DANIEL L. DYSART, Judge.
The City of New Orleans (the "City") and its co-defendants seek review of the district court's grant of a writ of mandamus directing the City to "immediately budget, appropriate for and pay to the New Orleans Fire Fighters [sic] Pension & Relief Fund ... the sum of $17,524,329 as the Actuarially Required Contribution to
The City raises several issues on appeal, the most significant of which is whether mandamus is the proper procedure for the enforcement of a statutory provision regarding the funding of the New Orleans Firefighters Pension and Relief Fund (the "Fund"). The City contends that the statute upon which appellees rely, and upon which the trial court's judgment is based (La. R.S. 11:3384), is vague and ambiguous. It further maintains that, because of the statute's ambiguity, it cannot be used in the context of a mandamus proceeding, as that applies strictly to "ministerial" acts which are, by their very nature, definitive and not subject to interpretation. The City also contends that the statute is discretionary and creates no affirmative obligation on its part to contribute to the Fund.
We have reviewed all of the issues raised by the City in this appeal. For the reasons set forth below, we affirm the trial court's judgment.
On July 19, 2012, the Trustees of the Fund filed a Petition for Writ of Mandamus ("Petition"), requesting that the court order defendants to pay sums allegedly owed to the Fund by the City pursuant to La. R.S. 11:3384. More particularly, the Petition alleged that an actuary, retained by the Fund as required by La. R.S. 11:3363(D),
The Petition alleged that the amounts owed by the City and the City's contributions have been as follows:
Year Amount allegedly owed Amount contributed 2010 $13,913,495 $10,635,430 2011 $23,782,819 (or $1,981,901.58 monthly) $750,000 per month (resulting in a shortage of $12,546,131) 2012 $29,424,359 $11,900,0003
The Petition thus maintained that, by December 31, 2012, the cumulative projected amount of the underfunding would be $34,163,319. The Petition sought the immediate appropriation and payment of
In response to the Petition, defendants filed an Answer, along with Exceptions of No Cause of Action, No Right of Action and Unauthorized Use of Summary Proceedings. The Exceptions were denied after a hearing held on December 19, 2012. Defendants applied for a supervisory writ with this Court, which was denied on December 28, 2012. The Louisiana Supreme Court also denied defendants' writ application. New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0009 (La.1/4/13), 106 So.3d 540.
In the interim, on September 11, 2012, defendants filed a Reconventional Demand against the Trustees, alleging that they mismanaged the "investments of the assets of the Fund."
Trial on the mandamus was held on January 7-8, 2013. During the course of the trial, counsel for defendants attempted to cross-examine a witness regarding investment choices made by the Trustees. The trial court sustained the Trustees' objection to this line of questioning and refused to allow any evidence of the Trustees' fiscal mismanagement as alleged in the City's reconventional demand. A supervisory writ to this Court on this issue was denied on January 8, 2013.
On March 28, 2013, the District Court issued its Judgment, ordering that a writ of mandamus issue directing the City to immediately budget, appropriate and to pay to the Fund the amount of $17,524,329 together with judicial interest from date of demand. A Motion for New Trial filed by the City was denied and this timely suspensive appeal followed.
The Firefighters' Pension and Relief Fund is made up of two distinct retirement plans: the "old system," covering firefighters employed prior to January 1, 1968 and the "new system," covering all firefighters employed after December 31, 1967, as well as those employed before 1968 who have elected to come under the new system. The distinction between the two systems was detailed by this Court in Rapp v. City of New Orleans, 98-1714, pp.
There is no question that the City is to contribute to the Fund; however, the parties dispute what funding is statutorily required of the City. The City argues that the only mandatory funding requirement for the entire Fund, old and new alike, is found in La. R.S. 11:3361, which provides, in pertinent part, that:
The record reflects that the City has consistently complied with the requirements of this statute and it is not at issue herein.
Thus, La. R.S. 11:3384(F) requires the City to contribute two separate and
We find, as did the trial court, that the mandates provided in 11:3385(F), as well as 11:3363(D), were specific enactments of the legislature to provide an actuarial funding mechanism for the new system. This is in keeping with this Court's recognition that "the new system is legally required to have advanced funding" so that "the annual contributions made by the city are sufficient not only to pay anticipated benefits for that year, but also to build up the fund." Nicolay v. The City of New Orleans, 546 So.2d 508, 511 (La.App. 4 Cir.1989). We can find no other reasonable alternative explanation for the existence of both statutes.
We recognize that the statutes at issue require the City to contribute to the Fund an amount "to maintain the system on an actuarial basis,"
According to the Fund's actuary since 2000, Michael Conefry, who was accepted without objection as an expert in the field of actuarial science,
Mr. Conefry further explained that the statute requires an actuarial valuation, which is:
Necessarily, the valuation determines on a yearly basis the amount of the contribution required of the City, which, according to Mr. Conefry, takes into account "the known sources of such contributions, typically member contributions and sometimes other sources such as dedicated taxes and the like." The balance comes from the employer contributions; that is the amount "not provided by all of the other sources" which "must be delivered by the employer."
Mr. Conefry further explained that "the value of the member contributions are determined in this case, by subtracting the total actuarial present value from the amount necessary, the total present value of all benefits. And then the net amount to be funded is what the employer and employer-related sources are required to pay."
This accepted practice of actuarial methodology had been used for the Fund since 1987 and Mr. Conefry continued to use this method after becoming the Fund's actuary in early 2000. Every year until 2009, the City paid the sum (or the approximate sum) which Mr. Conefry determined to be the actuarially required contribution. Beginning in 2010, however, the City failed to make the full contribution as determined by Mr. Conefry and the City has failed to fully contribute since that time. Although the City maintains that it has complete and total discretion to contribute the actuarially required contribution, it offered
The only testimony at trial concerning the amount owed by the City as its actuarially required contribution to the Fund came from Mr. Conefry. His testimony in this regard was consistent with the allegations of the Petition. There was no other evidence presented as to the amount owed by the City. Accordingly, we affirm the trial court's award of $17,524,329.00 as the City's actuarially required contribution at this time.
We note that the statutes do not contain any specific provision by which the City may challenge the amount determined by the Fund's actuary to be the City's accrued liability contribution. However, "[i]t is not our function as a court of appeal to legislate." Simmons v. Louisiana Dept. of Public Safety and Corrections, 2007-0572 (La.App. 4 Cir. 12/12/07), 975 So.2d 1, 3. See also, Hamilton v. Royal International Petroleum Corp., 05-846, p. 10 (La.2/22/06), 934 So.2d 25, 33 ("[c]ourts are not free to rewrite laws to effect a purpose that is not otherwise expressed."). Rather, "[t]he function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of the government." Rebel Distributors Corp., Inc. v. LUBA Workers' Comp., 13-0749, p. 14 (La.10/15/13) ___ So.3d ___, 2013 WL 5788791, citing Livingston Parish Council on Aging v. Graves, 12-0232, pp. 3-4 (La.12/4/12), 105 So.3d 683, 685. To the extent that any deficiencies in the statutory scheme exist, those are matters for the legislative branch to address.
Having determined that the City must contribute to the Fund pursuant to La. R.S. 11:3384(F), we turn to the City's argument that mandamus is an improper procedure for this matter, which the City maintains should have been tried by ordinary process.
La. C.C.P. article 3863 provides that a writ of mandamus may be issued "to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor." Under La. C.C.P. art. 3862, a mandamus "may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice."
This Court has repeatedly determined that the proper procedure for the enforcement of obligations set forth in the pension statute is mandamus, as the City's funding requirement is a ministerial function. The Nicolay, supra, court specifically noted:
Id., 546 So.2d at 512. This Court then held that, as "the trial court's judgment require[d] the City to perform a purely ministerial function in making the payments to the Fund, it should have included a writ of mandamus." Id.
The Board of Trustees case, cited by the Nicolay court, involved a petition for mandamus seeking to compel the City to appropriate a sum for cost of living increases in conformity with La.R.S. 33:2117 (redesignated as La. R.S. 11:3382), which authorized the board of trustees of the Fund to "use interest earnings on investments of the system in excess of normal requirements as determined by the actuary to provide a cost of living increase in benefits for members who have retired, in an amount not to exceed two percent of the original benefit for each year of retirement." The statute is similar to La. R.S. 11:3384(F) in that it required an actuarial determination of the amount to be funded. The Board of Trustees court found that mandamus was the appropriate procedure, noting:
Id., 217 So.2d at 769.
Accordingly, in this matter, we find that mandamus was a proper procedural vehicle to direct the payment by the City of its mandatory contribution to the Fund. We agree with the trial court's finding that the City's funding obligations are ministerial in nature and that any delay in that funding process "may" cause an injustice, thereby warranting the issuance of the writ of mandamus. We therefore affirm the trial court's issuance of a mandamus directing the City to make the actuarially required contribution to the Fund.
We now turn to the City's remaining arguments: (1) that the trial court erred in denying its Peremptory Exception of No Right of Action insofar as the relief requested violates the separation of powers doctrine; (2) that the mandamus improperly destabilizes the City's 2012 balanced budget and (3) that the trial court erred in refusing to allow evidence of the Trustees' financial mismanagement of the Fund and breaches of their fiduciary duties.
Relying heavily on Hoag v. State, 04-0857 (La.12/1/04), 889 So.2d 1019, the City argues that it "cannot be judicially ordered to expend funds outside of the normal budgetary process" and that the trial court's issuance of a mandamus violates the separation of powers doctrine.
In Hoag, the plaintiffs, a group of coroners, sought past and future compensation pursuant to a statute enacted in 1984 which provided for coroners to receive an additional $548 per month from the State as supplemental pay. The State did not pay this additional compensation for ten years. In 2000, the plaintiffs filed suit and were granted a summary judgment awarding each coroner a certain amount owed under the statute.
In reversing the trial court, the Supreme Court, citing La. R.S. 13:5109(B),
It is clear that the Hoag decision was based largely on the constitutional grant to the legislature, under La. Const. art. III, § 16,
In the instant matter, we have already determined that the City's obligation to contribute to the Fund is a ministerial duty. As such, the trial court's mandamus is not an improper usurpation of a legislative function and does not violate the separation of powers doctrine. Our affirmation of the trial court's ruling is compatible with the Hoag decision. It is likewise consistent with our jurisprudence allowing the issuance of a mandamus against a political subdivision compelling it to comply with statutory duties that are ministerial in nature. See, e.g., Nicolay, supra. In so finding, we are guided by the Louisiana Supreme Court case of Carriere v. St. Landry Parish Police Jury, 97-1914 (La.3/4/98), 707 So.2d 979.
Carriere involved a suit by a St. Landry Parish coroner for a writ of mandamus, compelling the Parish Police Jury to provide office space and pay his salary, health insurance and retirement benefits, and to fund the budget for the office's annual operating expenses. The trial court issued a mandamus ordering the Police Jury to pay the coroner's salary and budget for operating expenses. The Third Circuit affirmed the trial court's judgment only insofar as it ordered the Police Jury to pay the "necessary or unavoidable" operational expenses. Id., 97-1914, (La.3/4/98), 707 So.2d at 981. The judgment as to other sums awarded was reversed.
The Supreme Court granted writs to consider, among other issues, whether the payment of coroner salaries by the parish governing bodies is statutorily mandated obligation or one arising from constitutional provisions. The Carriere court did not expressly address the issue of the separation of powers between the judiciary and the legislature; however, the court observed that "[o]nce the legislature places the burden of paying salaries or other expenses of a state official on parish governing authorities, those bodies are generally obligated to pay these mandated expenses." Id., 707 So.2d at 981 (citing Reed v. Washington Parish Police Jury, 518 So.2d 1044, 1049 (La.1988)). (Emphasis added). The court reasoned:
Id., 707 So.2d at 981-82. (Emphasis added).
The Supreme Court later reiterated these principles in Perron v. Evangeline Parish Police Jury, 01-0603 (La.10/16/01), 798 So.2d 67, also a mandamus action by a parish coroner seeking to compel the parish police jury to fund his office. The trial court rendered judgment in favor of the coroner, including an award for attorney's
Id., 01-0603, pp. 9-10, 798 So.2d at 73.
In Parish of St. Charles v. R.H. Creager, Inc., 10-180 (La.App. 5 Cir. 12/14/10), 55 So.3d 884, writ denied, 11-0118 (La.4/1/11), 60 So.3d 1250, after their property was expropriated by the Parish of St. Charles, the plaintiffs contested the Parish's valuation of the property and obtained a judgment against the Parish. When the Parish failed to pay the judgment, the plaintiffs sought and obtained writ of mandamus compelling the Parish authorities to "cause payment of the amount awarded in the final, definitive judgment." Id., 10-180, p. 4, 55 So.2d at 884. While mandamus was noted to be specifically authorized by La. R.S. 38:390(A) as a procedure by which to collect the amount awarded in excess of that deposited by an expropriating authority, the Fifth Circuit also considered the Parish's argument that "the judiciary is without authority to issue a writ of mandamus in any matter to enforce a money judgment ... unless the money for payment of the judgment has been specifically allocated." Id., 10-180, p. 11, 55 So.2d at 881.
Rejecting that argument, the Fifth Circuit stated:
Id., 10-180, p. 13, 55 So.2d at 892.
With this background, we conclude, as did the Perron court, that "a clear legislative mandate exists" which requires the City to pay into the Fund the "accrued liability contribution" under La. R.S. 11:3384(F). While we recognize that our constitution provides, under Article VI, § 14(A)(1) that "[n]o law or state executive order, rule, or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision...,"
Furthermore, by enacting La. R.S. 11:3361 and La. R.S. 11:3384(F), the legislature placed the responsibility on the City of paying into the Fund which we conclude is a "clear legislative mandate ... compelling such funding." See: Perron, supra, 01-0603, pp. 9-10, 798 So.2d at 73. As did the Perron and Carriere courts, we find no violation of the separation of powers doctrine in compelling the City to contribute to the Fund by way of mandamus. We find that, because "the legislature has mandated the [City] to pay [into the Fund], we are simply interpreting and enforcing this statute, not legislating a judicial solution." See: Perron, 01-0603, p. 10, 798 So.2d at 73. To hold otherwise would allow the City to altogether disregard its mandatory statutory funding obligations with the protection of the courts, under the guise that a court issued mandamus ordering such payment violates the separation of powers doctrine. Such a result would render meaningless both the statutory scheme for the Fund and the legislatively mandated mechanism for its funding.
The City's next argument is that the trial court's judgment has the effect of retroactively destabilizing the City's balanced budget for 2012. It maintains that the City's Home Rule Charter, which requires that the City annually balance its budget, prohibits any amendment which "increase[s] the aggregate of authorized expenditures to an amount greater than the estimate of revenues for the year."
The City further argues that the trial court's mandamus violates the Louisiana Local Government Budget Act ("LLGBA"), citing La. R.S. 39:1310(A), which states, in part, that "[i]n no event shall a budget amendment be adopted proposing expenditures which exceed the total of estimated funds available for the fiscal year." Finally, the City argues that La. C.C. Pr. art. 3862 prohibits the issuance of mandamus against a state agency when "the expenditure of such funds would have the effect of creating a deficit in the funds of said agency...."
We recognize that the Louisiana Constitution grants municipalities the power to set up home rule charters,
We note, too, that La. R.S. 39:1310(A) does provide, as the City indicated, that a budget amendment is not to be adopted that proposes expenditures that exceed the total of estimated funds for a given year. However, the City seems to suggest that, because of this provision, it can never be ordered to pay any sums which have not been included in its budget for any given year. A full reading of La. R.S. 39:1310(A) reflects that amendments are permitted when "there has been a change in operations upon which the original adopted budget was developed." Id.
Id., 199 So.2d at 350-51.
We agree with the Penny court and find that, in this matter, the duty to pay into the Fund is statutorily imposed. As such, we find no merit in the City's contention that the mandamus is unlawful insofar as it has the effect of "destabilizing" the "balanced budget."
The City's final argument is that the trial court erred in excluding evidence of the Trustees' mismanagement of the Fund and their breaches of their fiduciary duties at trial. It maintains that, because it was unable to develop its affirmative defenses, it was "unfairly prejudice[d]" at trial.
The issues in this matter center on the City's obligations under La. R.S. 11:3384(F). The statute clearly and simply provides that the City is to pay both the "normal contribution" and the "accrued liability contribution." Nowhere in the statute, or any other statute, is there a mechanism for offsetting the amount actuarially determined to be owed by he City. Likewise, the statute makes no reference to any considerations to be taken into account in determining what the City owes.
Thus, we conclude that the alleged mismanagement of the Fund or breaches of the Trustees' fiduciary duties are not relevant to the issue of the City's mandatory contributions to the Fund. The trial court properly excluded this evidence.
For the reasons discussed herein, the trial court's judgment is affirmed.