Opinion
No. CA 87 0393.
May 17, 1988.
APPEAL FROM 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE WILLIAM H. BROWN, J.
Milton Osborne, Jr., Baton Rouge, for plaintiff-appellant Emmett Spooner.
Charles L. Patin, Baton Rouge, for defendant-appellee State of La., et al.
T. Barry Wilkinson, Plaquemine, for defendant-appellee West Baton Rouge Parish.
Before LOTTINGER, EDWARDS and ALFORD, JJ.
Plaintiff, Emmett Spooner, filed this suit for declaratory judgment as to the unconstitutionality of La.R.S. 42:1411 (as amended by Act 994 of 1985) and to enjoin the defendants, the West Baton Rouge Parish School Board (School Board), the Governor, the Attorney General and the Secretary of State, from suspending him as a member of the School Board under La.R.S. 42:1411. Plaintiff has appealed to this court from the District Court's ruling against the issuance of an injunction and in favor of the constitutionality of La.R.S. 42:1411.
FACTS
The facts of the case, as stipulated by the parties and included in the trial judge's oral reasons for judgment, are the following.
On or about September 27, 1985, plaintiff was a member of the School Board. He was convicted on September 27, 1985, of violating La.R.S. 14:27 and 72, attempted forgery (a felony under Louisiana law); the conviction is presently on appeal.
On September 27, 1986, plaintiff was reelected to the School Board for a term commencing January 1, 1987. On December 19, 1986, a letter was served upon plaintiff regarding the School Board's intention to recognize and continue his suspension into his new term of office under La.R.S. 42:1411(B).
The letter to plaintiff from the district attorney for the Parish of West Baton Rouge states in pertinent part:
"You were recently re-elected to a position on the West Rouge Parish School Board representing Election District V. You are currently scheduled to assume your new position effective January 1, 1987. However, you were convicted of a felony under Louisiana law in Iberville Parish on September 27, 1985.
"Act 994 of the 1985 Regular Session of the Louisiana legislature was signed by the Governor on July 23, 1985 and became effective on September 6, 1985. Act 994 requires that a public official who is convicted of a felony shall be suspended without compensation until all appeals have been exhausted. The act also provides for the appointment of a replacement during your period of suspension.
"The West Baton Rouge Parish School Board has previously recognized this suspension during your prior term of office which expires December 31, 1986. Please be advise that the West Baton Rouge Parish School Board intends to recognize your suspension from serving on the West Baton Rouge Parish School Board effective January 1, 1987 and thereafter until you have exhausted all appeals from your conviction in Iberville Parish on September 27, 1985. The Board intends to name a replacement for you at its first regularly scheduled meeting after January 1, 1987, said meeting to occur on January 21, 1987. You will not be permitted to take your seat at this meeting or any meeting thereafter until your appeals have been exhausted. If you have any questions or need further elaboration, please do not hesitate to contact me through your attorney who I have notified by carbon copy of this letter."
Plaintiff filed suit on January 7, 1987, to enjoin the suspension and have La.R.S. 42:1411 declared unconstitutional. Defendants filed several exceptions, and the matter was heard and decided adversely to plaintiff on January 20, 1987. Plaintiff then sought this appeal.
ASSIGNMENTS OF ERROR
On appeal, plaintiff alleges the following trial court errors:
(1) The trial court erred in finding that La.R.S. 42:1411 is constitutional.
(2) The trial court erred in finding that La.R.S. 42:1411 should apply to plaintiff.
(3) The trial court erred in not ordering that plaintiff be allowed to serve out his term as a member of the School Board.
CONSTITUTIONALITY OF LA.R.S. 42:1411
Plaintiff takes the position that La.R.S. 42:1411 is unconstitutional because it provides a method of removal from public office which is not provided for in the Louisiana Constitution of 1974.
The Louisiana Constitution of 1974, Art. 10, §§ 24, 25 and 26 provide the methods of effecting a removal of public officials from office. Those methods are impeachment, removal by suit and recall. The provision which is pertinent to this case is § 25, removal by suit.
Impeachment
(A) Persons Liable
(B) Procedure
Removal by Suit; Officials, Subject
Recall
Plaintiff argues that the suspension provided for in La.R.S. 42:1411 is a method of temporary removal other than by suit, impeachment or recall election, and therefore, it violates the exclusive methods of removal outlined in the 1974 Constitution. Plaintiff fails to recognize that Art. 10, § 25 of the 1974 Constitution expressly gives the legislature permission to enact general laws for the removal by suit of public officials (except the governor, lieutenant governor and judges of the courts of recors). By enacting La.R.S. 42:1411 and 1412, the legislature provided general laws for the removal of public officers convicted of a felony during their term of office. The provisions of La.R.S. 42:1411 and 1412 are in no way repugnant to any of the said Constitutional sections. The Constitutional means of removing officers are not exclusive, and the legislature was not inhibited from adopting La.R.S. 42:1411 and 1412 (a two-step removal process of automatic suspension pending appeal followed by suit for removal after the felony conviction is final). Compare Pinder v. Board of Supervisors of Election of Calcasieu Parish, 146 So. 715 (La.App. 1st Cir. 1933), holding that the recall election statute, (now La.R.S. 18:1300.1) is not unconstitutional; and Troxler v. Mongrue, 175 So.2d 309 (La.App. 4th Cir. 1965), writ refused, 248 La. 361, 178 So.2d 654 (1965), holding that a statute giving certain removal powers to the governor (La.R.S. 42:4) is not unconstitutional.
Public officer; ground for removal; suspension; definitions
42:1411
18:602
Method for removal
42:1412
42:141142:1412
42:1411
We hold that La.R.S. 42:1411 is not unconstitutional as contrary to the methods provided by the 1974 Constitution for removal of public officers from office. We also hold that plaintiff's rights of substantive and procedural due process and equal protection of the laws have not been violated. Plaintiff was afforded all the constitutional safeguards of a judicial determination of guilt of a felony; and the state has a legitimate reason for suspending a convicted felon from public office to protect the public who has placed their trust in the officer. Accordingly, plaintiff's first assignment of error is without merit.
APPLICATION OF LA.R.S. 42:1411
Plaintiff argues that La.R.S. 42:1411 should not apply to him because he was convicted of the felony during his past term and not during his new term of office. We feel it is immaterial during which term of office plaintiff was convicted. La.R.S. 42:1411 was intended to suspend an unworthy officer while in office, irrespective of the fact whether the act complained of was committed during his first or a subsequent term. The great weight of authority in Louisiana is that an act in a prior term of office may furnish grounds for removal during a subsequent term. Ponds v. Treen, 407 So.2d 671 (La. 1981). Accordingly, plaintiff's second assignment of error is without merit, and discussion of plaintiff's third assignment of error is not necessary.
CONCLUSION
For the foregoing reasons, we find the District Court did not err in dismissing plaintiff's petition for declaratory judgment and injunctive relief. Therefore, the judgment of the District Court is affirmed; plaintiff to pay all costs.
AFFIRMED.