The state constitution prohibits the legislature from passing a new tax or increasing an existing tax in a Regular Session in an even-numbered year.
A “fee” can be introduced and passed in such a session. However, a fee can only produce enough revenues to provide a specific service for which the fee was passed.
Rep. Barry Ivey passed House Bill No. 872 during the 2014 Regular Session. The bill adds a $75 fee for the reinstatement of one’s auto insurance that has lapsed.
HB 872 dedicates $42 million annually from the revenues produced by the fee to the general operations of the Department of Public Safety. It spells out that only $1 million of the fee is to be used to perform the services for which it was passed.
Therefore, the other $42 million in revenues are an unconstitutional tax.
Being an attorney licensed to practice in Louisiana, I hereby declare HB 872 unconstitutional. I recommend that the Department of Public Safety ignore this law until someone sues them. When a suit is filed the attorney general is required to defend it, thus saving DPS much needed revenues. His defense will be that the “fee” is a “tax” and therefore unconstitutional.
Some of you lawyers are wondering where I get such power. I get it from a legal memorandum prepared by some Florida lawyers for the Louisiana State Police Retirement System.What’s good for the goose is good for the gander.
Edmonson solution explained
The leges and the state Police Retirement System Board refuse to consider litigation to declare the Edmonson Amendment unconstitutional. That is the only absolute solution to the exposure of us taxpayers to unlimited financial liability.
With the amendment, State Police Superintendent Mike Edmonson will receive an extra $55,000 in retirement benefits annually for the rest of his life.
Sen. J.P. Morrell and Rep. Walt Leger, in response to my challenge to litigate SB 294, offered a lege solution to litigation. It should be noted that SB 294 was authored by Morrell. Also, Morrell and Leger are two of the six coconspirators that slipped the last minute amendment into a conference committee report.
Morrell and Leger claim that the legislative staff recommended the legislative solution rather than litigation. The staff suggested repeal of SB 294 during the 2015 Regular Session. That is the same staff who told the leges that the Edmonson Amendment merely cleaned up a little inequity in the law.
For a moment, let’s assume we can trust the leges and trust the legal acumen and integrity of their staff. Yeah, I know it’s a stretch, but bear with me.
Here are the steps necessary to protect the taxpayers with the “lege solution”:
1. Get an unknown number of individuals to agree not to claim the benefit before the law is repealed.
2. Get everyone who took advantage of DROP and are currently in DROP in all the state retirement systems to agree not to file a class-action lawsuit to claim the same benefits under the U.S. Constitution Equal Protection Clause before it is repealed.
3. Get those same individuals in DROP to agree not to litigate under the federal pension laws to claim the benefits after the law is repealed.
4. Wait until next April to introduce the legislation.
5. Get 53 Representatives and 20 Senators to agree to vote for the repeal of SB 294.
6. Get Bobby Jindal to agree to sign the repeal into law once passed. As you recall, Jindal was behind the effort to pass the Edmonson Amendment and he has a reputation for changing his mind.Alternatively, the two leges, both of whom are attorneys, could simply file a lawsuit and have SB 294 declared unconstitutional.
Because such matters provide for expedited hearings, it could be finished before Dec. 31.
Even the Florida attorneys for the LSPRS have declared that the bill violates the state constitution on several fronts.To sweeten the pot, if SB 294 is litigated by the leges and is not found to be unconstitutional, I’ll agree to never again write anything about the Louisiana legislature.
Considering that you have huge increased tax liability at stake, which of the alternatives would you choose?
If you choose litigation, contact your leges and demand they litigate. If you choose the lege solution, contact me about some home sites in the Manchac Swamp that I have for sale.
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