This year and last year, Republican Sec. of State John Schroder refused to hand over to state budgeters a portion of unclaimed property funds held by the state in escrow. Traditionally, the Legislature with gubernatorial assent had grabbed a portion of these funds sitting idly, which the state doesn’t own, in order to pay for current operations.
R.S. 9:162 and R.S. 9:165 spells out the treatment of this money. The former clearly abrogates any state claim to the funds involved, with exceptions granted in the latter: diversion of a portion to fund Interstate 49 construction debt and up to seven percent of annual gross collections in administrative fees. The remainder, the latter states, the treasurer “shall promptly deposit in the Bond Security and Redemption Fund of this state all funds received” this way, except that the treasurer “shall retain in a separate trust fund at least five hundred thousand dollars from which the administrator shall pay claims duly allowed.”
In essence, Schroder had wished to hold as much as $25 million to pay annual claims, which the law clearly allows. Except that Moore decided to turn the law completely on its head to conclude otherwise.
The problem for him is the bothersome “at least” phrase, because if the treasurer has discretion to determine the sum of the money to hold back, his role truly becomes custodial and the money involved isn’t the state’s and must not necessarily be transferred to the general fund for spending (except for the $500,000). So, he must find a way to prevent the treasurer from doing that by neutering that part of the law, then finally becoming able to prove that the Legislature has the power to suck out that money.
To accomplish this, he stuffs the law into a straw man to reach his goal. He writes, “The Treasurer has argued that the words ‘at least’ … permits him to hold in escrow all excess unclaimed property.” But that doesn’t logically follow; you can argue for holding back more than the minimum without necessarily holding back everything, especially where the qualifier exists that the amount must depend upon “claims duly allowed.” But Moore’s ruling doesn’t leave that middle ground. Indeed, even as he complains falsely that an interpretation to hold back more than the minimum must mean holding back everything produces “absurd consequences,” he completely misses the fact that his interpretation leads to the absurdity that the treasurer may hold back only the minimum despite what the law clearly says. Moore inappropriately puts the law into a straitjacket to suit his own purposes, because if he can define everything into the exceptional, he need only knock off that exception to get rid of the impediment to the way he wants to rule.
Which is to disempower the treasurer from overseeing those funds and empowering other policy-makers to use these as they see fit, regardless of statute. He starts this task by shaping the law to disallow sequesters over a half million, in order to ratify the straitjacket, and permitting budgetary use of it
As to the latter, he argues that intent since the law in 1972 forming the unclaimed funds process has been defined by legislative action subsequent to then, noting that legislators routinely have raided these funds and treasurers have acquiesced, and therefore that must have been legislative intent all along. In other words, Moore argues for a jurisprudence where actions subsequent to the creation of statute expose the intent of the statute prior to its creation. This backwards analysis produces the inanity where instead of policy-makers acting within the constitutional confines of a law, policy-maker actions define the actual constitutionality; thus, policy-makers make constitutionality whatever they want it to be through their actions and don’t have to follow what it actually is.
This unsound jurisprudence Moore compounds with the same kind of post hoc reasoning concerning the ministerial capacity of the treasurer, but deriving a different definition source. This relates to whether a treasurer has discretion in holding out more than a half million before transfer, because if purely ministerial, no discretion exists. He concludes in favor of pure ministry because past a certain point unclaimed funds are “excess” as they won’t pay out that year’s demanded claims.
However, he’s not elected to make that judgment; the treasurer is. And he substitutes his own judgment for that of the intent of policy-makers in another way, by giving a distinctly politicized reason for concluding why it’s not up to the treasurer: because the “treasurer’s action could harm the public should the Legislature be required to make midyear budget cuts as a result of this loss of revenue.”
Again, that’s not his call to make; that’s up to the majoritarian branches to decide in budgeting and the budget adjustment processes. In short, Moore substitutes himself in as a budget policy-maker, which completely abuses judicial authority, all in the service of making sure “at least” doesn’t actually mean “at least.”
Consider as well he needed to thread the needle in this way to avoid running afoul of an equally-suspect 2018 ruling regarding fees on behalf of regulated entities collected by the Public Service Commission which was ruled the Legislature could not sweep. There, the PSC has these funds for a specific purpose, so the treasurer must be denied these funds or else the same applies.
By preventing the treasurer from retaining anything above the $500,000, that additional money no longer remains tied to its owners but becomes fair game for budgeters to launder and take, because they always have and it might produce “bad” policy outcomes if they can’t – even though the law explicitly says the treasurer can do this. It’s great politics but bad jurisprudence, and Schroder needs to appeal this as he has stated he would do.