Could a district attorney seek removal of a parish council member who was ineligible when elected?

Plain-English summary

A district attorney asked whether a parish council member elected in 1999 could be removed because of felony convictions from 1990. The Attorney General applied the Louisiana Constitution's eligibility provision as it stood in 2002 and concluded that the member could not hold office. The opinion said the member had not received the governor's pardon described in the provision and could not meet its exception requiring more than fifteen years between completion of the original sentence and qualification for office.

The AG said the district attorney could proceed at once with a quo warranto action instead of waiting for another election. It also recalled an earlier AG opinion after discussing a Louisiana appellate decision on the amendment's application to people who qualified after its effective date.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG say the district attorney had to wait for another election?
No. On the stated 2002 facts, it said a quo warranto action to challenge the sitting member's right to office could proceed at that time.

Did the member's first offender pardon settle the eligibility question?
No. The opinion said he had not received a governor's pardon and did not qualify under the fifteen-year exception it applied.

What eligibility period did the opinion apply?
It described an exception for a convicted person who qualified for office more than fifteen years after completing the original sentence. The AG said the member could not meet that exception on the dates given.

Did the AG revisit an earlier opinion?
Yes. It recalled Opinion 98-445 after discussing a Louisiana Court of Appeal decision about the constitutional amendment's prospective application.

Background and statutory framework

The requester described a council member convicted of felony theft in 1990 who qualified and was elected in 1999. The AG read the 1998 constitutional amendment governing convicted persons' eligibility for public office and the district attorney's role in a quo warranto proceeding.

Citations and references

• La. Const. Art. 1, Sec. 10
• State ex rel Kilbourne v. Dugas, 180 So.2d 440 (La.App. 1 Cir 1965)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0392

Original opinion text

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P.O. Box 94005
BATON ROUGE
TEL.: (504) 342-7013
FAX: (504) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

NOV 0 6 2002
OPINION 02-392

15-A - Constitutional Law
27 - Elections- Candidates,
Nominations & Eligibihty to Run
La. Const. Art. 1, Sec. 10
District Attorney Walter Naquin
A person convicted of a felony
shall not hold office until fifteen
Lafourche Parish
years after the completion of his
sentence, and the District Attorney
P.O. Box 431
is to bring a quo warranto proceeding
Thibodaux, LA 70302
to remove such an elected mumc=pal
person.

Dear District Attorney Naquin:

This office is in receipt of your request for an opinion of the Attorney General in regard to removal of an elected official from office. You indicate it is believed that a Parish Councilman, who qualified and was elected in 1999 to the office he presently holds, does not meet the qualifications of office inasmuch as he was convicted of two counts of felony theft in 1990. He received a first offender pardon, but not a Governor’s pardon. You cite cases which deal with the issue of challenging one’s qualification to seek office, but point out they do not address the issue of removal from office because of lack of qualification.

Accordingly, you ask whether there are immediate grounds for removal of this public official from office because of a lack of qualification when elected.

Act No. 1492 of 1997 was proposed to prohibit convicted felons from seeking or holding public office within a certain period of time. The amendment to Art. 1, Sec. 10 of the Constitution of Louisiana was ratified by the voters. The amendment was proclaimed as adopted by the governor on October 15, 1998, and became effective on November 5, 1998. In accordance with the amendment persons "shall not be permitted to qualify_ as a candidate for elective public office or take public office* * * who has been convicted within this state of 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 ¯ * * having such authority to pardon in the place where the person was convicted and sentenced." (Emphasis added.)

However, in this constitutional provision there is an exception that a person who has been convicted of a felony 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 I~is

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District Attorney Walter Naquin
OPINION 02-392
Page 2

original sentence."

Under the facts we are given that he was convicted of a felony in 1990, fifteen years cannot have passed since the completion of his original sentence, nor did he receive a pardon by the Governor.

In accordance with the provisions of Art. 1, Sec. 10, having been adopted prior to the councilman’s election in 1999, and it being less than fifteen years from the completion of his conviction in 1990 so as to allow him to fall within the exception permitting a felon to seek and "to 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," we find the constitutional article prohibits him from holding such office. Under such circumstances he may be removed from office.

Additionally, we note in the decision of the Court of Appeal in Malone v. Tubbs v. Shyne, 825 So. 2d 585 (La.App 2 Cir. 2002) it was pointed out that in the trial court Shyne, who was serving as councilman, had relied upon Atty. Gen. Op 98-445 wherein the question was whether Shyne, after being elected, was qualified to take office. Citing Civil Code Art 6 which provided substantive laws apply prospectively only, the opinion concluded the amending language of Article I, Section 10 was substantive law and could not be applied retroactively, and could not affect any person who qualified and was duly elected on November 3, 1998. However, the Court of Appeal stated, " * (VV)e disagree with the attorney general’s opinion No. 98-445 as to retroactive application of the amendment." The Court found the amendment was intended to apply to all convicted felons attempting to qualify for public office after the effective date of the amendment. Such an application is prospective, and not retroactive. Therefore, we recall Atty. Gen. Op. 98-445.

We find the Louisiana Constitutional provision, Art. 1, Sec. 10 applicable to the Councilman in question thereby barring him from qualifying and holding office.

Under these circumstances we find Atty. Gen. Op. 96-110 pertinent wherein it was recognized there was a mandatory requirement on the part of a District Attorney to bring a quo warranto proceeding to remove an elected municipal counsel person or alder person on a question of the right to hold office. Reliance was placed upon State ex rel Kilbourne v. Dugas, 180 So.2d 440 (La.App. 1 Cir 1965) wherein the court found if the District Attorney has knowledge which would lead him to believe a person is unlawfully holding office, it is his duty to bring the action inasmuch as it is not discretionary with him.

You question if there are "immediate grounds for removal of this public official from his elected office at this time, or do the citizens have to wait until he qualifies to run for office again pursuant to the Election Code", and we would conclude you may proceed at this time

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District Attorney Walter Naquin
OPINION 02-392
Page 3

to remove the councilman.

We hope this sufficiently responds to your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BARBARA B. RUTLEDGE
Assistant Attorney General

RPI/bbr