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Unconstitutional laws remain Louisiana’s books

by Associated Press

MONROE — Another state law was recently declared unconstitutional — but unless the Legislature specifically takes action to remove it, language allowing Louisiana State Police Col. Mike Edmonson to get a special boost in retirement will remain in law books.

A notation at the bottom of that specific section of law will say it’s been ruled unconstitutional.

This is just one of many pieces of legislation signed into law only to have a court later rule that it is null and void. Law books are littered with unconstitutional provisions but legislators have been reluctant to remove them.

State Sen. Dan Claitor, whose family’s business — Claitor’s Bookstore and Publishing — specializes in law books, wants to clean them up.

“As legislators, we took an oath to support the U.S. and state constitutions and uphold the laws,” said Claitor, R-Baton Rouge. “If something erroneously gets in there, it’s our duty to strike it from the books.”

Claitor has tried to strike unconstitutional provisions, most notably a state law that requires that along with evolution, science classes must teach creationism. The U.S. Supreme Court threw out the law in 1987, in a landmark case known as Edwards v. Aguillard.

Each section of that law on the Legislature’s website bears this disclaimer: “NOTE: The Balanced Treatment for Creation-Science and Evolution-Science Act, R.S. 17:286.1 to 286.7, was held unconstitutional in Edwards v. Aguillard, La. 1987, 107 S.Ct. 2573, 96 L.Ed.2d 510.”

Other unconstitutional laws contain similar notations.

During debate over removing the Balanced Treatment Act, Sen. Ben Nevers, D-Bogalusa, argued that the U.S. Supreme Court might change its ruling someday, so the Legislature shouldn’t remove it. A majority of the Senate Education Committee agreed with Nevers, so Claitor’s bill failed, as it had before, this time with a 2-1 vote.

There’s been no methodical search for unconstitutional laws but legislation authored by Sen. Rick Gallot, D-Ruston, and approved this year calls for the Louisiana State Law Institute to do a search and report to the Legislature. But the legislation calls for biennial reviews, so nothing will be suggested until 2016.

Claitor said that’s probably best because it could be difficult getting rid unconstitutional laws in an election year.

With an outside agency making the suggestion in 2016 with a new Legislature, “some folks will have the cover of the Law Institute making the suggestion,” he said.

Gallot’s Senate Bill 180 calls for the Louisiana State Law Institute to “make recommendations to the Legislature for the repeal, removal or revision of provisions of law that have been declared unconstitutional by final and definitive court judgment.”

Gallot said the Law Institute list is “merely a recommendation” and the Legislature would have to vote on making changes. He said some are so obvious they “should be non-controversial” but some lawmakers won’t agree to remove them.

He said he believes it would be best to have one bill making all the changes, rather than having separate measures.

Mark Levy, coordinator of research at the Louisiana State Law Institute, said background research on unconstitutional laws is getting underway. Researchers will compile a list and present a report to a review committee which will decide what to propose to the Legislature.

“We will have a report in due course, before the deadline in 2016,” he said.

Levy said the legislation not only asks for suggestions on repealing and removing unconstitutional laws but also revising them to make them constitutional.

Besides the Balanced Treatment Act, Levy’s committee will be looking for other laws that have been ruled unconstitutional.

Among some to be considered are unconstitutional state laws making sodomy illegal, making it a felony for immigrants to drive without documents proving they are legally in the United States and a section of the lobbyist law regarding political contributions that was thrown out in 1992. And there are portions of a state employee retirement law that were thrown out but are still on the books and 2012’s ill-fated Cash Balance Plan retirement system, which sought to set up an IRA-type retirement plan for new state employees, teachers and others.

After the Louisiana Supreme Court threw Cash Balance out, some lawmakers tried to repeal it. Instead, the Legislature in 2013 approved House Concurrent Resolution 2, which suspended the law until July 1 of this year.

Rep. Patricia Smith, D-Baton Rouge, tried this year to rewrite the sodomy statute declared unconstitutional in 2003 to take out the unconstitutional language but keep the enforceable parts. The Legislature rejected her efforts, so the unconstitutional and unenforceable language is still in the books.

Not every unconstitutional law on the books involves major subjects.

In 1972, the state Supreme Court ruled unconstitutional a 1958 law setting a $1 maximum fine for parking violations on college campuses. The LSU Student Government Association sued the LSU Board of Supervisors and won, but the law is still on the books.

The language in the notice that it was found unconstitutional takes up more room in the law books than the actual law does.

Some laws are on the books long after their need has expired.

For example, R.S. 11:1397 provides for pensions for widows of Confederate veterans. They are to receive not more than $60 a month but only if their husbands were honorably discharged and their marriages were performed prior to Dec. 31, 1905. The pensions would cease if they remarried.

That law was last amended in 1991.

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