Fruge v. BD. OF TRUSTEES OF EMP. RETIREMENT

6 So. 3d 124, 2008 La. LEXIS 2757, 2008 WL 5146611
CourtSupreme Court of Louisiana
DecidedDecember 2, 2008
Docket2008-CA-1270
StatusPublished
Cited by11 cases

This text of 6 So. 3d 124 (Fruge v. BD. OF TRUSTEES OF EMP. RETIREMENT) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fruge v. BD. OF TRUSTEES OF EMP. RETIREMENT, 6 So. 3d 124, 2008 La. LEXIS 2757, 2008 WL 5146611 (La. 2008).

Opinions

WEIMER, Justice.

| tThis declaratory judgment action challenges the validity of 2002 1st Ex.Sess. La. Acts No. 165 (“Act 165”), which amended LSA-R.S. 11:416 and added LSA-R.S. 11:416.1, provisions of the Louisiana State Employees’ Retirement System. The case is before us on direct appeal from a judgment declaring Act 165 unconstitutional on grounds that it was enacted in violation of La. Const, art. X, § 29(C), which requires that notice of any proposal to effect a change in any provisions of the public retirement system be published in the official state journal at least thirty days prior to introduction of the bill in the legislature.

After reviewing the record, the Act, and the constitutional provisions at issue, we find, contrary to the district court, that Act 165 does not suffer from a constitutional infirmity. The publication requirements of La. Const, art. X, § 29(C) apply only to bills introduced in regular sessions of the legislature and do not apply to bills introduced in an extraordinary session. Because Act 165 was introduced and enacted during the 2002 First Extraordinary Session, the Act was not subject to the |-¿publication requirements of La. Const, art. X, § 29(C). The judgment of the district court declaring Act 165 unconstitutional is therefore reversed.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Prior to June 30, 2001, LSA-R.S. 11:416 offered retirees of the Louisiana State Employees’ Retirement System (“LASERS”) who chose to return to state employment certain options with respect to their benefits. During its 2001 Regular Session, the Louisiana legislature passed 2001 La. Acts No. 455 (“Act 455”), which became effective June 30, 2001. Act 455 amended LSA-R.S. 11:416 in several respects.

On March 19, 2002, Governor M.J. “Mike” Foster, Jr. issued Proclamation Number 11 MJF 2002, calling for an extraordinary session of the legislature to convene, beginning on March 25, 2002, for the purpose of legislating on certain specifically enumerated objects. Item 23 of the Proclamation listed as one of the enumerated objects: “To amend and reenact R.S. 11:416 relative to the Louisiana State Employees Retirement System to provide for the reemployment of retirees; and to otherwise provide relative thereto.”

On March 26, 2002, House Bill 130 (“HB-130”) of the 2002 First Extraordinary Session was introduced in the Louisiana House of Representatives. The stated purpose of the bill was “[t]o amend and reenact R.S. 11:416, relative to the Louisi[127]*127ana State Employees Re&ement System; to provide for the reemployment of retirees; to provide for the benefits paid to such retirees; to provide relative to accrual of credit for service; to provide for employer contributions; to provide an option for regaining membership in the system; to provide for reporting; to provide penalties for failure to report; to provide for retirees reemployed pursuant to Act No. 455 of the 2001 Regular Session of the Legislature and for employees who retired prior to the Ineffective date of such Act; and to provide for related matters.” The bill was passed by the legislature and enacted as Act 165 of the 2002 First Extraordinary Session. It became effective May 9, 2002, when Governor Foster failed to sign it within the delays allowed by law.

For the purposes of the instant matter, it is sufficient to note Act 165 changed provisions of Act 455. In addition, Act 165 enacted LSA-R.S. 11:416.1, which applies specifically to those retirees who retired and were rehired during the ten-month period Act 455 was in effect.

On March 5, 2007, this declaratory judgment action was instituted against the Board of Trustees of LASERS. The plaintiff, Elaine Fruge, is an employee of the Department of Corrections who retired on July 19, 2002, two months after the passage of Act 165, and who, as a result, was unable to avail herself of the benefits provided under LSA-R.S. 11:416 prior to its amendment and re-enactment by Act 165. Ms. Fruge’s petition alleges that HB-130 (the bill which later became Act 165) was a proposal to effect a change in existing laws relating to the retirement system for public employees within the meaning of La. Const, art. X, § 29(C), and as such was subject to that constitutional provision’s requirement that notice to introduce the proposal be published, without cost to the state, in the official state journal on two separate days, the last day being at least thirty days prior to introduction of the bill in the legislature. Ms. Fruge’s petition avers that notice of an intention to introduce HB-130 was never published in any official state journal, and thus no thirty day delay occurred between publication of the notice and introduction of the bill on March 26, 2002. In addition, Ms. Fruge alleges that the legislation does not contain a recital that the publication requirements of La. Const, art. X, § 29(C) were met, all as required by the constitution. Accordingly, Ms. Fruge sought a declaratory judgment declaring |4Act 165 of the 2002 First Extraordinary Session unconstitutional. In addition, she sought a judgment declaring her immediate eligibility for the benefits provided under LSA-R.S. 11:416 prior to its amendment and reenactment by Act 165.

Following the district court’s overruling of a peremptory exception of no cause of action filed by LASERS, Ms. Fruge filed a motion for - summary judgment in which she argued that Act 165 was enacted without complying with the notice and publication requirements of La. Const, art. X, § 29(C), and that the Act is therefore unconstitutional, null, void, and unenforceable. LASERS responded by filing a cross-motion for summary judgment, not disputing Ms. Fruge’s contention of noncompliance with the provisions of La. Const, art. X, § 29(C), but asserting that those provisions do not apply to legislation such as HB-130 (the bill which later became Act 165), introduced during extraordinary sessions of the legislature.

After a hearing on March 24, 2008, the district court denied the motion for summary judgment filed by LASERS, and granted Ms. Fruge’s motion for summary judgment, declaring Act 165 of the 2002 First Extraordinary Session unconstitutional on grounds that it was enacted with[128]*128out complying with the notice, publication, and recital requirements of La. Const, art. X, § 29(C). Consistent with its findings, the district court signed a written judgment, dated May 14, 2008, in which it declared Act 165 of the 2002 First Extraordinary Session unconstitutional, null, void, and unenforceable, and decreed Ms. Fruge to be immediately eligible for the retire/rehire benefits provided under LSA-R.S. 11:416, as the statute existed prior to its amendment and re-enactment by Act 165.

| fjLASERS suspensively appealed the district court judgment to this court, which has jurisdiction over the appeal pursuant to La. Const, art. Y, § 5(D).1

LAW AND ANALYSIS

Principles of Review for Constitutionality

This court reviews judgments declaring a statute unconstitutional de novo. State v. All Property and Casualty Insurance Camers Authorized, and Licensed to do Business in State, 06-2030, p. 6 (La 8/25/06), 937 So.2d 313, 319; Louisiana Municipal Association v. State, 04-0227, p. 45 (La.1/19/05), 893 So.2d 809, 842. In conjunction with this review, certain principles apply. As a general rule, statutes are presumed to be constitutional; therefore, the party challenging the validity of a statute has the burden of proving its unconstitutionality. State v. Citizen, 04-1841, p.

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6 So. 3d 124, 2008 La. LEXIS 2757, 2008 WL 5146611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fruge-v-bd-of-trustees-of-emp-retirement-la-2008.