Shepherd v. Schedler

• Citation: 209 So.3d 752
• Decision Date: 27 January 2016
• Docket Number: No. 2015–CA–1750.,2015–CA–1750.
• Parties: 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.
• Court: Louisiana Supreme Court

209 So.3d 752

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.

No. 2015–CA–1750.

Supreme Court of Louisiana.

Jan. 27, 2016.

Opinion on Rehearing May 2, 2016.

Louisiana Department of Justice, James D. Caldwell, Attorney General, William P. Bryan, III, Jefferson Parish District Attorney's Office, Paul D. Connick, Jr., District Attorney, Terry Michael Boudreaux, Assistant District Attorney, Lani Boyd Durio, John Edgar Litchfield, for Appellant.

Phelps Dunbar, LLP, Harry Allan Rosenberg, The Law Office of Robert T. Garrity Jr., Robert Thomas Garrity, Jr., for Appellee.

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, 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.]

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.

(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 )

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