The ninety-six numbered notes from ForeverL$U, in the order the book cites them, linked to where each source lives. News articles and books are the property of the people who wrote them; the book quotes them sparingly and this page sends you to them.
Public documents belong to you. These are reproduced in full or in the parts the book relies on: the 2003 First Circuit opinion in the author's case, the foundation statute, the fee provision, Dorsey, Act 472, and Exodus 32. A page of primary sources with links, organized by type, stands on its own.
Exhibit 1. The case.
Nos. 2003 CA 2738 and 2003 CA 2739, Court of Appeal of Louisiana, First Circuit. Decided December 23, 2003. A five-judge panel, Judge Downing dissenting. Donald C. Hodge, Jr., Baton Rouge, appellant in proper person; five lawyers for the appellees. Reproduced from the published opinion. Four passages in which the court quotes statutes and prior opinions at length are condensed and marked. The complete text is at FindLaw.
This is an appeal of a judgment rendered in favor of the Board of Supervisors ("Board") of Louisiana State University Agricultural and Mechanical College ("LSU") and the Louisiana Public Facilities Authority ("the Authority"), declaring valid and legal a bond issuance and related contracts prepared in conjunction with a cooperative endeavor between LSU and the Tiger Athletic Foundation ("Foundation") to make improvements to Tiger Stadium and for the construction of a Football Operations Center, amounting to some $90,000,000.00. In a consolidated suit, filed by an LSU student, a petition for injunction seeking to enjoin a proposed raise in the price of Tiger Stadium football tickets was dismissed. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 21, 2003, a special meeting of the LSU Board was held for the purpose of voting on a new "General Pricing Policy For Home Football Games" for the 2004 football season and thereafter ("general pricing policy"). The new policy was passed. In the general pricing policy, the price of single game football tickets was raised from $32.00 to $36.00, with season tickets to be priced at $252.00 for seven home games and $216.00 for six home games. A previously existing $4.00 surcharge on single tickets and a previously existing season ticket surcharge of either $25.00 or $50.00 per seat per season was discontinued. However, the requirement of a "donation" or "contribution" in support of the LSU athletic department, ranging from $85.00 to $400.00 per seat per year for season tickets, was inserted into the pricing policy.[1]
On September 26, 2003, a "Cooperative Endeavor and Lease Agreement" ("Cooperative Endeavor") was signed by Mark A. Emmert, Chancellor of LSU; William L. Jenkins, President of Louisiana State University System; and R.G. Richard, CEO of the Foundation. The Cooperative Endeavor provided for a lease of the property and facilities at issue from LSU to the Foundation in exchange for the Foundation's paying an annual rental of $25,000.00, and the Foundation's agreement to complete the specified repairs, renovations, and construction projects. The lease term for the ground was to be fifty years, while the lease term for the facilities was to commence on the date of "Substantial Completion" of the improvements and terminate on March 31, 2041, with a renewal option.[2]
In the Cooperative Endeavor, the Foundation agreed to lease the facilities to LSU, excepting a certain number of "Foundation Club Seats," upon payment by LSU of $2,500,000.00 per year beginning on September 1, 2005. In addition to other agreements, provisions, and terms not pertinent to this litigation, the Cooperative Endeavor further provided that the Foundation would arrange for construction of the improvements in accordance with plans and specifications contained therein. It was agreed that construction would commence not later than twelve months from the approval of the plans and specifications or from the effective date of the agreement, whichever was later. The Foundation further agreed not to encumber the property without prior LSU approval, "other than the pledge and assignment of, and grant of security interest in and to the LSU Rent, and the donations, rents, revenues, premiums, and profits derived from the sale of tickets by Foundation in Tiger Stadium and revenues received by Foundation pursuant to Qualified Corporate Sponsorships [corporate scoreboard sponsorships] to secure its obligations relating to the Bonds and to any Credit Enhancement Provider [issuer of letters of credit or bond insurance]."[3]
Financing of the project was evidenced by a "Loan Agreement" between the Authority and the Foundation, as well as by a "Trust Indenture" between the Authority and Bank One, both of which were dated November 1, 2003. In addition, an "Act of Assignment of Pledged Revenue and Security Agreement" was entered into between the Foundation and Hibernia National Bank ("Hibernia"), which included a pledge of revenue generated from Tiger Stadium. The affidavits of Elizabeth St. Paul, Vice President of Hibernia, and LSU President William L. Jenkins, were made a part of the record; these affidavits attested that the validity of the football ticket pricing policy at issue herein and the pledge of that revenue was an integral part of the financing arrangements for the overall project.
Prior to the hearing on this matter, Mr. Hodge, LSU, and the Authority entered into a written "Joint Stipulation of Facts," which was introduced into evidence and revealed the following facts: On August 21, 2003, the LSU Board authorized execution of a Cooperative Endeavor between LSU and the Foundation and authorized Jenkins to do all things necessary to implement the agreement; the board of directors of the Foundation authorized the Cooperative Endeavor; execution of the Cooperative Endeavor will result in more than $55 million in improvements to Tiger Stadium to be constructed by the Foundation; the Foundation will also construct a new West Side Upper Deck; general stadium improvements will be transferred to LSU pursuant to the Cooperative Endeavor; the combined costs to the Foundation will be $67 million; pursuant to the lease agreement, the Foundation and LSU agreed the Foundation will construct a football operations center costing $15 million; over the past three years, the LSU Athletic Department contributed approximately $2.5 million of its revenue to the LSU Board for academic purposes; lease of the completed West Side addition by the Foundation to LSU will be recorded on the financial statements of the LSU Board as an operating lease; as an operating lease, the payment obligation of the LSU Board will not constitute a "net state tax supported debt" under 1993 La. Acts, No. 813, the Debt Limitation Law; the Authority adopted a resolution to authorize issuance of the bonds; an executed copy of the cooperative endeavor was attached to the stipulations; the "Trust Indenture," loan agreement, and assignments were legally approved; there was evidence of requisite publication; the State Bond Commission and the Attorney General's office were properly notified; and all pertinent minutes, associated documents, and proofs thereof were submitted to the court. It was further verbally stipulated on the day of the hearing that, "[t]he authority having been delegated, the LSU Board of Supervisors does not act at formal meetings to give specific approval for each of the following items: number one, housing rent; number two, concession prices; number three, bookstore merchandise; number four, veterinary services; number five, copy costs; number six, theater tickets; number seven, fees paid by students for pharmacy, laboratory and x-ray services."
Following the November 18, 2003 hearing, the trial court rendered judgment in favor of the Authority in suit number 512,751, validating the bond issuance and LSU ticket pricing policy, and against the plaintiff in suit number 512,930, denying injunctive relief. Mr. Hodge filed the instant appeal, which was assigned expedited status in accordance with La. R.S. 13:5121 et seq.[4] On appeal, Mr. Hodge assigns as error the trial court's finding that the "fee assessed by [LSU] for the right to purchase season tickets, is not a fee as understood by Art. VII, Sec. 2.1 of the Louisiana State Constitution."
DISCUSSION
The constitutional provision at issue in this dispute is La. Const. Art. VII, § 2.1, which provides as follows:
§ 2.1. Fees and Civil Fines; Limitation. Section 2.1. (A) Any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature. (B) The provisions of this Section shall not apply to any department which is constitutionally created and headed by an officer who is elected by majority vote of the electorate of the state.[5] [Emphasis added.]
Louisiana Constitutional Article VII, § 2.1 was enacted by 1995 La. Acts, No. 1324, § 1, was approved by the electorate on October 21, 1995, and became effective November 23, 1995. At issue in the present dispute is whether the word "fee" includes the cost charged by LSU for football tickets.
As there is no jurisprudence interpreting this 1995 constitutional provision, the issue before this court is res nova among the courts of Louisiana. However, the Louisiana Attorney General has opined that charges by LSU for admittance to extracurricular activities do not constitute "fees" within the meaning of La. Const. Art. VII, § 2.1, reasoning as follows:
The Louisiana State University System is created and exists for the sole purpose of providing public higher education to the citizens of this State. This is its governmental function. Those charges which are assessed for the provision of higher education to LSU students would be considered fees for purposes of Article 7, Section 2.1. Any charges which are for services or products which are not directly a part of the delivery of an education are not considered fees. Thus, ... it is the opinion of this office that student housing, food services, book store merchandise, medical or veterinary services and admittance to extracurricular events are not directly a part of the governmental function of providing higher education, thus, charges for these goods and services would not be considered fees. La. Atty. Gen. Op. No. 01-165 (May 4, 2001). See also La. Atty. Gen. Op. No. 96-353 (October 9, 1996).
The trial court, in ruling in favor of appellees, cited the attorney general opinion, finding the position espoused therein persuasive. The trial court emphasized the attorney general's view that "fees" do not include charges for auxiliary, self-generating, extra-curricular activities at LSU. The trial court further adopted the rationale of the attorney general that since the governmental function of LSU is to provide higher education to citizens of this state, charges for services not directly a part of the delivery of an education are not considered fees for purposes of La. Const. Art. VII, § 2.1.
The interpretation of constitutional provisions was recently discussed by the supreme court in East Baton Rouge Parish School Bd. v. Foster, 2002-2799, pp. 16-17 (La. 6/6/03), 851 So.2d 985, 996, wherein it was stated: The starting point in the interpretation of constitutional provisions is the language of the constitution itself. When a constitutional provision is plain and unambiguous, and its application does not lead to absurd consequences, its language must be given effect. When the constitutional language is subject to more than one reasonable interpretation, however, the determination of the intent of the provision becomes necessary. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws and written instruments are followed. This court has stated that the function of a court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. Additionally, we have determined that the understanding that can reasonably be ascribed to the voting population as a whole controls the interpretation. In other cases, however, this court has stated that in construing constitutional provisions, a court should ascertain and give effect to the intent of both the framers of the amendment and of the people who adopted it. All of these principles are correct statements of law. Nevertheless, to harmonize them, we will add that in construing an ambiguous constitutional provision, a court should ascertain and give effect to the intent of both the framers of the provision and of the people who adopted it; however, in the case of an apparent conflict, it is the intent of the voting population that controls. [Citations omitted.]
The term "fee," as used in La. Const. Art. VII, § 2.1, was not defined in the Louisiana Constitution or elsewhere in the laws of Louisiana. The use of the word fee is nevertheless used to address a variety of monetary charges imposed under state law, including: filing fees, license fees, recordation fees, registration fees, inspection fees, membership fees, finance servicing fees, airport use fees, attorney fees, etc.
The definition of "fee" as found in Black's Law Dictionary (5th ed. 1979), is as follows, in pertinent part: A charge fixed by law for services of public officers or for use of a privilege under control of government. A recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor, reward, compensation, or wage given to a person for performance of services or something done or to be done. [Citations omitted; emphasis added.]
Arguably, admission to Tiger Stadium is a privilege under control of the State of Louisiana by means of the rules, regulations, and charges imposed by LSU for the right to occupy a specified seat in the stadium in order to watch a football game. Nevertheless, were this court to interpret La. Const. Art. VII, § 2.1 as including within its purview the amount charged for a football ticket as a "fee," then many other similar services and/or privileges would fall within the meaning of a fee as well. Although appellees' argument that goods such as textbooks, pencils, and popcorn would thereby be included is overly broad, at the very least other admission costs for access to governmental controlled facilities would then become implicated as "fees"; such as, the admission price of parks, zoos, museums, theatres, and the like.
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La. 3/24/94), 634 So.2d 356, 358. See also Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La. App. 1 Cir. 1984).
Because of the many and varied uses of the word "fee" in the laws of this state, it is unclear from a plain reading of La. Const. Art. VII, § 2.1 exactly what meaning was ascribed to the word therein. In such a case, when the constitutional language is subject to more than one reasonable interpretation, the supreme court directs the courts to attempt to determine and give effect to the intent of both the framers of the amendment and of the people who adopted it. Foster, 2002-2799 at 16, 851 So.2d at 996.
Every bill shall contain a brief title indicative of its object. La. Const. Art. III, § 15. Thus, the title and preamble to a statute properly may be consulted to determine legislative intent. Hoag v. State ex rel. Kennedy, 2001-1076, p. 10 (La. App. 1 Cir. 11/20/02), 836 So.2d 207, 216-217, writ denied, 2002-3199 (La. 3/28/03), 840 So.2d 570. The legislative history of a statute and related legislation also provides a particularly helpful guide in ascertaining the intent of a statute. Hoag, 2001-1076 at 10, 836 So.2d at 217.
[Condensed.] As previously indicated, La. Const. Art. VII, § 2.1 was enacted by 1995 La. Acts, No. 1324, House Bill No. 320 by Representative Gunn and Jenkins, a joint resolution proposing to add Article VII, Section 2.1 of the Constitution of Louisiana, to provide that any new fee or civil fine or existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state must receive at least a two-thirds vote of each house of the legislature; to provide for submission of the proposed amendment to the electors; and to provide for related matters. The proposed amendment was submitted to the electors at the gubernatorial primary election held in 1995, with the ballot proposition reading: To provide that any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state must receive at least a two-thirds vote of the elected members of each house of the legislature. To exempt departments which are constitutionally created and headed by a statewide elected official. (Adds Article VII, Section 2.1)
In examining the intent of the legislature, a court may take judicial notice of the journals of the houses of the state legislature, as well as records of legislative committee proceedings, where preserved, as they are a matter of public record. See University Properties Corp. v. Fidelity Nat. Bank of Baton Rouge, 500 So.2d 888, 906 n. 5 (La. App. 1 Cir. 1986), writ denied, 501 So.2d 762 (La. 1987). See also Heinhuis v. Venture Associates, Inc. of Louisiana, 558 So.2d 1244, 1247 (La. App. 1 Cir.), writs denied, 559 So.2d 1369, 1385 (La. 1990).
Originally, Act 1324 (House Bill 320) was an amendment to La. Const. Art. VII, § 2, which provides: § 2. Power to Tax; Limitation. Section 2. The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature. The text of original House Bill 320 would have added a paragraph (B): Any new fee or fine or increase in an existing fee or fine shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature.[6] However, the final version of the bill separated the proposed amendment into a separate sub-section, 2.1.
The bill was referred to both the Committee on Ways and Means and the Civil Law and Procedure Committee. Legislative transcription of the April 25, 1995 discussions before the Committee on Ways and Means reflected, in pertinent part: Representative Gunn stated that according to research provided by the legislative fiscal officer, fees have increased from $426 million to $933 million since 1988. He said that very few of those increases were voted on by the legislature; the fees were imposed through the Administrative Procedure Act. Representative Reilly said that he supported the legislation. He said that fees should have the same legislative review as taxes, especially due to the fact that it is often difficult to distinguish between a fee and a tax. Representative Landrieu submitted that the problem with taxes, according to some citizens, is that taxes are being used to subsidize government programs for people who will not pay for themselves, and what really should be done is to go on a "pay as you go" basis. He said that the "pay as you go" basis is the idea behind fees. Representative Landrieu said that it is inconsistent to treat fees and taxes in the same manner. Representative Odinet offered amendments ... [and] said that this would allow the legislature to have oversight over all fees. Representative Copelin commented on emergency rule provisions in the Administrative Procedure Act. He said that often after an emergency rule is put into effect, the permanent fee becomes effective without review.
Legislative transcription of the May 1, 1995 discussion before the Civil Law and Procedure Committee reflected, in pertinent part: In response to questioning by Representative Bowler, Representative Gunn said the proposed legislation would apply to all fees imposed by the state.
This court has further reviewed the audiotapes of these legislative committee meetings, which are public records. These audiotapes revealed the legislative transcriptions to be accurate and reflective of the discussions held before these committees regarding Act 1324. An additional point made clear from the audiotapes was expressed by Representative Landrieu, who distinguished a fee from a tax by explaining that the purpose of a fee is to place the cost burden on the citizen receiving a service for which a fee is imposed, rather than on the general taxpayer by means of taxes.
The summary of the discussions reflect that the legislature desired to impose legislative control on fees charged in connection with government "programs" for services to citizens that might otherwise be provided by the government and funded by taxation. The legislators were concerned that an excess number of these fees were being imposed or increased by means of emergency procedures provided for under the Administrative Procedure Act, La. R.S. 49:950 et seq. ("APA"); and because these fees were likened to taxes, the legislature felt their implementation and/or increase should be controlled by the legislature.
Laws in pari materia on the issue of fees can be found in La. R.S. 49:951-971 of the APA. By means of 1987 La. Acts, No. 240, language was added to amend and reenact R.S. 49:951 and 968, and to enact R.S. 49:968.1 of the APA, to exclude proposed agency fee adoptions, increases, and decreases from inclusion within agency rule-making authority, to provide for legislative oversight of proposed agency fee actions, to provide for legislative rejection of proposed fee adoptions, increases, and decreases and to provide for related matters. Further amendment of these provisions to provide greater oversight of agency fee assessment was enacted by 1995 La. Acts, No. 1057. [Condensed.] APA provisions currently addressing agency fees include La. R.S. 49:951(6) and (7), under which "rule" means each agency statement, guide, or requirement for conduct or action, exclusive of those regulating only the internal management of the agency and those purporting to adopt, increase, or decrease any fees imposed on the affairs, actions, or persons regulated by the agency, and under which, except where the context clearly provides otherwise, the procedures for adoption of rules and of emergency rules shall also apply to adoption of fees.
The expressed purpose of La. R.S. 49:968(A) is "to provide a procedure whereby the legislature may review the exercise of rule-making authority and the adoption, increasing, or decreasing of fees, extensions of the legislative lawmaking function, which it has delegated to state agencies." The issue of agency fee assessment is further addressed in La. R.S. 49:971, wherein agencies are directed to submit a proposed fee adoption, increase, or decrease to specified legislative committees for review.
Though the term "fee" is not specifically defined in the APA, we can glean from La. R.S. 49:951(6) that "fees" are charges "imposed on the affairs, actions, or persons regulated by the agency." (Emphasis added.) It is also important to note the provision in La. R.S. 49:951(7) extending application of the APA to "the procedures for adoption of rules and of emergency rules as provided in R.S. 49:953 shall also apply to adoption of fees" "[e]xcept where the context clearly provides otherwise." (Emphasis added.)
Also pertinent to this discussion are other laws respecting LSU, both currently and in terms of the historical treatment of LSU by the legislature. The responsibility in the legislature for the education of the people of this state, by the establishment and maintenance of a public educational system, is provided by La. Const. Art. VIII, § 1. [Condensed.] With respect to higher education, the Board of Regents was created by La. Const. Art. VIII, § 5 to manage specified functions of all public postsecondary education, including budgetary responsibility, the approval of degree programs, the master plan, and capital construction priorities. It was specifically provided in La. Const. Art. VIII, § 5 that powers of management over public institutions of postsecondary education not specifically vested by Section 5 in the Board of Regents are reserved to the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and the other management boards, as to the institutions under the control of each. La. R.S. 17:3130(A) similarly so provides. More specifically, La. R.S. 17:1552 vests the Board "with full authority to determine the location of and acquire the land and buildings deemed necessary for the establishment of such branch."
Even though the Board of Regents is given ultimate budgetary and curricular control by La. Const. Art. VIII, § 1, all other decision-making responsibility is retained in the LSU Board. This deference to LSU's self-governance is rooted in state history. [Condensed.] The supreme court in Roy v. Edwards, 294 So.2d 507 (La. 1974), recognized the state's historical tradition of providing autonomy to LSU, citing its prior opinion of Student Government Association of L.S.U. v. Board of Supervisors, 262 La. 849, 264 So.2d 916 (1972), which recounted the 1940 message of the Governor recommending legislation to guarantee a depoliticalization of the universities after LSU had been the storm center of a politicalized educational system, the 1940 constitutional amendment vesting the direction, control, supervision and management of the affairs of the University in the Board of Supervisors, and the 1968 amendment providing that no governmental authority other than the Coordinating Council for Higher Education can intrude into the administration of the affairs of the University. The Roy court had before it 1972 La. Acts, No. 712, which purported to transfer control from LSU's Board to a newly created governing board for all of the state's institutions of higher learning; the supreme court declared the act unconstitutional, holding that the L.S.U. Board has exclusive authority over the affairs of the University except as provided in Section 7 of Article XII of the Constitution, and that there is no provision in the Constitution authorizing the legislature to pass a statute that conflicts with the complete autonomy of the L.S.U. Board.
Historically, this state has given autonomy to its colleges and universities to manage their own affairs. No mention was made during discussion in the House committee meetings that LSU's extracurricular activities and charges would be implicated in the passage of La. Const. Art. VII, § 2.1. The intent seemed to be to place legislative control only on fees charged by traditional government agencies providing services to and/or regulating citizens. Due to the high profile nature of LSU football, we believe any inclination of the legislature toward imposing the requirements of La. Const. Art. VII, § 2.1 on LSU's extracurricular programs would have engendered some comment during the legislative hearings.
While we are unable to definitively ascertain the intent of the voters who adopted La. Const. Art. VII, § 2.1, we believe the average person, upon reading the proposed amendment, had in mind the traditional fees assessed by state governmental agencies, departments, and boards acting in their roles of regulating activities of and providing services to the citizens of Louisiana.
Thus, we agree, as did the trial court, with the reasoning of the attorney general that the legislature has evidenced no intent to have oversight over "fees" with respect to LSU, other than those fees directly connected with LSU's principal governmental function of providing higher education to the citizens of this state. Accordingly, we hold that the price charged by LSU for admission to football games in Tiger Stadium does not constitute a "fee" for purposes of La. Const. Art. VII, § 2.1.[7]
CONCLUSION
For the reasons assigned herein, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by appellant, Donald C. Hodge, Jr.
AFFIRMED.
FOOTNOTES
[1] LSU asserts that the "donation" format was used, rather than incorporating the entire cost of season tickets into the face value of the tickets, to enable ticket holders to claim the benefit of 26 U.S.C. § 170(l), which allows eighty percent of any amount paid to an institution of higher education for the right to purchase tickets to an athletic event in the athletic stadium of the institution to be treated as a charitable donation for federal income tax purposes. (Any amount paid to purchase the ticket is treated separately).
[2] LSU was given the option of terminating the facilities lease when the bonds became legally defeased or paid in full, and it was agreed the Cooperative Endeavor would remain in effect until the bonds became legally defeased or paid in full.
[3] The Cooperative Endeavor also included a provision for liquidated damages to be paid by the Foundation to LSU, in the event substantial completion of the facilities was not completed before the first home game of the 2005 LSU varsity football season. The amount of liquidated damages was stated as being either revenue lost because of the lack of completion should home games be played in the stadium or the out-of-pocket costs and losses occasioned by LSU playing home games in another stadium.
[4] In any action affecting the validity of governmental bonds, the provisions of La. R.S. 13:5121 through 13:5129 "supercede all other acts and statutes on the subject." La. R.S. 13:5122. Pursuant to La. R.S. 13:5128, the appellant has twenty days from the date of the trial court judgment to have the record certified to the appellate court and to file his appellate brief; the appellee has fourteen days in which to file a reply brief; the case shall be heard no later than seven days thereafter; and the appellate court must render a decision within the seven day period following the hearing.
[5] We note that Paragraph (B) is inapplicable in this case. Even though the Board of Regents and the LSU Board of Supervisors are part of the Department of Education under La. R.S. 36:651(D), the Department of Education is not a constitutionally created department. It is created by La. R.S. 36:642. The only constitutionally created departments are: the Department of State (Art. IV, § 7); the Department of Justice (Art. IV, § 8); the Department of Treasury (Art. IV, § 9); the Department of Agriculture (Art. IV, § 10); the Department of Insurance (Art. IV, § 11); the Department of Elections and Registration (Art. IV, § 12); and the Department of State Civil Service (Art. X, § 6). The remaining thirteen of the twenty executive departments allowed under La. Const. Art. IV, § 1 and La. Const. Art. XIV, § 6 are enumerated in La. R.S. 36:4.
[6] Later changes included: "fine" to "civil fine;" "two-thirds" to "two-thirds vote;" and, the addition of the following clause: "imposed or assessed by the state or any board, department, or agency of the state."
[7] We limit our holding herein to the narrow circumstances presented for our review.
In the matter before us, the majority appears to rule that the ticket surcharges approved by the Louisiana State University Board of Supervisors are fees, but not the type of fee addressed in La. Const. art. VII, § 2.1, which requires any new "fee" to be approved by a two-thirds vote of the legislature.
As the trial court concluded, the word, "fee," is not ambiguous. The majority here just does not seem to believe the voters meant what they said, or said what they meant, when they adopted La. Const. art. VII, § 2.1. And perhaps they did not. I lack the prescience to know what the voters meant. But, as the majority states, where a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La. 3/24/94), 634 So.2d 356, 358.
I agree with the trial court that no ambiguity exists in the meaning of the word "fee;" it is the charge paid for a service rendered by a governmental entity or for the use of a privilege under the control of a governmental entity. The application of this meaning does not lead to absurd consequences. This application will merely maintain the status quo. In contrast to that definition is the "price" paid for goods, such as books, food, housing, and the like; such tangible commodities are purchased for a "price" not a "fee." Tuition is a fee that is paid for the educational services of the university.
To the extent that LSU football tickets have a face value of $36, representing the admission price to the stadium for viewing of a football game, the tickets are commodities purchased for price, not a "fee." However, what is being purchased by the "donation," required in addition to the face value of the $36 football admission ticket, is an intangible right to sit in a particular location within the stadium for the duration of the football season. In that sense, LSU controls who sits where within Tiger Stadium during football games. Such a payment is made for use of a privilege under control of LSU and is, therefore, a "fee" within the meaning of La. Const. Art. VII, § 2.1.
I am reminded of the following quotation from "Through the Looking Glass," Chapter VI, by Lewis Carroll:
"When I use a word", Humpty Dumpty said, "it means just what I choose it to mean, neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master, that's all."
See M. Gardner, The Annotated Alice (New York: New American Library, © 1960), 269, cited in McGee v. Police Jury of Caddo Parish, 66 So.2d 408, 413 (La. App. 2 Cir. 1953).
The plain language of La. Const. art. VII, § 2.1 may become a source of vexation for the various state boards, departments and agencies and to the legislature, but it is not ambiguous. Accordingly, the LSU Board of Supervisors cannot constitutionally impose this fee without a two-thirds vote of the legislature. Consequently, I would find that the trial court erred in failing to require LSU to meet the requirement of La. Const. Art. VII, § 2.1 with respect to the "donations" required to be paid under the LSU stadium general pricing policy for season tickets and would reverse that portion of the trial court judgment.
As appellant has not appealed the finding of validity as to the bond issuance, we are unable to review that ruling of the trial court, and the judgment as to the bond issuance has become final under La. R.S. 13:5129.
Exhibit 2. The statute.
Enacted as Act 1055 of 1992 and signed by Governor Edwin Edwards; amended by Acts 1998, 1st Ex. Sess., No. 125 (Foster); Acts 2004, Nos. 533 and 710 (Blanco); and Acts 2008, No. 505 (Jindal). Current text as published by the Louisiana Legislature. Subsection E is the one to read twice.
A. The legislature finds that private support enhances the programs, facilities, and research and educational opportunities offered by public institutions of higher education in Louisiana. Therefore, each higher education management board and institution is hereby encouraged to promote the activities of alumni associations, foundations, and other private, nonprofit organizations that raise private funds for the support of public institutions of higher education. Further, it is recognized that private, nonprofit organizations under the direction and control of private individuals who support institutions of higher education are effective in obtaining private support for those institutions.
B. A nonprofit corporation, whose principal purpose is to support one or more programs, facilities, or research or educational opportunities offered by public institutions of higher education, including but not limited to any nonprofit corporation whose primary purpose is to finance the design, construction, renovation, or equipping of facilities to be leased to such public institutions of higher learning, shall be a private entity that shall not be deemed to be a public or quasi public corporation or an administrative unit, public servant, employee, or agent of any institution of higher education for any purpose whatsoever if it meets all of the following criteria: (1) The majority of the voting members of the corporation's board of directors are not members or employees of a higher education management board. (2) The corporation is under the management and control of a board of directors elected by the members or shareholders of the corporation. (3) The corporation reimburses, either directly or through in-kind services, the cost of housing, personnel, which personnel shall remain public servants for all purposes, and other support furnished to the corporation by any institution of higher education, if any such support is furnished.
C. The receipt, investment, or expenditure of public funds shall not affect the private status of any corporation meeting the criteria set forth in Subsection B of this Section; however, books and records of any such corporation, to the extent that such books and records directly pertain to the receipt, investment, or expenditure of public funds, shall be subject to R.S. 44:1 et seq. No other books and records of any such corporation shall be subject to R.S. 44:1 et seq.
D.(1) Alumni associations, alumni foundations, and other private, nonprofit alumni organizations that raise private funds for the support of public institutions of higher education, and nonprofit corporations whose primary purpose is to finance the design, construction, renovation, or equipping of facilities to be leased to such public institutions of higher education, shall have a financial accounting system established pursuant to customary and current accepted accounting standards. Except as provided in Paragraph (3) of this Subsection, the financial affairs of the organizations shall be audited annually in accordance with generally accepted auditing standards by an independent professional auditor who shall furnish to the legislative auditor copies of his annual audit. (2) With regard to an audit received by the legislative auditor from any nonprofit corporation, the primary purpose of which is to design, construct, renovate, or equip a facility to be leased to a public institution of higher learning which is under the management of the Board of Supervisors of Community and Technical Colleges, the legislative auditor may recommend to the Legislative Audit Advisory Council that an audit be conducted by the legislative auditor pursuant to and in the manner provided in R.S. 24:513. Upon such recommendation, the Legislative Audit Advisory Council may direct that such an audit be conducted. (3)(a) Any alumni association, alumni foundation, or other private, nonprofit alumni organization that raises private funds for the support of a public institution of higher education which receives seventy-five thousand dollars or less in funds in a fiscal year shall not be required to have an audit. However, the organization shall execute a certification indicating that it received seventy-five thousand dollars or less in funds in the fiscal year and shall prepare a sworn financial statement. (b) The sworn financial statement required by this Paragraph shall be prepared in accordance with generally accepted accounting principles and include the disclosures required by state and federal regulations. The sworn financial statement shall include a recital that it presents fairly, in all material respects, the financial condition and results of operations of the organization; that the organization has maintained a system of internal control structure sufficient to safeguard assets and comply with laws and regulations; and that the organization has complied with all laws and regulations or shall acknowledge exceptions thereto. (c) Copies of the certification and sworn financial statement shall be furnished to the legislative auditor.
E.(1) Any institution of higher education may permit a private, nonprofit corporation to purchase tickets to any event sponsored by the institution not to exceed twelve percent of the tickets available for the event. (2) In addition to any tickets purchased pursuant to the authorization in Paragraph (1) of this Subsection and only with the prior approval of the appropriate higher education management board, any institution of higher education may permit a private, nonprofit corporation to purchase tickets to any athletic event sponsored by the institution when the event is held in a facility owned by the institution and the tickets provide access to seats or seating areas located in an addition to the facility which is constructed by the corporation. (3) If the corporation pays the full price of admission for which such tickets are sold to other members of the public, then any funds received by the corporation from the resale of the tickets shall not be public funds for any purpose.
F. Notwithstanding any other provision of this Section or of other law to the contrary, any request for payments of over one thousand dollars for any single transaction to, or on behalf of, or to reimburse the expense of a public employee of a public higher education institution or a public employee or officer of a management board of a public higher education institution by a nonprofit organization shall be approved in writing by the appropriate public higher education management board in accordance with written policies and procedures. All requests, approvals, and documents provided to a higher education institution or management board in connection with such requests or approvals, shall be retained by the public higher education institution or public higher education management board and shall be subject to inspection, examination, copying, and reproduction in accordance with the provisions of R.S. 44:1 et seq.
Acts 1992, No. 1055, §1; Acts 1998, 1st Ex. Sess., No. 125, §1, eff. May 5, 1998; Acts 2004, No. 533, §1, eff. June 25, 2004; Acts 2004, No. 710, §1; Acts 2008, No. 505, §1, eff. June 25, 2008.
Official text: legis.la.gov. Also at Justia.
Exhibit 3. The fee provision.
(A) Any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department, or agency of the state shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature.
(B) The provisions of this Section shall not apply to any department which is constitutionally created and headed by an officer who is elected by majority vote of the electorate of the state.
Added by Acts 1995, No. 1324, approved by the voters October 21, 1995, effective November 23, 1995. The ballot asked the voters to require a two-thirds vote for any new fee imposed by the state or any board of the state. The First Circuit held in 2003 that the voters did not have football in mind.
Exhibit 4. The color line.
A three-judge federal court, in an opinion by Judge John Minor Wisdom, struck down Act 579 of 1956, which Governor Earl Long had signed to ban integrated athletic contests and require segregated seating. The LSU Board of Supervisors had opposed the law, for the gate. Excerpts; the full opinion is at Justia.
Dorsey's original petition, filed July 28, 1955, attacked Rule 26 as unconstitutional. In 1956 the Louisiana legislature enacted Act 579 (LSA-R.S. 4:451 et seq.). This law prohibits "interracial activities involving personal and social contacts", including "games, sports or contests", and requires separate seating at any entertainment or athletic contest.
Act 579 is in the teeth of the School Segregation Cases, Brown v. Board of Education of Topeka, and other cases stemming from that decision; a clear challenge to the validity of those cases when a state legislature invokes the police power. In these circumstances this Court must hold with the plaintiff that, as to athletic contests, Act 579 of 1956 is unconstitutional on its face in that separation of Negroes and whites based solely on their being Negroes and whites is a violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Rule 26 is of course no less unconstitutional.
It is ordered, adjudged, and decreed that Rule 26 of the Rules and Regulations of the State Athletic Commission of Louisiana and Act 579 of 1956 of the Louisiana State Legislature (LSA-R.S. 4:451 et seq.) are unconstitutional.
Exhibit 5. The reporting law.
Passed in response to the Husch Blackwell report and signed by Governor John Bel Edwards on June 30, 2021, Act 472 requires anyone at a public college or university who learns of a complaint of power-based violence to report it, provides for the discipline of those who do not, sets staffing and pay requirements for the offices that handle complaints, and requires each campus to report its numbers twice a year up the chain to the Legislature. It arrived three years after the text message described in chapter XI. It does not say a word about who may serve as athletic director.
Read the Board of Regents' uniform policy adopted under the act at regents.la.gov; LSU's biannual reports under the act at lsu.edu; the Reveille's account of the bill at lsureveille.com; and the governor's signing statement as reported by The Advocate. The act itself is on the Legislature's site under the 2021 Regular Session, HB 409.
Exhibit 6. The calf.
1 And when the people saw that Moses delayed to come down out of the mount, the people gathered themselves together unto Aaron, and said unto him, Up, make us gods, which shall go before us; for as for this Moses, the man that brought us up out of the land of Egypt, we wot not what is become of him.
2 And Aaron said unto them, Break off the golden earrings, which are in the ears of your wives, of your sons, and of your daughters, and bring them unto me.
3 And all the people brake off the golden earrings which were in their ears, and brought them unto Aaron.
4 And he received them at their hand, and fashioned it with a graving tool, after he had made it a molten calf: and they said, These be thy gods, O Israel, which brought thee up out of the land of Egypt.
5 And when Aaron saw it, he built an altar before it; and Aaron made proclamation, and said, To morrow is a feast to the LORD.
6 And they rose up early on the morrow, and offered burnt offerings, and brought peace offerings; and the people sat down to eat and to drink, and rose up to play.
19 And it came to pass, as soon as he came nigh unto the camp, that he saw the calf, and the dancing: and Moses' anger waxed hot, and he cast the tables out of his hands, and brake them beneath the mount.
20 And he took the calf which they had made, and burnt it in the fire, and ground it to powder, and strawed it upon the water, and made the children of Israel drink of it.
24 And I said unto them, Whosoever hath any gold, let them break it off. So they gave it me: then I cast it into the fire, and there came out this calf.
Verse 24 is Aaron's explanation to Moses of how the calf came to exist. It is, word for word, the Board of Supervisors' position on the Tradition Fund.