Smith v. Parish of East Baton Rouge

515 So. 2d 632, 1987 La. App. LEXIS 10397
CourtLouisiana Court of Appeal
DecidedOctober 14, 1987
DocketNo. CA871088
StatusPublished
Cited by5 cases

This text of 515 So. 2d 632 (Smith v. Parish of East Baton Rouge) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Parish of East Baton Rouge, 515 So. 2d 632, 1987 La. App. LEXIS 10397 (La. Ct. App. 1987).

Opinion

LANIER, Judge.

This is a suit to determine the validity of governmental bonds pursuant to La.R.S. 13:5121 et seq. After conducting a hearing as provided for in La.R.S. 13:5126, the trial court dismissed the suit because the plaintiff failed to prove his standing to bring the suit and because it found the bonds were legally valid. The plaintiff appealed to this court pursuant to La.R.S. 13:5128. The defendants filed a motion to dismiss the appeal because the plaintiff’s appellate brief was not filed timely pursuant to La.R. S. 13:5128. This court ruled the motion to dismiss the appeal was without merit and the trial court judgment was correct because the plaintiff failed to prove his standing to bring this suit. Smith v. Parish of East Baton Rouge, 509 So.2d 24 (La.App. 1st Cir.1987). This court declined to pass on the merits of the validity of the bonds because it was unnecessary to a decision in the case. This court declined to order a remand to the trial court to take evidence on the issue of the plaintiff’s standing to sue. On the plaintiff's application, the Louisiana Supreme Court granted a peremptory writ which remanded this action “to the district court for an expedited hearing to entertain evidence on plaintiff’s standing to sue.” Smith v. Parish of East Baton Rouge, 510 So.2d 1 (La.1987). On [633]*633remand, the parties stipulated facts which established the plaintiffs standing to sue, and the trial court rendered judgment vacating that portion of its judgment which held the plaintiff had failed to prove standing. The plaintiff again appealed to this court. The defendants filed a motion to dismiss this appeal, asserting that it is moot because the bond issue sought to be invalidated herein by the plaintiff has been rescinded.

FACTS

The basic facts of this action are set forth in Smith, 509 So.2d at 25-26, as follows:

On May 15, 1985, the East Baton Rouge Parish Metropolitan Council (Council), in its capacity as the governing authority of the City of Baton Rouge (City), the Parish of East Baton Rouge (Parish) and the Greater Baton Rouge Consolidated Sewerage District (District) adopted Ordinance 7853, authorizing the levy and collection of sewer user fees from all residential and business users of the sewerage system serving the Parish. Under Ordinance 7853, the revenues collected from the user fees could be used to pay the ‘cost of administration, operation, maintenance, depreciation, replacement, extension and improvement of the Sewerage System, including any payments required by the provisions of any resolution authorizing the issuance of sewerage revenue bonds.’
On October 8, 1986, by Resolution 25577, the Council, again acting as the governing authority of the City, the Parish and the District, approved an Intergovernmental Agreement by and among the City, the Parish and the District, pursuant to which the East Baton Rouge Sewerage Commission (Commission) was created, and the Council named itself the governing authority of the Commission. Under the Intergovernmental Agreement, the Council authorized the newly created Commission to ‘construct, acquire, extend, improve, use, operate and maintain’ the sewerage system of the Parish and ‘receive and dispose of the revenues of the System.’ The Intergovernmental Agreement also authorized the Commission to issue revenue bonds to pay the cost of construction and acquisition of certain major capital improvements to the sewerage system of the Parish. The Intergovernmental Agreement obligates the Parish to continue to operate and maintain the sewerage system for a period of forty years. In addition to the Parish’s obligations to operate, maintain and improve the sewerage system on behalf of the Commission, the Intergovernmental Agreement also obligates the Parish, for the forty year term of the contract, to annually appropriate and pay $8,000,000 of the costs of operation and maintenance of the sewerage system.
On the same day it adopted Resolution 25577, the Council, in its capacity as the governing body of the Commission, adopted a resolution authorizing the issuance of sewer revenue bonds, not to exceed $60,000,000, maturing in annual installments of principal over a period of twenty-five years and payable from, and secured by, a ‘pledge of and a lien upon, that portion of the Gross Revenues which shall remain after paying the cost of operation and maintenance of the System.’ By a supplemental resolution of October 15, 1986, the Council, as governing body of the Commission, authorized the actual sale of $55,000,000 of sewerage revenue bonds.
This suit was filed by T. Frank Smith on November 13, 1986, against the Parish and the Commission.

MOTION TO DISMISS APPEAL AS MOOT

The defendants, Parish and Commission, contend that the appeal is moot because the authority for the $55,000,000 bond issue has been rescinded and the bond issue can-celled by Resolution 7 of the Parish and Commission, enacted on July 15,1987. The plaintiff concedes that the $55,000,000 bond issue has been abandoned but asserts this action is not moot for several reasons. The plaintiff asserts that, on the same day the $55,000,000 bond issue was abandoned, the [634]*634Commission authorized a new $70,000,000 bond issue, and this new bond issue is invalid for most of the same reasons that the $55,000,000 bond issue was invalid. In particular, the plaintiff asserts the Intergovernmental Agreement with its illegal forty-year commitment of an $8,000,000 annual payment from the Parish general fund remains in effect as a source of financing the new bond issue. Plaintiff then argues as follows:

The defendants’ continuing, long-term encumberment of Parish general funds to secure revenue bonds constitutes an on-going and existing controvery [sic] and a ruling declaring such practice and obligation unconstitutional or in violation of statutory norms will provide the practical relief requested by plaintiffs in the instant case. Defendants have expressed a present intention to continue the Parish’s general fund commitment and their resolutions and actions since suit was initiated in this case demonstrate beyond doubt the continuance of a live and on-going controversy demanding resolution by this Court on its merits.

Plaintiff then asserts that “[t]he repeal of the $55,000,000 bond issue and substitution on the same day of an identical $70,000,000 bond issue is evidence of their intention to continue forward on the same track and to thwart plaintiffs’ efforts to get a court determination of the legal issues raised in the instant case” and that the “Bond validation procedure, authorized ... to provide a quick, fair and definitive determination of the validity of bonds and the sources of security for the payment of bonds is completely undermined if an issuer of bonds can simply abandon a bond issue once challenged and immediately resurrect it in slightly different form to avoid and evade the constitutionally granted right of taxpayers to test its validity and security.” [Footnote omitted.] In a supplemental brief, the defendants have responded to the plaintiff with the following argument:

It is clear, however, the only appropriate procedure and forum for his would-be attack on subsequent bond issues, is to bring an action to invalidate the subsequent bond issues before the 19th Judicial District Court under R.S. 13:5121, et seq.

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Bluebook (online)
515 So. 2d 632, 1987 La. App. LEXIS 10397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-parish-of-east-baton-rouge-lactapp-1987.