APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND
FOR THE PARISH EAST BATON ROUGE STATE OF LOUISIANA DOCKET
NUMBER 640, 501 HONORABLE R. MICHAEL CALDWELL, JUDGE
S. Akchin Christopher J. Dicharry Baton Rouge, Louisiana
Attorneys for Plaintiffs/ Appellants Louisiana Chemical
Association, Alma Plantation, L.L.C., Louisiana Pigment
Company, L.P., Phillips 66 Company, Phillips 66 Pipeline,
L.L.C., and Phillips 66 Partners Holdings, L.L.C.
T. Graham, Jr. Robert D. Schromm Baton Rouge, Louisiana
Attorneys for Plaintiff/ Appellant Louisiana Chemical
W. Speer Glenn A. Koepp Jerry J. Guillot Baton Rouge,
Louisiana Attorneys for Defendant/ Appellee Louisiana
Patricia H. Wilton Baton Rouge, Louisiana Attorney for
Defendant/ Appellee State of Louisiana
Antonio Charles Ferachi Baton Rouge, Louisiana Attorney for
Defendant/ Appellee Louisiana Department of Revenue
S. Akchin Attorneys for Plaintiffs/Appellants Christopher J.
Dicharry Louisiana Chemical Association, Baton Rouge,
Louisiana Alma Plantation, L.L.C., Louisiana
BEFORE: PETTIGREW, McDONALD, AND CALLOWAY [*] JJ.
an appeal from a summary judgment dismissing the
plaintiffs' claims with prejudice. After a de novo
review, we affirm.
AND PROCEDURAL HISTORY
Louisiana Chemical Association, Alma Plantation, L.L.C.,
Louisiana Pigment Company, L.P., Phillips 66 Company,
Phillips 66 Pipeline, L.L.C., and Phillips 66 Partners
Holdings, L.L.C., (collectively the plaintiffs) filed a petition
for declaratory judgment on July 1, 2015, naming as
defendants the State of Louisiana, through the Louisiana
Department of Revenue; Tim Barfield, in his official capacity
as the Secretary of the Louisiana Department of Revenue; the
Louisiana Legislature, through John Alario, President of the
Louisiana Senate; Charles E. "Chuck" Kleckley,
Speaker of the Louisiana House of Representatives; the
Louisiana Tourism Promotion District, through the Chairman of
its Board of Directors, Harrison Smith; and Bobby Jindal, in
his official capacity as Governor of Louisiana. The plaintiffs
asserted that the defendants were collectively responsible
for the adoption, administration, and enforcement of House
Concurrent Resolution (HCR) 8, passed during the 2015
legislative session, which suspended certain exemptions for
State sales tax laws from July 1, 2015 until 60 days after
the 2016 Regular Session of the Legislature. The plaintiffs
asserted that HCR 8 was unconstitutional because it purported
to suspend a law without the required two-thirds vote of each
house of the Legislature; that it did not satisfy the
requirements of the Louisiana Constitution; that it was in
direct conflict with existing law, and thus could not be
given effect; and alternatively, that it was impermissibly
vague and ambiguous, such that it violated due process. The
plaintiffs prayed that HCR 8 be declared unconstitutional,
and for all other reasonable relief.
defendants filed a joint motion for summary judgment on
November 20, 2015. The defendants asserted that: the
financial condition of the State was such that the monies
lost to the exemption listed in HCR 8 were critically needed
to avoid cessation of vital services; and that legislative
instruments were presumed to be constitutional. Further,
defendants asserted that there were no genuine issues of
material fact that: the plaintiffs had failed to establish
that HCR 8 violated the constitution; the plaintiffs had
failed to establish that HCR 8 was adopted in violation of
the Louisiana Constitution; the plaintiffs had failed to
establish that HCR 8 was an unconstitutional amendment of
existing laws; the plaintiffs had failed to establish that
HCR 8 conflicted with the provisions of Section 3 of Act No.
4 of the 2004 First Extraordinary Legislature; and that the
plaintiffs had failed to establish HCR 8 was impermissibly
vague and ambiguous. The defendants asked that summary
judgment be granted in their favor, that the case be
dismissed with prejudice, and that the plaintiffs be cast
plaintiffs filed a cross motion for summary judgment on
November 20, 2015. The plaintiffs asserted that there was no
genuine issue of material fact and that as a matter of law
they were entitled to judgment declaring that HCR 8 was
ineffective, null and void, or unconstitutional on any or all
of the multiple grounds set forth in their petition, for any
and all other reasonable relief, and that the defendants be
cast with all costs.
hearing on the cross motions for summary judgment was held on
December 14, 2015. Thereafter, by judgment dated January 6,
2016,  the district court denied the
plaintiffs' motion for summary judgment, granted the
defendants' joint motion for summary judgment, and
dismissed the plaintiffs' claims with prejudice. The
plaintiffs have appealed the judgment and make the following
assignments of error.
1. The District Court erred by denying Plaintiffs' Motion
for Summary Judgment on grounds that HCR 8 is inconsistent
with, and superseded by, Act. No. 4 (1st Ex. Sess.
2004), § 3.
2. The District Court erred by denying Plaintiffs' Motion
for Summary Judgment on grounds of the unconstitutionality of
HCR 8 under any or all of the following: La. Const, art. Ill.
§§ 14, 15, 16, 18 and 20, and La. Const, art. VII,
3. The District Court erred by denying Plaintiffs' Motion
for Summary Judgment on grounds of the unconstitutional
vagueness and ambiguity of HCR 8.
STANDARD OF REVIEW
thorough review of the record before us, we note that the
material facts of this case are not in dispute. The real
issue before us is whether the district court correctly
interpreted and applied the law. Appellate review of
questions of law is simply a review of whether the trial
court was legally correct or legally incorrect. On legal
issues the appellate court gives no weight to the findings of
the trial court, but exercises its constitutional duty to
review questions of law and renders judgment on the record.
Louisiana Hosp. Ass'n v. State, 2013-0579
(La.App. 1 Cir. 12/30/14), 168 So.3d 676, 685, writ
denied. 2015-0215 (La. 5/1/15), 169So.3d372.
Concurrent Resolution 8 provides:
THEREFORE, BE IT RESOLVED that the Legislature of Louisiana
hereby suspends all of the exemptions from the tax levied
pursuant to R.S. 47:331 for sales of steam, water, electric
power or energy, and natural gas, including but not limited
to the exemption in R.S. 47:3 05(D)(1)(b), (c), (d), and (g),
and any other exemptions provided in those portions of
Chapter 2 of Subtitle II of Title 47 of the Louisiana Revised
Statutes of 1950 that provide for exemptions for business
utilities from the taxes imposed therein.
BE IT FURTHER RESOLVED that that this suspension shall become
effective on July 1, 2015 and shall extend through the
sixtieth day after final adjournment of the 2016 Regular
Session of the Legislature of Louisiana.