NATIONAL C ONFERENCE OF S TATE L EGISLATURES Legal Services Staff Section THE LEGISLATIVE LAWYER “To Better Serve Our Legislatures” Volume XXII, When Does the Term Limits Clock Begin to Issue 1 May 2008 Run in Louisiana? BY J ERRY G. J ONES In an election suit challenging candidacy quali- "For purposes of Article III, Section 4(E) of the fications, the Louisiana Supreme Court, by a 6- Constitution of Louisiana only, the service of a 1 vote in a case of first impression, concluded person who is elected to fill an unexpired term that the term limits provision of the Louisiana in the office of state legislator shall begin at the time such person takes the oath of office before constitution precluded a state senator from his house of the legislature." NCSL seeking re-election. Background - Fact . On December 13, 1997, Background - Law . Adopted in 1995, Article Cleo Fields was elected in a special election to III, §4(E) of the Louisiana Constitution states: Available on the fill a vacancy in the state senate. The election Web at: "No person who has been elected to serve as a results were promulgated on December 18. On http://www.ncsl.org/ member of the Senate for more than two and December 23, Senator Fields timely submitted programs/legman/ one-half terms in three consecutive terms, that his oath of office to the secretary of state. 4 legalsrv/lssshome.htm service being during a term of office that began on or after January 8, 1996, shall be elected to A special session was held by the Legislature in the Senate for the succeeding term. No person March of 1998. On March 23, the first day of who has been elected to serve as a member of the special session, Senator Fields took a sec- To submit an article for the House of Representatives for more than two ond oath of office before the Senate, reciting publication, please and one-half terms in three consecutive terms, the same text as in the previous oath. contact the editor. that service being during a term of office that began on or after January 8, 1996, shall be Senator Fields was subsequently elected to two E-mail : elected to the House of Representatives for the consecutive four-year terms as senator. [email protected] succeeding term ." Telephone : In September of 2007, Senator Fields filed a (303) 866-2157 The constitution provides that legislators notice of candidacy to run again for the same elected in regularly scheduled elections serve Mail : 1 senate seat. Suit was promptly filed to chal- State Capitol, Room 091 four year terms. They take office on the same lenge the candidacy. Denver, CO 80203 day as the governor and other statewide elected officials, noon on the second Monday in Janu- District Court and First Circuit Court of ary next following the election. 2 Appeal. The plaintiffs filed suit in district court objecting to the candidacy on the grounds that The constitution also specifies that vacancies in the senator was prohibited from seeking re- INSIDE THIS the legislature are filled by election, and that a election by the term limits provision in the con- person elected to fill the remainder of an unex- 5 ISSUE:I SS UE: stitution. Included within the suit petition was pired legislative term must take office within the allegation that, to the extent it conflicted thirty days after the secretary of state promul- 3 with the term limit provision language, the Term Limits Decision in gates the election returns. newly enacted statutory language in R.S. Louisiana ................1 In 2006, the Legislature enacted new statutory 18:601(B) was unconstitutional. language, La. R.S. 18:601(B), adding to the Bills of Attainder ......4 state election code the following provision: (Continued on page 2) State News .............6 1. La. Const. Art. III, §4(C). 2. La. Const. Art. III, §5(A) and Art. IV, §3(A). 3. La. Const. Art. III, §§4(D) and 5(B). 4. La. Const. Art. X, §30 - "Every official shall take the following oath or affirmation: 'I, . ., do solemnly swear (or affirm) that I will support the constitution and laws of the United States and the constitution and laws of this state and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as . ., according to the best of my ability and understanding, so help me God.'" 5. La. R.S. 18:1401, et seq, sets forth specific requirements for challenges in election matters, including time periods for filing and expediting of judicial proceedings. Page 2 THE L EGISLATIVE L AWYER Volume XXII, Issue 1 The plaintiffs claimed that under the language of the constitution Five judges on the First Circuit dissented, concluding that the Fields had served more than two and one-half terms and could language of the term limits provision created a question of how not run again, whether the term limits clock began to run on the to calculate the applicable time period when less than a full four- date he was elected or the date he took the first oath of office. year term was involved. The legislature had appropriately ad- dressed the question via the language of R.S. 18:601(B) and, Fields responded with several exceptions (defenses by motions) absent a finding of unconstitutionality with the challenging party to the suit and a motion for summary judgment. The exceptions meeting its heavy burden of proof of showing invalidity, the included that the court lacked subject matter jurisdiction, based statute and its effects should not be disturbed. upon the language in the state constitution stating that each house of the legislature "shall be the judge of the qualifications The Louisiana Supreme Court . The Louisiana Supreme Court and elections of its members." 6 The exceptions and motion fur- granted review from the First Circuit's ruling and quickly held ther argued that, primarily because of the newly enacted lan- oral arguments. Judgment was rendered a few days later. guage in R.S. 18:601(B), no cause of action had been stated in the suit and the court accordingly should rule in favor of Fields. The Court, by a 6-1 vote, concluded that under the language of the term limits provision, the determinative Applying the provisions of R.S. 18:601(B), David Deculus, Clara Deculus, Della date is the date a member is "elected to serve". claimed Fields, the term limits "clock" did Neely and Nancy Salemi v. Doug Wel- This is the date that starts the term limits not begin to run for him until the date he took born, Clerk of Court for East Baton "clock". Calculating from this date, Fields had the second oath of office before the Senate in Rouge Parish and Candidate Cleo already served more than two and one-half March of 1998. Therefore, he had not yet Fields , No. 2007-C-1888, Louisi- terms and was thus ineligible to run for another served two and one-half terms and was quali- ana Supreme Court, October 1, term. The judgment of the court of appeal was fied to run for a third full term. 2007. affirmed. Judicial procedures were expedited as required by the state elec- Reviewing the legislative history of the joint resolution in 1995 tion code. 7 The district court overruled Fields' exceptions and that proposed the term limits constitutional provision 9, the state motion for summary judgment, finding that it did have subject Supreme Court noted the changes in the resolution's language matter jurisdiction and the plaintiffs' petition did state a cause of that took place during legislative passage, and concluded: action. However, the district court rendered judgment in favor of Fields, finding him to be qualified under the newly enacted "The clear language of the constitutional provision, buttressed by an analysis of the legislative history, establishes that the people statutory language. enacted an amendment to the Constitution which provides that the Sitting en banc , the First Circuit Court of Appeal, by a 7-5 vote, date of the election is determinative in an analysis of the applica- bility of term limits. affirmed that portion of the trial court's judgment finding subject 8 matter jurisdiction , but reversed the trial court's judgment find- Because we find that the date a legislator is elected to serve is ing Fields to be qualified. Reviewing the term limits provision in operative in determining whether he is term limited under La. the constitution, the First Circuit concluded that Fields had al- Const. art. III, § 4(E) it is therefore necessary to determine when ready been elected to serve as a member of the Senate for more a candidate is officially elected . According to La. R.S. 18:576(C), than two and one-half terms, and was thus ineligible to run the secretary of state is required to compile the results of the elec- again. tions immediately upon receipt of the results from the clerks of court and must make the compiled results available to the press With regard to the new language in R.S. 18:601(B), the First and public. These election night results, however, are unofficial. Circuit stated, "To the extent LSA-R.S. 18:601 may be inter- La. R.S. 18:576(D). Following election day, the secretary of state is required to promulgate election returns on or before the twelfth preted to be in derogation of the clear language of the Louisiana (Continued on page 3) constitution, it is unconstitutional." 6. La. Const. Art. III, §7(A).