State appeals court upholds disqualification of Derrick Shepherd in state House race _lowres

Advocate staff photo by MATTHEW HINTON--Former state Sen. Derrick Shepherd signs papers next to chief deputy Jefferson Parish Clerk of Court Frank Borne, left, as Jon A. Gegenheimer. clerk of court, top right, watches as Shepherd takes part in the qualifying process for Louisiana house district 87 at the Jefferson Parish Government Building in Gretna, La. Thursday, Sept. 10, 2015. Shepherd plead guilty to money laundering and believes he can still qualify for the legislature.

The state 5th Circuit Court of Appeal on Thursday upheld a lower court’s disqualification of convicted felon Derrick Shepherd from the race for the House District 87 seat.

The panel said 24th Judicial District Court Judge Stephen Enright ruled appropriately last week when he found the state Attorney General’s Office hadn’t been served notice in time for the court to consider Shepherd’s constitutional challenge to the law that prevents convicted felons from running for state or local office for 15 years after completing their sentence.

Shepherd pleaded guilty in 2008 to conspiring with an unlicensed bond broker to launder $141,000 in proceeds from the sale of bogus bonds. He spent two years in federal prison.

Shepherd’s attorney, Bob Garrity, said he will appeal the latest ruling to the state Supreme Court, which will also hear a separate lawsuit Shepherd won at the state district level in Baton Rouge on Tuesday. In that case, Judge Wilson Fields agreed with Shepherd that a discrepancy between the language of the constitutional amendment passed by popular vote and the version that came out of the Legislature renders the amendment null and void.

In the Jefferson Parish case, both Enright and the 5th Circuit did not consider the merits of Shepherd’s challenge to the constitutional provision, only whether the state had been notified of it in time for the courts to take it up.

Garrity and Shepherd contend the state waived service in the case and say both Enright and the 5th Circuit were free to take up Shepherd’s constitutional challenge if they chose to do so because it was inserted into the case last week.

Garrity said Thursday that it appears to him that no one in Jefferson Parish wants to decide that Shepherd can run for office.

“Every one of those judges knows that statute’s invalid,” he said.

The 5th Circuit, however, said it “cannot” address the constitutional question raised by Shepherd. It cited the state’s objection that when Shepherd filled out the papers to qualify this month, he certified that he was not barred from running as a convicted felon.

The panel wrote that Shepherd’s signature on the notarized qualifying documents “cannot hinge upon his subjective belief that the provision is unconstitutional. The law is presumed constitutional until declared otherwise.”

The ruling continued: “We do not suggest that Mr. Shepherd may not challenge the constitutionality of the provision; he certainly may. However, his decision to do so subsequent to his qualification for candidacy does not relieve him of compliance with (the existing law).”

“I don’t think they wanted to touch it,” Garrity said. “I think they wanted to make it about Derrick Shepherd and not about a constitutional question.”

Garrity said the decision leaves everything in the hands of the Louisiana Supreme Court, though there are key differences between the two cases.

The Baton Rouge challenge to the law is a question of constitutional law and has no specific time frame by which it must be decided, which means the Supreme Court could do it after the election.

The Jefferson Parish challenge to his candidacy is on a fast track, but the Supreme Court can decide not to hear it. Or if it does, it could rule strictly on whether Shepherd is in compliance with the existing law, which Shepherd has stipulated he is not.

Shepherd has thus far managed to stay on the ballot through stays granted by Enright and the 5th Circuit. If he is dropped from the ballot, the logistical difficulties of getting back on it with the Oct. 24 election drawing near would damage his candidacy, he has said.

Shepherd, a former state senator and representative, is running for the Harvey-based House seat against incumbent Ebony Woodruff and Rodney Lyons Sr.

Follow Chad Calder on Twitter, @Chad_Calder.