CARAWAY, J.Page 1
In 2003, Louisiana Governor Murphy J. Foster granted Joe Shyne a pardon following this court's ruling in 2002 disqualifying Mr. Shyne as a candidate for public office pursuant to a 1998 amendment to Louisiana's Constitution. Mr. Shyne had received a prior federal conviction of a felony. Governor Foster's pardon expressly granted Mr. Shyne "a full pardon with restoration of all civil and citizenship rights." Mr. Shyne has now attempted to qualify as a candidate for the Shreveport City Council, and plaintiff brings this action challenging his candidacy pursuant to La. Const, art. I, § 10(B)( 1) which disqualifies convicted felons from holding public office. Nevertheless, the trial court's ruling determined that the gubernatorial pardon power may not restore the right to hold office denied by Louisiana law. We now determine that the Governor of Louisiana did not exceed his authority by pardoning Mr. Shyne from the constitutionally enacted disqualification for public office. When the 1998 amendment placed that disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Federal law allows Louisiana to impose this disqualification on a federally convicted felon and to also remove the disqualification by exercise of a gubernatorial pardon. Accordingly, we reverse the trial court's decision.
See, Malone v. Tubbs, 36,816 (La.App. 2d Cir.9/6/02), 825 So.2d 585, writs denied, 02-2322 (La. 9/11/02), 824 So.2d 1164, 02-2448 (La. 10/1/02), 826 So.2d 1110.
An original plaintiff in this case, Max T. Malone, was dismissed from the action, and Mr. Shyne's opponent in the upcoming election, James Edward Green, is the appellee.
Facts
On January 21, 1994, Joe Shyne entered a guilty plea to the crime of extortion by a public official in violation of 18 U.S.C. § 1951. A judgment of conviction was entered in the United States District Court, Western District of Louisiana on April 7, 1994, sentencing Mr. Shyne to twelve months and one day imprisonment and ordering him to surrender for service of sentence on May 2, 1994. Upon his release from prison, Mr. Shyne was placed on supervised release for a period of three years. The record contains evidence showing that Mr. Shyne was released from prison on March 15, 1995, and would have apparently then begun his three-year probationary term.
On August 29, 2003, Louisiana Governor Murphy J. Foster issued a "Grant of Clemency to Joe Shyne" upon recommendation of the Louisiana Board of Pardons. The Governor granted Mr. Shyne a "full pardon with restoration of all civil and citizenship rights, except for the right to own, possess, receive, ship, and transfer firearms to Joe Shyne and do hereby direct you to act accordingly, and for so doing this shall be your sufficient warrant and authority."
On August 9, 2006, Mr. Shyne filed a notice of candidacy for the seat of Shreve-port City Councilman, District F, in the September 2006 primary election. On August 18, 2006, James Edward Green, a candidate for the District F Councilman seat, filed a timely petition seeking to have Mr. Shyne disqualified as a candidate for office. The plaintiff contended that Mr. Shyne was disqualified as a candidate pursuant to La. Const, art. I, § 10(B)( 1) because (1) he was convicted of a felony under the laws of the United States, (2) had never been pardoned by the President of the United States, and (3) fifteen years had not elapsed since the completion of his original sentence.
By answer to the suit, Mr. Shyne conceded that he was convicted of a federal felony and that fifteen years had not elapsed since the completion of his original sentence. He nevertheless argued that he was qualified to hold public office under La. Const, art. I, § 10(B)( 1) because of the Governor's pardon.
On August 23, 2006, the trial court rendered judgment in favor of Green, concluding that La. Const, art. I, § 10(B)( 1) required a presidential pardon for Mr. Shyne's federal felony in order for him to qualify to hold public office. This timely appeal followed.
Louisiana Constitutional Law
Three Louisiana Constitutional articles form the focus for resolving the issues before us. Those articles are La. Const. art. I, § 20 (hereinafter referred to as "Art. I, § 20"), La. Const, art. IV, § 5(E)( 1) (hereinafter referred to as "Art. IV, § 5(E)(1)"), La. Const, art. I, § 10(B) (hereinafter referred to as "Art. I, § 10(B)" or the "1998 Amendment").
The pertinent provision of Art. I, § 20, which was included in the Louisiana Constitution of 1974, states:
Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.
The provisions of Art. I, § 10(B), which were added by amendment to the constitution in 1998, state:
The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state,
would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a felony.
Article I, Section 10, Subsection C also added by the 1998 Amendment allows the convicted felon to seek public office "fifteen years after the date of the completion of his original sentence."
The pertinent provisions of Art. IV, § 5(E)(1), also originally enacted in 1974, state:
The governor may grant reprieves to persons convicted of offenses against the state and, upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.
Also, the provisions of La. E.S. 15:529.1(H) state that a "person shall not be qualified to be a candidate for elected public office or take elected office if that person has been convicted of a felony, whether convicted within this state or convicted under the laws of any other state or of the United States, of a crime which, if committed in this state would be a felony, and has not received a pardon therefor."
The starting point in the interpretation of constitutional provisions is the language of the Constitution itself. Ocean Energy, Inc. v. Plaquemines Parish Gov't, 04-66 (La. 7/6/04), 880 So.2d 1. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Id. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Cajun Elec. Power Co-op. v. Louisiana Pub. Serv. Comm'n, 544 So.2d 362 (La. 1989). When the constitutional language is subject to more than one reasonable interpretation, it is necessary to determine the intent of the provision. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra. In seeking to ascertain constitutional intent, the same general rules used in interpreting laws and written instruments are followed. East Baton Rouge Parish School Bd. v. Foster, 02-2799 (La. 6/6/03), 851 So.2d 985. In construing a constitutional provision, the courts may consider the object sought to be accomplished by its adoption, and the evils sought to be prevented or remedied, in light of the history of the times and the conditions and circumstances under which the provision was framed. Succession of Lauga, 624 So.2d 1156 (La. 1993). Additionally, if one constitutional provision addresses the subject in general terms, and another addresses the same subject with more detail, the two provisions should be harmonized if possible, but if there is any conflict, the latter will prevail. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra; Perschall v. State, 96-322 (La. 7/1/97), 697 So.2d 240. However, where the language of a constitutional prohibition makes its aim evident and unequivocal, courts need not consider the historical basis for the prohibition and may not, by separately considering related constitutional provisions, arrive at a construction that detracts from the effectiveness or manifest meaning or purpose of the related provisions. Id.
Discussion
The 1998 Amendment to our Constitution, which added Art. I, § 10(B)(1), disqualifies from holding elective office a person convicted as a felon, resulting from prosecution either in the state or federal systems. It then provides that this disqualification ends if the party has "been pardoned either by the governor of this state or by" the president of the United States. A literal reading of this pardon provision does not require that only the president may pardon a federal felon and free him from Louisiana's constraint. Likewise, the provision indicates that the governor may pardon a person convicted in the federal system of a crime which would amount to a felony in Louisiana. Our research finds that the federal law allows a gubernatorial pardon of a federal felon to lift a state imposed constraint on the party. Thus, the question presented is solely a matter of our state's constitutional grant of the power to the governor and whether it allows the governor to remove the Louisiana disqualification from a person convicted of a federal crime.
The trial court's ruling effectively conceded that the literal wording of the 1998 Amendment allows the governor's pardon to end Mr. Shyne's disqualification from seeking office. Yet, the trial court looked beyond the 1998 Amendment to the general enumeration of the executive's pardon power in Art. IV, § 5(E)(1), finding that it defined "pardon" in a limited manner which would bar a Louisiana governor's pardon from restoring Louisiana civil rights to any person convicted of a crime against the United States. The phrase "offenses against the state," used for the enumeration of the pardon power in Art. IV, § 5(E)(1) was the focus of the trial court's ruling. Mr. Shyne's disability for holding public office was viewed as resulting from an offense against the United States. Nevertheless, consideration of the federal consequences of Mr. Shyne's offense, the jurisprudence, and the history of the general pardon power in our state and nation suggests that the extent of Louisiana's pardon power specifically authorized by the 1998 Amendment does not hinge on the language relied on by the trial court.
To aid in an analysis of the pardon power, the consequences of a felony offense under both federal and state law should be broken down between the direct criminal punishment for the crime and the collateral civil disabilities imposed for the resulting status of the felon. Only the federal law in this case could punish Mr. Shyne for his conviction with incarceration, fines and related penalties, and no gubernatorial pardon power could change that punishment. In addition to the criminal punishment which Mr. Shyne received, federal regulatory requirements may prevent him from obtaining certain licenses and privileges resulting in collateral federal disabilities for his status as a convicted felon. See, e.g., Hirschberg v. Commodity Futures Trading Comm'n, 414 F.3d 679 (7th Cir 2005) 8 and Thrall v. Wolfe, 503 F.2d 313 (7th Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975) (involving a pardoned state felon's failed attempt to obtain a federal firearms license).
The collateral consequence of Mr. Shyne's offense against the United States in this case, however, is a citizenship disability which has nothing to do with a federal statute or regulation. Citizenship rights regarding local elective offices are within the purview of the states. Mr. Shyne's disability for holding Louisiana elective office does not result from an offense "against the United States," in the sense that it reflects on a federal policy or interest to restrict his citizenship. Even though Louisiana could not exact corporal punishment for Mr. Shyne's federal conviction, it is allowed to place him under a citizenship disability to promote the policy of good government for Louisiana. As addressed in this court's prior ruling involving the 1998 Amendment, the disqualification placed upon Mr. Shyne by the State of Louisiana is not punishment as an ex post facto law because the restriction arose to regulate a present situation in furtherance of state policy. Malone v. Tubbs, supra. Only upon the exercise of a presidential pardon may a state's denial of rights to federal felons be questioned based upon the Supremacy Clause. Bjerkan v. United States, 529 F.2d 125 (7th Cir.1975). Nevertheless, even a presidential pardon may not remove all collateral consequences for a federal felony conviction which a state might elect to impose. Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (state can take into consideration a prior offense committed against the United States after a presidential pardon, as long as the state's action does not constitute punishment.)
In an election contest involving a candidate with a prior federal conviction, the Louisiana Supreme Court, in dicta, recognized this distinction between the state's policy interest for setting qualifications for voters or candidates with federal convictions and the federal government's interest for directly punishing their offenses against the United States. Crothers v. Jones, 239 La. 800, 120 So.2d 248 (1960). The court made the following observation, citing an Alabama ruling:
Our research has revealed no authority which would have made it incumbent upon Jones to secure a pardon from the President of the United States before registering in Louisiana. He had served his sentence and had paid the fine assessed against him. "True only the President could grant a pardon for re-mission of the fine and release from imprisonment. But no official of the Federal government would have interest in the matter of restoration of civil rights tending to the qualifications of the convicted person for an office under State authority."
Id. at
120 So.2d 254.
In summary, a state's denial of the right to hold office does not effect criminal punishment for an offense against the United States, nor is it a collateral consequence limiting citizenship rights in the interest of federal policy. In no sense is Mr. Shyne's disability a federal response for an offense against the United States. Instead, Art. I, § 10(B) disqualifies felons from elective office because their prior criminal conduct is offensive to Louisiana's notion of the public trust which is invested in elected officials. Federal law does not prevent Louisiana from placing such disabilities on a federal felon, nor removing them by the exercise of a gubernatorial pardon. The temporary 15-year withdrawal of Mr. Shyne's citizenship right in this case is therefore solely a product of Louisiana. Nevertheless, the trial court's ruling holds that the Louisiana executive pardon power may not restore that right. While making that determination, the trial court's scholarly reasoned opinion properly recognized the lack of a federal interest in this case, stating: "[I]t makes little sense to cede decisions as to the rights Louisiana will afford to Louisiana citizens to the executive branch of the federal government or another state, or even worse, to a potentate of a foreign nation."
This understanding is seen in other state interpretations of the gubernatorial pardon power for the restoration of state citizenship rights to federally convicted felons. As described in 59 Am.Jur.2d Pardon and Parole § 24:
The chief executive of a state has no power to grant a pardon for an offense against the United States for which a conviction has been had in the federal court, in the sense of taking away any part of the corporal punishment inflicted upon the offender. However, in the exercise of the pardoning power, the chief executive of a state may grant executive clemency, effectively restoring rights of citizenship in the state to one who has been disqualified for public office or has lost other civil rights, such as a right to vote, to act as juror, to testify as a witness, and so forth, as a result of a conviction of crime in a federal court or in the courts of another state for which no pardon has been granted. This remains applicable to allow a state official to restore citizenship notwithstanding that the person in question has not been pardoned or restored to the rights of citizenship by the President of the United States. (Citations omitted.)
Examination of the pardon power in Louisiana jurisprudence has drawn from an understanding of the pardon power of our federal constitution and common law. According to our Supreme Court, the scope of Louisiana's pardon power may be gauged by "analysis of the nature and extent of the pardon power of the monarchs of England (the source of the executive pardon power in this country), the proceedings of our federal constitution, the Federalist and other constitutional papers, and the early constitutions of the states of this country, including our own Constitution of 1812." State v. United Bonding Ins. Co. of Indianapolis, Ind., 244 La. 716, 722, 154 So.2d 374 (1963), see also citations to authorities therein; State v. Lee, 171 La. 744, 132 So. 219 (1931); Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974). The power to pardon is an executive prerogative of mercy. United States v. Noonan, 906 F.2d 952 (3d Cir.1990).
In Louisiana's previous constitutions, the language "of offenses against the state" was only used in conjunction with the enumeration of the governor's power to grant reprieves. The governor was otherwise given the power generally to "grant pardons." See La. Const.1921, art. V, § 10. From this history, it is less than clear that the language regarding offenses against the state in Art. IV, § 5 was intended to be dispositive of the question in this case. The phrase, of course, reflects the governor's lack of power to alter a federal conviction and sentence by abolishing any part of the corporal punishment or fines imposed by the federal government. Yet, nothing else should be read into that phrase implicitly, when the question shifts from federal punishment of the offense against the United States to the collateral consequences under Louisiana law.
Significantly, when a Louisiana official commits an act of public bribery in this state, that crime is proscribed under our criminal statute (La. R.S. 14:118) and regardless of the fact that the official is convicted under federal law, the State of Louisiana has suffered the offense.
A more difficult question concerns whether a pardon's purpose is only to end the retribution and punishment against the convicted criminal or whether it may extend broadly to also restore all civil disabilities denied to him by the state. Historically, the "mercy" extended by the king, president or governor was clearly understood to end the punishment. Subsequently, other collateral consequences emerged from legislative acts placing civil disabilities on a felon, not as punishment for crime but to promote policies of protection for the public. This creates the question which is present under Art. IV, § 5(E)(1): May the pardon power, which has been historically expressed in general terms in our constitutions, be interpreted to restore those rights of citizenship?
See, e.g., various Louisiana licensing statutes restricting felons, including La. R.S. 4:150 (horse owners, trainers, jockeys and riders); La. R.S. 37:921 (registered nurses); La. R.S. 37:1437 (real estate sales); La. R.S. 37:2950 (professions and occupations); La. R.S. 37:3219 (radiologic technologists); La. R.S. 37:3396 (real estate appraisers); La. R.S. 37:3469 (wholesale drug distribution); La. R.S. 40:1235.2 (ambulance providers); La. R.S. 47:818.41 (gasoline and diesel fuel); La. R.S. 47:7005 (gaming equipment); and former La. R.S. 27:76 (gaming).
We note that certain federal cases have dealt with this question regarding the presidential pardon. The pardon has been held to apply to alleviate punishment for contempt of court. Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527 (1925). It does not extend to require the expungement of criminal records. United States v. Noonan, supra. Likewise, a presidential pardon has been construed as not preventing the fact of the conviction from being used in consideration of federal regulatory licenses. Hirschberg v. Commodity Futures Trading Comm'n, supra. In Bjerkan v. United States, supra., the court cited Burdick v. United States, 236 U.S. 79, 35 S.Ct. 267, 59 L.Ed. 476 (1915), for its conclusion that "[a] pardon does not `blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law . . . . "
In the 1974 Constitution, the pardon power was expressed as follows:
The governor . . . upon favorable recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses.
La. Const, art. IV, § 5. This enumeration arguably only addressed the direct criminal consequences of a conviction since it does not contain language expressly lifting collateral civil disabilities which the legislature may choose to place on a felon. For some of those disabilities, a pardon was unnecessary under the original scheme of the 1974 Constitution because the restoration of the "full rights of citizenship" occurred automatically "upon termination of state and federal supervision following conviction of any offense." La. Const. art. I, § 20. The phrase "full rights of citizenship" addressed by Art. I, § 20, has been interpreted as limited to only the customary rights to vote, work and hold office. State v. Selmon, 343 So.2d 720 (La. 1977).
The scope of the pardon power in the 1974 Constitution has never been challenged concerning the pardon's effect on the restoration of other collateral consequences or disabilities unrelated to the citizenship rights addressed by Art. I, § 20. Yet, because its enumeration of the pardon power is in general terms and does not expressly direct its force for the restoration of all civil disabilities imposed by legislation, such as certain state licensing requirements, the breadth of the pardon power under Art. IV, § 5(E)(1) remains unspecified, subject to future interpretation by the courts. Clearly, the historical and common understanding of pardon, to free the convicted party from sentence and end the sovereign's retribution, differs greatly from a pardon of the civil disabilities of a felon which the legislature may choose, not as retribution, but in support of important public policy.
From this review, we conclude that Art. IV, § 5(E)(1)'s general expression of the pardon does not prevail over the more specific application of a governor's pardon which was authorized by the 1998 Amendment. Ocean Energy, Inc. v. Plaquemines Parish Gov't, supra. The original intent and meaning for Art. IV, § 5(E)(1)'s pardon power did not even address the right to hold elective office because that right was expressly restored elsewhere in the 1974 Constitution on an equal basis for state and federal felons. Thus, it was only when the 1998 Amendment placed its disqualification on felons, that the people simultaneously expressed a specific and independent constitutional pardon power for the governor's executive discretion.
Turning again to the language of Art. I, § 10(B), the person convicted under the laws of the United States as a felon who "has . . . been pardoned either by the governor of this state or by" the President of the United States is no longer disqualified to be a candidate for public office. The literal language makes no distinction requiring a gubernatorial pardon for the felon convicted under state law and a presidential pardon for a federal felon like Mr. Shyne. The Governor of Louisiana is given the power to pardon a party convicted in either jurisdiction. This would not lead to a result in conflict with federal law as we have discussed. With promotion of Louisiana's policy for trustworthy elected officials being the goal of this disqualification provision, our Governor is entrusted with the power to consider the party's character and past conduct, and to grant him an earlier time for seeking public office before the expiration of the 15-year disqualification period. This result would promote a fair review of equal measure for both state and federal felons by the party with executive power whose public duty is directly for the oversight of the policy of this state. In this case, Governor Foster, on recommendation of the Board of Pardons, made that determination regarding Mr. Shyne.
On the other hand, the provision's acknowledgment of the power of the presidential pardon does not cast doubt on the propriety of a governor's pardon of a federal felon. That acknowledgment principally recognizes that a president may have intervened with a pardon to free the convicted party from federal incarceration. Such pardon under the Supremacy Clause of the United States Constitution may prevent a state from further imposing this sanction on the party. Thus, Art. I, § 10(B)'s acknowledgment of the effect of the presidential pardon for federal crimes also accepts the presidential judgment concerning the individual and avoids any challenge to our citizenship disqualifications under those circumstances involving a presidential pardon.
Conclusion
Our constitutional review begins and ends with the language of the 1998 Amendment itself. When the Amendment placed the public office disqualification upon a Louisiana citizen, it simultaneously gave the governor a pardon power for its removal. Nothing in the federal law prevents a governor from restoring the rights of citizenship which his state's law has withdrawn from a federally convicted felon. Our Louisiana governor made that choice in this case, and we hold Mr. Shyne is no longer disqualified to seek elective office. Plaintiffs suit is dismissed.
Costs of appeal are assessed to appellee.
REVERSED AND RENDERED.
PEATROSS, J., concurs with written reasons.
DREW, J., dissents with written reasons assigned by J. MOORE and with additional written reasons.
MOORE, J., dissents with written reasons.
LOLLEY, J., dissents for the written reasons assigned by J. MOORE.