Lt. Gov. Mitch Landrieu, state Attorney General Charles Foti, and Orleans Parish District Attorney Eddie Jordan -- and other elected officials -- apparently violated a state law banning elected officials from endorsing Orleans Parish School Board members, local attorney C.B. Forgotston says.
Spokespersons for Landrieu, Foti and Jordan all say the law is unconstitutional and should not be enforced; Forgotston says the law should either be enforced or repealed.
Foti, Jordan and Landrieu all appear in campaign ads endorsing School Board District 5 candidate Phyllis Landrieu in the Sept. 18 primary election. Jordan also has endorsed District 7 incumbent Elliott "Doc" Willard, who directs the district attorney's community outreach program.
Endorsements by numerous other elected officials appear in races for all seven School Board seats on the ballot. For example, Phyllis Landrieu's main opponent in the District 5 race, Karl Connor, is endorsed by state Reps. Cheryl Gray and Karen Carter.
But top lawyers for Foti's office say no elected official should worry about spending six months in jail and $500 in fines for endorsing a school board candidate or passing out a sample ballot, the maximum penalty for convicted offenders. "It would be difficult to institute a prosecution under this law because it is clearly unconstitutional," says Fred Duhy, chief of the attorney general's criminal division.
Like Mitch Landrieu and Jordan, Foti's top lawyers cite a 1989 attorney general's opinion, rendered 15 years before Foti took the office, that the endorsement-ban law is unconstitutional. But Forgotston notes that the law was never repealed. "The law is still the law and the attorney general has no legal authority to declare a law unconstitutional," says Forgotston, a former chief counsel for the House Appropriations Committee. "Only the courts can declare a law unconstitutional."
Duhy and Roy Mongrue, chief of the civil division for Foti's office, argue the 1989 opinion contains a Louisiana Supreme Court ruling that should make the unconstitutionality of the law clear to any lawyer. But Mongrue agrees with Forgotston on what it would take to get the law off the books: "Someone could file a declaratory judgment in court and have it declared unconstitutional or the legislature could have it repealed."
Fifteen years ago, Lt. Gov. Landrieu tried to do just that. He requested the attorney general's opinion in 1989, when he was a state representative of New Orleans. He then authored House Bill 1710, in an effort to repeal the law. "But he couldn't get it out of committee," says Scott Shalett, chief of staff for the lieutenant governor.
Today, Lt. Gov. Landrieu is satisfied that the old attorney general's opinion clears the way for him to campaign for his Aunt Phyllis. "Mitch believes that based on the attorney general's advice that the law is unconstitutional and that he has the right to free speech and to express his opinion," Shalett says.
Jordan agrees that the law is unconstitutional. "Elected officials throughout the state of Louisiana routinely endorse candidates for school board and other elective offices," he says in a written statement. "What makes this criminal law unconstitutional is that it applies only to elected officials in Orleans Parish. It is common knowledge that a law enacted by the state Legislature that, by its terms, applies only to Orleans Parish is unconstitutional. Further, I know of no court case that has rejected the rationale or conclusion drawn by then-Attorney General William J. Guste Jr. in his May 17, 1989, opinion. Moreover, the Louisiana Supreme Court has found a similar law unconstitutional on grounds that are identical to those cited by Guste in his opinion."
But the revival of the old law has produced some political side effects:
• Foti removed his name from Phyllis Landrieu's list of official endorsements, though he still appears in some ads -- including one in Gambit Weekly this week -- listing endorsements of the candidate. "She just felt that since he might have to rule in the matter he shouldn't be in the position of having to endorse someone in a School Board race," says Allan Katz, campaign spokesperson for Phyllis Landrieu.
• School Board District 3 incumbent Jimmy Fahrenholtz says the Louisiana School Board Association might be taking a position on the controversial law. "It is a matter of concern," says Fahrenholtz, whose re-election campaign is endorsed by City Councilman Jay Batt and U.S. Sen. Mary Landrieu (who also endorsed her Aunt Phyllis Landrieu and District 6 incumbent Una Anderson).
• U.S. Rep. William Jefferson disavowed any "personal endorsement" of Phyllis Landrieu's candidacy, though the congressman's name also appeared in her newspaper campaign ads. "The congressman is not personally endorsing any candidates," Jefferson's press secretary says. His political group, Progressive Democrats, is endorsing candidates for School Board -- but not the congressman, his spokesperson says. Meanwhile, senior lawyers for Foti's office say they do not know who authored the 1970s-era Orleans Parish-only endorsement ban -- which only affects candidates for School Board. "Obviously, we all know how it works; somebody had an ax to grind," Duhy says. "So they enacted a statute that's unconstitutional and unenforceable."