Connick v. Shepherd

176 So. 3d 1129, 15 La.App. 5 Cir. 582, 2015 La. App. LEXIS 1828, 2015 WL 5662665
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2015
DocketNo. 15-CA-582
StatusPublished
Cited by5 cases

This text of 176 So. 3d 1129 (Connick v. Shepherd) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connick v. Shepherd, 176 So. 3d 1129, 15 La.App. 5 Cir. 582, 2015 La. App. LEXIS 1828, 2015 WL 5662665 (La. Ct. App. 2015).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

| ¡¡This appeal arises out of an objection to the candidacy of Derrick Shepherd for the office of the 87th Representative District in the Louisiana House of Represen[1131]*1131tatives. This office is to be- filled by a primary election scheduled for October 24, 2015, followed by a general election on November 21, 2015, if - necessary. Mr. Shepherd seeks review of the district court’s judgment granting the objection to his candidacy and ordering the removal of his name from the ballot. For the reasons that follow, we affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On October 10, 2008, in the United States District Court for the Eastern District of Louisiana, Derrick Shepherd pled guilty to conspiracy to commit money laundering, a violation of 18 U.S.C. § 1956(h). On February 11, 2010, the court sentenced Mr. Shepherd to a term of imprisonment’ for thirty-seven months in the custody of the United States Bureau of Prisons and fined him $45,000.00. The court further ordered Mr. Shepherd to remain on supervised release for three years after his release from imprisonment. Mr. Shepherd was discharged from the Bureau of Prisons on March 15, 2012, and from probation on May 12, 2014.

|40n September 10, 2015, Mr. Shepherd qualified as a candidate in the primary election for the office of the 87th Representative District in the Louisiana House of Representatives. On September 14, 2015, Paul D. Connick, Jr., in his official capacity as District Attorney for the 24th Judicial District, filed a petition objecting to the candidacy of Mr. Shepherd on the ground that his status as a convicted felon prohibits him from qualifying for or taking elective public office pursuant to Article I, Section 10 of the Louisiana Constitution. See La. R.S. 18:495(A).

On September 17, 2015, Mr. Shepherd filed an “Answer, Affirmative Defense and Request for Declaratory Judgment,” in which he sought to have La. Const. Art. I, § 10 declared unconstitutional. He argued that he is not prohibited from qualifying because La. Const. Art.. I, §, 10 is null and void due to a defect in the.legislative process. He contends that the version of the constitutional amendment ratified by the voters is not the same as the one passed by the legislature. Specifically, Mr. Shepherd claims that an amendment adopted by both houses of the legislature was erroneously omitted from the final version of the bill that was.placed on the ballot and ratified by a majority of Louisiana voters. He claims this omission nullifies La. Const. Árt. I, § 10.

A bench trial was held on September 18, 2015. At the outset of the proceedings, a discussion was held regarding the fact that the attorney general had not been served with Mr. Shepherd’s answer/réconventional demand. Indeed, a review of that pleading confirms that Mr. Shepherd did not request service on the attorney general. Consequently, a recess was held during which Mr. Shepherd’s answer/recon-ventional demand was faxed and e-mailed to the attorney general’s office. After the court reconvened, a telephone conference on the record was held, at which time the attorney general accepted service and objected to a determination | sby the court of the constitutional issue: “... [Jjust for the record, our presence or lack of presence there this morning, we in no way consent to the unconstitutional challenge.... [W]e just wanted to preserve for the record that our objection is that a constitutional challenge must be done in an ordinary proceeding at the Ninéteenth [JDC].”1

[1132]*1132Finding that the attorney general had not been afforded an adequate opportunity to be1 heard in accordance with La. C.C.P. art. 1880, the cotut determined it was not in the proper ' posture tó consider Mr. Shepherd’s constitutional challenge. The eourt therefore conducted its analysis under the presumption that La. Const. Art. I, § 10 i's constitutional. In light of Mr. Shepherd’s stipulation' tó the facts as alleged in the petition objecting to his candidacy, the court concluded that La. Const'. Art. I,' § 10 prohibits Mr. Shepherd from qualifying for Or taking elective public office. ' The court granted the objection to Mr. Shepherd’s candidacy and ordered the removal of his name from the ballot, which was stayed pending a rilling from this Court. Mr. Shepherd appeals'from this judgment.

DISCUSSION

On appeal, Mr. Shepherd argues that the district court erred in , refusing to consider the merits of his constitutional challenge. He submits the court erred in finding that the attorney general was denied the opportunity to be heard and concluding from this that consideration of the constitutional issue is precluded. Mr. Shepherd contends that the attorney general was in fact given and utilized the opportunity to be heard when he participated in the hearing by telephone; •

A district court’s decision to grant or deny a declaratory judgment is reviewed under the abuse of discretion standard. Jefferson Parish Firefighters Ass'n v. Parish of Jefferson, 13-40 (La. App. 5 Cir. 5/23/13), 117 So.3d.246, 250, writ denied, 13-1612 (La.11/15/13), 125 So.3d 1107. The district court declined to consider the merits of Mr. Shepherd’s constitutional claim, due to non-compliance with La. C.C.P. art. 1880. This article provides in pertinent part:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.... If the .statute, ordinance, or franchise is alleged to he unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.

(Emphasis added).

The Louisiana Supreme Court has held these procedural requirements are indispensable for adjudicating a constitutional challenge to a state law. In Williams v. Monroe City Sch. Bd., 12-2602 (La.1/10/14), 131 So.3d 833, 834, the supreme court found non-compliance with La. C.C.P. art. 1880 precluded its review of a district court’s judgment'finding unconstitutional portions of Title 17 of the Louisiana Revised Statutes.

In Williams, the plaintiff filed a petition for declaratory judgment and injunctive relief seeking to declare portions of La. R.S. 17:443 unconstitutional. Although the plaintiff requested service on the attorney general, there was no indication service was successfully completed.. Rather, it appeared the first actual notice the attorney general’s office received was on August 1, 2013, when it- was' served with a copy of the district court’s judgment granting the plaintiffs request for a preliminary injunction. .At that time, the district court allowed the attorney general’s office thirty days to notify the court whether it intended to participate. However, the district court proceeded to try the matter on August 5, 2013, before this thirty-day period elapsed. On the morning of trial, the district court contacted the attorney general’s office; There was no indication in the record that the |7attorney general’s office declined to participate in the action at that [1133]*1133time. The matter proceeded to trial without the attorney general’s participation, and the court declared certain provisions unconstitutional. Williams at 833-34.

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176 So. 3d 1129, 15 La.App. 5 Cir. 582, 2015 La. App. LEXIS 1828, 2015 WL 5662665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connick-v-shepherd-lactapp-2015.