2006 Regular Session Highlights
by: Tomas L. Tyler
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.
Recognizing the importance for regional
coordination to control flooding Act 43 of the First Extraordinary Session of
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.
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
(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
(iv) Parks, convention centers, museums,
historical buildings and recreational facilities generally open to the
(v) Public utilities for the benefit of the
(vi) Public ports and public airports to
facilitate the transport of goods or persons in domestic or international
(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
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
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).
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
(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.
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.
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.
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
(a) A law requested by the school board of
the affected school system.
(b) A law defining a new crime or amending an
(c) A law enacted and effective prior to the
adoption of the amendment of this Section by the electors of the state in
(d) A law enacted to comply with a federal
(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 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.
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
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).