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2006 Regular Session Highlights

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Constitutional Amendments

by: Tomas L. Tyler
(225) 342-6156

Flood protection, levees, expropriation, severance taxes, homestead exemptions, tax assessors, judges, schools, state officials, retirement, and constitutional funds are areas in our constitution on which voters will be asked to approve in the next statewide election.

FLOOD PROTECTION

Recognizing the importance for regional coordination to control flooding Act 43 of the First Extraordinary Session of 2006 (Senate Bill 9 by Senator Boasso) authorizes the legislature to establish regional flood protection authorities with territorial jurisdiction being limited to parishes and levee districts situated entirely or partially within the coastal zone of the state. Each authority exercises its powers, duties, and functions for the purpose of constructing and maintaining levees, levee drainage, flood protection, and hurricane flood protection within the territorial jurisdiction of the authority.

If the a regional flood protection authority includes areas in which there are one or more levee districts, then the creation of the regional authority is not to affect the authority of the respective levee district (a) to levy taxes in such areas nor prohibit the levy of taxes provided by the proposed amendment in such areas, (b) to employ and provide for its employees, or (c) to own, construct, and maintain its property.

Each authority can impose an authority-wide property tax provided the tax is approved by a majority of the electors within the territorial limits of the authority as well as a majority of the electors in each parish contained within the authority. In addition, the legislature may appropriate up to $500,000 annually to regional flood protection authorities from the Coastal Protection and Restoration Fund.

Another aspect of Act 43 is that the governing authority of a levee district created after January 1, 2006 is authorized to annually levy a tax on all property not exempt from taxation situated within the alluvial portions of the district subject to overflow provided such is approved by a majority of the electors of the district who vote in an election held for that purpose; if the district is comprised of territory in more than one parish, then approval by a majority of the electors who vote in each parish comprising the district is also required.

COASTAL PROTECTION AND RESTORATION

Act 854 of the 2006 Regular Session (Senate Bill 229 by Senator Dardenne) requires that the treasurer transfer 20% of funds received from any securitization, occurring after July 1, 2006, of tobacco settlement funds into Coastal Protection and Restoration Fund and authorizes the legislature to appropriate up to 20% of this amount to the Barrier Island Stabilization and Preservation Fund to be used for purposes of the Louisiana Coastal Wetlands Conservation and Restoration Program.

EXPROPRIATION

The recent case of Kelo v. City of New London, 125 S. Ct. 2655 (2005) decided by the Supreme Court of the United States involved the use of eminent domain to transfer land from one private owner to another to further economic development. The court held that condemnation of privately owned property by the city of New London, Connecticut so that it could be used as part of a comprehensive redevelopment plan was a permissible "public use" under the "takings clause" of the Fifth Amendment to the United States Constitution.

While the constitution prohibits property from being taken or damaged by the state or its political subdivisions except for public purposes and with payment of just compensation, Act 851 of the 2006 Regular Session (Senate Bill 1 by Senator McPherson) provides that, unless specifically authorized by the legislature as assistance to local industry for specific purposes, property shall not be taken or damaged by the state or its political subdivisions for public purposes: (a) for predominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity.

"Public purpose" is constitutionally limited to the following:

(a) A general public right to a definite use of the property.

(b) Continuous public ownership of property dedicated to one or more of the following objectives and uses:

(i) Public buildings in which publicly funded services are administered, rendered, or provided.

(ii) Roads, bridges, waterways, access to public waters and lands, and other public transportation, access, and navigational systems available to the general public.

(iii) Drainage, flood control, levees, coastal and navigational protection and reclamation for the benefit of the public generally.

(iv) Parks, convention centers, museums, historical buildings and recreational facilities generally open to the public.

(v) Public utilities for the benefit of the public generally.

(vi) Public ports and public airports to facilitate the transport of goods or persons in domestic or international commerce.

(c) The removal of a threat to public health or safety caused by the existing use or disuse of the property.

The proposed amendment further provides that neither economic development, enhancement of tax revenue, or any incidental benefit to the public shall be considered in determining whether the taking or damaging of property is for a public purpose. It also provides that, unless provided differently in the constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation.

The last major exception contained Act 851 is that the bona fide homestead is not subject to expropriation under provisions of the constitution regarding assistance to local industry which may be undertaken, with legislative authorization, by any political subdivision, public port commission, or public port, harbor, and terminal district.

Compensation for Takings

Compensation paid, under Act 853 of the 2006 Regular Session (Senate Bill 27 by Senator Dupre), for the taking of, or loss or damage to, property rights for the construction, enlargement, improvement, or modification of federal or non-federal hurricane protection protects, including mitigation related thereto, is not to exceed that required by the Fifth Amendment of the Constitution of the United States. These provisions do not apply to compensation paid for a building or structure that is destroyed or damaged by an event for which a presidential declaration of major disaster or emergency was issued, if the taking occurs within three years of such event.

Compensation, paid by levee districts, with respect to lands and improvements actually used or destroyed in the construction, enlargement, improvement, or modification of federal or non-federal hurricane protection projects, including mitigation related thereto, is not to exceed that required by the Fifth Amendment to the Constitution of the United States.

Expropriation Procedure

Act 859 of the 2006 Regular Session (House Bill 707 by Rep. Farrar) requires the state or its political subdivisions, prior to any lease or sale of expropriated property, to offer the property to the original owner or his heir or successor in title provided the expropriated property has been held for not more than 30 years. Excluded from this provision are leases and operation agreements for port facilities, highways, qualified transportation facilities and airports. The property is to be offered to the original owner or his heirs or successors at the current fair market value after which time the property can only be transferred by competitive bid open to the general public.

Expropriated property held for more than 30 years, may be sold or transferred as otherwise provided by law.

Also provides a procedure for declaration of expropriated property to be declared surplus property by the state or its political subdivisions or by petition of the original owner, his heirs, or successors.

ASSESSORS

The Board of Assessors for Orleans Parish is abolished and Orleans Parish have a single tax assessor under to be elected at the same time as municipal officers in Orleans Parish Act 863 of the 2006 Regular Session (Senate Bill 141 by Senator Duplessis).

JUDGES

Act 860 of the 2006 Regular Session (House Bill 13 by Representative Greene) reduces the time that a person must be domiciled in a judicial district prior to running for a judgeship from two years to one year.

Changes the requirement that the person have been admitted to practice law in this state from five years preceding election to the following:

(1) For the supreme court or a court of appeals - ten years.

(2) For a district court, family court, parish court, or court having solely juvenile jurisdiction - eight years.

Retains the requirement that these judges engage in the practice of law while sitting as a judge.

Act 862 of the 2006 Regular Session (House Bill 206 by R. Carter) authorizes the establishment of new judgeships for district courts with new the divisions having with limited or specialized jurisdiction within the territorial jurisdiction of the district court and to provide for subject matter jurisdiction over family or juvenile matters.

STATE OFFICIALS

A limitation is placed on persons serving in a statewide office when a vacancy occurs. Act 858 of the 2006 Regular Session (House Bill 716 by Representative Beard) provides that if a vacancy occurs in the office of the lieutenant governor or a statewide elected office other than that of the governor and the unexpired term exceeds one year, then the person filling the vacancy, whether the appointed lieutenant governor or the first assistant, will serve only until the vacancy is filled by election at the next regularly scheduled congressional or statewide election. If no congressional or statewide election is available within one year of the vacancy, the office is to be filled by election at a special election called by the governor.

SCHOOLS

Act 861 of the 2006 Regular Session (House Bill 48 by Representative White) includes the Central community school system to the list of municipal school systems for purposes of funding under the MFP. The bill also contains a provision that no state dollars be used to discriminate or have the effect of discriminating in providing equal educational opportunity for all students.

Financial Burden

The prohibition provisions regarding increasing the financial burden of a political subdivision as they relate to schools systems is addressed in Act 855 of the 2006 Regular Session (Senate Bill 296 by Senator Quinn). Under Act 855, no law requiring increased expenditures within a city, parish, or other local public school system for any purpose shall become effective within the system only as long as the legislature appropriates funds for the purpose to the affected system and only to the extent and amount that such funds are provided, or until a law provides for a local source of revenue within the school system for the purpose and the affected school board is authorized by ordinance or resolution to levy and collect such revenue and only to the extent and amount of such revenue.

The prohibitions of Act 855 do not apply to the following:

(a) A law requested by the school board of the affected school system.

(b) A law defining a new crime or amending an existing crime.

(c) A law enacted and effective prior to the adoption of the amendment of this Section by the electors of the state in 2006.

(d) A law enacted to comply with a federal mandate.

(e) Any instrument adopted or enacted by two-thirds of the elected members of each house of the legislature.

(f) A law having insignificant fiscal impact on the affected school system.

(g) The formula for the Minimum Foundation Program nor to any instrument adopted or enacted by the legislature approving such formula.

(h) Any law relative to the implementation of the state school and district accountability system.

SEVERANCE TAX

Severance tax allocations are distributed to each parish in which the mineral or time is located based on a formula in the constitution. Act 864 of the 2006 Regular Session (House Bill 714 by Representative Gallot) provides that, beginning July 1, 2007, the maximum one-fifth allocation of severance taxes on all natural resources other than sulphur, lignite, or timber is increased from $750,000 to $850,000. This amount will be increased each July first, beginning in 2008, by the average annual increase in the Consumer Price Index for all urban consumers as published by the U.S. Department of Labor for the previous year as calculated by the Revenue Estimating Conference.

HOMESTEAD EXEMPTION

Act 852 of the 2006 Regular Session (House Bill 389 by Representative Triche) extends the homestead exemption to property owned by a trust and removes the requirement that this trust be an irrevocable trust.

RETIREMENT

Under Senate Bill 258 by Senator Boasso (Failed - Pending in House Conference) the state or governing authority of any state retirement system would have prohibited from taking any action causing the creation of additional unfunded accrued liability without providing at the time of creation a new, additional funding source therefor which will completely eliminate the created unfunded accrued liability within five years of such creation.

The bill further stipulated that any legislative enactment regarding future benefits also not contain a benefit provision for members of a state retirement system having an actuarial cost as determined by the legislative actuarial note attached to the bill providing the benefit be approved by the legislature or the governor unless a new, additional funding source sufficient to pay all such actuarial cost within five years of the effective date of the benefit provision is identified in such enactment.

USE OF PUBLIC FUNDS

Among the constitutional exceptions to the prohibition involving the loan, pledge, or donation of funds, credit, property, or things of value of the state or a political subdivision are the following:

(1) Investments in stocks or a portion of the state-funded permanently endowed funds of a public or private college or university , not exceeding 35% of the public funds endowed as provided by Act 856 of the 2006 Regular Session (House Bill 345 by Representative Cazayoux).

(2) Investment in equities of a portion of the Medicaid Trust Fund for the Elderly, not to exceed 35% of the fund which is provided in Act 857 of the 2006 Regular Session (House Bill 406 by Representative Daniel).

 



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