Opinion Number

Dear Ms. Wooten:

We are in receipt of your request for an Attorney General's opinion with regard to the two (2) recall petitions directed toward alderman, District 1, Joseph E. Meche, and alderman, District 3, Clayton Babineaux, Town of Sunset, Parish of St. Landry. The registrar of voters certified both recall petitions on July 29, 1999 and has presented same to the governor. Therefore, you have requested an opinion as to whether the governor should issue a proclamation ordering an election to be held for the purpose of voting on the question of recall for the aldermen for the Town of Sunset.

With regard to the recall petitions, LSA-R.S. 18:1300.3(C) requires the registrar to send the original petition to the governor immediately after certification. Section 1300.7 requires the governor to issue a proclamation, within fifteen days after the petition is presented to him, to order an election to be held for the purpose of voting on the question of recall of the officer if the required number of registered voters sign thepetition for recall.

LSA-R.S. 18:1300.3 requires the registrar to certify to (1) the number of names on the petition; (2) the number of qualified electors of the voting area within the parish whose signatures appear on the petition; (3) the total number of electors of the voting area within the parish as of the date of the filing of the petition with the secretary of state; and to indicate on the petition the number of names who are not electors of the voting area.

Recall Petition For Clayton Babineaux, Alderman, District 3, Town of Sunset The recall petition, containing 15 pages (includes 1 page of additions), was considered and properly certified by the registrar of voters in accordance with LSA-R.S. 18:1300.3. The registrar's letter to the governor, summarizing the results of his certification of the recall petition, provides as follows:

NUMBER OF NAMES APPEARING ON THE PETITION ........... 171

NUMBER OF QUALIFIED ELECTORS OF THE VOTING AREA WHO'S SIGNATURES APPEAR ON THE PETITION

ORIGINAL PETITION = 165 ADDITIONAL PETITION = 3 TOTAL ................................................. 168

TOTAL NUMBER OF ELECTORS IN THE VOTING AREA AS OF THE FILING OF THE PETITION WITH THE SECRETARY OF STATE ON APRIL 24, 1999 ........................................ 326

Recall Petition For Joseph E. Meche, Alderman, District 1, Town of Sunset The recall petition, containing 21 pages (includes 5 pages of additions and 73 requests for removal from the petition), was considered and properly certified by the registrar of voters in accordance with LSA-R.S. 18:1300.3. The registrar's letter to the governor, summarizing the results of his certification of the recall petition, provides as follows:

NUMBER OF NAMES APPEARING ON THE PETITION ........... 266

NUMBER OF QUALIFIED ELECTORS OF THE VOTING AREA WHO'S SIGNATURES APPEAR ON THE PETITION

ORIGINAL PETITION = 157 ADDITIONAL PETITION = 35 TOTAL ............................................... 192

TOTAL NUMBER OF ELECTORS IN THE VOTING AREA AS OF THE FILING OF THE PETITION WITH THE SECRETARY OF STATE ON APRIL 24, 1999 ........................................ 446

LSA-R.S. 18:1300.2(B) requires a recall petition to be "[s]igned by a number of the electors of the voting area as will in number equal not less than thirty-three and one-third percent of the number of the total electors of the voting area wherein and for which a recall election is petitioned; however, where fewer than one thousand qualified electors reside within the voting area, the petition shall be signed by not less than forty percent of said electors." The registrar certified that the total number of voters registered in the voting area for Alderman Babineaux is 326 and for Alderman Meche is 446. Therefore, in calculating forty percent of 326, a total of 130 valid signatures is required on the recall petition for Alderman Babineaux, and in calculating forty percent of 446, a total of 178 valid signatures is required on the recall petition for Alderman Meche for the governor to issue a proclamation for a special election in each of these offices.

The registrar certified the following totals on each recall petition, which totals meet the required forty percent:

Alderman Babineaux = 168 (40% of 326 = 130)

Alderman Meche = 192 (40% of 446 = 178)

Therefore, it is the opinion of this office that the validated signatures on the recall petition are sufficient in number for the governor to issue a proclamation ordering a special election on the question of recall for both Joseph E. Meche and Clayton Babineaux, for the Town of Sunset, Parish of St. Landry.

The proclamation ordering the recall shall provide for the election to be held on the next available date specified in R.S.18:402(F), which is Saturday, October 23, 1999, provided the proclamation is issued on or before the last day for qualifying (September 9, 1999). The governor shall publish the proclamation in the official journal of the Parish of St. Landry, and send by registered or certified mail a copy of the petition and proclamation to the clerk of the district court for said parish within 24 hours after issuing the proclamation. A copy of the petition and proclamation shall also be sent to the Secretary of State, who shall notify all other election officials.

In addition to the recall petitions, the governor received a letter of complaint of the certification process from Alderman Meche with a request that 22 deletions be accepted to his recall petition, which was forwarded to our office for consideration. In response to this complaint, it is our opinion that the registrar followed the law and properly certified the recall petition. The law requires the registrar to certify the petition within 15 working days after it is presented to him. The law further requires the registrar to honor the written request of any voter who desires to have his signature stricken or added to the petition at any time after receipt of the signed petition by the registrar but prior to certification by the registrar, or within 5 days after receipt of the signed petition, whichever is earlier. The signed petition was received by the registrar on July 27, 1999 and certified by him on July 29, 1999. Therefore, any additions or deletions had to be turned in within 5 days (August 2, 1999), or before certification by the registrar. In this case, the registrar certified the petition prior to the 5 days, and therefore, no other deletions or additions were accepted after the certification process was completed.

The Attorney General is of the opinion that the law mandates that the governor issue a proclamation ordering an election on the question of recall "if the required number of qualified electors of the voting area sign[ed] the petition for recall," R.S. 18:1300.7(A), and does not grant any discretion therein. The law does not require the governor to inquire into the sufficiency of the petition. For example, R.S. 18:3 requires that all petitions contain the date of birth, yet the law does not require the registrar to strike a signature which does not contain the date of birth. Additionally, the law does not provide for the governor to accept additions or deletions to the recall petition, it only provides for the registrar to honor such requests within the specified time period.

Louisiana courts have found that recall provisions are to be strictly construed. See, Cowan v. Ensminger, 96-955 (La.App. 3 Cir. 7/23/96), 677 So.2d 1127, 1131, and cases cited therein. Furthermore, the recall provisions specifically state that any public officer recalled, or whose recall is sought, has the right to contest the recall, or any proceedings in relation thereto, in any court for fraud or other illegality. R.S. 18:1300.17 Therefore, it is our opinion that the governor may not consider the 22 additional deletions submitted by Alderman Meche, as such matter is not within the governor's discretion, but may be brought before the court in a contest proceeding.

If we can be of further assistance in this matter, please contact our office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ANGIE ROGERS LAPLACE Assistant Attorney General

RPI/ARL:cwr Enclosuresarl/opinions/1999/99240

cc: Hon. Joseph E. Meche Hon. Clayton Babineaux Registrar, John Moreau Hon. W. Fox McKeithen Hon. Jerry M. Fowler