Opinion Number ( 1994 )

Dear Mr. Roberson:

We are in receipt of your request for an Attorney General's opinion regarding a special election to fill a vacancy in the office of Constable, Ward 3. Specifically, you have questioned whether the special election is to be held on February 4 (primary) and March 4, 1995 (general), or on the dates of April 1 (primary) and April 29, 1995 (general), due to the fact that a proposition election has been called in the Parish of Caddo for January 21, 1995.

LSA-R.S. 18:402(E) provides the dates for special elections to fill a vacancy in office. Act 42 of the Third Extraordinary Session of the 1994 Louisiana Legislature amended R.S.18:402(E)(1)(e) and (2)(e), to provide for a February date. Act 42 (1994, 3rd Ex. Sess.) was precleared by the United States Justice Department on September 23, 1994. R.S. 18:402(E), as amended by Act 42 states, in pertinent part:

E. Special elections to fill newly created office or vacancy in office. An election to fill a newly created office or a vacancy in an existing office, . . . shall be held on the dates fixed by the appropriate authority in the proclamation ordering a special election as follows:

(1) A special primary election shall be held on the first of the following days that is not less than twelve weeks after the date on which the proclamation calling the special primary election was issued; . . .

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(c) The first Saturday in April, when the special general election is held on the fourth Saturday after the first Saturday in April . . .

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(e)(ii) The first Saturday in February of 1995, except in parishes and municipalities where an election on bonds, taxes, and other propositions or questions has been called and held in January of 1995.

(2) A special general election shall be held on one of the following days:

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(c) The fourth Saturday after the first Saturday in April of any year unless the primary election is held on the second Tuesday in March; . . .

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(e)(ii) The fourth Saturday after the first Saturday in February of 1995, when the special primary election is held as authorized in R.S. 18:402(E)(1)(e)(ii) on the first Saturday in February of 1995.

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(Emphasis added.)

It is our reading of the above statute that the first date available for a special election to fill the vacancy in this matter is the date in February 1995, due to the amendment of R.S.18:402(E) by Act 42 (1994, 3rd Ex. Sess.). However, paragraph (1)(e)(ii) of the statute specifically excludes the February date if an election on bonds, taxes, and other propositions or questions has been called and held in January of 1995 in the parish or municipality.

Your request letter states that Caddo Parish has two fire district elections called for January 21, 1995. Additionally, you provided our office with a copy of Resolution No. 37 of 1994 by the Parish of Caddo, which provides for the calling of a special election to fill the vacancy created by the resignation of the Constable in Ward 3 for the date of February 4, 1995. However, the resolution specifically excludes the use of the February date "[i]f a proposition election is called within the Parish of Caddo on January 21, 1995." The resolution further states, "[i]f the calling of a special election on February 4, 1995, is prohibited pursuant to Act 42 of the 1994 Third Extraordinary Session, then the special election dates shall be April 1, 1995, for the primary election date and April 29, 1995, for the general election, if necessary." It is our opinion that the resolution is clearly in compliance with R.S. 18:402(E).

In conclusion, it is our opinion that since a proposition election has been called in January of 1995 in the Parish of Caddo, the first available date for the special election to fill the vacancy in the office of Constable, Ward 3, is April 1, 1995 (primary) and April 29, 1995 (general). The Parish of Caddo is specifically precluded from using the February 1995 date due to the language of Act 42 (1994, 3rd Ex. Sess.).

If you have any further questions regarding this matter, do not hesitate to contact our office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: _________________________________ ANGIE ROGERS LaPLACE Assistant Attorney General

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