Opinion Number ( 2004 )

Dear Ms. Monroe:

We are in receipt of your request for an Attorney General's opinion with regard to the recall petition directed toward Bobby Johnston, School Board Member, District 2, Parish of Franklin. The registrar of voters certified the recall petition and presented it to the governor on July 21, 2004. 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 office of School Board Member, District 12, Parish of Franklin, presently held by Bobby Johnston.

LSA-R.S. 18:1300.3(C) requires the registrar to send the original recall 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 her, to order an election to be held for the purpose of voting on the question of recall of the officer if the requirednumber of registered voters sign the petition 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 handwritten 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.

The registrar has certified that the petition contains 765 handwritten signatures; that the petition contains 676 handwritten signatures of qualified electors of the voting area within the parish who provided residence addresses, dated their signatures, and timely signed the petition; and that 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 was 1894.

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 through the handwritten signatures by not less than forty percent of said electors." The registrar certified that the total number of voters registered in the voting area is 1894 and therefore, in calculating thirty-three and one-third percent of 1894, a total of 631.27 valid signatures are required on the recall petition for the governor to issue a proclamation for a special election.

The registrar certified a total of 676 handwritten signatures of qualified electors of the voting area within the parish who provided residence addresses, dated their signatures, and timely signed the petition, which meets the required thirty-three and one-third percent. Therefore, it is the opinion of this office that the certified 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 Bobby Johnston, School Board Member, District 2, Parish of Franklin.

The recall election is to be held on the next available date in R.S.18:402(F), and if held on a primary election date, the proclamation shall be issued by the governor on or before the last day for candidates to qualify in the election.¹ The next available election date is September 18, 2004², which is a primary election date and since the governor's proclamation is required to be issued within 15 days of receipt of the petition, which is on or before August 5th, same will comply with issuance before the close of qualifying.

We note that the Second Circuit Court of Appeal, which includes Franklin Parish, recently held that a copy of the recall petition, once certified, shall be retained in the office of the registrar and the public officer whose recall is sought may review the copy and contest its certification. "As provided in La.R.S. 18:1405(F), an action contesting certification of a recall petition shall be instituted within 15 days after the governor has issued a proclamation ordering the recall election " Young v. Sanders, 38,412 (La.App. 2 Cir. 4/7/04), 870 So.2d 1126,1130. The court found that the burden of verification of the signatures lies with the public officer whose recall is sought, by challenging the names on the recall petition in court when there is suspicion about the validity of the signatures.

Trusting that this opinion is sufficient, we remain

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

____________________________ ANGIE ROGERS LAPLACE Assistant Attorney General

CCF, JR./ARL:mjb

¹ R.S. 18:1300.7

² Advanced 2 weeks in accordance with R.S. 18:402(G)