derrick-shepherd-v-thomas-schedler-in-his-official-capacity-as-the ( 2016 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of January, 2016, are as follows:
BY WEIMER, J.:
2015-CA-1750 DERRICK SHEPHERD v. THOMAS SCHEDLER, IN HIS OFFICIAL CAPACITY AS
THE SECRETARY OF STATE FOR THE STATE OF LOUISIANA, & JAMES
"BUDDY" CALDWELL IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL
FOR THE STATE OF LOUISIANA, & PAUL D. CONNICK, JR., IN HIS
OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE 24TH JUDICIAL
DISTRICT, PARISH OF JEFFERSON, STATE OF LOUISIANA (Parish
of E. Baton Rouge)
For the reasons assigned, therefore, we find that 1997 La. Acts
1492, which attempted to amend La. Const. art. I, § 10, is null
and void because it was not constitutionally adopted, and we
affirm the decision below.
AFFIRMED.
GUIDRY, J., dissents and assigns reasons.
CRICHTON, J., concurs and assigns additional reasons.
01/27/2016
SUPREME COURT OF LOUISIANA
NO. 2015-CA-1750
DERRICK SHEPHERD
VERSUS
THOMAS SCHEDLER, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF STATE FOR THE STATE OF LOUISIANA, &
JAMES “BUDDY” CALDWELL, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL FOR THE STATE OF LOUISIANA, &
PAUL D. CONNICK, JR., IN HIS OFFICIAL CAPACITY AS DISTRICT
ATTORNEY FOR THE 24TH JUDICIAL DISTRICT,
PARISH OF JEFFERSON, STATE OF LOUISIANA
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
WEIMER, Justice
This matter arises from a challenge to the validity of a 1998 amendment to La.
Const. art. I, § 10 limiting felons from seeking public office. The case is before us on
direct appeal from a district court judgment declaring La. Const. art. I, § 10(B) null
and void for failure to comply with the requirements of La. Const. art. XIII, § 1,
which, in part, mandates the assent of two-thirds of the legislature and a majority of
the popular vote to amend the Louisiana Constitution. The judgment was based on
a stipulation that the language presented to the voters for approval and ratification as
a constitutional amendment was not the language adopted by the legislature. Simply
stated, what the citizens voted on was not what the legislature enacted.
After reviewing the record, the legislative instruments, and the constitutional
provision at issue, we agree with the district court that the constitutionally mandated
requirements for amending the constitution were not followed in this case. In
reaching this conclusion, we are mindful that ours is a system of law, not men, and our
fidelity must be to the mandatory requirements of the constitution without regard to
the parties, or to the wisdom and policy of the amendment at issue. The issue before
us relates solely to whether the constitutionally mandated restraints and procedures
for amending our state’s most fundamental law were followed. To ignore these
restraints and procedures would be to open the constitution to alteration without the
protections enshrined in the constitution. This we cannot do. We are thus duty-bound
by the constitution to affirm the district court’s judgment holding the amendment was
not properly enacted.
FACTS AND PROCEDURAL HISTORY
Prior to 1998, the Louisiana Constitution did not contain a provision
disqualifying a convicted felon from seeking a municipal or state office. In 1997,
Senator Max Malone introduced Senate Bill No. 321 during the regular legislative
session. Essentially, Senator Malone’s original bill sought to add a paragraph to La.
Const. art. I, § 10 which prohibits convicted felons who have exhausted all legal
remedies and who have not been pardoned from qualifying as a candidate for or taking
public elective office. As later amended in the Senate, the bill provides an exception
for felons who have served their sentences if the date of qualifying for the elective
office is more than fifteen years after the date of completion of the original sentence.
The relevant sections of Senate Bill No. 321 provide:
(B) Disqualification. The following persons shall not be permitted to
qualify as a candidate for elected public office or take elected office or
appointment of honor, trust, or profit in this state:
(1) Those persons who have been convicted within this state of a
felony and who have exhausted all legal remedies, or who have been
convicted under the laws of any other state or of the United States or of
any foreign government or country of a crime and who have exhausted
all legal remedies which, if committed in this state, would be a felony,
2
and have not afterwards been pardoned either by the governor of this
state or by the officer of the state, nation, government or country having
such authority to pardon in the place where the person was convicted and
sentenced.
(2) Those actually under an order of imprisonment for conviction
of a felony.
(3) A person who desires to seek or hold an elective office who
has committed a felony and has served his sentence shall be permitted to
seek or hold such office within fifteen years from the date of the
completion of the original sentence to the date of qualifying for
candidacy.
Senate Bill No. 321 passed the Senate by more than a two-thirds vote (29 yeas,
3 nays), and the engrossed bill was ordered to the House of Representatives on May
27, 1997.
Once in the House, the bill underwent several amendments. Notably, in
Committee, numbered paragraph (3) was deleted and replaced with the following:
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this
Section, a person who desires to qualify as a candidate for or hold an
elective office, who has been convicted of a felony and who has served
his sentence, but has not been pardoned for such felony, shall be
permitted to qualify as a candidate for or hold such office if the date of
his qualifying for such office is more than fifteen years after the date of
the completion of his original sentence.
When the bill came up for final vote, Representative Kyle Green proposed
further amendments to Paragraph C from the House Floor:
(C). Exceptions. (1) Notwithstanding the provisions of Paragraph (B) of
this Section, a person who desires to qualify as a candidate for or hold
an elective office, who has been convicted of a felony for which the
person was incarcerated and who has served his sentence, but has not
been pardoned for such felony, shall be permitted to qualify as a
candidate for or hold such office if the date of his qualifying for such
office is more than fifteen years after the date of the completion of his
original sentence.
(2) Notwithstanding the provisions of Paragraph (B) of this
Section, a person who desires to qualify as a candidate for or hold an
elective office, who has been convicted of a felony for which the
person was not incarcerated but who received probation for such
felony shall be permitted to qualify as a candidate for or hold such
office after successful completion of the probation period.
[Amending language bolded and underscored.]
3
The floor amendments were adopted and the bill, with the Green amendments,
passed by more than a two-thirds vote of the elected members of the House (71 yeas,
31 nays). The bill was ordered returned to the Senate. Once there, the House
amendments to Senate Bill No. 321 were read and concurred in by a vote of 32 yeas,
4 nays. However, for reasons which remain unexplained, the enrolled version of
Senate Bill No. 321, which became 1997 La. Acts 1492, did not include the Green
amendments. Instead, Act 1492 reads in its entirety:
A JOINT RESOLUTION
Proposing to amend Article I, Section 10 of the Constitution of
Louisiana, relative to the right to vote; to prohibit convicted felons from
seeking or holding public office within a certain time period; and to
specify an election for submission of the proposition to electors and
provide a ballot proposition.
Section 1. Be it resolved by the Legislature of Louisiana, two-
thirds of the members elected to each house concurring, that there shall
be submitted to the electors of the state, for their approval or rejection in
the manner provided by law, a proposal to amend Article I, Section 10
of the Constitution of Louisiana, to read as follows:
§ 10. Right to Vote; Disqualification from seeking or holding an elective
office
Section 10. (A) Right to Vote. Every citizen of the state, upon
reaching eighteen years of age, shall have the right to register and vote,
except that this right may be suspended while a person is interdicted and
judicially declared mentally incompetent or is under an order of
imprisonment for conviction of a felony.
(B) Disqualification. The following persons shall not be permitted
to qualify as a candidate for elective public office or take public elective
office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony
and who has exhausted all legal remedies, or who has been convicted
under the laws of any other state or of the United States or of any foreign
government or country of a crime which, if committed in this state,
would be a felony and who has exhausted all legal remedies and has not
afterwards been pardoned either by the governor of this state or by the
officer of the state, nation, government or country having such authority
to pardon in the place where the person was convicted and sentenced.
4
(2) A person actually under an order of imprisonment for
conviction of a felony.
(C) Exception. Notwithstanding the provisions of Paragraph (B)
of this Section, a person who desires to qualify as a candidate for or hold
an elective office, who has been convicted of a felony and who has
served his sentence, but has not been pardoned for such felony, shall be
permitted to qualify as a candidate for or hold such office if the date of
his qualifying for such office is more than fifteen years after the date of
the completion of his original sentence.
Section 2. Be it further resolved that this proposed amendment shall be
submitted to the electors of the state at the congressional primary
election to be held in 1998.
Section 3. Be it further resolved that on the official ballot to be used at
the election there shall be printed a proposition, upon which the electors
of the state shall be permitted to vote FOR or AGAINST, to amend the
Constitution of Louisiana, which proposition shall read as follows:
To prohibit convicted felons from seeking or holding public
office within fifteen years of completion of sentence and to
provide for expressed restoration of that right by pardon.
(Amends Article I, Section 10)
It is this version of Senate Bill No. 321 that was presented to the voters as Act
1492 at the election on October 3, 1998; and it is this version that was approved by
a majority vote of the electorate and which currently appears in the constitution.
Essentially, the Green amendments, despite being included in the enactment by the
legislature, were not included in the version submitted to the voters for approval. It
is against this legislative backdrop that the present litigation arises.
On September 17, 2015, Derrick Shepherd filed a Petition for Declaratory
Judgment and for Injunctive Relief in the Nineteenth Judicial District Court for the
Parish of East Baton Rouge. The petition names as defendants Thomas Schedler in
his capacity as Secretary of State for the State of Louisiana, James “Buddy” Caldwell
in his capacity as Attorney General for the State of Louisiana, and Paul D. Connick,
Jr. in his capacity as District Attorney for the Twenty-Fourth Judicial District, Parish
of Jefferson, State of Louisiana. The petition alleges that on September 10, 2015, Mr.
5
Shepherd filed a notice of candidacy qualifying form with the Jefferson Parish Clerk
of Court’s office in which he certified that he would be a candidate for the office of
State Representative for District 87 of the Louisiana House of Representatives in the
primary election to be held on October 24, 2015. The petition further alleges that on
September 14, 2015, Mr. Connick, in his official capacity as District Attorney for the
Twenty-Fourth Judicial District, filed a petition in the Twenty-Fourth Judicial District
objecting to the candidacy of Mr. Shepherd because Mr. Shepherd pled guilty to a
felony in a United States District Court on October 10, 2008, and it has been less than
fifteen years since he completed his sentence,1 circumstances which disqualify Mr.
Shepherd from seeking office pursuant to La. Const. art. I, § 10(B). Based on the
aforementioned legislative history of Senate Bill No. 321 of 1997, Mr. Shepherd’s
petition seeks a declaration that the 1997 amendment to La. Const. art. I, § 10,
specifically paragraph (B) thereof, is null and void because it was passed in violation
of the legislative process for amending the Constitution set forth in “Section I, Article
21 of the Louisiana Constitution as interpreted by the Louisiana Supreme Court in
Graham v. Jones, 198 La. 507, 3 So.2d 761 [(1941)].”2 In addition to declaratory
relief, the petition seeks an injunction enjoining Mr. Connick from prosecuting the
Jefferson Parish suit objecting to Mr. Shepherd’s candidacy pending resolution of the
constitutional challenge.
1
Mr. Shepherd’s petition concedes the veracity of these predicate facts.
2
The reference to Section I, Article XXI is obviously in error, as there is no Article XXI in the 1974
Constitution. However, as demonstrated by the citation to Graham v. Jones, supra, it appears that
the constitutional article Mr. Shepherd was referencing was actually Article XXI, Section 1 of the
Constitution of 1921, the predecessor of Article XIII, § 1 of the 1974 Constitution. While
unfortunate, the inadvertent citation to the earlier version of the relevant constitutional provision
does not, under the circumstances of this case, affect the sufficiency of the pleading, as the petition,
taken as a whole, sufficiently particularizes the grounds for the plea of unconstitutionality. See,
Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 864-865 (“[A]
statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality
of a statute must be specially pleaded and the grounds for the claim particularized.”).
6
Mr. Shepherd’s request for a temporary restraining order directed to Mr.
Connick was denied by the East Baton Rouge District Court on September 17, 2015.3
The request for declaratory relief proceeded to a hearing on September 22, 2015. At
the conclusion of that evidentiary hearing, the district court rendered judgment in Mr.
Shepherd’s favor, declaring Article I, § 10(B) of the Constitution null and void for
failure to comply with the requirements of Article XIII, § 1 of the Constitution4 for
promulgation of amendments to the Constitution. In oral reasons, the district court
explained:
The Legislature in ‘97 adopted a joint resolution. There was some
amendments [sic] in the House. That amendment went to the Senate.
The Senate concurred in that resolution – I mean in that amendment.
And then somewhere in the process of getting to the Secretary of State’s
office, part of the amendment was not printed and put on the ballot to the
voters. So the court has to determine whether or not the constitution, as
it stands, shall remain or whether or not it shall be declared null and void
or unconstitutional. And so I go back to the constitution itself, Louisiana
Constitution Article 13, Section 1, which deals with how we can amend
the constitution. And pertinent parts of Section 1, in (A)(1) states the
procedure in [sic] how to amend the constitution. And it says, ... an
amendment to this constitution may be proposed by joint resolution at
any regular session of the Legislature. And it goes on to say, if two-
thirds of the elected members of each House concur in the resolution
pursuant to all procedures and formalities required for passage of a bill
except submission to the governor, the Secretary of State shall have the
proposed amendment published once in the official journal of each
parish within not less than thirty days, no[r] more than sixty days
preceding the election in which the proposed amendment is to be
submitted to the electors. The question this court has to decide is
whether or not the proposed amendment that was passed by the
3
With no injunction in place, Mr. Connick’s petition objecting to the candidacy of Mr. Shepherd
proceeded to trial in the Twenty-Fourth Judicial District Court on September 18, 2015. Following
an evidentiary hearing, the district court granted Mr. Connick’s petition, ruling that Mr. Shepherd
is prohibited from qualifying for the office of state representative for District 87 of the Louisiana
House of Representatives pursuant to Article I, § 10 of the Constitution. The district court ordered
the clerk of court to remove Mr. Shepherd’s name from the ballot, but stayed that order pending a
timely appeal by Mr. Shepherd. On appeal, the court of appeal affirmed the ruling of the district
court in its entirety. Connick v. Shepherd, 15-582 (La.App. 5 Cir. 9/24/15), 176 So.3d 1129. This
court denied writs. Connick v. Shepherd, 15-1763 (La. 9/30/15), ___ So.3d ___. The district court
judgment disqualifying Mr. Shepherd as a candidate became final and definitive five days, exclusive
of legal holidays, thereafter. See La. C.C.P. art. 2166(E).
4
Quoted at pp. 17-18, infra.
7
Legislature is the amendment that was – that the voters actually voted on.
All parties agreed that the electors did not vote on the amendment in the
form or with the language that was passed by the Legislature. And
looking at how you amend the constitution is, at least in this court’s
mind, is very clear that you must have a joint resolution by the
legislature. And if they pass that joint resolution, then that proposed
amendment, meaning all parts of it, must go to the Secretary of State for
the voters to vote on it. And the voters did not vote on the entirety of the
proposed amendment by the Legislature. The Legislature expressed its
legislative intent by passing it by a two-thirds vote of each body. So
therefore, this court finds that, as it stands now, Section – Article I,
Section 10 of the Louisiana Constitution is unconstitutional due to the
fact that the voters did not vote on what was passed by the Louisiana
Legislature in 1997.
Defendant, Mr. Connick, suspensively appealed the district court judgment to
this court,5 which has jurisdiction over the appeal pursuant to Article V, § 5(D)(1) of
the Louisiana Constitution.6
LAW AND ANALYSIS
Before we address the validity of La. Const. art. I, § 10 as amended by 1997 La.
Acts 1492, this court must resolve two threshold issues: (1) whether the plaintiff,
Derrick Shepherd, has standing to bring the constitutional challenge; and (2) whether
the case presents a justiciable controversy or whether it has been rendered moot
because the election for which plaintiff sought to qualify as a candidate has occurred,
and votes for plaintiff were not counted on the ballot. We address each of these issues
in turn.
I. Standing
5
Because none of the other defendants, namely the Secretary of State, Mr. Schedler, nor the
Attorney General, Mr. Caldwell, appealed the district court judgment, we will not address the
assignments of error separately raised by these parties, as it is well-settled that a party who has not
appealed or answered the appeal may not seek to have the district court’s judgment modified in his
or her favor. See, La. C.C.P. arts. 2082, 2083, and 2133; see also Walker v.Clarendon Nat. Ins.
Co., 01-2338, p. 2 (La. 12/14/01), 802 So.2d 1285, 1286.
6
La. Const. art. V, § 5(D)(1) provides this court with appellate jurisdiction when “a law or
ordinance has been declared unconstitutional.”
8
One of the predicate issues that must be decided by a court before considering
a constitutional challenge is whether the party seeking the declaration of
unconstitutionality has standing to bring the challenge. In re Melancon, 05-1702, p.
7-8 (La. 7/10/06), 935 So.2d 661, 667; State v. Mercadel, 03-3015, p. 7-8 (La.
5/25/04), 874 So.2d 829, 834. To have standing to bring a constitutional challenge,
the party bringing that challenge must have rights in controversy. Mercadel, 03-315
at 8, 874 So.2d at 834. This is particularly true in the context of a declaratory
judgment action, in which “[s]tanding is a concept utilized to determine if a party is
sufficiently affected so as to ensure that a justiciable controversy is presented to the
court.” Melancon, 05-1702 at 9, 935 So.2d at 668, (quoting Guidry v. Dufrene, 96-
0194, p. 4 (La.App. 1 Cir. 11/8/96), 687 So.2d 1044, 1046).
This court has explained that a party has standing to argue that a law or, as in
this case, a proposed constitutional provision, violates the constitution only where the
law “seriously affects” the party’s own rights. Melancon, 05-1702 at 8, 935 So.2d
at 667; Greater New Orleans Expressway Comm’n v. Olivier, 04-2147, p. 4 (La.
1/19/05), 892 So.2d 570, 573; Mercadel, 03-315 at 8, 874 So.2d at 834. More
specifically, “[t]o have standing, a party must complain of a constitutional defect in
the application of the law to [the party], not of a defect in its application to third
parties in hypothetical situations.” City of Baton Rouge/Parish of East Baton
Rouge v. Myers, 13-2011, p. 10 (La. 5/7/14), 145 So.3d 320, 330-331; Melancon,
05-1702 at 8, 935 So.2d at 667. If it can be said that the party bringing the challenge
has an interest at stake in the litigation which can be legally protected, then the
predicate requirement of standing is satisfied. Melancon, 05-1702 at 9, 935 So.2d at
668.
9
In the district court, plaintiff’s allegations of standing are derived from his
petition. Through the allegations thereof, which are not contested,7 plaintiff claims
standing to challenge the validity of the 1998 amendment of Const. art. I, § 10 based
on his status as a convicted felon whose candidacy for elective office has been
challenged pursuant to the amendment. Plaintiff’s petition avers, in pertinent part:
IV.
On September 10, 2015 your petitioner, Derrick Shepherd, filed
a notice of candidacy “qualifying form” with the Jefferson Parish Clerk
of Courts [sic] Office in which he certified that he will be a candidate in
the primary election to be held on October 24th, 2015. The office for
which your petitioner qualified as a candidate is the office of State
Representative for District 87 of the Louisiana House of Representatives.
V.
On September, 14, 2015 the defendant, Paul D. Connick, Jr. in his
official capacity as District Attorney for the 24th Judicial District for the
Parish of Jefferson, State of Louisiana, filed a petition objecting to the
candidacy of Derrick Shepherd. Said petition bears Docket Number
753-481, said petition is assigned to Division N, the Honorable Stephen
D. Enright, Jr.
VI.
Petitioner alleges that the basis for the disqualification is that he
plead [sic] guilty to a felony in the United States District Court on
October 10, 2008. The petitioner admits that it has been less than 15
years since the completion of his sentence.
....
XIX.
Petitioner alleges that he will suffer irreparable harm if he is
stricken from the ballot by the actions of Paul D. Connick, Jr. in his
official capacity as District Attorney for the 24th Judicial District for the
Parish of Jefferson, State of Louisiana, which actions are violative of
Louisiana law over the legal infirmities in La. Constitution, Article I,
§10.
7
Mr. Connick admitted the veracity of the allegations of paragraphs IV, V, and VI, quoted below,
in his answer to the petition.
10
Louisiana Const. art. I, § 20 provides that “[f]ull rights of citizenship shall be
restored upon termination of state and federal supervision following conviction for
any offense.” This court has recognized that the “full rights of citizenship” referenced
in Const. art. I, § 20 include the right to run for public office. Touchet v. Broussard,
10-0380, p. 9 (La. 3/3/10), 31 So.3d 986, 992. Indeed, this court has recognized the
right to hold public office as one of the basic rights of citizenship. Malone v. Shyne,
06-2190, p. 18 (La. 9/13/06), 937 So.2d 343, 356 (citing State v. Adams, 355 So.2d
917, 922 (La. 1978)). Pursuant to La. Const. art. I, § 20, therefore, plaintiff’s right to
participate in the political process through candidacy and vote is a legally protectable
interest. As the petition sets forth, that interest is seriously affected by application of
La. Const. art. I, § 10 as amended, as application of the amendment subjects plaintiff
to disqualification for elective office. Clearly, the allegations of plaintiff’s petition
demonstrate that he is a person whose legal rights are affected by the challenged
constitutional provision and, thus, that he has standing to bring the instant action.
Defendant argues, nevertheless, that standing is lacking because plaintiff would
not have benefitted from the language that was inadvertently omitted from the
enrolled bill (the Green amendment)8 and, thus, he has suffered no harm by the failure
to present the full and correct version of the enrolled bill to the electorate for passage.
The fallacy in this argument is two-fold. First, it is based on an assumption that the
amendment with the full text approved by the legislature (including the Green
amendment) would have passed, an exercise requiring speculation. Standing is
determined by the law in effect, not by what may or may not have been enacted, as it
8
This amendment added an additional exception to the bar against convicted felons seeking elective
office for persons convicted of a felony who were not incarcerated but who instead received
probation and who successfully completed the probationary period.
11
is the law in effect that “seriously affects” and operates on the plaintiff’s rights.9
Second, while the general rule is that only a person whose rights are injuriously
affected by those provisions of law sought to be declared unconstitutional can be
heard to challenge the constitutionality thereof, the rule is not without exception. See,
e.g., State ex rel. Kemp v. City of Baton Rouge, 40 So.2d 477, 483 (La. 1949). A
litigant has the right to challenge the constitutionality of provisions of a law which do
not affect him or her, if other provisions thereof affecting the litigant must fall if the
challenged provisions are held unconstitutional. Id. at 483. Because plaintiff
maintains that the entirety of the amendment to La. Const. art. I, § 10 must fall as a
result of the omission of the Green amendment from the enrolled bill, this case lies
squarely within the exception.
Moreover, we have recognized that “standing is gauged by the specific statutory
or constitutional claims that the party presents and his or her relationship to such
claims.” Melancon, 05-1702 at 9, 935 So.2d at 668. In this case, the claim that is
asserted is the claim that the mandatory provisions of the constitution directing the
manner in which the constitution may be amended were not followed. When such a
claim is asserted, this court has recognized a broad standing conferred on citizens and
taxpayers: “If other officials of the State government intentionally or unintentionally
fail to comply with the mandatory provision of the constitution – which clearly and
explicitly set forth the manner in which that fundamental law shall be amended – it is
the absolute right of any citizen and taxpayer to challenge the constitutionality of a
9
This is underscored by the fact that if the 1998 amendment to La. Const. art. I, § 10 is declared
invalid, the applicable law becomes that in effect prior to the invalid amendment. Louisiana
Republican Party v. Foster, 96-0314, pp. 13-14 (La. 5/21/96), 674 So.2d 225, 234; Concerned
Bus. & Prop. Owners of DeSoto, Inc. v. DeSoto Parish School Bd., 531 So.2d 436, 443 (La.
1988). Because the constitution did not contain a provision disqualifying a convicted felon from
seeking elective office prior to the 1998 amendment, a declaration of nullity would remove the
existing impediment to plaintiff’s candidacy for an elected office.
12
proposed amendment ....” Graham v. Jones, 3 So.2d 761, 795 (La. 1941). As a
“person of the full age of majority and resident of the Parish of Jefferson” who has
filed a notice of candidacy for elective office and who will suffer injury in the form
of disqualification unless the amendment is declared unconstitutional,10 plaintiff
satisfies this basic standing requirement.
II. Mootness
The second predicate issue that must be addressed before we consider the
validity of La. Const. art. I, § 10 as amended by Act 1492 is whether the challenge has
become moot because the election for which plaintiff sought to qualify as a candidate
has occurred, and votes for plaintiff were not counted on the ballot. It is well-settled
in the jurisprudence of this state that courts will not decide abstract, hypothetical or
moot controversies or render advisory opinions with respect to such controversies.
Cat’s Meow, Inc. v. City of New Orleans, Dept. of Finance, 98-0601, p. 8 (La.
10/20/98), 720 So.2d 1186, 1193. As a general rule:
[A]n issue is “moot” when a judgment or decree on that issue has been
“deprived of practical significance” or “made abstract or purely
academic.” Perschall v. State, 96-0322 (La. 7/1/97), 697 So.2d 240;
Louisiana Associated Gen. Contractors, Inc. [v. State], 669 So.2d at
1193; American Waste & Pollution Control Co. [v. St. Martin Parish
Police Jury], 627 So.2d at 162. A case is “moot” when a rendered
judgment or decree can serve no useful purpose and give no practical
relief or effect. Robin [v. Concerned Citizens for Better Educ. in St.
Bernard, Inc.], 384 So.2d at 405. If the case is moot, then “‘there is no
subject matter on which the judgment of the court can operate.’” St.
Charles Parish Sch. Bd. [v. GAF Corp.], 512 So.2d at 1171 (citing Ex
parte Baez, 177 U.S. 378, 20 S.Ct. 673, 44 L.Ed. 813 (1900)). That is,
jurisdiction, once established, may abate if the case is moot.
Cat’s Meow, Inc., 98-0601 at 8, 720 So.2d at 1193.
10
The veracity of quoted provisions from plaintiff’s petition have been admitted in Mr. Connick’s
answer.
13
When, as in the instant case, the relief sought by the plaintiff entails a request
that his name remain on an election ballot and that votes for him be counted, and the
election is held before the case can be finally decided, mootness may well result since
no effective relief can be provided to the plaintiff/candidate for whom votes were not
counted after the judgment of disqualification and election results are final.
Nevertheless, an intervening election will not moot the controversy if an exception to
the mootness doctrine applies. See, e.g., Cat’s Meow, Inc., 98-0601 at 9, 720 So.2d
at 1194.
One of the well-established exceptions to the mootness doctrine was discussed
in depth by this court in State v. Rochon, 11-0009 (La. 10/25/11), 75 So.3d 876.
Therein, the court noted that “[e]ven when seemingly no continuing controversy
exists, federal courts apply an exception for challenged practices that are ‘capable of
repetition, yet evading review.’” Rochon, 11-0009 at 10, 75 So.3d at 884 (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). The court explained: “Under this
exception, a court may consider the merits of a case that would otherwise be deemed
moot when the challenged action was in its duration too short to be fully appealed
prior to its cessation or expiration and a reasonable expectation existed that the same
complaining party would be subjected to a similar action.” Id., 11-0009 at 11, 75
So.3d at 884. In Rochon, the court pointed to the landmark abortion case of Roe v.
Wade, 410 U.S. 113 (1973), as the “classic example” of this exception, while noting
that cases challenging election laws typically fall under the exception. Id. (“[C]ases
challenging election laws often fall within the ‘capable of repetition, yet evading
review’ exception because ‘the inherently brief duration of an election is almost
invariably too short to enable full litigation on the merits.’”) (quoting Porter v. Jones,
319 F.3d 483, 490-91 (9th Cir. 2003)).
14
As explained above, under the federal jurisprudence, there are generally two
criteria for the “capable of repetition, yet evading review” exception: “(1) the
challenged action was in duration too short to be fully litigated prior to its cessation
or expiration, and (2) there was a reasonable expectation that the same complaining
party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S.
147, 149 (1975).
In the instant case, we have no difficulty in concluding that the first prong of
the capable of repetition exception is satisfied by the short time frame between
plaintiff’s declaration of candidacy on September 10, 2015, and the election of
October 24, 2015, in which his candidacy was rejected. As recognized in Morial v.
Judiciary Commission of State of Louisiana, 565 F.2d 295, 297 n.3: “The pace of
reasoned constitutional adjudication ... is not parametric with that of election
campaigns.”
The second prong of the exception – that there be a reasonable expectation that
the same complaining party would be subjected to the same action again – would
ostensibly require an allegation, not present in this case, that plaintiff intends to run
for office in the next election. However, in Rochon, this court, finding state courts
unconstrained by Article III of the federal constitution, determined that the
jurisprudence of Louisiana and of many states supports an exception to the mootness
bar “when a claim is capable of repetition generally without regard to the same
complainant, evading review, and of public importance.” Rochon, 11-0009 at 14, 16,
75 So.3d at 886, 887 (emphasis added). Such an exception is not inconsistent with
federal jurisprudence, which commonly dispenses with the same-complainant
requirement in election cases, “focusing instead upon the great likelihood that the
issue will recur between the defendant and the other members of the public at large.”
15
Honig v. Doe, 484 U.S.305, 335-336 (1988) (Scalia, J., dissenting). Thus, for
example, in Storer v. Brown, 415 U.S. 724 (1974), the Supreme Court reasoned:
The 1972 election is long over, and no effective relief can be provided
to the candidates or voters, but this case is not moot, since the issues
properly presented, and their effects on independent candidacies, will
persist as the California statutes are applied in future elections. This is,
therefore, a case where the controversy is “capable of repetition yet
evading review.”
Storer, 415 U.S. at 737 n.8.
Similarly, the effects of La. Const. art. I, § 10 on independent candidacies will
certainly persist as the provision is applied in future elections. Accordingly, we find
that the present matter is one capable of repetition, yet evading review, and that the
present appeal thus presents a justiciable question for the court to resolve.
III. Validity of La. Const. art. I, § 10 as amended by 1997 La. Acts 1492For purposes of the present challenge, the parties stipulated that the bill the
legislature passed as a Joint Resolution, Senate Bill No. 321, was not what was
presented to the voters for ratification and adoption as an amendment to the
constitution, as the Green amendment was omitted from the enrolled bill which
became 1997 La. Acts 1492. Given this stipulation, the issue presented for this court’s
resolution is whether, in light of this discrepancy, the amendment conforms with La.
Const. art. XIII, § 1, which delineates the procedural requirements for amending the
constitution.
Whether an amendment to the constitution was submitted to the electorate in
accord with the prescribed constitutional restraints is a question of law, subject to de
novo review. Forum for Equality PAC v. McKeithen, 04-2477, pp. 10-11 (La.
1/19/05), 893 So.2d 715, 723. In conducting this review, we are guided by principles
that, while articulated long ago, remain relevant today: “[T]he court must necessarily
16
have in mind the universal rule that, whenever a constitutional amendment is attacked
as not constitutionally adopted, the question presented is, not whether it is possible to
condemn, but whether it is possible to uphold; that every reasonable presumption,
both of law and fact, is to be indulged in favor of the legality of the amendment, which
will not be overthrown, unless illegality appears beyond a reasonable doubt.” Board
of Liquidation of State Debt of Louisiana v. Whitney-Central Trust & Savings
Bank, 122 So. 850, 851 (La. 1929). In addition, we are mindful of the following:
“Provisions of a constitution regulating its own amendment, ... are not
merely directory but are mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed
amendment.” Graham [v. Jones], 3 So.2d at 782, quoting
CONSTITUTIONAL LAW 16 C.J.S., § 7. This general rule governs the
restraints which the people have placed in their Constitution upon
themselves, their officers, and agents and representatives. Id. Thus, in
submitting an amendment to the people, the Legislature is bound by the
provisions of our constitution mandating the procedural process for
amending the constitution.
Forum for Equality PAC, 04-2477 at 11, 893 So.2d at 723.
Article XIII, § 1 of the 1974 Constitution sets forth the procedure for proposing
and adopting constitutional amendments. It provides, in relevant part:
Section 1. (A)(1) Procedure. An amendment to this constitution
may be proposed by joint resolution at any regular session of the
legislature, but the resolution shall be prefiled, at least ten days before
the beginning of the session or as provided in Subparagraph (2) of this
Paragraph, in accordance with the rules of the house in which
introduced. An amendment to this constitution may be proposed at any
extraordinary session the legislature if it is within the objects of the call
of the session and is introduced in the first five calendar days thereof.
If two-thirds of the elected members of each house concur in the
resolution, pursuant to all of the procedures and formalities required for
passage of a bill except submission to the governor, the secretary of state
shall have the proposed amendment published once in the official journal
of each parish within not less than thirty nor more than sixty days
preceding the election at which the proposed amendment is to be
submitted to the electors. Each joint resolution shall specify the
statewide election at which the proposed amendment shall be submitted.
Special elections for submitting proposed amendments may be
authorized by law.
17
....
(B) Form of proposal. A proposed amendment shall have a title
containing a brief summary of the changes proposed; shall be confined
to one object; and shall set forth the entire article, or the sections or other
subdivisions thereof, as proposed to be revised or only the article,
sections, or other subdivisions proposed to be added. However, the
legislature may propose, as one amendment, a revision of an entire
article of this constitution which may contain multiple objects or
changes. A section or other subdivision may be repealed by reference.
When more than one amendment is submitted at the same election, each
shall be submitted so as to enable the electors to vote on them separately.
(C). Ratification. If a majority of the electors voting on the
proposed amendment approve it, the governor shall proclaim its
adoption, and it shall become part of this constitution, effective twenty
days after the proclamation, unless the amendment provides otherwise.
... .
Pursuant to this provision “five elements are indispensable to give validity to
a proposed constitutional amendment.” Graham, 3 So.2d at 782.11 These elements
are: “The assent of two-thirds of the Legislature, the submission of only one
amendment in each proposal, the designation by the Legislature of the date of the
election at which the submission shall take place, the publication of the proposed
amendment, and a majority of the popular vote.” Id. In the present case, compliance
with one of those indispensable elements is called into question: the assent of two-
thirds of the legislature.
In declaring the 1998 amendment to La. Const. art. I, § 10 unconstitutional, the
district court examined this essential element of the amendment procedure in the
context of the stipulated facts; i.e., that the electors did not vote on the proposed
amendment to La. Const. art. I, § 10 in the form or with the full language that was
passed by the legislature because a lawfully adopted amendment (the Green
11
While the court in Graham was construing the provisions of Section 1 of Article XXI of the 1921
Constitution, the predecessor to Article XIII, §1 of the 1974 Constitution, the relevant substance of
both constitutional provisions is essentially the same.
18
amendment) to the joint resolution was erroneously dropped from that resolution in
the process of enrolling the bill. Drawing on the provisions of La. Const. art. XIII, §
1, the district court reasoned as follows. The constitution requires amendments
thereto to be proposed by joint resolution at any regular session of the legislature. The
resolution must be concurred in by two-thirds of the elected members of each House
according to all the procedures and formalities required for passage of a bill except for
submission to the governor, and published in the official journal of each parish by the
Secretary of State. The resolution that is concurred in by the members of each House
evidences the intent of the legislature as to the proposed amendment. If the proposed
amendment is presented to the voters in a form that is not coextensive with what the
legislature intended, then the assent of two-thirds of the Legislature is lacking. In
other words, to pass muster under La. Const. art. XIII, § 1, what the legislature passes
and what is submitted to the voters for approval must be the same. Because, in this
case, “the voters did not vote on what was passed by the Louisiana Legislature in
1997,” the district court declared the 1998 amendment to Const. art. I, § 10
unconstitutional. We can find no fault with the district court’s analysis in this regard.
Before this court, defendant argues that a defect in the enactment process is not
necessarily fatal to a constitutional amendment. Averring that the failure to include
the Green amendment in the enrolled bill for approval by the voters was a “clerical
error,” defendant cites Lucas v. Berkett, 98 So.2d 229 (La. 1957), for the proposition
that “substantial compliance” with the procedural requirements of La. Const. art. XIII,
§ 1 is sufficient. Defendant asserts that substantial compliance was achieved in this
instance because the legislature did concur in that portion of the proposed amendment
that was actually submitted to the voters and approved by a majority vote.
19
In Lucas, the validity of a constitutional amendment was attacked on grounds
that the proposed amendment was not concurred in by both houses of the legislature.
Lucas, 98 So.2d at 231. The legislative enactment at issue in Lucas originated with
a bill in the House. The original House bill underwent numerous amendments in the
House before final adoption and presentation to the Senate. These amendments were
noted on the reengrossed House bill by striking out the portions of the bill that were
changed and typing on the margins the amendments added. The reengrossed bill as
amended by the House was received in the Senate and read on three separate days
before being passed by a two-thirds vote and returned to the House without
amendment for enrollment and presentation to the voters. Id. However, the Senate
journal entries identified the House bill by title only, and the title entered was that of
the original House bill and not of the bill as amended. Id., 98 So.2d at 231-32.
Further, it was the original House bill, without amendment, that was entered in full on
the Senate journal, and not the amended bill that was adopted by the House. Id., 98
So.2d at 232. The plaintiff argued that these journal entries proved that it was only
the original bill without the amendments that was considered by the Senate, and not
the amended bill as adopted by the House; thus, the constitutional mandate requiring
the concurrence of two-thirds of the elected membership of both houses on the same
bill was not complied with. Id.
In addressing the plaintiff’s arguments, the court conceded that “if the Senate
never passed House Bill No. 1471 as amended by the House, there would be merit to
[plaintiff’s] argument, for a proposed constitutional amendment must be concurred in
by two-thirds of the members elected to each house.” Id. However, the court found
that, despite the incomplete journal entries, “the photostatic copy of reengrossed
House Bill No. 1471, with the 31 House amendments interlined thereon and the
20
history of its progress through the House and Senate officially endorsed thereon,
shows beyond question that the Senate received House Bill No. 1471 as amended and
passed this bill as amended by a vote of two-thirds of the members elected to that
body.” Id. Thus, the question that was presented for the court to resolve was not
whether the House passed one bill and the Senate passed an entirely different bill,
thus, violating the requirement that a proposed constitutional amendment be concurred
in by two-thirds of the members elected to each house, but whether there was
compliance with the “provision of Section 1 of Article 21 of the [1921] Constitution
requiring that a proposed amendment to the Constitution be ‘entered on the journal.’”
Id. In resolving that question, the court relied on jurisprudence holding that the
requirement that a proposed constitutional amendment be “entered on the journal”
does not mean that the proposed amendment must be published in full in the journal,
and a substantial compliance with this requirement is sufficient. Id. (citing East
Jefferson Waterworks District No. 1 v. Caldwell & Co.., 127 So.739 (La. 1930)).
In reaching the conclusion that substantial compliance with the journal entry
requirement had been achieved, the court quoted liberally from an opinion of the
Kansas Supreme Court:
The two important, vital elements in any constitutional amendment are
the assent of two-thirds of the Legislature and a majority of the popular
vote. Beyond these, other provisions are mere machinery and forms.
They may not be disregarded, because by them certainty as to the
essentials is secured. But they are not themselves essentials. Take a
strong illustration: The Constitution requires that the ‘Secretary of State
shall cause the same to be published in at least one newspaper in each
county of the state where a newspaper is published, for three months
preceding,’ etc. Suppose a unanimous vote of both houses of the
Legislature and a unanimous vote of the people in favor of a
constitutional amendment, but that the secretary had omitted to publish
in one county in which a newspaper is published, would it not be simply
an insult to common sense to hold that thereby the will of the Legislature
and people had been defeated? Is it within the power of the secretary
either through ignorance or design to thwart the popular decision? Is he
21
given a veto, or can he create one? This may be an extreme case, but it
only illustrates the principle. The records of the proceedings of the two
houses are made, not by the houses themselves, but by clerical officers.
True, they are under the control of the respective houses, but in fact the
records are made by clerks. May they defeat the legislative will? The
Constitution does not make amendments dependent upon their approval
or their action. To insure certainty and guard against mistake, journal
evidence of the amendment and votes is prescribed; but this is mere
matter of evidence, and not the substantial condition of constitutional
change. ....
Lucas, 98 So.2d at 232-233 (quoting Saunders v. Board of Liquidation of City
Debt, 34 So. 457, 464 (La. 1903), and Constitutional Prohibitory Amendment
Cases, 24 Kan. 700 (1881).
Defendant seizes on the foregoing language to argue that the omission of the
Green amendment from the enrolled version of Senate Bill. No. 321 was simply a
clerical error and a “technical” defect in the amendment process which does not affect
the validity of the amendment as approved by the voters. However, “the mandatory
provisions in the Constitution were considered by their authors to be basic and not
technical.” Graham, 3 So.2d at 796. Moreover, to characterize what occurred as a
mere “clerical error” is a serious mischaracterization, as that error strikes at the core
of the constitutional requirements. As noted in Lucas, (the case cited by defendant),
“[t]he two important, vital elements in any constitutional amendment are the assent
of two-thirds of the Legislature and a majority of the popular vote.” Lucas, 98 So.2d
at 232-233. The requirement of legislative sanction is integral to the amendment
process, as the assent of two-thirds of the legislature is prescribed as a condition
precedent for distinct reasons: “to guard against undue haste and temporary
excitement, [and] to prevent unnecessary and frequent appeals for constitutional
amendments.” Saunders, 34 So. at 463, (quoting Constitutional Prohibitory
Amendment Cases, 24 Kan. at 711). The requirement that two-thirds of the
22
legislature concur in the proposed amendment is not a superfluous requirement;
indeed, “a popular vote without previous legislative sanction must be disregarded.”
Constitutional Prohibitory Amendment Cases, 24 Kan. at 711 In this case, as the
stipulated facts demonstrate, the proposed amendment that was presented to the voters
for approval did not have the sanction of the legislature. More succinctly, what the
electorate voted on was not what the legislature passed. Under these circumstances,
we are compelled to conclude that there was no “substantial compliance” with the
“vital elements” of La. Const. art. XIII, § 1.12 While the error which occurred may
have, indeed, been a clerical one, that error thwarted an essential step in the procedure
required for enactment of amendments to the Constitution. Furthermore, “whether the
omission [of the Green amendment] was intentional or accidental, the fact remains
that the Legislature, in submitting its proposal, failed to follow one of the mandatory
requirements of the Constitution.” Graham, 3 So.2d at 771.
It is no answer to argue, as defendant does, that the language actually presented
to the voters for approval – the enrolled bill without the Green amendment – was
12
This case is readily distinguishable from the situation presented in Board of Liquidation of State
Debt of Louisiana v. Whitney-Central Trust & Savings Bank, 122 So. 850, 850-51 (La. 1929),
where a constitutional amendment, House Bill No. 104, was proposed by the House. The bill passed
that body with a two-thirds vote. The bill was then sent to the Senate, where, before final passage,
it was referred to the legislative bureau which reported amendments thereto. The bill, with
amendments, passed the Senate by unanimous vote. Thereafter, the bill was returned to the House
which concurred in the amendments, but only by majority vote. Two financial institutions, which
would be obligated to purchase bonds pursuant to the amendment, were made defendants in a
lawsuit to compel the bond purchase. The defendants argued that because the amended bill was not
concurred in by two-thirds of the House membership, it was never legally adopted. In rejecting the
defendants’ contention, the court looked to the amendments adopted by the Senate, and, finding
them to be related solely to diction, grammatical construction, and punctuation, in no way affecting
the substance of the bill, the court concluded that “it cannot be convincingly stated that the minds
of both houses did not meet in the adoption of the bill.” Board of Liquidation, 122 So. at 851. As
a result, the court found that the constitutional amendment at issue was submitted to the electorate
of the state in substantial compliance with the mandatory provisions of the fundamental law. Id. at
852. The critical factor that distinguishes the instant case from Board of Liquidation is that
whereas in Board of Liquidation the language submitted to the voters for approval was approved
by the legislature in substantial compliance with the constitution, in this case that legislative
approval was lacking because there was a substantive difference between what the legislature
approved and what the electorate actually voted on.
23
approved by the legislature and ratified by the voters; therefore, that language should
withstand attack as being “severable” from the entirety of the proposed amendment
concurred in by the legislature. First, the actual language presented to the voters for
approval in 1997 La. Acts 1492 was not, as defendant insists, concurred in by a two-
thirds vote of both Houses of the legislature. The House, in particular, did not concur
in that language, insisting instead on creating an additional exception to the general
prohibition against convicted felons seeking elective office in instances where the
conviction did not result in incarceration (the Green amendment). The Senate
concurred in that amendment. As a result, within the legislature, there was no
concurrence to a proposed constitutional amendment that did not include the Green
amendment.
Further, the doctrine of severability presupposes the existence of a valid
enactment, one or more portions of which are declared unconstitutional. In such
instances, the relevant inquiry is “whether the unconstitutional portions of the law are
so interrelated and connected with the constitutional parts that they cannot be
separated without destroying the intention of the legislative body enacting the law.”
Perschall v. State, 96-0322, p. 29 (La. 7/1/97), 697 So.2d 240, 260. “The test is
whether the legislature would have passed the statute had it been presented with the
invalid features removed.” Id. (citing Succession of Lauga, 624 So.2d 1156, 1171-72
(La. 1993)). If the doctrine of severability was applicable here (which it is not, as
there is no unconstitutional provision to excise from the proposed amendment since
the error is one of omission and not addition), the case would fail the test of
severability, as it is evident from the action of the House that the proposed amendment
would not have passed, and in fact did not pass, without the Green amendment.
24
It is equally no answer to argue, as defendant does, that in interpreting
constitutional provisions, it is the understanding that can reasonably be ascribed to the
voting population that controls (Caddo-Shreveport Sales and Use Tax Commission
v. Office of Motor Vehicles, 97-2233, p. 7 (La. 4/14/98), 710 So.2d 776, 780) and the
voting population in this instance understood, and approved, the amendment to La.
Const. art. I, § 10 in its current form, without the Green amendment. This court
answered that very contention in Graham, and the principles announced therein
remain relevant today:
Provisions of a constitution regulating its own amendment, ... are not
merely directory, but are mandatory; and a strict observance of every
substantial requirement is essential to the validity of the proposed
amendment. These provisions are as binding on the people as on the
legislature, and the former are powerless by their vote of acceptance to
give legal sanction to an amendment the submission of which was made
in disregard of the limitations contained in the constitution.
Graham, 3 So.2d at 782, quoting 16 C.J.S., CONSTITUTIONAL LAW, § 7; see also,
Ladnier v. Mollere, 89 So.2d 301, 307 (La. 1956) (quoting Koehler v Hill, 14 N.W.
738, 741 (IA 1883) (“‘It matters not if not only every elector, but every adult person
in the state, should desire and vote for an amendment to the constitution, it cannot be
recognized as valid unless such vote was had in pursuance of, and in substantial
accord with, the requirements of the constitution.’”).
There is one final argument advanced by defendant in support of the
constitutionality of the 1998 amendment to La. Const. art. I, § 10 that we must
address. Despite stipulating in the district court that what the legislature passed,
which included the Green amendment, “did not get put to the voters,” it is now urged
that the legislative history of Senate Bill No. 321 is irrelevant and that the court is
precluded by the “enrolled bill rule” announced in Marshall Field & Co. v. Clark,
143 U.S. 649 (1892), from looking behind the enrolled bill, which appears as 1997 La.
25Acts 1492, to determine whether the text of that bill differs from what the legislature
actually passed.
In Marshall Field, which upheld the constitutionality of the Tariff Act of 1890
against a challenge that part of the bill passed by Congress was missing from the
enrolled version and therefore the Act did not have the required bicameral approval,
the Supreme Court adopted the evidentiary presumption that a bill signed by the
leaders of the U.S. House and Senate – an enrolled bill – establishes that Congress
passed the text therein “according to the forms of the Constitution,” and therefore it
“should be deemed complete and unimpeachable.” Marshall Field, 143 U.S. at 672-
73.
Defendant urges this court to adopt and follow the federal evidentiary rule in
the present case. We decline the invitation to do so, finding that the rule has no
application when the issue that is presented for resolution is whether a constitutional
amendment was passed in accordance with the dictates of the Louisiana Constitution.
In fact, we need look no further than the cases cited by defendant to find support for
the conclusion that the court has the power, and the responsibility, to look beyond the
enrolled bill to determine whether there has been compliance with the mandatory
procedural requirements of La. Const. art. XIII, § 1. For example, in Board of
Liquidation, this court, when confronted with the suggestion that a bill proposing a
constitutional amendment was “never legally adopted, because the bill as amended in
the Senate was not concurred in by two-thirds of the membership of the House,”
looked behind the enrolled bill to the journals of both houses in order to examine the
substance of the Senate amendments to determine whether there was in fact a meeting
of the minds of both houses in the adoption of the bill. Id., 122 So. at 851. In doing
so, the court remarked:
26
The general rule is that the question of whether a constitutional
amendment has been legally adopted by the Legislature and approved by
the people is for the courts to investigate and determine. Boyd v. Olcott,
102 Or. 327, 202 P. 431. The rule, we think, necessarily, authorizes the
court upon an objection like the one here to inquire into the question of
whether the changes in the proposed amendment are formal or
substantial.
Board of Liquidation, 122 So. at 851. See also, Lucas, 98 So.2d at 231, in which
the court looked behind the enrolled bill, to the reengrossed House bill, to determine
if the Senate received and passed the House bill, as amended, by a two-thirds vote.
The rule in Louisiana, acknowledged by defendant, is that while a presumption
of regularity is generally accorded legislative proceedings, such a presumption is
rebuttable. State v. Stirgus, 437 So.2d 249, 251 (La. 1983). We find no reason to
deviate from that well-settled rule, especially when the question presented is one as
important and fundamental as that presented here: whether there has been substantial
compliance with the mandatory requirements of La. Const. art. XIII, § 1, in effecting
an amendment to the Louisiana Constitution. In this case, we have a clear and
affirmative showing, in the form of a stipulation (which the parties appropriately made
given the facts and circumstances), that the enactment process did not conform with
the constitutional requirements for promulgation of an amendment to the Constitution.
Under these circumstances, and for the foregoing reasons, we find the district court
was correct in declaring the 1998 amendment to La. Const. art. I, § 10 null and void.
27
CONCLUSION
What this court said in 1941, in delivering its opinion in Graham, bears
repetition today:
The reluctance of the Court to declare an ordinary enactment of the
Legislature void because it is in conflict with the Constitution, is
intensified in a situation like this which requires the Court to declare an
attempted constitutional amendment invalid, because it was not proposed
in conformity to the fundamental law. In the determination of the
difficult and delicate questions presented, this Court is animated solely
by the desire to discharge its solemn duty to enforce the Constitution as
the paramount law – a law which is as binding on the Court as it is on the
Executive Officers, the members of the Legislature, and the people
themselves.
Graham, 3 So.2d at 784.
While the result of our decision will be to broaden the scope of persons eligible
to seek public office, that decision is grounded solely and firmly in the constitution,
not in evaluating the policy or wisdom of law. Through Article XIII, § 1, the
Constitution prescribes the means by which an amendment thereto can be effected.
The procedure described therein and the requirements thereof, are not technicalities,
but rather are safeguards to ensure that our state’s basic, fundamental legal document
is altered only in accordance with the procedure prescribed.
For the reasons assigned, therefore, we find that 1997 La. Acts 1492, which
attempted to amend La. Const. art. I, § 10, is null and void because it was not
constitutionally adopted, and we affirm the decision below.13
AFFIRMED.
13
We expressly decline to comment on the retroactive application of the decision herein, preferring
to address the effect of the invalidity of the constitutional amendment on a case by case basis, if the
necessity arises. Issues of prescription, the time limitations imposed by election law, the finality of
judgments and mootness have to be addressed in any potential subsequent litigation.
28
01/27/2016
SUPREME COURT OF LOUISIANA
NO. 2015-CA-1750
DERRICK SHEPHERD
VERSUS
THOMAS SCHEDLER, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF STATE FOR THE STATE OF LOUISIANA, & JAMES
"BUDDY" CALDWELL, IN HIS OFFICIAL CAPACITY AS ATTORNEY
GENERAL FOR THE STATE OF LOUISIANA, & PAUL D. CONNICK,
JR., IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE
24TH JUDICIAL DISTRICT, PARISH OF JEFFERSON, STATE OF
LOUISIANA
ON APPEAL
FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
GUIDRY, J., dissents and assigns reasons.
I respectfully dissent from the majority opinion with regard to the plaintiff’s
standing, because I do not find he has an interest that “is sufficiently affected so as
to ensure that a justiciable controversy is presented to the court.” In re Melancon,
05-1702, p. 9 (La. 7/10/06), 935 So.2d 661, 668. In my view, the entirety of the
1997 amendment to La. Const. art. I, § 10 need not fall as the result of the omission
of a second exception to the general prohibition on unpardoned convicted felons
running for election contained in La. Const. art. I, § 10(B). As the majority opinion
notes, our focus should be on whether it is possible to uphold the constitutional
amendment, and that every reasonable presumption both of law and fact will be
considered in favor of upholding the amendment, unless an illegality appears
beyond a reasonable doubt. Slip op., p. 17 (quoting Bd. of Liquidation of State
Debt of Louisiana v. Whitney-Central Trust & Savings Bank, 122 So. 850, 851 (La.
1929)).
Here, the legislature intended to present to the electorate an amendment that
clarified the right to vote but also disqualified convicted felons from seeking or
1
holding public office within a certain time period, a restriction not previously
found in the constitution. See 1997 La. Acts 1492; see also La. Const. art. I, §§
10(B)(1) and (2); Comment, Voting and Election Law in the 1974 Constitution, 46
La. L. Rev. 1253 (1986). As the majority notes, the Senate’s version passed with
more than a two-thirds vote, providing for an exception to the general prohibition
when the person seeking office has served his sentence and fifteen years has
elapsed from the date of the completion of the original sentence. Senate Bill No.
321. This exception would apply regardless of whether the person was actually
incarcerated or placed on probation. In the House, a second exception was created
to apply when the person seeking office has been convicted of a felony, has not
been incarcerated, but instead has received probation, identified as the Green
amendments by the majority. In such case, the person seeking office shall be
permitted to qualify upon completion of his probation. Slip Op., pp. 3-4. As the
majority notes, both exceptions, including the fifteen-year period for convicted
felons actually incarcerated, were approved by more than a two-thirds vote of the
House. Id., p. 4. The Senate then also approved the Green amendments. Id.
Further, although the exception for convicted felons sentenced only to probation
was omitted from Act 1492, and thus was not presented to the electorate, the
Senate’s original exception, which because of its greater scope applied to
convicted felons who had been incarcerated, was approved by the electorate. Thus,
the so-called fifteen-year cleansing period for convicted felons who had been
sentenced to incarceration, was approved by the requisite two-thirds of the House
and Senate, as well as the electorate. In effect then, the general prohibition on
felons seeking office in La. Const. art. I, §§ 10(B)(1) and (2), as well as the
exception for those felons who had been incarcerated and fifteen years had elapsed
since the completion of their sentence, complied with the procedural requirements
of La. Const. art. XIII, § 1. The majority concedes as much. See Slip op., p. 24.
2
Here, under the original Senate bill, the bill as amended by the House, which
amendments were approved by the Senate, and the version set forth in Act 1492,
the plaintiff was not eligible to run for office because he had been sentenced to
incarceration after having been convicted of a felony, and fifteen years had not yet
elapsed since the completion of his original sentence. See Connick v. Shepherd, 15-
582 (La. App. 5 Cir. 9/24/15), 176 So.3d 1129, writ denied, 15-1763 (La. 9/30/15),
___ So.3d ___. Thus, the electorate and both the House and Senate were of a single
mind that persons in the plaintiff’s position should be prohibited from seeking
elective office. In every version considered by the House, Senate, and electorate,
there is no question the intent was to prohibit convicted felons from seeking or
holding public office within certain time periods. See La. Const. art. I, § 10(B)(1).
In my view then, the plaintiff has no true interest in challenging the validity of the
constitutional amendment, because under the actual amendment ratified by the
electorate, including the general prohibition against unpardoned felons seeking
office in Art. I, § 10(B)(1), and the fifteen-year cleansing period in La. Const. art.
I, §10(C), as well as the Green amendments he asserts should have been but were
not presented to the voters, he was not eligible to qualify to seek elective office.
Nevertheless, the majority permits this plaintiff, who would be ineligible to seek
office in any case, to effect the eventual dismantling of the Legislature’s and the
electorate’s considered view restricting the scope of persons qualified to seek
public office. The majority should not have recognized this particular plaintiff’s
standing to challenge the constitutional validity of the 1997 amendments to La.
Const. art. I, § 10.
3
01/27/2016
SUPREME COURT OF LOUISIANA
NO. 2015-CA-1750
DERRICK SHEPHERD
VERSUS
THOMAS SCHEDLER, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF STATE FOR THE STATE OF LOUISIANA, & JAMES
"BUDDY" CALDWELL, IN HIS OFFICIAL CAPACITY AS ATTORNEY
GENERAL FOR THE STATE OF LOUISIANA, & PAUL D. CONNICK,
JR., IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE
24TH JUDICIAL DISTRICT, PARISH OF JEFFERSON, STATE OF
LOUISIANA
ON APPEAL
FROM THE NINETEENTH JUDICIAL DISTRICT COURT
FOR THE PARISH OF EAST BATON ROUGE
CRICHTON, J., concurs and assigns additional reasons:
I concur in the result reached by the majority in this case. However, I write
separately to emphasize that, like the vast majority of the citizens of the state of
Louisiana, I believe that convicted felons should be disqualified from the electoral
process. Through their established criminality and felonious conduct, in my view,
they have unconditionally forfeited their right to seek the sacred trust of holding
public office. However, in compliance with our solemn oaths, we are duty-bound
to interpret and apply the Louisiana Constitution, which mandates that the
Legislature follow the proper process for the enactment of a constitutional
amendment. In this instance, application of article XIII, § 1 of the Louisiana
Constitution leads me to conclude that, as the opinion points out, what the citizens
of Louisiana voted on was not what the Louisiana Legislature enacted. The
Legislature can, if it chooses to do so, once again address this issue in order to
rectify this troublesome result.