CABL Recommendations on 2012 Constitutional Amendments
This year there are nine constitutional amendments on the November 6th ballot. While there is at least one high profile item and another substantive proposal involving economic development, most of the rest are good examples of the problem we have with putting too much language, much of it too restrictive, in the constitution.
In theory the constitution should be a framework for governance which the Legislature follows in enacting statutes. But over the years our constitution has grown to include far too many provisions that restrict the Legislature from doing its job, often in rather routine areas that don’t rise to the level of constitutional issues. That means that if there’s a need to make even minor changes in these laws it requires a constitutional amendment passed by two-thirds of the Legislature and approved by voters.
Though CABL has consistently raised objections about the proliferation of constitutional amendments, it might seem paradoxical that we are supporting a number of the amendments this year. For the most part, that’s because they are not so much adding new language to the constitution as they are changing current provisions that can’t be fixed in any other way.
We would prefer that as these types of issues arise the Legislature, instead of just changing existing language and keeping unnecessarily restrictive provisions in the constitution, would weed some of them out permanently and place them in the purview of the Legislature where many of them belong. That’s not what’s happened, though, and in the meantime these proposals have been presented to voters to determine their fate. So with that in mind, here are CABL’s recommendations for this year’s constitutional amendments.
1. Medicaid Trust Fund for the Elderly
Louisiana’s Medicaid Trust Fund for the Elderly was established by statute in 2000 with federal dollars to provide support to health care programs involving nursing homes, home health care and primary care services for the elderly. At the time, Louisiana was the last state among 29 to receive those dollars through a loophole in a federal program that the Congress was in the process of closing.
To get the funds required a good bit of involvement from the state’s congressional delegation and the passage of a statute ensuring that the funds would only be used for the intended health care purposes. This constitutional amendment essentially places that dictate into the constitution by prohibiting dollars in that trust fund from being used for anything other than the intended purposes – and not helping to balance the state budget.
Comment: This amendment, like another one that came last year on a different matter, seeks to constitutionally protect a specific fund from being raided to help make up for shortfalls in state revenue. Currently there are a handful of funds that already have that protection – most for a very long time – but the vast majority are statutorily protected which means the governor and Legislature can access all or portions of those dollars in times of budget shortfalls.
In recent years, some dedicated funds have been swept on a regular basis – but not this one. Largely because of the agreement that was made with the federal government over the intended use of those federal funds, no attempt has been made to raid or “sweep” the Medicaid Trust Fund for the Elderly, nor is that likely to happen given all of the circumstances surrounding the fund.
From CABL’s perspective this constitutional amendment is unnecessary. While its passage would probably have little or no impact, it is another example of cluttering up the constitution with prohibitions and requirements that are best left to the judgment and implementation of the Legislature. CABL Recommendation: NO POSITION
2. Expansion of Gun Rights
Louisiana is already recognized by national groups on both the right and the left as one of the states where gun rights have some of the greatest protections. Constitutional Amendment #2 would expand that right further in three key areas:
1. It broadens the current right to “keep and bear” arms to include the right to acquire, possess, carry, transfer and use firearms.
2. It removes language in our constitution that allows the Legislature to pass laws dealing with carrying concealed weapons.
3. It adds language saying that any restriction on the fundamental right to bear arms is subject to “strict scrutiny” by the courts.
To that last point, most people probably don’t realize that Louisiana already has more than 80 laws on the books that in some way limit the right to carry firearms. They include various restrictions on convicted felons and minors and they prohibit others from carrying guns in such places as the State Capitol, various governmental buildings, airports, bars and school campuses.
The passage of this constitutional amendment would not have any immediate impact on any of those current restrictions. What will change is that the laws creating them will be subject to a significantly higher standard of judicial review if someone chooses to challenge them. If they do, the laws will have to meet a standard known as “strict scrutiny” by the courts. Strict scrutiny is the most stringent standard of judicial review and legal experts are in general agreement that it is often extremely difficult to meet its requirements.
Comment: CABL opposed this legislation during the legislative session. Certainly, we support gun rights and are satisfied with the current language in our constitution.
But, CABL has always been actively involved in public education matters, and we did have a very specific concern that the language in this constitutional change could negatively impact the current restrictions that bar carrying firearms in gun-free school zones, specifically on college campuses. We believe the current restrictions in that regard are sound and appropriate and we find it unfortunate that supporters of this legislation refused to accept an amendment which would have simply allowed our current restrictions to stand.
So what is our specific concern? Basically, it’s that if this amendment passes, one could foresee a situation where a student or someone else charged with carrying a firearm on a college campus could challenge the constitutionality of the gun-free campus restriction, thus leaving it to the courts to decide under a new and much higher standard of scrutiny if our current law is too restrictive. Would that happen? No one knows, but CABL feels strongly, in agreement with our universities, that the combination of guns and still maturing students is not a good mix. Opening the possibility that that might occur is not a risk we wish to take.
In the broader picture, CABL does not believe that there is any danger that this or any future Legislature will ever pass an overly restrictive gun law that citizens would not support. Nor do we – or most people, for that matter – think the restrictions we currently have are unreasonable or out of line. It is our belief that in this case our current constitutional language has served us just fine. CABL Recommendation: OPPOSE
3. Public Notice of Retirement Bills
Currently, the Legislature has a number of rules surrounding when bills must be filed before a legislative session. Bills impacting the state’s public retirement systems have special rules that are different than most other legislation. The constitution requires that retirement bills must be filed 10 days before the start of the legislative session and they must be advertised on two separate occasions at least 30 days prior to that in the official state journal.
This amendment would change those rules to give additional notice of the filing of retirement bills. If this amendment passes retirement bills would have to be filed at least 45 days before the session begins and be advertised three times 60 days in advance in the official state journal.
Comment: This is another instance of where the detail that exists in our state constitution requires voters to pass constitutional amendments to make even minor or technical changes in fairly routine matters. The Legislature should have the authority to make its own rules about when and how bills should be filed and advertised. Having to go to voters to make these kinds of changes seems somewhat clumsy, at best, and a waste of time for citizens.
If the Legislature wants the public and retirement actuaries to have more time to read and analyze retirement bills, CABL has no objection. We support this amendment, but suggest a better approach might have been to fix the problem in the constitution that triggered the need for an amendment rather than keeping the filing requirement in the constitution and just changing the deadlines legislatively. CABL Recommendation: SUPPORT
4. Exemption from Property Taxes for Spouses of Disabled Veterans
Two years ago voters passed a constitutional amendment that would allow local governments the authority to put a measure on the ballot doubling the size of the Homestead Exemption for veterans with a 100-percent service related disability status.
That means that in the 47 parishes that passed such an initiative the effective Homestead Exemption for some disabled veterans increases from $75,000 – which most homeowners have – to $150,000. That amendment also said that if the new, higher exemption was in place when the veteran died, the spouse would be eligible to retain that same level of exemption. This amendment changes that to say a spouse would be eligible for the exemption even if the veteran died before the law took effect.
Comment: In 2010 CABL opposed the original constitutional amendment to increase the Homestead Exemption for disabled veterans. While we certainly support all our veterans and appreciate their service, we have taken a long and consistent position against the ongoing expansion of property tax exemptions for various interest groups, no matter how well intentioned they might be. These continuing changes either erode the local tax base further or effectively increase property taxes for those who don’t receive the new exemption.
Louisiana already has what is arguably the most generous Homestead Exemption in the country, far exceeding what is found in almost every other state. CABL believes it provides more than adequate protection for all citizens and we should put a stop to expanding it further, even if it’s only around the margins. CABL Recommendation: OPPOSE
5. Loss of Retirement Benefits for Convicted Public Employees
For the most part, the retirement benefits of public employees are constitutionally protected, but there are exceptions. One major one is that under current law, portions of a public servant’s retirement benefits can be garnished by the courts to pay for fines, restitution, incarceration, etc. if a public employee is convicted of a felony related to his or her job. This amendment doesn’t change that, but it, in conjunction with companion statutory legislation that has already passed, would give the court a couple of additional options.
Instead of garnishing the employee’s retirement, a judge could choose to order the forfeiture of that employee’s entire public retirement benefit. In that scenario the employee would receive the share he or she personally paid into the retirement system over the years, but that state-funded pension would be gone and the dollars forfeited would go into the state retirement system. In addition the judge could also order that any fines or restitution related to the crime be paid by the employee out of those refunded retirement benefits.
Just to provide some context, this new amendment would apply only to what’s called a “public corruption crime.” That’s defined as a crime where the employee realized or attempted to realize a personal financial gain for himself or a third party or committed a criminal sexual act with a minor. In both cases those crimes have to be directly related to the employee’s public sector job.
In addition, in the case of forfeiture, there are provisions to protect the retirement benefits of spouses and other dependents so that, at least theoretically, innocent family members would not lose their share of benefits. This law would only apply to benefits earned after January 1, 2013 so it is not retroactive.
Comment: About half the states have some type of similar provision in law for public corruption offenders and the federal government has extensive authority, as well. There might be some details that need more clarity in the statutory legislation, but this policy seems to take a balanced approach, it gives the courts latitude to use their judgment without being overly prescriptive and appears to be in line with actions in other states. CABL believes this will send a strong message to public servants about their public responsibility and we support this amendment. CABL Recommendation: SUPPORT
6. Property Tax Exemption in New Iberia
Currently, the state constitution delineates what kinds of property owners are eligible to receive an exemption from local property taxes. Ironically, even though property taxes are local, the local bodies that are the recipients of the tax can’t grant exemptions to that tax without changing the constitution.
That’s what the city of New Iberia wants to do. It’s a rather complicated story, but the short version is that New Iberia wants to annex some surrounding areas into the city limits and wants to offer landowners who would be affected by the move a limited exemption from municipal property taxes to encourage them to go along with the annexation. Passage of this amendment would allow the city to do that with a two-thirds vote of the city council.
Comment: This is another one of those issues where the state constitution appears far too restrictive. If a local government wants to offer a tax exemption from its own local taxes, why should the constitution prohibit that? To take that a step further, why should the Legislature have to pass a measure to allow a local government to create an exemption to its own taxes and why should state voters have to be bothered with it? This particular amendment affects only the city of New Iberia so there is no impact anywhere else.
Perhaps a better approach would have been to fix the constitution so that any local government would have the authority to grant whatever tax exemptions it saw fit. But this doesn’t do that. Nevertheless, CABL supports this amendment to allow New Iberia the authority to determine whether it wants to offer property owners a local tax exemption or not. CABL Recommendation: SUPPORT
7. Changing Membership on Boards and Commissions
This amendment is actually fairly straightforward. Six major state boards are constitutionally created which means the makeup of the boards is defined in the constitution. In an effort to provide geographic balance across the state, one of the constitutional requirements is that there be at least one member from each congressional district. The problem, of course, is that this year Louisiana is losing a congressional district which causes a conflict in the size of the boards and the way they’re appointed. This amendment, along with statutory language already passed, clears up that conflict in addressing the makeup of these six boards.
Comment: This is another instance where strict constitutional language requires a constitutional change when something unforeseen happens like the loss of a congressional district. The more permanent solution might have been to propose an amendment that gave the Legislature the authority to statutorily change the makeup within guidelines if the state lost a congressional district. In the meantime, this amendment solves the immediate problem and CABL supports it. CABL Recommendation: SUPPORT
8. Local Property Tax Exemption for Certain Businesses
This amendment is one being pushed by Louisiana Economic Development as an incentive to attract certain businesses to Louisiana by offering them a break on local property taxes. Currently, certain manufacturing businesses are eligible for a five-year local property tax exemption which can later be renewed for another five years. But other types of businesses that LED would like to recruit are not.
Specifically, LED would like to be able to offer an incentive for data service and distribution centers, corporate headquarters and other non-manufacturing businesses, especially those related to technology and research.
If this amendment is approved, this would create a 10-year exemption from local property taxes for the targeted businesses that locate or expand here, but there are a number of caveats, protections and limitations. Among them:
· While the businesses could receive a general 10-year exemption, they would still have to pay local property taxes on 10-percent of the fair market value of their property or the first $10 million of assessed value, whichever is greater. That means these businesses would be mostly exempt from property taxes, but local governments would still receive some proceeds from the company.
· Though the state will administer the program and ultimately determine which businesses are eligible and granted the exemptions, the local governments in each parish have the final say. The exemption of local taxes cannot be granted unless the parish governing authority, affected local municipalities, the school board, the parish law enforcement district or sheriff and the tax assessor agree. If any one of those entities objects, the exemption cannot be granted.
· An eligible business must agree to make at least $25 million in new capital investment and create at least 50 new direct jobs. In addition, most of its sales must be targeted to out-of-state customers.
Comment: Louisiana has done a good job in recent years in expanding economic development activities in the state and creating new jobs, but officials have pointed out that there are some newer types of non-manufacturing businesses they would like to attract. To do that they believe the state must have some additional incentive programs targeted specifically to those industry sectors to be competitive with other states. This would give them that.
While CABL has been wary of past efforts to erode the property tax base of local governments through exemptions, this one is different. Those past efforts have largely been imposed on the local governments by the state without any local input. This amendment addresses that. If all of the major property tax recipients in a given parish agree to the exemption, that suggests a pretty strong local consensus in support of the incentive.
From the state’s perspective this program could help land some new industries that we have had a hard time attracting, diversify and modernize our economy, and actually increase state tax revenues. This amendment, coupled with the companion statutory legislation already passed, provide a number of protections and safeguards and CABL supports this proposal. CABL Recommendation: SUPPORT
9. Crime Prevention Districts
In recent years there has been an increase in interest in local crime prevention districts. Currently, there are about 30 around the state and the constitution allows the creation of these districts as a means for neighborhoods to collect a tax –or technically a parcel fee – from every property owner in the area to enhance crime prevention and security within the district.
Generally, the process to do this involves having a local legislator introduce a bill to create the special district and then place an item on the ballot for voters in the area to decide if they want it.
With the rise in the number of these districts, there has also been some concern from voters that they didn’t know anything about the districts until they saw the initiative on the ballot. This amendment seeks to address that issue and, basically, it does two things:
· It increases the number of times that notice of a bill to create a crime prevention district must be advertised in the local journal in that area. Currently, it must be published twice. Under this amendment it would have to be advertised three times.
· It also requires that within the public notice additional information must be included about whether the governing authority of the special district would be authorized to impose and collect a parcel fee within the district, whether the parcel fee will be imposed or may be increased without an election, and the maximum amount of the fee.
Comment: Again, this is a case where the specificity of language in the current constitution requires a constitutional amendment to make what most would consider a minor change in rules that the Legislature should deal with. Perhaps this amendment could have retained the current minimum constitutional requirements for public notice while giving the Legislature the authority to require more frequent notice or the inclusion of additional information as it sees fit. But this amendment doesn’t do that. Still, it does provide taxpayers more information about the creation of special taxing districts in their areas and CABL supports this amendment. CABL Recommendation: SUPPORT
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For more detailed information and background on the 2012 Constitutional Amendments check out the PAR guide at www.parlouisiana.org