Yesterday, state District Judge Don Johnson issued
a ruling declaring a case of a fund sweep unconstitutional. In this instance,
the Legislature lifted from Public Service Commission revenues collected by
fees on regulated carriers, appropriating some of that amount to pay for other
operations of government.
Interestingly, Johnson last week appeared to have delivered
two versions, taking different sides. For whatever reason, it all got sorted
out yesterday in favor of a dramatic substitution of judicial opinion for the
actual wording of the Constitution.
The rationale behind the ruling would invalidate all funds sweeps, and is as confused as the circumstances behind its birth. Johnson, unbelievably, argued that when the Legislature used its power to appropriate fees intended by a statute that the bill would alter one this single occasion, suddenly the money involved turned into taxation when directed towards the general fund, since it comes from a few and goes towards the many. This he deemed a constitutional violation at both the federal and state levels.
Where to begin with such drivel? Foremost, it completely
rewrites Louisiana government’s power of the purse. Heretofore, the Legislature
has had complete discretion in this regard, subject to expressly written directives
in the Constitution. Now, Johnson suddenly has determined the Constitution,
with none of this written in it, gives different funding mechanisms and destinations
their own definitions that the Legislature must follow.
Further, he privileges certain legislative acts
over others. An act creates a fee or tax and as part of that designates where
it does and what purpose, if any, it may have. An act also appropriates from
funds to spending purposes. (Both of these, of course, must comport to parameters
set in the Constitution.) Yet, according to Johnson, a non-appropriation act takes
precedence over one that appropriates, even though they rely upon the same kind
of legislative instrument, because the appropriation must adhere to the intent
of the act (in this case, a fee paid by a few to pay for regulation of their activities).
Again, this is entirely invented.
Moreover, in a practical sense the ruling’s logic,
such as it is, creates utter chaos. Transfers of funds happen all the time within
and between agencies for a variety of reasons. What if, for example, a particular
agency activity has designated fee funding that overflows, while it needs money
elsewhere for general activities for which it receives general fund dollars? Are
these transfers now unconstitutional? Or those that the Joint Legislative
Committee of the Budget makes between agencies, if funds involved came from fee
collection and go to an expense covered by the general fund?
It even can render unconstitutional existing laws.
For example, R.S.
46:2626 imposes a fee basically on ambulances. Under some conditions, money
from that can eventually end up in the general fund, which apparently this
ruling now invalidates.
The Legislature needs to do the polity a favor and
appeal this mess. Surely a higher court will seek to follow the Constitution in
dealing with this matter, not to rewrite it.
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