08 April 2008

state supremes strike down an unconstitutional tax levied improperly through the judicial system

1997 regular legislative session's House Bill 578 [act 775] by representative steve windhorst, a rethuglican from terrytown (who is sadly but not surprisingly now the judge of division j in the 24th judicial district court) created the unconstitutional tax. as usual, the bill passed 96 - 2 in the house and 30 - 2 in the state senate.

This is a direct appeal by the State of Louisiana pursuant to La. Const. art. V § 5(D), contesting the trial court’s finding that the $5.00 court cost assessed pursuant to La. R.S. 32:57(G) is an unconstitutional tax to be levied improperly through the judicial system, and thus a violation of the separation of powers doctrine of La. Const.art. II § 2. For the following reasons, we affirm the decision of the trial court.

The Greater New Orleans Expressway Commission (“GNOEC”) polices the Huey P. Long Bridge and operates, polices, and maintains the Lake Pontchartrain Causeway Bridge. La. R.S. 32:57(G), which became effective on July 10, 1997, provides for imposition of an additional $5.00 cost when any person pleads nolo contendere, pleads guilty, or is found guilty of a motor vehicle offense occurring on either of the two bridges or their respective approaches when the citation is issued by a police officer employed by the GNOEC. The fees are to be deposited into the state treasury, then credited to a special fund which is used by the GNOEC to supplement the salaries of its police officers and for the acquisition and upkeep of police equipment.

On March 21, 2006, while driving southbound on the Causeway Expressway, the defendant, Kenneth Lanclos, was pulled over by a GNOEC officer and issued a citation for speeding in violation of La. R.S. 32:63(A).1 On July 21, 2006, the defendant appeared in First Parish Court for the Parish of Jefferson, and agreed to plead guilty to a violation of improper equipment pursuant to La. R.S. 32:53(A).

The defendant was issued a "Fee and Fine Slip" which assessed, and ordered him to pay, $129.75 in court costs in addition to the $65.00 fine for the offense. Included in the $129.75 court costs was a $5.00 cost designated as a "Causeway Citation" (hereinafter "GNOEC cost"). After receiving the Fee and Fine Slip, defense counsel immediately made a hand written notation on the printed slip indicating that the defendant moved to strike "as unconstitutional the Causeway cost of $5.00" because the assessment "violates separation of powers as constitutes an unconstitutional tax to be assessed and collected by the court. . . ."

Defense counsel then appeared in court before the Traffic Hearing Officer (“THO”) and orally moved to strike the $5.00 GNOEC cost as unconstitutional, specifically urging that "the GNOEC court cost violates the Separation of Powers guarantee in the Louisiana Constitution as it constitutes a tax that is being collected by the Courts." The THO denied the motion.

click link to download the seventeen page opinion in .pdf