EXECUTIVE ORDER MJF 03-13

Prohibited Expenditure of State Monies Fiscal Year 2003-2004


WHEREAS,   Article IV, Section 5(A) of the Louisiana Constitution declares that the governor shall faithfully support the constitution and laws of the state and the United States and shall see that the laws are faithfully executed;

WHEREAS,   Article III, Section 16(A) of the Louisiana Constitution declares that no money shall be withdrawn from the state treasury except through specific appropriations, except as otherwise provided by the constitution;

WHEREAS,   Article VII, Section 10(D)(1) of the Louisiana Constitution declares that money shall be drawn from the state treasury only pursuant to an appropriation made in accordance with law, except as otherwise provided by the constitution;

WHEREAS,   Article XII, Section 10(C) of the Louisiana Constitution declares that no judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the Louisiana Legislature or by the political subdivision against which the judgment is rendered;

WHEREAS,   thirty-five coroners filed suit against the state of Louisiana in Warren W. Hoag, Jr., et al. v. State of Louisiana, through its Treasurer, John Neely Kennedy, 19th Judicial District Court, Parish of East Baton Rouge, No. 471,708, for past due and future extra compensation pursuant to R.S. 33:1559 1 which provides that extra compensation for coroners in the amount of $548.00 shall be payable monthly by the state treasurer on the warrant of the coroners from funds appropriated by the Louisiana Legislature for this purpose, and in Hoag v. State, 2001- 1076 (La. App.1 Cir. 11/20/02), 836 So. 2d 207, writ den., 2002-3199 (La. 3/28/03), 840 So. 2d 570, the First Circuit Court of Appeal held that the legislature's failure to appropriate funds for payment of the extra compensation to coroners violated Article V, Section 31 of the Louisiana Constitution which provides that the salary of a coroner shall not be diminished during his term of office; despite this holding, no reduction or diminution of salary actually occurred during the 1996-2000 or the 2000-2004 terms of office of coroner because no extra compensation was ever appropriated for or paid to the coroners during those terms of office;

WHEREAS,   House Bill No. 1632 of the 2003 Regular Session of the Louisiana Legislature would have provided for the appropriation of the amount of the judgment in Warren W. Hoag, Jr., et al. v. State of Louisiana, through its Treasurer, John Neely Kennedy, 19th Judicial District Court, Parish of East Baton Rouge, No. 471,708, plus legal interest until paid, but the Louisiana Legislature did not enact the bill into law;

WHEREAS,   the judgment against the state in Warren W. Hoag, Jr., et al. v. State of Louisiana, through its Treasurer, John Neely Kennedy, 19th Judicial District Court, Parish of East Baton Rouge, No. 471,708, is final and a writ of mandamus <sup>2</sup> has been filed praying for the state treasurer to be directed to pay all past due extra compensation for the 1996-2000 and the 2000-2004 terms of office of coroner and, in the alternative, for the Louisiana Legislature, through the Joint Legislative Committee on the Budget, the House Appropriations Committee, and the Senate Finance Committee, to be directed to appropriate funds to pay all past due and future compensation for the 1996-2000 and the 2000-2004 terms of office of coroner;

WHEREAS, R.S. 39:77 prohibits the expenditure of any monies in excess of the funds appropriated or otherwise allocated for expenditure by any board, commission, department, or agency of the state during any fiscal year unless approval for the expenditure has been obtained from the interim emergency board and/or the Louisiana Legislature by a two-thirds vote of the members thereof taken by mail ballot; and

WHEREAS,   in the absence of an appropriation by the Louisiana Legislature, the withdrawal, expenditure, payment or disbursement of monies from the state treasury to pay the warrants of the coroners, the extra compensation of the coroners, or the judgment against the state in Warren W. Hoag, Jr., et al. v. State of Louisiana, through its Treasurer, John Neely Kennedy, 19th Judicial District Court, Parish of East Baton Rouge, No. 471,708, would have the effect of creating and/or exacerbating a deficit in the state general fund and be in violation of constitutional and statutory requirements placed upon the withdrawal, disbursement, payment or expenditure of monies from the state treasury;

NOW THEREFORE, I, M.J. "MIKE" FOSTER, JR., Governor of the state of Louisiana, by virtue of the authority vested by the Constitution and laws of the state of Louisiana, do hereby order and direct as follows:

IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of Louisiana, at the Capitol, in the city of Baton Rouge, on this 15th day of August, 2003.

1 Act No. 1001 of the 2003 Regular Session of the Louisiana Legislature, effective July 2, 2003, repealed R.S. 33:1559 for all terms of office of coroner that commence after the effective date of the Act, and for all coroners appointed after the Act became effective for the remainder of the 2000-2004 term of office.

2 The plaintiffs in Warren v. Hoag, Jr., et al, v. State of Louisiana, through its Treasurer, John Neely Kennedy, 19th Judicial District Court, Parish of East Baton Rouge, No. 471,708, claim in their petition for writ of mandamus filed on July 28, 2003, that as of July 1, 2003, the sum of $1,211,080.00, is owed, together with legal interest thereon from date of judicial demand until paid, attorney fees, and all costs of the proceedings.

M.J. "Mike" Foster, Jr.
Governor

ATTEST BY
THE GOVERNOR
Fox McKeithen
Secretary of State