Kohler v. Tugwell

• Court: U.S. District Court — Eastern District of Louisiana
• Writing for the Court: WISDOM, Circuit , and BOYLE and RUBIN
• Citation: Kohler v. Tugwell, 292 F.Supp. 978 (E.D. La. 1969)
• Decision Date: 24 February 1969
• Docket Number: Civ. A. No. 68-253.
• Parties: Claude L. KOHLER, David L. Burnes and Rene S. Wogan, individually and as citizens, taxpayers and voters of the State of Louisiana, for themselves and all other persons similarly situated and the Penniston-General Taylor Association and the Uptown Civic Association, Plaintiffs, v. A. P. TUGWELL, individually and as Treasurer of the State of Louisiana, Neville Levy, individually and as Chairman of the Mississippi River Bridge Authority and/or the Greater New Orleans Mississippi River Bridge Authority and Arsene L. Stewart, individually and as Director of the Department of Highways for the State of Louisiana and John J. McKeithen, individually and as Governor of the State of Louisiana, and their successors in office, Defendants.

292 F. Supp. 978

Claude L. KOHLER, David L. Burnes and Rene S. Wogan, individually and as citizens, taxpayers and voters of the State of Louisiana, for themselves and all other persons similarly situated and the Penniston-General Taylor Association and the Uptown Civic Association, Plaintiffs, v. A. P. TUGWELL, individually and as Treasurer of the State of Louisiana, Neville Levy, individually and as Chairman of the Mississippi River Bridge Authority and/or the Greater New Orleans Mississippi River Bridge Authority and Arsene L. Stewart, individually and as Director of the Department of Highways for the State of Louisiana and John J. McKeithen, individually and as Governor of the State of Louisiana, and their successors in office, Defendants.

Civ. A. No. 68-253.

United States District Court E. D. Louisiana, New Orleans Division.

October 24, 1968.

Judgment Affirmed February 24, 1969.

Donald V. Organ, New Orleans, La., for plaintiffs.

Jack P. Gremillion, William P. Schuler, Baton Rouge, La., William P. Curry, Jr., Louis B. Porterie, Jesse S. Guillot, New Orleans, La., for defendants.

Before WISDOM, Circuit Judge, and BOYLE and RUBIN, District Judges.

Judgment Affirmed February 24, 1969. See 89 S.Ct. 879.

RUBIN, District Judge:

Louisiana citizens seek an injunction prohibiting any action under the authority of a state constitutional amendment adopted in 1966 on the ground that the designation of the amendment as it appeared on the state ballot misled voters. Hence, they contend that those who voted in favor of the enactment were deprived of their right to vote, and were denied both Due Process of Law¹ and the right to a Republican Form of Government.²

In 1952 Louisiana's voters adopted a constitutional amendment to authorize the dedication of state revenues to supplement the financing of a toll bridge. After the bridge was built, some of its users objected to the payment of tolls. During the 1964 gubernatorial campaign, one of the candidates promised that, if he were elected, passage on the bridge would be free. Upon his election, the Governor kept his promise. He approved a contract between the Mississippi River Bridge Authority and the State of Louisiana Department of Highways.³ This provided that State highway funds would be paid to service the bonds and tolls would not be collected so long as this was done.

Later the Mississippi River Bridge Authority began to plan the possible construction of additional bridges across the river in the New Orleans area, and it was necessary to amend the Constitution to permit the further pledge of state funds to assist in financing the construction of any new bridge.

Accordingly, on November 8, 1966, Louisiana's citizens were presented with the proposal as part of a ballot containing forty-four other proposed amendments to their Constitution,⁴ already the longest in the Union.⁵ Proposed Amendment 26 was identified on the ballot as follows:

"For or Against:"

"The proposed amendment to Article VI, Section 22(a) (4) of the Louisiana Constitution to amend so as to provide for a dedication of funds to the police jury of the parish of Tangipahoa and a dedication of funds to the St. Charles-St. John the Baptist Bridge and Ferry Authority and so as to provide for funds for additional river crossings across the Mississippi River at or near New Orleans for so long a time as any bonds, whatsoever are outstanding in connection with any such bridge and reimposing reasonable tolls on all bridges and facilities of the Greater New Orleans Mississippi River Bridge Authority." (Emphasis supplied.)

Louisiana's constitution requires that proposed constitutional amendments be submitted to the voters but mentions the manner in which they are to be described only by stating that amendments "shall be so submitted as to enable the electors to vote on each amendment separately."⁶ However, the State Constitution does require⁷ the full text of each proposed amendment to be published in a newspaper in each of the state's sixty-four parishes twice during a period at least thirty and not more than sixty days before the election, and this was done.

The plaintiffs contend that the language in the ballot's description of Amendment 26 led voters to believe that tolls would be reimposed on the existing bridge as soon as the constitutional amendment became effective, twenty days after issuance of the Governor's proclamation declaring its passage,⁸ when in fact the amendment contains no requirement that tolls be reimposed. They urge that voters were misled, for the ballot description would lead the average voter to read the words ". . . and reimposing reasonable tolls on all bridges" to mean as soon as this amendment becomes effective.

The defendants read the ballot designation as saying that the amendment is "to provide for * * * reimposing reasonable tolls," finding the inference in the text that the tolls will be reimposed when additional bridges are built.

The relevant part of the amendment itself first provides for the payment of certain sums from State Highway Fund No. 2 to the Parish of Tangipahoa and to the St. Charles—St. John the Baptist Bridge and Ferry Authority. Then it states:

"* * * provided that the foregoing $100,000.00 annual payment to the governing authority of the parish of Tangipahoa and the foregoing $150,000.00 annual payment to the St. Charles—St. John the Baptist Bridge and Ferry Authority shall in no event become due and payable unless and until presently outstanding bonds of the Mississippi River Bridge Authority are paid or refunded in full in principal and interest in order for the building of an additional Bridge or Bridges within the Jurisdiction of the Mississippi River Bridge Authority for which financing the imposition or re-imposition of tolls is required."

It is charitable to say the language of this clause insofar as it relates to "the building of an additional Bridge or Bridges" is inartistic. These words seem to us, in Judge Learned Hand's memorable phrase, to "dance before our eyes in a meaningless procession * * * leaving in our minds only a confused sense of some vitally important, but successfully concealed purport * * *."⁹ At best ambiguous, they may in fact be unintelligible. But no issue of their interpretation is raised here, and whether meaning can be found in them is a matter for the Louisiana courts.¹⁰

So far as we can divine the intended meaning without resorting to haruspication, we surmise that the provision merely suspends any payments to the designated parochial authorities until after payment in full of all bridge bonds outstanding when the amendment was adopted and of all bonds issued subsequent to its passage financed by the imposition or reimposition of tolls. If so, the constitutional amendment makes no requirement that tolls be reimposed at any time, although the exigencies of financing and the demands of bond buyers may as a practical matter make the levying of tolls inescapable.

It is apparent that the text is so turgid that it would be difficult to say that any ballot designation could describe it accurately. The voters could attempt to derive their own interpretations from the entire text of the proposed amendment, which was published twice in every parish in the state. The language that appeared on the ballot was not phrased by some official¹¹ but was set forth verbatim in the legislative act that proposed the constitutional amendment. What appeared on the ballot was sufficient to tell the voters what the complicated constitutional amendment was about. It was up to them to study its exact text.

The issue before us is not a proposition for grammarians. If the average voter had to decide what he was voting on from the ballot alone, he might well have read it as the plaintiffs do. But he did not have to decide from this summary. He could look at the amendment itself.

The ballot, as will appear from Appendix A, was long. No one who has voted in any election at which voting machines are used can fail to know that Louisiana's voters, once they stand before a voting machine in a voting booth, are not likely to be able to study the description of each proposition on the ballot. They must come to the polls prepared in advance to vote on the amendments if they are to vote with any semblance of understanding.

The requirements of both the Louisiana Constitution and the Federal Constitution were interpreted by the Louisiana Supreme Court in Hotard v. City of New Orleans¹² to mean: "All that is required to be printed on the ballot is sufficient information to identify the proposed amendment which the voter is voting for or against."¹³ "Undeniably," as the United States Supreme Court said, in Reynolds v. Sims,¹⁴ "the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections." However, a federal court must not interfere with the internal affairs of a State unless it is necessary to do so to protect those rights guaranteed every citizen by the Federal Constitution.¹⁵ The procedure followed by Louisiana does not deprive the plaintiffs of Due Process for it is sufficient that Louisiana's voters were informed by the ballot of the subject of the amendment, were given a fair opportunity by publication to consider its full text, and were not deceived by the ballot's words.

Nor did Louisiana deny the plaintiffs their right to a Republican Form of Government. Article IV, Section 4, of the Constitution provides, "The United States shall guarantee to every State in this Union a Republican Form of Government." My brothers and I agree that the state action here challenged does not invade the plaintiffs' rights under the Guaranty Clause for the same reasons as those we have stated with respect to due process. But we differ on whether there is another and more fundamental reason why the plaintiffs may not successfully invoke the Guaranty Clause.

Ever since the decision in Luther...