Opinion Number ( 1996 )

Dear Mr. White:

You have requested the opinion of this office concerning ArticleVII, Section 2.1 of the Louisiana Constitution (1974) with respect to increases in tuition and fees approved by the Southern University Board of Supervisors on July 29, 1995, effective Spring of 1996.

Article VII, Section 2.1 provides as follows:

(A) Any new fee or civil fine or increase in an existing fee or civil fine imposed or assessed by the state or any board, department or agency of the state shall require the enactment of a law by a two-thirds vote of the elected members of each house of the legislature.

(B) The provisions of this section shall not apply to any department which is constitutionally created and headed by an officer who is elected by majority vote of the electorate of the state.

The constitutional amendment was approved by the voters and became effective on November 23, 1995. Thus, your question is whether Section 2.1 applies to those increases in tuition and fees which were approved by the Board of Supervisors before the amendment went into effect, but which did not take effect themselves until after the effective date of the amendment.

The general rule of construction, with respect to both statutory and constitutional provisions, is that laws have prospective and not retrospective operation. Exceptions to this rule exist only where a statute is remedial or procedural in nature or where words employed show a clear intent to have retroactive effect.Paul v. Edwards, 323 So.2d 488 (La.App. 1 Cir. 1975).

Article VII, Section 2.1 is neither remedial nor procedural and there is no apparent intent in the language chosen for this amendment to apply retroactively. Thus, under general principles of construction, applicable to statutes and constitutional provisions, the substantive requirements of Article VII, Section 2.1 are to be applied only to those factual situations arising after the amendment's effective date.

The Southern University Board of Supervisors is created by Article VII, Section 7 of the Louisiana Constitution (1974). Pursuant to this provision, the Board of Supervisors is empowered to supervise and manage the institutions and programs administered through the Southern University System. According to LSA-R.S. 17:3351, the Board of Supervisors "shall have authority to exercise all power to direct, control, supervise and manage the institutions of higher education under its control . . ." This includes the power to determine the fees to be paid by students. LSA-R.S. 17:3351 (5).

The Board of Supervisors exercising its constitutional and statutory powers took action on July 29, 1995, to increase tuition and fees applicable to institutions under its control, effective in Spring of 1996. Though these increases were not to take effect until Spring of 1996, the Board's action took place in July of 1995, prior to the effective date for Article VII, Section 2.1. Therefore, it is the opinion of this office that the provisions of the constitutional amendment are not applicable to the increases in tuition and fees enacted by the Board prior to the amendment's effective date.

I hope this has sufficiently answered your inquiry.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ________________________________ GINA M. PULEIO ASSISTANT ATTORNEY GENERAL

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