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Kavanagh v. Hebron

Court of Appeals of Louisiana, Third Circuit

January 24, 2019



          Charles David Elliott Charles Elliott & Associates COUNSEL FOR DEFENDANT APPELLANT: Roy Eugene Hebron.

          B. Gene Taylor, III Attorney at Law COUNSEL FOR PLAINTIFF APPELLEE: Neil S. Kavanagh.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett and Phyllis M. Keaty, Judges.

          PER CURIAM.

         The defendant, Roy Eugene Hebron (Hebron), appeals the trial court's judgment in favor of the plaintiff, Neil S. Kavanagh (Kavanagh), on his request for injunctive relief regarding whether Hebron could take or hold public office under newly enacted La.Const. art. 1, § 10.1 with a felony conviction in 2011 and a sentence ending in December 2017. Finding no legal error or abuse of discretion on the part of the trial court, we affirm the judgment.

         I. ISSUES

         We must decide:

(1) whether the trial court erred in applying La.Const. art. 1, § 10.1; and
(2) whether the trial court abused its discretion in granting the injunction requested by Kavanagh to prevent Hebron from taking and holding public office in January 2019.



         Kavanaugh, Mayor of Ball, Louisiana, along with Hebron and Gene Decker, were opposing candidates in the November 6, 2018 mayoral election in Ball. Hebron won the election with 56% of the 1450 votes cast, and Kavanagh came in second. Also on November 6, 2018, Louisiana citizens voted statewide to approve a new constitutional amendment, La. Const. art. 1, § 10.1, which prohibits a convicted felon from holding public office until more than five years have elapsed since the completion of his sentence. The amendment was approved with over a million Louisiana citizens voting in favor of its enactment into law. In Ball, Louisiana, the amendment passed with 60% of the electorate voting it into law. Pursuant to La.Const. art 13, § 1(C), the effective date of the new constitutional amendment was twenty days after the Governor proclaimed it law, which occurred in this case on November 21, 2018. The parties stipulated that the effective date of La. Const. art. 1, § 10.1, was December 12, 2018. Kavanagh filed suit against Hebron on December 17, 2018, seeking a declaratory judgment and an injunction to prevent Hebron from taking or holding office in January 2019.

         The trial court heard the matter on December 21, 2018. The record reveals that in 2011, while Hebron was the sitting Mayor of Ball, he was convicted of conspiracy to defraud The Federal Emergency Management Agency (FEMA) in the town's application for disaster relief funds. Hebron served four years in prison and three years of probation, all of which were completed on December 18, 2017. Thus, when the new law became effective on December 12, 2018, less than one year had elapsed since the completion of Hebron's sentence for the felony conviction.

         At the end of the hearing on December 21, 2018, the trial judge found that the new amendment, La.Const. art. 1, § 10.1, applied to Hebron. She indicated that proceedings for a declaratory judgment would be held separately at a later time. The trial court then signed a judgment in open court granting Kavanagh's injunction to prevent Hebron from taking and holding public office in January 2019. The December 21, 2018 judgment also denied Hebron's motion to strike and his exceptions of prematurity, no cause of action, no right of action, improper cumulation of actions, non-joinder of parties, and unauthorized use of summary proceedings. The trial court's judgment also ordered Kavanagh to remain in office as mayor, pursuant to La.R.S. 42:2, until further order of the court and/or further proceedings in accordance with law. While Kavanagh and the trial court agreed that this suit did not fall under the Election Code, [1] Hebron's appeal requested an expedited hearing, which we granted. For the following reasons, we affirm the judgment of the trial court.



         An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). "A trial court's determination as to whether to issue a preliminary injunctionis subject to the abuse of discretion standard of review." Ryan v. Calcasieu Par. Police Jury, 17-16, p. 4 (La.App. 3 Cir. 9/26/18), 256 So.3d 1044, 1048 (quoting Mount Zion Missionary Baptist Church v. Jones, 11-961, p. 4 (La.App. 3 Cir. 2/1/12), 84 So.3d 674, 678.) "Questions of law involving the correct interpretation of legislation are reviewed de novo, without deference to the legal conclusions of the trial court." State v. Merrill, 14-530, p. 4 (La.App. 3 Cir. 6/11/14), 140 So.3d 1237, 1239 writ denied, 14-1227 (La. 9/19/14), 149 So.3d 249 (citing Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d 1159).



         Louisiana Constitution Article 1, Section 10.1

         Louisiana Constitution Article I § 10.1, entitled, Disqualification from Seeking or Holding an Elective Office or Appointment, was added by Acts 2018, No. 719, § 1. It provides (emphasis added):

(A) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or hold elective public office or appointment of honor, trust, or profit in this state:
(1) A person actually under an order of imprisonment for conviction of a felony.
(2) 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, ...

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