Opinion
NUMBER 2012 CA 1914
04-26-2013
MIKE DOISE; JUDE DOISE; LUKE DOISE; DOISE FARMS, INC.; CARL KRIELOW; GLENDON MARCEAUX; PHILLIP J. WATKINS; & SIMILARLY SITUATED PLAINTIFFS v. MICHAEL STRAIN, DVM, IN HIS CAPACITY AND THROUGH HIS ROLE AS COMMISSIONER OF THE LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY
Alex J. Peragine Rebecca R. Urland Brittany D. White Covington, LA Counsel for Plaintiffs/Appellees, Mike Doise; Jude Doise; Luke Doise; Doise Farms, Inc.; Carl Krielow; Glendon Marceaux; Phillip J. Watkins; and Similarly Situated Plaintiffs Larry S. Bankston Baton Rouge, LA Patricia H. Wilton Baton Rouge, La. Counsel for Defendant/Appellant, Michael Strain, DVM, in his official Capacity as Commissioner of the Louisiana State Agriculture & Forestry Department
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number 613,768
Honorable Timothy E. Kelley, Judge Presiding
Alex J. Peragine
Rebecca R. Urland
Brittany D. White
Covington, LA
Counsel for Plaintiffs/Appellees,
Mike Doise; Jude Doise; Luke Doise;
Doise Farms, Inc.; Carl Krielow; Glendon
Marceaux; Phillip J. Watkins; and
Similarly Situated Plaintiffs
Larry S. Bankston
Baton Rouge, LA
Patricia H. Wilton
Baton Rouge, La.
Counsel for Defendant/Appellant,
Michael Strain, DVM, in his official
Capacity as Commissioner of the
Louisiana State Agriculture & Forestry
Department
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE , C.J.
In this appeal, the Commissioner of the Louisiana Department of Agriculture and Forestry ("the Commissioner") seeks review of a writ of mandamus issued by the trial court, directing the Commissioner to pay assessments to the Louisiana Rice Promotion Board and the Louisiana Rice Research Board on July 1st of each year, rather than on a monthly basis, and to accompany each July 1st payment with a complete audit of assessment funds collected and disbursed, and costs incurred. For the following reasons, we affirm in part and reverse in part.
LEGAL AND PROCEDURAL BACKGROUND
Louisiana Revised Statutes 3:3531 et seq. and 3:3541 et seq. establish the Louisiana Rice Promotion Board and the Louisiana Rice Research Board ("the Rice Boards"). The Rice Boards are funded by an assessment levied on rice producers, based on the weight of rice produced. The assessment is deducted by each "miller or handler" from the amounts paid to the rice producers at the first point of sale. The Commissioner then collects the assessments and refunds a percentage of the assessments paid to the Rice Boards. See LSA-R.S. 3:3534 and LSA-R.S. 3:3544.
On July 19, 2012, approximately fifty rice farmers in Louisiana joined together to file a petition for writ of mandamus. The petition alleged that the Commissioner is violating LSA-R.S. 3:3534 and LSA-R.S. 3:3544 by making payments to the Rice Boards from the assessment proceeds on a monthly basis, instead of annually on July 1st of each year. The petition noted that the plaintiffs have a separate action pending in the district court, wherein plaintiffs seek a declaratory judgment that the assessments under LSA-R.S. 3:3534 and LSA-R.S. 3:3544 are unconstitutional both on their face and as applied, and enjoining further collections. The petition alleged that despite the other lawsuit, the writ of mandamus was necessary in order to stop wasteful, inefficient, and counterproductive spending of "their money" until the court made a ruling in the declaratory judgment action. In response, the Commissioner filed a peremptory exception raising the objections of no right and no cause of action.
Following a hearing on the matter, the trial judge overruled the objections of no right and no cause of action and granted the writ of mandamus, ordering the Commissioner:
(1) [to] annually pay over assessment funds collected pursuant to LSA-R.S. 3:3534 and LSA-R.S. 3:3544 to the Louisiana Rice Promotion Board and the Louisiana Rice Reseach Board on July 1 of each year, and only on July 1 of each year,
(2) to accompany each annual July 1 payment to the Louisiana Rice Promotion Board and the Louisiana Rice Research Board with a complete audit of all assessment funds collected and disbursed, and costs actually incurred by the Louisiana Department of Agriculture and Forestry in the collection and administration of the assessments, and
(3) to cease all monthly or other interim payments to the Louisiana Rice Promotion Board and to the Louisiana Rice Research Board of assessment funds collected pursuant to LSA-R.S. 3:3534 and LSA-R.S. 3:3544.
The Commissioner now appeals, contending that the trial court erred because: (1) the Commissioner does not have an affirmative legal duty to withhold funds from the Rice Boards until July 1st of each year; (2) plaintiffs/appellees could obtain relief by ordinary means; and (3) plaintiffs/appellees have no right of action or standing to bring this issue.
ANALYSIS
At the outset, we note that a ruling on the Commissioner's second and third assignments could potentially render moot the issues raised in the first assignment of error. Thus, we will address the assignments in reverse order and consider the Commissioner's third assignment of error first.
Right of Action to Seek Mandamus
The Commissioner argues in his third assignment of error that plaintiffs have no right of action to bring the mandamus action because plaintiffs have no actual interest in the assessments once they are collected. We disagree.
Louisiana Code of Civil Procedure Article 681 provides that an action can be brought only by a person having a real and actual interest which he asserts. Moreover, to bring a suit for mandamus, a plaintiff must show some special interest separate and distinct from that of the public at large. Mouton v. Department of Wildlife & Fisheries for State of La., 95-0101, (La. App. 1st Cir. 6/23/95), 657 So.2d 622, 626, writs denied, 95-2161, 95-2164 (La. 11/17/95), 663 So. 2d 710, 711.
The assessments established by LSA-R.S. 3:3534 and LSA-R.S. 3:3544 are paid only by rice farmers. Unlike the public at large, plaintiffs have a "special interest" in protecting how these assessment funds are used and distributed, as plaintiffs are the rice farmers who pay the assessments. As such, plaintiffs have a right of action/and or standing to bring this writ of mandamus, and we find no merit to the Commissioner's argument to the contrary.
Propriety of Mandamus if Relief Available by Ordinary Means
In his second assignment of error, the Commissioner argues that the trial court erred in issuing the writ of mandamus because plaintiffs could obtain relief via ordinary means. Specifically, the Commissioner contends that plaintiffs could obtain relief in their other pending suit, wherein plaintiffs seek a declaratory judgment that the assessments established by LSA-R.S 3:3534 and LSA-R.S. 3:3544 are unconstitutional, as well as injunctive relief from further collections. We disagree.
A writ of 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. See LSA-C.C.P. art. 3862.
As set forth in the petition, plaintiffs sought the writ of mandamus to preserve the disputed assessment funds for at least eleven months, by requiring said funds to remain with the State. If plaintiffs were required to wait until a ruling on their suit for declaratory judgment, then plaintiffs would not be able to recoup the disputed assessment funds (if ruled unconstitutional), despite their efforts to stop the improper distribution of said funds. As such, we agree with petitioners that a delay while the declaratory judgment action proceeded to finality would result in an injustice to plaintiffs.
Accordingly, we conclude that the writ of mandamus was an available remedy, as it sought to compel performance by a public officer, where an injustice may occur if plaintiffs were required to proceed via ordinary means.
Propriety of Mandamus to Compel the Performance of a Discretionary
Act or Performance of an Affirmative Legal Duty
In his first assignment of error, the Commissioner contends that the trial court erred in granting the writ of mandamus because there is no mandatory, non-discretionary duty to transfer assessments funds only once a year, and on July 1st of each year. (Pg. 8 brief) We disagree, in part.
Louisiana Revised Statutes 3:3 534(H) and 3:3544(F) specifically govern the Commissioner's transfer of the assessments to the respective Rice Boards. As set forth in LSA-R.S. 3:3534(H):
Transfer of funds.Louisiana Revised Statute 3:3 544(F), in pertinent part, states:
(1) The commissioner of agriculture shall annually pay over to the Louisiana Rice Promotion Board the funds collected less the actual cost of administering and collecting the assessment levied herein up to but not to exceed two percent of the gross amount collected.
(2) The annual settlement to the Louisiana Rice Promotion Board shall be made as of the first day of July of each year and shall be accompanied by a complete audit of all funds collected and disbursed, and costs actually incurred in the collection and administration of the assessment.
Transfer of funds.
* * *
(3) The commissioner of agriculture shall annually pay over to the Louisiana Rice Research Board the funds collected less the actual cost of administering and collecting the assessment levied herein up to but not to exceed two percent of the gross amount collected.
(4) The annual settlement to the Louisiana Rice Research Board shall be made as of the first day of July of each year and shall be accompanied by a complete audit of all funds collected and disbursed, and costs actually incurred in the collection and administration of the assessment.
A writ of mandamus may only issue to compel the performance of a ministerial duty required by law. A ministerial duty is one in which nothing is left to discretion. If a public official is vested with any element of discretion, mandamus will not lie. Gibson & Associates, Inc. v. State, Dep't of Transp. & Dev., 2010-1696 (La. App. 1st Cir. 5/18/11), 68 So.3d 1128, 1140. Mandamus lies only when a public official refuses to perform a duty the law clearly states he must perform. It never issues in doubtful cases. Kyle v. Louisiana Public Service Com'n, 03-0584 (La. App. 1st Cir. 4/2/04), 878 So.2d 650, 654.
The question we must resolve is whether LSA-R.S. 3:3534 and LSA-R.S. 3:3544 require the Commissioner to transfer assessment funds to the Rice Boards once a year and, if so, only on July 1st of each year, or whether the Commissioner has discretion as to how often and when to transfer the funds.
The starting point of statutory interpretation is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law should be applied as written and no further interpretation may be made. Every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Boudreaux v. Louisiana Dept. of Public Safety and Corrections, 2012-0239 (La. 10/16/12), 101 So.3d 22, 26; LSA-C.C. art. 9.
Louisiana Revised Statutes 3:3534(H) and 3:3544(F) specifically state that the Commissioner "shall annually pay over" to the Rice Boards the funds collected, less administrative costs not to exceed two percent of the gross amount collected. The statutes further state that "the annual settlement" to the Rice Boards "shall be made as of the first day of July of each year."
Under the clear language of the statutes, the Commissioner is required to make one annual payment to the Rice Boards. To interpret the statutes to allow discretionary monthly or interim payments would render the use of the term "annually" in the statutes meaningless. The legislature could simply not have included the reference to "annual" if the intent was to allow monthly or other periodic payments. As such, we find no error by the trial court in granting the writ of mandamus to the extent that the court ordered the Commissioner to cease all monthly or other interim payments to the Rice Boards.
However, we are unable to find that the language of the statutes requires that the annual payment be made "on July 1 of each year, and only on July 1 of each year," as ordered by the trial court. The statutes mandate only that the payment be made "as of the first day of July." By using the term "as of," the statutes require the Commissioner to make an annual payment (one annual payment) to the Rice Boards on or before July 1st of each year. If the legislature had intended for the payment to be made on the first day of July, it could have simply stated "on July 1." Accordingly, we are compelled to find the trial court erred insofar as the judgment granting mandamus relief ordered the Commissioner to pay assessment funds to the Rice Boards "on July 1 of each year, and only on July 1 of each year."
CONCLUSION
For the foregoing reasons, we hereby affirm the judgment of the trial court insofar as it orders the Commissioner to cease all monthly or other interim payments of assessment funds to the Louisiana Rice Promotion Board and the Louisiana Rice Research Board. We hereby reverse the judgment in part, and vacate that portion of the judgment requiring that assessment funds be paid on July 1st of each year, and only on July 1st of each year. All costs of this appeal are assessed to appellant, Michael Strain, DVM, in his capacity and through his role as Commissioner of the Louisiana Department of Agriculture and Forestry.
While neither party challenges the portion of the judgment requiring that the annual payment be accompanied with a complete audit, we note for clarity that we further affirm this portion of the judgment. The audit is required by LSA-R.S. 3:3534(H)(2) and LSA-R S 3:3 544(F)(4).
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.