State ex rel. Guste v. Legislative Budget Committee

• Decision Date: 27 April 1977
• Docket Number: No. 59726,59726
• Citation: 347 So.2d 160
• Parties: STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General. v. LEGISLATIVE BUDGET COMMITTEE et al.
• Court: Louisiana Supreme Court

Page 160

347 So.2d 160

STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General. v. LEGISLATIVE BUDGET COMMITTEE et al.

No. 59726.

Supreme Court of Louisiana.

April 27, 1977.

Reasons for Judgment May 5, 1977.

Dissenting Opinion June 28, 1977.

Concurring Opinion July 1, 1977.

William D. Brown, Brown, Wicker & Lee, Monroe, Camille F. Gravel, Jr., Christopher J. Roy, Gravel, Roy & Burnes, Alexandria, for defendants-respondents.

William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Donald B. Ensenat, Asst. Attys. Gen., Ronald C. Davis, Staff Atty., Louisiana Dept. of Justice, New Orleans, for plaintiff-applicant.

DIXON, Justice.

On the application of William J. Guste, Jr., Attorney General, plaintiff in the above entitled and numbered cause, we granted writs on the 22nd Day of April, 1977, 345 So.2d 48 to consider the ruling of the district court, which had dismissed the plaintiff's suit on April 7, 1977. Because of representations by the applicant of the urgent nature of the issues, this case was fixed for argument on April 26, 1977.

For reasons to be assigned in a written opinion to be handed down at a later date, the judgment of the district court is affirmed.

OPINION

DIXON, Justice.

On January 3, 1977 the State of Louisiana ex rel. William J. Guste, Jr., Attorney General, filed suit for a declaratory judgment against the Legislative Budget Committee and its individual members, ¹ seeking to have the provisions of R.S. 39:311(A) declared unconstitutional. The Nineteenth Judicial District Court found the statute constitutional and entered judgment dismissing the plaintiff's suit on the merits. The Attorney General applied to this court for a writ of certiorari to review the adverse judgment of the district court. On April 22, 1977 the State's application for a writ of certiorari was granted. State of Louisiana ex rel. Guste, Jr., Attorney General v. Legislative Budget Committee, 345 So.2d 48 (La.). For the reasons set forth below, the judgment of the district court is affirmed.

In 1962 the legislature first created the Legislative Budget Committee. La.Acts 1962, No. 368 § 1, emerg. eff. July 18, 1962, now R.S. 39:311 et seq. With some modifications the committee has been in existence for almost fifteen years. In 1976 the legislature re-enacted R.S. 39:311 et seq. La.Acts 1976, No. 538 § 1. R.S. 39:311 currently provides:

"A. The Legislative Budget Committee is hereby created. The committee shall be composed of twenty-eight members, twelve from the membership of the House of Representatives, twelve from the membership of the Senate, to be appointed by the governor; the chairman of the Appropriations Committee of the House of Representatives; the chairman of the Senate Finance Committee; the speaker of the House of Representatives and the president of the Senate; provided, however, that the speaker of the House of Representatives and the president of the Senate may each authorize one member of their respective bodies to meet with the committee in their absence which person shall serve and exercise full voting privileges as a member of the committee. Of the members appointed from each of the houses of the legislature one shall be appointed from each of the congressional districts in the state; the four additional members appointed from the membership of the House of Representatives and the four additional members appointed from the membership of the Senate shall be selected at large.

"The initial appointments to be made in accordance with the provisions of this Subsection shall be made not later than the first day of September, 1976. The members of the committee shall serve for terms of four years or until their successors are appointed and take office. A vacancy for any cause shall be filled for the unexpired term in the same manner as the original appointment.

"B. The committee shall select a chairman, a vice chairman, sergeant at arms and such other officers and employees as the committee deems necessary.

"C. The members of the committee, as well as such individuals as may be authorized by the speaker of the House of Representatives and/or the president of the Senate to meet in their absence, shall receive the same per diem and travel allowance in the performance of their duties as is provided for members of the legislature."

The functions of the committee are set down in R.S. 39:312 as follows:

"It shall be the duty of the committee, with the assistance of the division of administration and legislative fiscal office, to make such study and examination of matters pertaining to the budgeting of state funds and the revenues, expenditures and fiscal affairs of the state as it deems desirable including the authority to recommend and assist in implementing zero base budgeting by state agencies. The committee shall work with the office of the governor and the division of administration in the preparation of the state budget to be presented to the legislature for its consideration at its regular sessions. It shall make such reports of its findings and recommendations with regard thereto to the legislature as it shall deem advisable. The committee shall have any other duties and responsibilities provided or requested by law." ²

In this suit the plaintiff contends that the authority of the governor to appoint twenty-four of the twenty-eight members of this "legislative" committee, as provided in R.S. 39:311(A), violates the Appointments Clause, La.Const. Art. IV § 5(H), and the Separation of Powers article, La.Const. Art. II §§ 1 and 2, of the Louisiana Constitution. ³

I. The Appointments Clause

Plaintiff contends that the Legislative Budget Committee solely performs legislative functions and that since the "appointments clause" of the Louisiana Constitution limits the governor's power of appointment to the appointment of heads of departments or members of commissions in the executive branch of government, he is precluded from appointing members to this "legislative" committee. The appointments clause is contained in Article IV § 5(H) of the Constitution and provides:

"(1) The governor shall appoint, subject to confirmation by the Senate, the head of each department in the executive branch whose election or appointment is not provided by this constitution and the members of each board and commission in the executive branch whose election or appointment is not provided by this constitution or by law.

"(2) Should the legislature be in regular session, the governor shall submit for confirmation by the Senate the name of an appointee within forty-eight hours after the appointment is made. Failure of the Senate to confirm the appointment, prior to the end of the session, shall constitute rejection.

"(3) If the legislature is not in regular session, the governor may make interim appointments, which shall expire at the end of the next regular session, unless submitted to and confirmed by the Senate during that session.

"(4) A person not confirmed by the Senate shall not be appointed to the same office during any recess of the legislature."

Plaintiff relies upon the recent United States Supreme Court decision of Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley the United States Supreme Court construed the federal Constitution's appointments clause (Art. II § 2, cl. 2) to limit the power to appoint officers exercising executive functions to the President. That case does not support plaintiff's position. The federal article ⁴ differs from our constitutional provision and was utilized in Buckley to prohibit the legislative body from appointing officials to serve on a commission. The court found that members of the Federal Election Commission (granted by statute both rule-making, policy-making, investigative and enforcement power) could not constitutionally be appointed by the legislature, but were officers whose appointment was controlled by Art. II § 2, cl. 2 of the United States Constitution. The separation of powers question in the Buckley case was not whether the executive could appoint legislators to a "commission," but whether the legislature could name executive officers to enforce its laws. ⁵

Plaintiff's argument that the appointments clause limits the governor to appointing only officials exercising executive powers is based upon a misconception of the nature of our state Constitution. The federal Constitution is a document of "enumerated powers" (Amendment X, U.S.Const.). The Louisiana Constitution is different. Complete legislative power, except as limited by the Constitution, lies within the state legislature:

"A general principle of judicial interpretation of a state constitution is that, unlike the federal constitution, a state charter's provisions are not grants of power, they are rather limitations on the power of the people exercised through the state legislature. In its exercise of the entire legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the state constitution, it is necessary to rely upon some particular constitutional provision that limits the power of the legislature to enact the statute assailed." In re Gulf Oxygen Welder's Supply Profit Sharing Plan and Trust Agreement, 297 So.2d 663, 665 (La.1974).

See also Hainkel v. Henry, 313 So.2d 577 (La.1975); Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So.2d 900 (1967).

Involved in this case is the legislative power to grant the governor the right to appoint a number of legislators to serve on the budget committee. Art. IV § 5(H) cannot be construed to mean that the governor can appoint to these and only these executive offices. The section does not provide that the governor may appoint executive officials; nor does it prohibit other appointments by the governor. In fact, Art. IV § 5(K) of the Louisiana Constitution provides that the governor "shall have other powers...