Arnold Lowther, Et Al. v. Town Of Bastrop

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 13th day of May, 2021 are as follows:
BY Griffin, J.:
2020-C-01231 ARNOLD LOWTHER, ET AL. VS. TOWN OF BASTROP (Parish of
Morehouse)
REVERSED AND REMANDED. SEE OPINION.
Retired Judge Robert L. Lobrano, appointed Justice ad hoc, sitting for
McCallum, J., recused in case number 2020-C-01231 only.
Hughes, J., dissents and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2020-C-01231
ARNOLD LOWTHER, ET AL.
VS.
TOWN OF BASTROP
On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Morehouse
GRIFFIN, J.*
We granted this writ application to address the specific question of whether
there is a cause of action for a writ of mandamus compelling a municipality to satisfy
a judgment for back wages owed to its firefighter employees. Based on the
ministerial nature of the statutorily and constitutionally mandated duty of the
municipality to appropriate funds to satisfy the judgment , we find the lower courts
erred in sustaining the exception of no cause of action.
FACTS AND PROCEDURAL HISTORY
In 2008, thirty -two current and former firefighters (“the Firefighters”) filed
suit against their employer, the City of Bastrop1 (“the City”), alleging the City’s pay
practices violated state law. In 2014, the trial court issued a declaratory judgment
ordering the City to create a compliant uniform salary plan. For nearly two years,
the City failed to enact this plan. Subsequently, by judgment dated December 19,
2016, the trial court adopted the Firefighters ’ proposed salary plan backdated to
January 2005. On May 6, 2019, following a trial on quantum, judgment for back
* Retired Judge Robert L. Lobrano, appointed Justice ad hoc, sitting for Justice Jay B. McCallum.
1 Although styled as a “town” in the case caption , La. R.S. 33:341 provides that a municipality
having five thousand or more inhabitants is classified as a “city.” As of the 2010 Census, Bastrop
had a population of 11,365.
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wages was rendered in favor of the Firefighters for the aggregate amount of
$1,673,805.91 (“the May 2019 judgment”).
The Firefighters sought to enforce the May 2019 judgment by filing a writ of
mandamus. The City filed an exception of no cause of action arguing the Firefighters
are statutorily and constitutionally prohibited from using a writ of mandamus as an
alternative means to execute a judgment against a political subdivision. In their
amended petition, the Firefighters averred the City has a ministerial duty to: 1) pay
the Firefighters the amount owed in satisfaction of the May 2019 judgment; and/or
2) appropriate the funds necessary to pay the Firefighters as mandated by applicable
law. The trial court sustained the City’s exception of no cause of action and
dismissed the Firefighters’ amended petition for a writ of mandamus with prejudice.
On review, the court of appeal succinctly observed the issue turned on whether
the action requested by the Firefighters’ writ of mandamus is ministerial in nature.
Lowther v. Town of Bastrop, 53,586, p. 4 (La.App. 2 Cir. 9/23/20), 303 So.3d 681,
686. Citing La. Const. art. XII, § 10( C) and La. R.S. 13:5109(B)(2), the court of
appeal concluded that the “[p]ayment of a judgment is not a ministerial act.” Id.,
53,586, p. 6, 303 So.3d at 607. Thus, no cause of action lies because the Firefighters
may not enforce the May 2019 judgment by a writ of mandamus – an appropriation
of funds must be authorized by the City. Id., 53,586, pp. 6-7, 303 So.3d at 687.
The Firefighters’ writ application to this Court followed, which we granted.
Lowther v. Town of Bastrop, 20-1231 (La. 1/26/21), 309 So.3d 347.
DISCUSSION
The narrow issue before this Court is whether the Firefighters have stated a
cause of action for a writ of mandamus. An exception of no cause of action tests the
legal sufficiency of the petition by determining whether the law affords a remedy on
the facts alleged. Jackson v. City of New Orleans, 12-2742, p. 24 (La. 1/28/14), 144
So.3d 876, 895 . “All well -pleaded allegations of fact are accepted as true and
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correct, and all doubts are resolved in favor of sufficiency of the petition so as to
afford litigants their day in court. ” Id. Because it presents questions of law, the
sustaining of an exception of no cause of action is subject to de novo review. Id.
A writ of mandamus is an extraordinary remedy that is directed at a public
officer to compel the performance of a ministerial duty required by law. Jazz Casino
Co., L.L.C. v. Bridges, 16-1663, p. 5 (La. 5/3/17), 223 So.3d 488, 492 (citing La.
C.C.P. arts. 3861 and 3863). “A ‘ministerial duty’ is one ‘in which no element of
discretion is left to the public officer,’ in other words, ‘a simple definite duty, arising
under conditions admitted or proved to exist, and imposed by law.’” Id. (quoting
Hoag v. State , 04-0857, p. 7 (La. 12/1/04), 889 So.2d 1019, 1024). “If a public
officer is vested with any element of discretion, mandamus will not lie.” Id.
The Louisiana Constitution enables the legislature to “limit or provide for the
extent of liability of the state, a state agency, or a political subdivision.” La. Const.
art. XII, § 10(C). The Article specifically provides that “[n]o judgment against the
state, a state agency, or a political subdivision shall be exigible, payable, or paid
except from funds appropriated therefor by the legislature or by the politi cal
subdivision against which the judgment is rendered. ” Id. The legislature enacted
La. R.S. 13:5109(B)(2) 2 which further emphasizes that any such judgment is only
payable by funds appropriated for that specific purpose.
The Louisiana Constitution also prohibits any law from requiring increased
expenditures within a political subdivision absent either its approval by the political
subdivision, the appropriation of funds by the legislature to the political subdivision,
or a law providing for a local funding source which the political subdivision is
authorized to levy and collect . See La. Const. art. VI, § 14(A)(1). However, this

2 “Any judgment rendered in any suit filed against the state, a state agency, or a political
subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall
be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if
the suit was filed against the state or a state agency, or out of funds appropriated for that purpose
by the named political subdivision, if the suit was filed against a political subdivision.”
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prohibition is expressly made inapplicable to any “law[s] providing for civil service,
minimum wages, hours, working conditions, and pension and retirement benefits, or
vacation or sick leave benefits for firemen and municipal policemen.” La. Const.
art. VI, § 14(A)(2)(e). Various provisions of Title 33 of the Louisiana Revised
Statutes mandate minimum pay and benefits that firemen shall receive from
municipalities of a certain population. See La. R.S. 33:1992(A) ( mandates a
specified minimum salary based on rank); La. R.S. 33:1992(B) (mandates longevity
raises of two percent per annum ); and La. R.S. 33:1969 (m andates equal
compensation for equal performance of duty and responsibility).
The Firefighters argue that La. Const. art. VI, § 14(A)(2)(e) , in conjunction
with La. R.S. 33:1992(A), La. R.S. 33:1992(B), and La. R.S. 33:1969, gives them a
statutorily mandated and constitutionally protected right to payment of the back
wages quantified in the May 2019 judgment. Therefore, the combination of these
laws serve as either a de facto appropriation or make the appropriation for payment
of the back wages a ministerial function.
The City acknowledges its duty to pay the Firefighters and that La. Const. art.
VI, § 14(A)(2)(e) allows for increased expenditure on a political subdivision to pay
the same without a dedicated funding source. However, the City counters that the
Firefighters are subject to the dictates of La. Const. art. XII, § 10(C) and La. R.S.
13:5109(B) because, as judgment creditors, the Firefighters “cannot compel political
subdivisions to appropriate funds for the payment of a judgment rendered against
that subdivision through a writ of mandamus.” Newman Marchive Partnership, Inc.
v. City of Shreveport, 07-1890, p. 5 (La. 4/8/08), 979 So.2d 1262, 1266 (citing Hoag,
04-0857, pp. 5-6, 889 So.2d at 1023). Thus, the City urg es this Court to recognize
a distinction between its underlying obligation to pay the Firefighters and its duty to
appropriate funds to satisfy the May 2019 judgment – the latter of which, the City
argues, is a discretionary function. This distinction is without merit.
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Mandamus may lie against a political subdivision when the duty to be
compelled is ministerial and not discretionary. In Hoag, this Court observed that the
relevant consideration is “whether the act of appropriating funds to pay the judgment
… is a purely ministerial duty for which mandamus would be appropriate.” 04 -
0857, p. 6, 889 So.2d at 1023. Because the duty to pay the Firefighters is statutorily
and constitutionally mandated, it is ministerial in nature. See Jazz Casino, 16-1663,
p. 9, 223 So.3d at 495 (appropriation of funds to pay refund judgment for overpaid
taxes is a ministerial duty as mandated by La. R.S. 47:1621 and La. Const. art. VII,
§ 3(A)); Parish of St. Charles v. R.H. Creager, Inc., 10-0180, p. 13 (La.App. 5 Cir.
12/14/10), 55 So.3d 884, 892-93 (appropriation of funds to pay judgment of damages
in expropriation case is a ministerial duty because the expropriation statutes and La.
Const. art. I, § 4(B) make payment of fair and just compensation mandatory and not
discretionary). The Firefighters are only requesting the courts to enforce the positive
law and not legislate a judicial solution. See Peron v. Evangeline Parish Police Jury,
01-0603, p. 10 (La. 10/16/01), 798 So.2d 67, 73.
The City’s reliance on Newman and Hoag for the proposition that the
Firefighters are indistinguishable from any other judgment creditor is inapposite. In
Jazz Casino, we distinguished the mandatory nature of paying judgments for tax
overpayment refunds and expropriation compensation from the discretionary nature
of paying judgments arising from matters of contract or tort. 16 -1663, pp. 10 -11,
223 So.3d at 495-96. Thus, Newman is distinguishable because the judgment therein
adjudicated a breach of contract claim. 07-1890, pp. 1-2, 979 So.2d at 1264. Hoag
is distinguishable because plaintiffs therein sought payment from the legislature
itself in contravention of La. Const. art. III, § 16. 04-0857, pp.7-8, 889 So.2d 1019,
1024; New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans ,
13-0873, p. 15 (La.App. 4 Cir. 12/18/13), 131 So.3d 412, 421 -22. In contrast, the
matter sub judice presents no such conflict.
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The clear language of La. Const. art. VI, § 14(A)(2)(e) and the Title 33
provisions reflect a mandate from the legislature that imposes a ministerial duty on
the City to appropriate funds to pay the Firefighters back wages irrespective of La.
Const. art. XII, § 10(C) and La. R.S. 13:5109 (B). See New Orleans Fire Fighters,
13-0873, p. 19, 131 So.3d at 424. “If one constitutional provision addresses a subject
in general terms, and another with the same subject in a more detailed way, the two
should be harmonized if possible, but if there is any conflict, the latter will prevail.”
Perschall v. State, 96-0322, p. 22 (La. 7/1/97), 697 So.2d 240, 255. This Court has
observed that the fire and police minimum wage provision of La. Const. art. VI, §
14 acts as “ a positive reaffirmance of the plenary power of the legislature to
guarantee adequate fire and police protection for all citizens of Louisiana.” 3 New
Orleans Firefighters Ass’n v. Civil Service Com’n of City of New Orleans, 422 So.2d
402, 409 (La. 1982). The record of the constitutional convention proceed ings
reinforces “the obviously compelling state interest” in providing this protection. Id.,
422 So.2d at 408. That “several delegates deplored the failure of local governing
authorities to give these needs a higher priority than other commun ity programs”
undermines the notion that La. Const. art. VI, § 14(A)(2)(e) affords any discretion
as to appropriation on the part of political subdivisions .4 Id. Thus, the express

3 Although this Court was interpreting La. Const. art. VI, § 14 as originally enacted in the 1974
Louisiana Constitution, the exception pertaining to fireman and municipal policeman was present
in that version:

No law requiring increased expenditures for wages, hours, working conditions,
pension and retirement benefits, vacation, or sick leave benefits of political
subdivisions employees, except a law providing for civil service, minimum wages,
working conditions, and retirement benefits for firemen and municipal policemen ,
shall become effective until approved by ordinance enacted by the governing
authority of the affected political subdivision or until the legislature appropriates
funds for the purpose to the affected political subdivision and only to the extent and
amount that such funds are provided. This Section shall not apply to a school board.
(Emphasis added).

4 “‘I don’t know of any firemen or any policemen who has ever refused to go outside of his area
to answer a call. I just want you to take that into consideration. I think the lives of the whole state,
the property of the whole state is involved in this issue, and I think as a result of that, the legislature
ought to have something to say about how they operate so that we can be sure that the lives and
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exception for firemen from the overall limitations of La. Const. art. VI, § 14 is a
considered judgment by the legislature that the wage and benefit guarantees could
be mandated on political subdivisions even in the absence of an appropriation by the
subdivision itself.5 See Johnson v. Marrero-Estelle Volunteer Fire Co., No. 1, 04-
2124, p. 9 (La. 4/12/05), 898 So.2d 351, 358.
The ministerial nature of the duty of the City to pay the Firefighters does not
change to a discretionary one simply because the Firefighters obtained a monetary
judgment confirming and quantifying the City’s payment obligation. Adopting such
a distinction would allow the City to disregard its mandatory obligations pursuant to
La. Const. art. VI, § 14(A)(2)(e), La. R.S. 33:1992(A), La. R.S. 33:1992(B), and La.
R.S. 33:1969 under the guise that a court-issued mandamus compelling performance
of these ministerial duties violates the separation of powers doctrine. See Jazz
Casino, 16-1663, p. 13, 223 So.3d at 497; New Orleans Fire Fighters, 13-0873, p.
20, 131 So.3d at 424. This result would defeat the very purpose of the express
constitutional protections to which the Firefighters are entitled.
The action requested by the Firefighters’ amended petition for a writ of
mandamus is the City’s ministerial duty to appropriate funds necessary to satisfy the
May 2019 judgment as required by La. Const. art. VI, § 14(A)(2)(e), La. R.S.

property of all of our citizens ar e protected as much as possible. ’” Id., 422 So.2d at 408 n. 5
(quoting Delegate DeBlieux) (emphasis added).

“Delegate Rayburn commented that ‘that’s the only reason … the legislature has helped the
fireman and policeman as much as they have. They couldn’t get help locally; they had no recourse;
they had no other place to go but the legislature.’” Id., 422 So.2d at 408 n. 6.

5 In Carriere v. St. Landry Parish Police Jury, 97-1914, p. 5 (La. 3/4/98), 707 So.2d 979, 981-82,
this Court observed that prior to Acts 1991, No. 1066, § 1 – which amended La. Const. art. VI, §
14 to include increased expenditures for any purpose – “it was not uncommon for the legislature
to impose mandatory duties on parish governing bodies that required appropriation of funds
without providing a corresponding fundi ng source.” The amendment made it beyond the power
of the judiciary to compel appropriation “unless there already exists a clear legislative mandate to
do so.” Id. Because the exception regarding wages and benefits for firemen has been in La. Const.
art. VI, § 14 since its original enactment, there has always been, and continues to be, a legislative
mandate to compel appropriation for the payment of wages and benefits for firemen.
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33:1992(A), La. R.S. 33:1992(B), and La. R.S. 33:1969.6 Accordingly, we find the
Firefighters’ allegations that the City has fa iled to perform this duty state a valid
cause of action.
DECREE
For the foregoing reasons, the judgment of the trial court sustaining the City’s
exception of no cause of action is reversed, and the matter is remanded for further
proceedings consistent with this opinion.

REVERSED AND REMANDED

6 The absence of an express authorization for use of mandamus in these provisions does not
preclude it, rather, at trial, the Firefighters would be “required to show that relief is not available
by ordinary means or that the delay involved in obtaining ordinary relief may cause injustice as
required by La. C.C.P. art. 3862.” Jazz Casino, 16-1663, p. 12, 223 So.3d at 496-97.
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SUPREME COURT OF LOUISIANA
No. 2020-C-01231
ARNOLD LOWTHER, ET AL.
VS.
TOWN OF BASTROP
On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Morehouse
HUGHES, J., dissents with reasons.
Respectfully, I would affirm the decision of the trial court and the court of
appeal. This matter involves enforcement of a money judgment. The constitutional
and statutory protections afforded public bodies against the enforcement of money
judgments canno t be discarded based on the nature of the underlying obligation
which resulted in judgment. Money judgments are rendered against public bodies all
the time, for very good reasons. There is a distinction between the ongoing duty to
pay the firefighters and the past due amount reduced to judgment after litigation. The
“worthiness” of the underlying obligation is a political decision to be made by the
governing authority of the public body which has been cast in judgment, not a
decision for the courts.
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