New Orleans, for respondent.
This case presents the issue of whether Louisiana law permits a judge to refuse to perform a statutory duty that is ministerial in nature, presumably in order to precipitate a mandamus action in which the judge will have the opportunity to argue that the statute is not constitutional. We hold that a judicial officer, like any other public officer, lacks standing to raise the constitutionality of a statute as a defense in a mandamus action seeking to compel the performance of duties that are mandated by statute and ministerial in nature. Thus, defendants here were without standing to raise the issue of the constitutionality of La.Rev.Stat. 32:57(G), and the district court erred in considering this argument.
FACTS AND PROCEDURAL HISTORY:
The plaintiff in this case, Greater New Orleans Expressway Commission ("the Commission"), is responsible for policing the Huey P. Long Bridge and operating, maintaining, and policing the Lake Ponchartrain Causeway Bridge. In December 2001, the Commission filed a petition for writ of mandamus against the defendants, two First Parish Court judges, to compel them to collect costs from certain traffic violators, as required by La.Rev.Stat. 32:57(G). The judges had refused to collect this cost, believing that the statute was unconstitutional.
Under La.Rev.Stat. 32:57(G)(1), a "cost" of five dollars1 shall be collected from "any person who is found guilty, pleads guilty, or pleads nolo contendere to any motor vehicle offense when the citation was issued for a violation on the Huey P. Long Bridge or the Lake Pontchartrain Causeway Bridge or approaches to and from such bridges." The five dollar cost only applies, however, where the citation was issued by Commission police officers. Id.2 The proceeds are initially to be deposited in the state treasury, then later moved into a "special fund" known as the Greater New Orleans Expressway Commission Additional Cost Fund. Id. (G)(2). The statute then directs the legislature to appropriate all money in the special fund to the Commission to "supplement the salaries of P.O.S.T. certified officers and for the acquisition or upkeep of police equipment." Id.
The district court denied the Commission's petition for mandamus. In its reasons for judgment, the court found that the defendants had standing to question the constitutionality of the statute, and that the statute violated several provisions of the constitution.3 The Commission appealed this judgment directly to this court. We held that we lacked jurisdiction to hear the appeal under La. Const. art. V, § 5(D), because the district court's declaration of unconstitutionality appeared only in the reasons for judgment, and not in the judgment itself. Greater New OrleansExpressway Comm'n v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22, 24. Because this court lacked jurisdiction, we transferred the appeal to the Fifth Circuit Court of Appeal. Id. The Fifth Circuit held that, although it possessed appellate jurisdiction over the case, it could not consider the district court's determination that the statute was unconstitutional because this determination did not appear in the court's judgment. Greater New Orleans Expressway Comm'n v. Olivier, 04-79 (La.App. 5 Cir. 5/26/04), 875 So.2d 876, 878.4 Thus, the Fifth Circuit dismissed the appeal and remanded to the district court to modify its judgment to incorporate the declaration of unconstitutionality. Id.
On remand, the district court amended its judgment to state that "La. R.S. 32:57(G) is unconstitutional for the reasons set forth in the Court's Reasons for Judgment dated March 5, 2002." The Commission has appealed to this court, challenging the district court's judgment on three grounds: (1) the court improperly held that defendants had standing to raise the issue of the constitutionality of the statute; (2) the court erred in declaring the statute unconstitutional; and (3) the court erred in denying the Commission's petition for writ of mandamus. Because the district court declared La.Rev.Stat. 32:57 unconstitutional, we have appellate jurisdiction pursuant to La. Const. art. V, § 5(D) to consider the propriety of the trial court's judgment.
DISCUSSION:
Before addressing the district court's holdings that La.Rev.Stat. 32:57 is unconstitutional and that the Commission was not entitled to mandamus relief, we must first consider the court's determination that these judges, as defendants in a mandamus proceeding, had standing to challenge the constitutionality of the statute. This is so because this court may only consider a constitutional issue where "`the procedural posture of the case and the relief sought by the appellant demand that [it] do so.'" State v. Mercadel, XXXX-XXXX (La.5/25/04), 874 So.2d 829, 834 (quoting Ring v. State, DOTD, XXXX-XXXX (La.1/14/03), 835 So.2d 423, 428). Among the threshold requirements that must be satisfied before reaching a constitutional issue is the requirement that the party seeking a declaration of unconstitutionality have standing to raise a constitutional challenge. Id. The requirement of standing serves to facilitate deference to the legislature in matters within the legislature's purview. Because legislators owe the same duty to obey and uphold the constitution as do judges, legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation, and legislative acts are presumed constitutional "until declared otherwise in proceedings brought contradictorily between interested persons." State v. Bd. of Supervisors, La. State Univ. & Agric. & Mechanical College, 228 La. 951, 84 So.2d 597, 600 (1955).
This court has explained that a party has standing to argue that a statute violates the constitution only where the statute "seriously affects" the party's own rights. Mercadel, 874 So.2d at 834 (quoting Latour v. State, XXXX-XXXX (La.1/29/01), 778 So.2d 557, 560); see also Bd. of Supervisors,84 So.2d at 600 (). To have standing, a party must complain of a constitutional defect in the application of the statute to him or herself, not of a defect in its application to "third parties in hypothetical situations." Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23, 29 (citing cases).
On several occasions, this court has considered how the doctrine of standing applies to a public official who is a party to a mandamus action seeking performance of statutory duties, and who attempts to justify his or her nonperformance on the grounds that the statute violates the constitution. In State ex rel. New Orleans Canal & Banking Co. v. Heard, 18 So. 746, 746 (La.1895), the relators sought a writ of mandamus to compel certain state executive officers, including the State Auditor and the State Treasurer, to warrant and pay amounts owed from the surplus interest fund of 1889, as required by statute. The relators claimed that they, acting as fiscal agents of the state, paid $2,616 apiece to holders of interest coupons on consolidated bonds issued by the state, and sought reimbursement of these payments pursuant to Concurrent Resolution No. 182 of the General Assembly of 1894. Id. In defense of their failure to reimburse relators from the surplus interest fund, the executive officers argued that Concurrent Resolution No. 182 was unconstitutional. Id. at 746. After reviewing relevant jurisprudence, the court concluded that the executive officers did not have standing to assert the unconstitutionality of Concurrent Resolution No. 182. Id. at 751. The court stated:
[W]e feel fully confirmed in the correctness of the conclusion [] ... that executive officers of the state government have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the constitution. Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as, constitutional and legal, until their unconstitutionality or illegality has been judicially established; for in a well-regulated government obedience to its laws by executive officers is absolutely essential and of paramount importance. Were it not so, the most inextricable confusion would inevitably result, and `produce such collision in the administration of public affairs as to materially impede the proper and necessary operations of government.' It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it. The result of this conclusion is that respondents are without right to urge the unconstitutionality of the concurrent resolution which is involved.
Id. at 751. Having found that the executive officers lacked standing, the court did not consider their constitutional challenge to the statute.
In Dore v. Tugwell, 228 La. 807, 84 So.2d 199 (1955), we revisited the issue of a public official's standing to raise a constitutional challenge in a mandamus action seeking to compel the performance of statutory duties. The widows of two judges applied for mandamus to compel the State Auditor and State Treasurer to pay them widows' pensions as required by La.Rev.Stat. 13:5. Id. at 200. The state officers argued that the statute authorizing payment of the pensions was unconstitutional. Id. at 201. This court...
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