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: Supreme Court of Louisiana
• Decided: January 27, 2016
• Docket: 2015-CA-1750
• Status: Published

Opinion

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 1492

For 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.

25 Acts 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

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

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.