Local Government Law
| Author | Kenneth M. Murchison |
| Position | James E. and Betty M. Phillips Professor of Law, Paul M. Hebert Law Center, Louisiana State University |
| Pages | 275-297 |
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James E. and Betty M. Phillips Professor of Law, Paul M. Hebert Law Center, Louisiana State University.
The 2002-2003 term produced a typically varied assortment of Louisiana appellate decisions involving local governments. As usual, the greatest volume of cases involved tort claims; the appellate courts decided cases involving negligence, 1causation, 2 constructive knowledge,3 comparative fault, 4and various immunity Page 276 defenses. 5 Cases involving civil service6and teacher tenure 7also Page 277 produced a number of appellate decisions, and the term produced an unusually large group of tax cases.8Other significant decisions involved the status of local governments vis-a-vis the state, 9conflicts between governmental entities,10 internal procedures, 11annexation, 12 rights of public officers, 13constitutional protections for employees of Page 278 local governments,14ethics, 15zoning,16 public contracts,17 the open meetings law, 18 and the public records law.19The discussion below Page 279 focuses on the cases involving powers of parishes and municipalities.
Article VI of the Louisiana Constitution of 1974 includes a complicated set of provisions governing the powers of "local governmental subdivision[s]," a term that covers both parishes and municipalities.20 Three separate sections define the powers of local governmental subdivisions,21and two other sections limit the state legislature's power over them.22 In addition, Section 9 qualifies the other provisions by denying certain powers to all local governments and by preserving the police power of the state.23
The three sections defining the powers of parishes and municipalities distinguish three types of local governmental subdivisions that had home rule charters before the adoption of the 1974 Constitution, those that adopt charters after 1974, and "other local governmental subdivisions." Section 4 provides that home rule charters adopted prior to 1974 "remain in effect." It also confirms that parishes and municipalities with such charters "retain the powers, functions, and duties in effect" when the 1974 Constitution was adopted "[e]xcept as inconsistent with this constitution." In addition, Section 4 permits any local government with an existing home rule charter to exercise the powers and functions granted to other local governmental subdivisions "if its charter permits."24 Section 5 allows any parish or municipality to adopt a home rule charter; the charter may authorize the parish or municipality to exercise any power or perform "any function necessary, requisite, or proper for the management of its affairs" so long as the power or function is not Page 280 "denied by general law or inconsistent with this constitution."25Section 7 governs the powers of "other local governmental subdivisions;" that is, parishes and municipalities without home rule charters.26 These local governments may exercise any power or perform any function granted by law. In addition, they may exercise any other power or perform any other function not denied by general law or inconsistent with this constitution if the voters agree that the local government should have the power or function in an election called for that purpose.27
Two provisions limit the power of the legislature over local governments. Section 6 provides a protection that applies only to parishes and municipalities with home rule charters. It forbids the legislature from enacting any law that has the effect of interfering with the "structure and organization or the particular distribution and redistribution of the powers and functions" of a local governmental subdivision with a home rule charter. 28Section 14 precludes the these limitations prohibits the legislature from requiring higher pay for local employees; it, however, is subject to an exception for legislature from imposing certain unfunded mandates on any "political subdivision," a term that includes all local governments, not just parishes and municipalities.29 Probably the most important of these limitations prohibits the legislature from requiring higher pay for local employees;30it, however, is subject to an exception for police officers and municipal fire fighters, two groups for whom the legislature has mandated pay scales in the past.31
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Finally, Section 9 constricts the powers of all parishes and municipalities in two important respects and preserves state primacy in a broad area. Subsection (A) contains the restrictions on local power. It forbids any "parish or municipality" from defining and providing for "the punishment of a felony;" and, "except as provided by law," it bars any local "ordinance governing private or civil relationships."32 Subsection (B) preserves the primacy of state regulatory authority, "Notwithstanding any provision of [Article VI]," it declares that "the police power of the state shall never be abridged."33
The provisions summarized above have provided a steady stream of litigation over the last three decades, much of it involving the city of New Orleans.34 The Louisiana Supreme Court has consistently recognized the constitutional provisions as conferring broad local authority to act without express legislative authority. Some decisions have suggested that local governments with home rule charters enjoyed considerable immunity from state legislative power,35 but Page 282 others have favored state authority in cases of conflict between the state and local governments.36 As early as 1982, the court held that the exception of police and municipal firefighters from Section 14's prohibition on unfunded mandates is an express authorization for state control; thus, it overrides the prohibition in Section 6 against state laws that change the structure and organization of local governments with home rule charters.37More importantly, the court has also relied on Section 9(B), which precludes any abridgement of the police power, to favor the state in cases that involve conflicting state and local policies.38
Two cases from the 2002-2003 term continue the recent trend of favoring state power in conflicts with local governments. In New Orleans Campaign for a Living Wage v. City of New Orleans, the 39 Louisiana Supreme Court held that a state statute prohibiting local governments from establishing a minimum wage rate invalidated the city's minimum wage law. In Cameron Parish Police Jury v. McKeithen,40 the first circuit ruled that state law precluded a parish from establishing gaming activities on any waterway except those designated under state law.
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During the 1990s, urban activists organized "living wage" campaigns in cities across the United States. 41The aim of those campaigns was to have a local government enact a "living wage" applicable to the government's own employees as well as to employees of government contractors and other companies doing business with the local government. The proposed living wage would obligate those employers to pay all of their employees a wage higher than the federal minimum wage law established by the Fair Labor Standards Act.42
The New Orleans campaign had a much broader focus.43 It advocated a local minimum wage law that covered most employees who performed work within the city of New Orleans. The only exceptions were employees who were excluded from the federal minimum wage law, 44city and state employees whose salaries were set by a civil service commission, 45and persons employed on public works contracts.46 The minimum wage proposed for New Orleans was the greater of $6.15 or $1.00 more than the prevailing minimum wage under federal law.
Opponents of the New Orleans proposal sought state assistance. In 1997, the legislature responded by enacting La. R.S. 23:642,47which prohibited any local government from establishing a local minimum wage law. Notwithstanding the new statute, the proponents of a minimum wage for New Orleans continued their campaign. In September 2001, the City Council proposed the local minimum wage requirement as an amendment to the city's home rule charter. On February 2, 2002, the New Orleans electorate approved the proposed amendment in a referendum.48
Proponents and opponents quickly filed competing suits for declaratory judgments regarding the amendments. The two cases Page 284 were consolidated and assigned to Judge Rosemary Ledet of the Orleans Parish Civil District Court. Following a trial on the merits, Judge Ledet upheld the validity of the city's minimum wage law.49
Opponents of the charter amendment argued it was unconstitutional for two reasons. First, they claimed that the minimum wage law provision violated Article VI, Section 9(A) because it was an "ordinance governing private or civil relationships." Second, they contended that the charter amendment violated Article VI, Section 9(B) because it abridged the police power of the state as expressed in the 1997 statute.50
Judge Ledet rejected both arguments. In her view, the charter amendment was not an ordinance governing private or civil relations because it did "conflict with any Louisiana statutory provisions pertaining to substantive rights, enforcement schemes, or remedies affecting civil or private relationships, particularly tort, contract and workers' compensation."51 She also concluded that the amendment was not an abridgement of the state's police power because the opponents of the minimum wage law had failed to prove that the 1997 statute was a valid exercise of the state's police power. In reaching this conclusion, she dismissed as biased the testimony of the expert who had testified in favor of the legislation. Instead, she relied on the testimony on behalf of the proponents of the local minimum wage requirement.52
The Louisiana Supreme Court voted 6-1...
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