Town of Sterlington v. Ouachita Parish Police Jury

150 So. 3d 944, 2014 La. App. LEXIS 2321, 2014 WL 4853744
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 49,406-CA
StatusPublished
Cited by2 cases

This text of 150 So. 3d 944 (Town of Sterlington v. Ouachita Parish Police Jury) 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
Town of Sterlington v. Ouachita Parish Police Jury, 150 So. 3d 944, 2014 La. App. LEXIS 2321, 2014 WL 4853744 (La. Ct. App. 2014).

Opinion

LOLLEY, J.

| plaintiff, the Town of Sterlington (“Sterlington”), appeals a judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, granting a peremptory exception of prescription in favor of the defendant, the Ouachita Parish Police Jury (“OPPJ”), resulting in the dismissal of Sterlington’s lawsuit. For the reasons that follow, we affirm the trial court’s judgment sustaining the defendant’s exception of prescription.

[945]*945Facts

By Act 244 of the 1977 Regular Session, the Louisiana Legislature adopted La. R.S. 33:2738.49, authorizing the OPPJ to levy and collect a sales and use tax not to exceed one and one-half percent within that portion of Ouachita Parish outside the corporate limits of the municipalities of Monroe and West Monroe. That portion outside the cities of Monroe and West Monroe consists of the unincorporated area of Ouachita Parish and includes the Towns of Richwood and Sterlington.

Louisiana R.S. 33:2738, which has since been redesignated La. R.S. 47:338.157, provides, in part:

A. The Ouachita Parish Police Jury is hereby authorized to levy and collect a sales and use tax not exceeding one and one-half percent within the territory within the boundaries of the parish of Ouachita, and outside of the corporate limits of the cities of Monroe and West Monroe as said corporate limits may exist at the time the tax is collected.
B. The sales tax so levied shall be imposed by an ordinance of the police jury of Ouachita Parish and shall be levied upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services, all as defined in R.S. 47:301 through 317, within the territory within the boundaries of the parish and outside the corporate limits of the cities of Monroe and West |2Monroe as said corporate limits may exist at the time the tax is collected; provided, however, that the ordinance imposing said tax shall be adopted by the governing body only after the question of the imposition of such tax shall have been submitted to the qualified electors of Ouachita Parish within the territorial area located outside the then existing corporate limits of the cities of Monroe and West Monroe at an election to be conducted in accordance with Part II, Chapter 4, Title 39 of the Louisiana Revised Statutes of 1950 and the majority of those voting in said election shall have voted in favor of the imposition of said tax.

Following the enactment of this statute, the OPPJ called a special election on October 15, 1977. In that election, the eligible voters approved a one-cent sales tax. Since 1977, the tax has been levied and collected without interruption within the above described portion of Ouachita Parish, and the proceeds of the tax have provided approximately 80% of the funding used by the OPPJ to improve, resurface, renovate, operate, and maintain parish roads.

Nonetheless, on April 22, 2013, apparently after a dispute over a road maintenance agreement, Sterlington filed a petition for declaratory judgment seeking to have La. R.S. 47:338.157 declared unconstitutional. In particular, Sterlington alleged that the geographical boundaries authorized by La. R.S. 47:338.157 violate the equal protection and due process provision of the Louisiana Constitution, rendering the statute itself unconstitutional and therefore, the resulting tax, an absolute nullity. The OPPJ responded by filing a peremptory exception of prescription relying on Art. 6, § 35(A)1 of the Louisiana Constitution, which provides, in part:

[946]*946|aFor sixty days after promulgation of the result of an election held to incur or assume debt, issue bonds, or levy a tax, any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall ' have authority to inquire into such matters. (Emphasis added.)

A hearing was held on the matter, wherein the trial court found that Sterling-ton’s claim had prescribed pursuant to La. Const. Art. 6, § 35(A). In reaching its decision, the trial court explained that the “rather strong” language set forth in Art. 6, § 35(A) clearly extinguishes the rights of litigants to contest tax elections if not legally raised within 60 days of the election. The trial court also relied on the Louisiana Supreme Court’s interpretation of Art. 6, § 35(A) that “The intent of the framers of the Constitution to prohibit any challenge not raised within the constitutional time limitations is clear and unambiguous.” See Naquin v. Lafayette City-Parish Consol Gov’t, 2006-2227 (La.02/22/07), 950 So.2d 657, 669. This appeal by Sterlington ensued.

Discussion

On appeal, Sterlington argues that the trial court erred in concluding that the limitations period set forth in La. Const. Art. 6, § 35(A) applies to actions challenging the constitutionality of legislation authorizing a tax election. Stated differently, Sterlington contends that because its lawsuit does not contest the actual tax or the validity of the election, Art. 6, § 35(A) |4is simply inapplicable. For example, in order for Art. 6, § 35(A) to apply, Sterling-ton believes that its claim must challenge the vote count, the eligibility of voters, or fraudulent voter conduct associated with the election. Sterlington also raises an additional argument that Art. 6, § 35(A) does not apply to its lawsuit because as an unconstitutional legislative enactment, La. R.S. 47:338.157 is an absolute nullity, thus wholly void and insusceptible to a plea of prescription. We disagree.

When reviewing a peremptory exception of prescription, the standard of review normally requires the appellate court to determine whether the trial court’s finding of fact was manifestly erroneous or clearly wrong. Carter v. Hay-good, 2004-0646 (La.01/19/05), 892 So.2d 1261. However, in this case the parties do not dispute any of the facts pertaining to the issue of prescription. Thus, whether Art. 6, § 35(A) applies to the matter before us presents a question of law, which this Court reviews de novo. See City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 1993-0690 (La.07/05/94), 640 So.2d 237.

As discussed above, La. Const. Art. 6, § 35(A) and its statutory counterpart, La. R.S. 18:1294, both provide a 60-day period barring any claim contesting an election held to incur or assume debt, issue bonds, or levy a tax. La. Const. Art. 6, § 35(A). Following that 60-day period, no one shall have any cause or any right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. Id. The statute further provides that if a proper challenge is not raised within this [947]

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150 So. 3d 944, 2014 La. App. LEXIS 2321, 2014 WL 4853744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-sterlington-v-ouachita-parish-police-jury-lactapp-2014.