State Of Louisiana v. William Wayne Lee, Jr.

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #039
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 8th day of September, 2023, are as follows:
BY Crichton, J.:
2022-KK-01827 STATE OF LOUISIANA VS. WILLIAM WAYNE LEE, JR. (Parish
of St. Tammany)
REVERSED AND REMANDED. SEE OPINION.
Retired Judge Paul Bonin, appointed Justice ad hoc, sitting for Hughe s, J.,
recused in case number 2022-KK-01827 only.
Weimer, C.J., dissents and assigns reasons.
Genovese, J., dissents for reasons assigned by Weimer, C.J. and Griffin, J.
Griffin, J., dissents and assigns reasons.

S
UPREME COURT OF LOUISIANA
No. 2
022-KK-01827
STA
TE OF LOUISIANA
VS.
WILLIAM WAYNE LEE, JR.
On
Supervisory Writ to the 22nd Judicial District Court, Parish of St. Tammany
C
RICHTON, J.1
We gr
anted the writ application in this case to address an issue of
constitutionality: whether Article 930.10 of the Code of Criminal Procedure, which
governs post-conviction plea agreements, violates the state constitution’s separation
of powers provision, La. Const. art. II, § 2. More specifically, the question presented
is whether Article 930.10 permits the judicial branch to exercise the governor’s
power under La. Const. art. IV, § 5(E) to pardon a final conviction. We hold that
because A rticle 930.10 permits a court to overturn a final conviction without a
finding of legal defect pursuant to La. C.Cr.P. art. 930.3, the article
unconstitutionally allows the judicial branch to exercise the governor’s exclusive
pardon power, and, therefore violates the doctrine of separation of powers as found
in La. Const. art. II, § 2.
BACKGROUND
On October 20, 2003, the state charged defendant William Wayne Lee, Jr.
with one count of second degree murder, La. R.S. 14:30.1. Following a trial, on
February 9, 2007, a unanimous jury found defendant guilty as charged. The trial
court sentenced defendant to life imprisonment at hard labor without benefit of
1 Retired Judge Paul Bonin, Justice ad hoc, sitting for Justice Jefferson Hughes, who is recused in
this matter.

2

probation, parole, or suspension of sentence. The conviction and sentence were
affirmed on appeal. State v. Lee, 2007-1807 (La. App. 1 Cir. 3/26/08), 978 So.2d
1257, writ denied, 2008-0861 (La. 11/10/08), 996 So.2d 1066.
On October 5, 2021, defendant and the District Attorney for the 22nd Judicial
District filed a “Joint Motion to Amend Conviction and Sentence Pursuant to La.
C.Cr.P. art. 930.10.” In the motion, the parties stipulated to certain facts relating to
the cause of the victim’s death. They agreed that new evidence obtained in May 2020
would have bolstered defendant’s case at trial by supporting the defense theory that
the victim’s fatal injuries were caused by her falling on her own accord. Based on
this new evidence, the parties agreed that “a fair and just resolution” of the case
would be to amend defendant’s conviction from second degree murder, La. R.S.
14:30.1, to manslaughter, La. R.S. 14:31, and for the court to vacate the life without
parole sentence and impose a sentence of 35 years imprisonment at hard labor.
The motion was heard in the district court on January 19, 2022. At the hearing,
the assistant district attorney announced his office was “submitting on what’s
contained in the joint motion,” and then the defendant’s lawyer summarized the
pleading. The district court granted the joint motion and, without finding any legal
defect in the conviction pursuant to La. C.Cr.P. art. 930.3, vacated defendant’s
second degree murder conviction, La. R.S. 14:30.1, and the previously-imposed life
without parole sentence. Thereafter, the court accepted defendant’s guilty plea to
manslaughter, La. R.S. 14:31, and imposed the agreed-upon 35-year sentence with
credit for time served.
On March 9, 2022, the Attorney General filed a pleading entitled, “Motion
and Incorporated Memorandum to Vacate Post-Conviction Plea Agreement as
Unconstitutional.” The Attorney General argued that Article 930.10
unconstitutionally permits courts to grant clemency to criminal defendants, a power
that is expressly and exclusively granted to the governor. By signing the pleading,

3

the District Attorney indicated he did not oppose the filing of the motion. From this,
we infer that the District Attorney acquiesced in the Attorney General’s entry into
the proceedings to allow the district court to consider the issue.
On June 15, 2022, after a hearing on the merits, the district court denied the
Attorney General’s motion and found that Article 930.10 does not violate
Louisiana’s Constitution. In its reasons, the court found that the statute does not
interfere with the separation of powers and does not infringe upon the governor’s
right to issue clemency. The court explained that it did not view the procedure as
“tossing the jury’s finding out.” Rather, the court found, it is intended to be used in
cases like this, where there is new evidence that could possibly result in a new trial.
Importantly, the judge stated, “I’m not saying it would have, but [the new evidence]
could result in a new trial, so the District Attorney has to make the decision, do they
want to face a possible new trial or do they want to proceed under Article 930.10[?]”
(emphasis added). The district court further found that safeguards were built into
Article 930.10 because in order for a defendant to obtain relief, there must be
agreement with the district attorney and approval by the court.
The Attorney General sought review in the court of appeal, which, in an
unpublished ruling, denied the writ application without comment. State v. Lee, 2022-
1060 (La. App. 1 Cir. 11/21/22) (unpub’d), available at 2022 WL 17091941.2 This
Court thereafter granted the Attorney General’s writ application. State v. Lee, 2022-
1827 (La. 2/24/23), 355 So.3d 1095.

2 The Attorney General timely filed a writ application in the court of appeal on July 14, 2022,
however, that application was not considered as it did not include a notarized affidavit verifying
the allegations of the application and certifying that a copy had been delivered to the respondent
judge, to opposing counsel, and to the District Attorney. State v. Lee, 2022-0741 (La. App. 1 Cir.
9/26/22) (unpub’d). The Attorney General then filed a second writ application on September 27,
2022, which resulted in the writ denial cited above. Since the appellate court denied the second
application, rather than refused to consider it, the Attorney General’s application to this Court was
properly filed.

4

DISCUSSION
The standard of review in determining the constitutionality of a statute, a
question of law, is de novo. See State v. Eberhardt, 2013-2306, p. 4 (La. 7/1/14), 145
So.3d 377, 380. A de novo review means the court will decide the matter after
considering the statute at issue, the relevant law, and the record without deference
to the legal conclusions of the courts below. This court is the ultimate arbiter of the
meaning of the laws of this state. City of Bossier City v. Vernon, 2012-0078, p. 3
(La. 10/16/12), 100 So.3d 301, 303.
Louisiana’s Constitution divides the state’s governmental powers among
three distinct branches: legislative, executive, and judicial. La. Const. art. II, § 1.
The separation of powers provision in the Constitution declares: “Except as
otherwise provided by this Constitution, no one of these branches, nor any person
holding office in one of them, shall exercise power belonging to either of the others.”
La. Const. art. II, § 2. The Constitution then delineates the powers delegated to each
branch. Specifically, “judicial power is vested in a supreme court, courts of appeal,
district courts, and other courts authorized by this Article.” La. Const. art. V, § 1.
District attorneys, members of the judicial branch, “have charge of every criminal
prosecution by the state in his district,” subject to the supervision of the attorney
general. La. Const. art. V, § 26; La. C.Cr.P. art. 61. Relevant to this case, the
Constitution provides that the governor, the chief executive officer of the state, has
exclusive authority over matters of clemency pursuant to La. Const. art. IV, § 5.3
The power to grant reprieve, and, upon favorable recommendation of the Board of
Pardons, commute sentences, pardon those convicted of offenses against the state,

3 The Louisiana Constitution does not use the word “clemency” to describe the power granted to
the governor in La. Const. art. IV, § 5. Clemency is a term used to describe the different forms of
relief that may be granted by the governor to those convicted of crimes. Bosworth v. Whitley, 627
So.2d 629, 632 (La. 1993).

5

and remit fines and forfeitures imposed for such offenses rests exclusively with the
governor. La. Const. art. IV, § 5(E)(1). Courts have no authority to pardon a
defendant or to commute his sentence. See State ex rel. Esteen v. State, 2016-0949,
p. 3 (La. 3/13/18), 239 So.3d 266, 267 (Weimer, J., would grant rehearing) (citing
State ex rel. Francis v. Resweber, 212 La. 143, 151, 31 So.2d 697, 699 (1947)).
A statute is presumed to be constitutional, and the burden of establishing
unconstitutionality rests upon the party who attacks the statute. State v. Guidry, 247
La. 631, 634, 173 So.2d 192, 193 (1965). In this case, the Attorney General is
challenging the statute, arguing that Article 930.10 unconstitutionally “authorizes
district courts to effectively pardon an offender by nullifying a final sentence and/or
conviction . . . as long as the prosecutor joins the defendant in moving for such
relief.”4 In testing the constitutionality of a statute, the statute “shall be given a

4 The Attorney General has standing in this case pursuant to the powers granted to him under the
Constitution to intervene in criminal proceedings. Article IV, §8 of the Louisiana Constitution
provides, “As necessary for the assertion or protection of any right or interest of the state, the
attorney general shall have authority . . . for cause, when authorized by the court which would have
original jurisdiction and subject to judicial review, [] to . . . intervene in any criminal action or
proceeding[.]” In this case, the Attorney General seeks to protect the interest of the state by
preventing the application of an unconstitutional statute. In most instances, the constitutionality of
a statute is challenged by a party to the matter. See e.g., Calcasieu Par. Sch. Bd. Sales & Use Dep’t
v. Nelson Indus. Steam Co., 2021-00552, pp. 3–4 (La. 10/10/21), 332 So.3d 606 (defendant filed
cross-motion for summary judgment arguing, inter alia, the statute relied upon by plaintiff was an
unconstitutional violation of separation of powers); State v. Hair, 2000-2694, p. 6 (La. 5/15/01),
784 So.2d 1269, 1273 (defendant filed a motion to quash claiming the statute defining the offense
alleged was unconstitutionally vague); State v. Amato, 343 So.2d 698, 700 (La. 1977) (defendant
filed motion to quash indictment on the ground that the statute defining the offense charged was
unconstitutionally vague and overbroad). In a typical case, it is in the interest of one of the parties
to have a governing statute declared unconstitutional. In this case, however, due to the unique,
non-adversarial nature of the code article itself, there was, in effect, no dispute between the parties
as to the constitutionality of the law. The parties would not have filed the joint motion pursuant to
Article 930.10 if they were of the view that it was unconstitutional. Neither the District Attorney
nor the defendant had a reason to challenge the law’s constitutionality, making intervention by the
Attorney General necessary to test the constitutionality of this unique statute. Plaquemines Par.
Comm’n Council v. Perez, 379 So.2d 1373, 1377 (La. 1980) (“The ‘cause’ requirement refers to a
showing that the district attorney is not adequately asserting some right or interest of the state.”).
If the Attorney General was barred from making this challenge, the validity of the code article
would be beyond judicial review. Furthermore, in this case, the District Attorney acquiesced in the
Attorney General’s intervention. Though defendant challenged the Attorney General’s standing to
file the motion, the district court did not address this argument, and instead, proceeded to rule on
the merits of the motion to vacate. Accordingly, we conclude that the district court implicitly
denied defendant’s challenge on standing and authorized the Attorney General to intervene despite
ultimately denying the motion. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 12 (La.
7/1/08), 998 So.2d 16 (“Generally, when a trial court judgment is silent as to a claim or demand,
it is presumed the relief sought was denied.”). In a case in which the district attorney opposes

6

genuine construction, according to the fair import of their words, taken in their usual
sense, in connection with the context, and with reference to the purpose of the
provision.” La. R.S. 14:3.
With these principles in mind, we now consider whether Article 930.10
violates the doctrine of separation of powers by permitting the judicial branch to
exercise the governor’s exclusive power to grant pardons.5 Code of Criminal
Procedure Article 930.10 provides:
A. Upon joint motion of the petitioner and the district attorney, the
district court may deviate from any of the provisions of this Title.

B. Notwithstanding the provisions of Article 930.3 or any provision of
law to the contrary, the district attorney and the petitioner may, with the
approval of the district court, jointly enter into any post conviction plea
agreement for the purpose of amending the petitioner’s conviction,
sentence, or habitual offender status. The terms of any post conviction
plea agreement pursuant to this Paragraph shall be in writing, shall be
filed into the district court record, and shall be agreed to by the district
attorney and the petitioner in open court. The court shall, prior to
accepting the post conviction plea agreement, address the petitioner
personally in open court, inform him of and determine that he
understands the rights that he is waiving by entering into the post
conviction plea agreement, and determine that the plea is voluntary and
is not the result of force or threats, or of promises apart from the post
conviction plea agreement.

A pardon is “[t]he act or an instance of officially nullifying punishment or
other legal consequences of a crime.” Pardon, Black’s Law Dictionary (11th ed.
2019). In State v. Lee, 132 So. 219, 219–20 (La. 1931), this Court quoted Ex parte

intervention, explicit authorization must be granted by the court before the Attorney General may
intervene in a criminal action or proceeding. La. Const. art. IV, §8.

5 Commutation is a separate and distinct power of the governor.

The power to commute does not conflict with nor exclude the prerogative of
pardon. Commutation is simply the change of punishment to which a person has
been condemned, for a less rigorous one; and this change can only be granted by
the executive authority, in which the pardoning power resides.

McDowell v. Couch, 6 La.Ann. 365, 366–67 (1851). Commutation is defined as “[t]he executive’s
substitution in a particular case of a less severe punishment for a more severe one that has already
been judicially imposed on the defendant.” Commutation, Black’s Law Dictionary (11th ed. 2019).
In this case, the district court did not amend defendant’s sentence, but instead vacated the
conviction, accepted a guilty plea to a lesser offense, and then imposed a lesser sentence. Because
the action in this case involved overturning the conviction, the proper comparison is not to a
commutation, but instead to a pardon.

7

Garland, 71 U.S. 333, 380 (1866), in which the United States Supreme Court
explained,
A pardon reaches both the punishment prescribed for the offence and
the guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed the offence.
* * * If granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it makes him, as it
were, a new man, and gives him a new credit and capacity.

A governor need not assert a legal basis to grant a pardon. Rather, “[a] pardon is
simply an act of grace from the governing power which mitigates the punishment
the law demands for the offense and restores the rights and privileges forfeited on
account of the offense.” Verneco, Inc. v. Fid. & Cas. Co. of New York, 219 So.2d
508, 511 (La. 1969). See also Esteen, 2016-0949, p. 5 (La. 1/30/18), 239 So.3d 233,
237 (“A pardon is a matter of grace from the state and a function of the executive
branch of government[.]”) (quotation omitted).
Similarly, Article 930.10 permits a court to set aside a final conviction,
without stating a basis in the law. In order to effectuate a “post conviction plea
agreement” for the purpose of “amending the petitioner’s conviction,” Article
930.10 permits courts, first, to overturn the defendant’s final conviction, and then,
accept their guilty plea and impose the agreed-to sentence. Article 930.10 allows a
court to reverse a conviction merely because the defendant and the district attorney
jointly requested the court to do so. The parties need not assert, nor is the court
required to find, any legal defect requiring relief set forth in La. C.Cr.P. art. 930.3,
which provides the exclusive grounds for post-conviction relief. Indeed, Article
930.10(B) expressly provides, “Notwithstanding the provisions of Article 930.3 or
any provision of law to the contrary, the district attorney and the petitioner may,
with the approval of the district court, jointly enter into any post conviction plea
agreement for the purpose of amending the petitioner’s conviction, sentence, or
habitual offender status.” (emphasis added). The court’s ruling on the joint motion

8

is not governed by what the law requires, but rather left to the prerogative of the
judge. As such, the court’s action pursuant to Article 930.10 is not an act of law, but
instead, like a pardon, an act of “grace.” Esteen, 2016-0949, p. 5, 239 So.3d at 237.
Moreover, Article 930.10 serves to upend the work of the jury, the prosecutor,
and the judge in the trial of the case without identifying a legal defect in those
proceedings. Contrary to the observation of the district court, a post-conviction plea
agreement pursuant to Article 930.10 is “tossing the jury’s finding out.” The
Constitution authorizes only the governor to take such an action. La. Const. art. II,
§2; art. IV, §5. For these reasons, we hold that Article 930.10 permits courts to
exercise the governor’s exclusive power to pardon those convicted of crimes, a
violation of the separation of powers provision of the constitution. La. Const. art. II,
§2.
In her dissent, Justice Griffin agrees with the majority that a “post-conviction
plea agreement” pursuant to Article 930.10 is equivalent to a pardon; however, she
contends that Article 930.10 does not violate the separation of powers provision of
our consti tution because La. Const. art. IV, §5 “does not explicitly forbid the
legislature from going beyond the pardon power of the governor.” Such a claim is
contradicted by this Court’s long-held doctrine that clemency power is exclusively
vested in the governor. See e.g. Bosworth v. Whitley, 627 So.2d 629, 632 (La. 1993)
(referring to “the governor’s exclusive authority over matters of clemency pursuant
to Article IV, § 5(E) of the Constitution.”); State v. Lindsey, 404 So.2d 466, 487 (La.
1981) (describing pardons as an “issue entrusted only to the governor and Board of
Pardons.”); State v. LeCompte, 406 So.2d 1300, 1307 (La. 1981) (noting this Court
had previously held that the constitution provided “an exclusive grant to the
governor of the power to commute sentences.”); State ex rel. Francis v. Resweber ,
212 La. 143, 150, 31 So.2d 697, 699 (1947) (explaining, “[t]he only authority to
grant a pardon or to commute a sentence is vested in the Governor.”); State v. Lee,

9

171 La. 744, 747 –48, 132 So. 219, 220 (1931) (“[I]t is the accepted rule that the
pardoning power is an executive function, which cannot be exercised or limited in
its effect, [] by the legislature of a state.”). The consistency of this Court’s holdings
over many decades speaks to the clarity of the relevant constitutional provisions.6
Turning back to this case, the District Attorney and defendant filed a joint
motion in which they agreed that in light of the new facts discovered, “a fair and just
resolution of this matter” would be to amend the final conviction and impose a 35-
year sentence. In their joint motion, the parties did not assert that defendant was
entitled to relief based on any law other than Article 930.10. Critically, the district
court granted the motion and vacated the final conviction without relying on a
ground for relief provided in La. C.Cr.P. art. 930.3.7 Accordingly, we find that the
action by the court, pursuant to Article 930.10, was an unconstitutional exercise of
the governor’s pardon power by the judiciary.
We note that nothing in this decision prevents district attorneys, in their broad
discretion, from cooperating in a collateral challenge to a defendant’s final

6 Due to the clear and unambiguous language of the constitutional provisions providing for
separation of powers (La. Const. art. II, §2) and the governor’s clemency power ( La. Const. art.
IV, §5), it is not necessary to inspect the transcripts of the 1973 constitutional convention in order
to reveal the intent of the drafters, as Justice Griffin does in her dissent. Nevertheless, doing so
demonstrates that while composing La. Const. art. IV, § 5, the delegates did not adopt the proposal
upon which the dissent relies. The quotes by Delegate Gravel included in Justice Griffin’s dissent
are descriptions of this rejected proposal, not the language adopted by the convention. In contrast,
when introducing the amendment that was adopted by the convention, the author (Delegate Jack)
explained that he “did not like [the rejected proposal]. It’s replacing the entire power of pardon,
commutation, etc. in the governor even though it also stated that the legislature would have a
concurrence right. Now, the inherent right of pardon and commutation is, as I said before, it’s an
executive matter.” Records of La. Const. Convention of 1973: Convention Transcripts, Vol. VI, p.
591 (Aug, 4, 1973). Justice Griffin’s dissent relies on Delegate Jack’s second sentence in the above
quote, taken out of context. However, in context, it is clear the intent of the adopted amendment
was to maintain the executive branch’s exclusive clemency power and forego any sharing of that
power with the legislature. This intent is further evidenced by subsequent statements by other
delegates emphasizing that clemency power is, as it has been historically, an executive function.
Id. at 594, 595.

7 As noted above, at the hearing on the Attorney General’s motion to vacate, the district court judge
stated “I’m not saying it would have, but [the new evidence] could result in a new trial.” While the
district court did not mention this in its reasons, we note that articles 926.2 and 930.3(8) in the
Code of Criminal Procedure provide for post-conviction relief when a defendant can show factual
innocence based on particularized types of “new, reliable, and noncumulative evidence.”

10

conviction or sentence. Our holding is based on the unconstitutional nature of the
district court’s action pursuant to Article 930.10, not the joint effort by the parties.
The Code of Criminal Procedure affords defendants numerous grounds for
post-conviction relief. Article 930.3 provides,
If the petitioner is in custody after sentence for conviction for an
offense, relief shall be granted only on the following grounds:

(1) The conviction was obtained in violation of the constitution of the
United States or the state of Louisiana.
(2) The court exceeded its jurisdiction.
(3) The conviction or sentence subjected him to double jeopardy.
(4) The limitations on the institution of prosecution had expired.
(5) The statute creating the offense for which he was convicted and
sentenced is unconstitutional.
(6) The conviction or sentence constitute the ex post facto application
of law in violation of the constitution of the United States or the state
of Louisiana.
(7) The results of DNA testing performed pursuant to an application
granted under Article 926.1 proves by clear and convincing evidence
that the petitioner is factually innocent of the crime for which he was
convicted.
(8) The petitioner is determined by clear and convincing evidence to be
factually innocent under Article 926.2.

If a defendant seeks post-conviction relief pursuant to one of these grounds, a district
attorney is not required by this decision to oppose the application. For example, if a
defendant claims his conviction was obtained in violation of the constitution,
pursuant to La. C.Cr.P. art. 930.3(1), because he was denied effective assistance of
counsel or because the state withheld favorable evidence in violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the district attorney
may choose not to raise procedural objections even when they apply.8 Furthermore,
a district attorney has absolute discretion under La. Const. art. V, § 26 and La.

8 La. C.Cr.P. art. 930.4, barring repetitive applications provides, “G. Notwithstanding any
provision of this Title to the contrary, the state may affirmatively waive any procedural objection
pursuant to this Article. Such waiver shall be express and in writing and filed by the state into the
district court record.” Similarly, La. C.Cr.P. art. 930.8(D), providing time limitations on post-
conviction applications, provides, “Notwithstanding any provision of this Title to the contrary, the
state may affirmatively waive any objection to the timeliness under Paragraph A of this Article of
the application for post conviction relief filed by the petitioner. Such waiver shall be express and
in writing and filed by the state into the district court record.”

11

C.Cr.P. art. 61 to not oppose, or even to join, an application for post-conviction relief
that raises a cognizable claim for relief. This broad authority is necessary because a
prosecutor’s responsibility is as “a minister of justice and not simply that of an
advocate.” Model Rules of Prof’l Conduct R. 3.8 cmt[1] (Am. Bar. Ass’n 1983); see
also State v. Tate, 185 La. 1006, 1019, 171 So. 108, 112 (1936) (noting that the
district attorney, as representative of the state, “seeks justice only, equal and
impartial justice, and it is as much the duty of the district attorney to see that no
innocent man suffers as it is to see that no guilty man escapes”).
After a conviction is overturned on legal grounds, the district attorney
likewise retains his or her traditional discretion over any surviving, valid indictment.
The district attorney may re-try the defendant, offer a plea agreement, or dismiss the
indictment altogether. See State ex rel. Morgan v. State, 2015-0100, p. 17 (La.
10/19/16), 217 So.3d 266, 277 (Crichton, J., additionally concurring) (“[T]he district
attorney has an awesome amount of power in our justice system, which encompasses
the ‘entire charge and control of every criminal prosecution instituted or pending in
his district,’ including the determination of ‘whom, when, and how he shall
prosecute.’”) (quoting La. C.Cr.P. art. 61).
In short, our decision does not mandate that collateral review of criminal
convictions be unnecessarily adversarial, nor does it serve as a bar to cooperation
between parties in post-conviction proceedings to achieve the ends of justice. Such
a mandate would be inconsistent with Article 2 of the Code of Criminal Procedure,
which instructs that the Code is “intended to provide for the just determination of
criminal proceedings,” and the provisions “shall be construed to secure simplicity in
procedure, fairness in administration, and the elimination of unjustifiable delay.” See
also State v. Shallerhorn, 2022-1385, pp. 6–7 (La. 6/27/23), --- So.3d ---. A court’s
ruling on a collateral challenge to a final conviction may follow an adversarial

12

hearing, an unopposed presentation by the defendant, or a joint effort by both parties
to convince the court that the law and evidence support vacating the conviction.
Our decision does mandate that courts overturn a final conviction only after
finding a ground for relief enumerated in La. C.Cr.P. art. 930.3. Were a court to
vacate a conviction without such a finding, as is permitted by Article 930.10, it
would amount to an unconstitutional exercise of the governor’s exclusive pardon
power in violation of the doctrine of separation of powers as provided in La. Const.
art. II, §2.
CONCLUSION
For the reasons explained above, the ruling of the district court denying the
Attorney General’s “Motion and Incorporated Memorandum to Vacate Post-
Conviction Plea Agreement as Unconstitutional” is reversed. The district court’s
decision overturning defendant’s second degree murder conviction pursuant to La.
C.Cr.P. art. 930.10 is vacated. The conviction and original sentence are reinstated.
Article 930.10 of the Code of Criminal Procedure is hereby declared
unconstitutional. The matter is remanded to the district court for proceedings
consistent with this opinion.
REVERSED AND REMANDED.

SUPREME COURT OF LOUISIANA
No. 2022-KK-01827
STATE OF LOUISIANA
VS.
WILLIAM WAYNE LEE, JR.
On Supervisory Writ to the Twenty-Second Judicial District Court,
Parish of St. Tammany
WEIMER, C.J., dissenting.
The attorney general’s writ application should be dismissed. Although this
case presents an important constitutional issue, there are numerous procedural
obstacles which prevent this court from considering the merits of that issue in this
particular case. First and foremost, the attorney general is seeking review of a district
court judgment that had already become final–the attorney general filed a motion on
March 9, 2022, to vacate a post-conviction plea agreement which was accepted by the
district court on January 19, 2022. No challenge to the January 19, 2022 ruling was
filed within the 30-day window for seeking supervisory writs or applying for
reconsideration. By ignoring this issue, the majority essentially revives a right to
review that no longer exists.
Equally fatal to the attorney general’s application is a lack of standing. This
court cannot reach a constitutional issue unless the party seeking a declaration of
unconstitutionality has standing to raise a constitutional challenge. The attorney
general has a duty to uphold the laws as written, and has no interest or right to test the
constitutionality of a statute.1 Having no authority to attack the constitutionality of
1 See State v. Bd. of Sup’rs, La. State Univ. & Agr. & Mech. Coll., 84 So.2d 597, 600 (1955),
discussed fully infra.

a statute, the attorney general also has no standing. An attack on a presumed
constitutional statute by the attorney general is inimical.
The numerous procedural issues, discussed more fully below,2 make any
discussion of the constitutionality irrelevant. However, because the majority
addresses the issue, I feel compelled to respectfully dissent from the majority opinion
on the constitutional issue. Article 930.10 provides a post conviction process that
allows the state and defendant to negotiate a settlement regarding a conviction or
sentence to prevent an injustice. Any such agreement must be approved by the
district court following a hearing. Nothing in this procedure infringes on the
governor’s exclusive power of pardon or commutation.
The majority fails to share the salient facts of this case and decides this case in
the abstract. However, the district attorney carefully and extensively studied the facts
and evidence, which demonstrate the district attorney in this matter “seeks justice
only, equal and impartial justice, and it is as much the duty of the district attorney to
see that no innocent man suffers as it is to see that no guilty man escapes.” State v.
Lee, 22-01827 (La. 9/_/23), slip op. p. 11 (quoting State v. Tate, 185 La. 1006, 1019,
171 So. 108, 112 (1936)). The district attorney here appropriately discharged his
responsibility as “a minister of justice and not simply [as] an advocate.” Lee, 22-
01827, slip op. at 11. I would find La. C.Cr.P. art. 930.10 is constitutional as applied
in this case.
FACTS AND PROCEDURAL HISTORY
On September 11, 2003, Audra V. Bland and William Wayne Lee, Jr.
(defendant), who were in a relationship, began consuming alcohol with friends at a
2 The attorney general does not address, respond to, or brief, the procedural issues raised by the
defense. Rather, it is the majority opinion which addresses those issues on behalf of the attorney
general.
2

casino. At one point during the night, defendant became upset when Ms. Bland
danced with someone else; however, their night of drinking continued. At daybreak
the next morning, the group relocated to a large lake house, owned by defendant’s
mother and stepfather. At approximately 9:00 p.m. that evening, defendant screamed
for help because Ms. Bland, who he thought was sleeping off a hangover, was not
breathing. During the course of a 911 call, defendant stated that Ms. Bland had fallen
down while attempting to get her overnight bag from the trunk of a car and may have
hit her head on the concrete. Prior to the incident which prompted the 911 call,
defendant reported that he had helped an unconscious Ms. Bland into the lake house,
removed her clothes, and put her to bed.3 Defendant further indicated that Ms. Bland
woke up a few times during the day, but was incoherent and that he had tried to wake
her at 12:30 p.m. by giving her a bath and again at 3:00 p.m. when he cleaned vomit
from her.
According to the forensic pathologist/coroner, Ms. Bland sustained the
following injuries:
a fatal skull fracture and a large area of bleeding and bruising that
resulted from an impact or several impacts to the left posterior of her
head. She had a separate area of bruising, consistent with a blow, on her
right temple. She also had bruising on her nose, bruising and swelling
over her right eye, an abrasion or scratch mark on the inside of her right
eye, an abrasion or scratch mark on her upper right lip, scratch marks on
the right side of her neck, and bruising on the middle of her forehead.
State v. Lee, 07-1807, pp. 8-9 (La.App. 1 Cir. 3/26/08) (unpub’d opinion). The
coroner opined that Ms. Bland died of blunt force trauma to the head and identified
the manner of her death as a homicide.
3 Eyewitnesses reported that defendant on prior occasions had hit Ms. Bland over the head with a
large flashlight, forced her to wear a choke collar, and thrown her against a wall.
3

On October 20, 2003, defendant was indicted by a grand jury for second-degree
murder. He pled not guilty, consistently claiming that the injury to the back of Ms.
Bland’s head was the result of an accidental fall. Based on an independent review of
the evidence,4 defendant’s medical expert opined that Ms. Bland died as a result of
“an epidural hematoma due to a fracture of the left occipital bone of the skull due to
a fall on the back of the head” rather than a struggle and a fatal strike to the back of
the head. Defendant’s expert explained that the abrasions and lesions on Ms. Bland’s
face was consistent with resuscitation efforts and that bruising to Ms. Bland’s right
lateral forehead were consistent with accidental injury occurring while she was being
transported to the bedroom when they got to the house and later to the bathtub.
As noted by the majority, a jury found defendant guilty of second-degree
murder, and the district court sentenced defendant to life imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence. Defendant’s
conviction and sentence were affirmed on appeal. Defendant’s application for a writ
of certiorari was denied. State v. Lee, 08-0861 (La. 11/10/08), 996 So.2d 1066. His
conviction and sentence became final, but subject to post-conviction review as
provided by the legislature. See La. C.Cr.P. arts. 924 to 930.10 (Title XXXI-A titled
“Post Conviction Relief”).
Subsequently, defendant unsuccessfully pursued post conviction relief. See
State v. Lee, 18-0779 (La. 2/25/19), 264 So.3d 444 (claiming in relevant part that the
autopsy was flawed due to the lack of a thorough examination of Ms. Bland’s brain
and requesting an examination by a new medical expert to support an actual
4 Defendant’s medical expert did not perform an independent examination of Ms. Bland’s brain and
stated that examination of Ms. Bland’s brain tissue would not illuminate whether physical violence
or a fall caused the fatal injury. At trial, defendant’s expert did not express any concerns about the
lack of detailed brain tissue examination, nor did defendant make any contemporaneous objections
regarding the coroner’s qualifications.
4

innocence claim); State v. Lee, 12-1945 (La. 4/12/13), 111 So.3d 1020; State v. Lee,
10-2341 (La. 4/25/11), 62 So.3d 82. He was also denied federal habeas corpus relief.
See, e.g., Lee v. Cain, Civil Action No. 13-2508 (E.D. La. 2014) (unpub’d), 2014
WL 4967128.
Despite his unsuccessful post conviction attempt to have the court authorize
an examination of Ms. Bland’s brain by a new expert, the district attorney and
defendant on December 11, 2019, filed a motion jointly seeking the court’s
permission to allow defendant’s new expert, Dr. Jonathan L. Arden, to inspect and
test Ms. Bland’s brain, which was granted by the district court.
Dr. Arden’s examination occurred on February 3, 2020, and a “Supplemental
Report of Consultation Re: William Lee” was issued on May 15, 2020. In his report,
Dr. Arden indicated that his visual inspection of Ms. Bland’s brain revealed that she
suffered from “chronic multiple sclerosis.”5 Dr. Arden opined that “[t]he pattern of
brain contusions that I have now observed directly confirms my previous conclusion
that [Ms.] Bland sustained her blunt head trauma by falling and hitting the back of her
5 Dr. Arden reported:
examination revealed that Ms. Bland’s brain had plaques in the white matter of her
cerebral hemispheres that were largely located in the areas surrounding the ventricles
in the more rear portions of the brain. ... White matter plaques of this type are
classically associated with multiple sclerosis. The microscopic appearance of these
plaques was also consistent with the process of demyelination, which is the
destruction of the coating layers on the nerve-cell fibers, which is characteristic of
chronic multiple sclerosis.
According to Dr. Arden, “[t]he multiple sclerosis plaques were evident in the brain specimens ...
when I examined them, which should have been recognized and diagnosed at autopsy.”
Multiple sclerosis is “a chronic, typically progressive disease involving damage to the sheaths of
nerve cells in the brain and spinal cord, whose symptoms may included numbness, impairment of
speech and of muscular coordination, blurred vision, and severe fatigue.” THE NEW OXFORD
AMERICAN DICTIONARY 1122 (2001).
5

head against a firm, stationary surface, such as the ground.”6 According to Dr. Arden,
Ms. Bland’s “fatal head injuries were not caused by being struck by another person
(which mechanism would not result in [the] contre-coup [corital brain] contusions
[discovered]).” Dr. Arden opined that defendant’s account of the “circumstances and
timing of the causation of the fatal injuries by an accidental fall of Ms. Bland when
they returned home near dawn was highly consistent with the forensic medical
evidence.”
Dr. Arden’s findings were presented to the district attorney for consideration
prior to the filing of a petition for post conviction relief based on actual innocence.
While negotiations were underway,7 the legislature enacted La. C.Cr.P. art. 930.10
(quoted infra). See 2021 La. Acts 104, relative to claims of factual innocence.8
Shortly thereafter, on October 5, 2021, the district attorney and counsel for defendant,
together, filed a joint motion to amend defendant’s conviction and sentence in
connection with a plea agreement entered pursuant to La. C.Cr.P. art. 930.10 (quoted
infra). In the joint motion, the parties acknowledged that the state’s case against
defendant was based on the coroner’s testimony and circumstantial evidence that the
6 On April 20, 2016 (prior to his examination of Ms. Bland’s brain), Dr. Arden provided a “Report
of Consultation” to counsel for defendant that included this opinion.
7 At the hearing on a subsequently-filed joint motion to amend defendant’s conviction and sentence,
counsel for defendant advised the district court that he and the district attorney “had a series of
meetings to discuss this case” before the joint motion to amend was filed. Similarly, in the
unopposed motion to supplement the appeal record with Dr. Arden’s report, defense counsel stated
that there had been “months of negotiations between [the district attorney and defendant’s] counsel
based upon [the] newly discovered evidence” uncovered by Dr. Arden’s examination.
In sum, the joint motion filed by a representative of the state and a representative of defendant was
a considered determination evaluated over an extensive period of time based on facts and evidence
and not a “knee-jerk” reaction to simply reduce a sentence.
8 Senate Bill No. 186 of 2021, with contained La. C.Cr.P. art. 930.10, unanimously passed in both
the Senate and the House of Representatives, was then designated as Act 104, was signed into law
by the governor on June 4, 2021, and became effective on August 1, 2021. According to an
examination of the legislative history, at no time prior to its effective date did the attorney general
voice an objection to this legislation.
6

head injury was caused by defendant, while defendant argued that the “injury to the
back of the head was caused by Ms. Bland falling backwards on her own accord and
hitting her head on the driveway.” The parties further stated in the motion:
Dr. Arden’s [February 3, 2020] examination [of Ms. Bland’s brain] calls
into question the cause of Ms. Bland’s fall. In his report, Dr. Arden
noted that the brain revealed plaques visible to the naked eye in the
frontal lobes of Ms. Bland’s brain, which are consistent with multiple
sclerosis. The autopsy report and testimony of Dr. DeFatta did not
include this information. Dr. Charles Preston, St. Tammany Parish
Coroner, and Dr. DeFatta, were asked to comment on Dr. Arden’s
report. Neither disagreed with Dr. [Arden’s] findings.
In light of the objective evidence, the parties have agreed that the
defense at trial could have used that evidence as support for the
defense’s theory that Ms. Bland fell on her own accord. The parties
agree that, had these findings been made at autopsy, the defense theory
at trial would have been bolstered. The defense submits that it would
have engaged the services of a medical doctor with expertise in multiple
sclerosis, and would have focused its investigation on discovering
whether Ms. Bland exhibited various symptoms of multiple sclerosis
including falling, dizziness, vertigo, numbness, walking difficulties and
fatigue. It has since been discovered that there is evidence that Ms.
Bland had other falls occurring close to the time of her death.[9]
Based on Dr. Arden’s discovery, the parties agreed that “a fair and just resolution of
this matter may be to amend [defendant’s] conviction of second-degree murder (R.S.
14:30.1) ... to a conviction of manslaughter (R.S. 14:31)” and “for the Court to vacate
the life-without-parole sentence and impose a sentence of thirty-five years at hard
labor.”10
9 At the hearing on the joint motion to amend, counsel for defendant advised the court that in a
deposition in related civil litigation, Ms. Bland’s husband stated that Ms. Bland “was prone to fall
and prone to be dizzy.”
10 In the joint motion, the parties recognized the right of Ms. Bland’s family to be heard in
connection with the motion to amend and acknowledged that “some members of [her] family are not
in agreement with the filing of this motion” and may wish to address the court at the required hearing
on the joint motion to amend. See La. R.S. 46:1844(K) (governing the right of a member of the
victim’s family to be present and be heard at “[a]ll critical stages of the prosecution.”).
7

During the January 19, 2022 hearing on the joint motion,11 the district court
conducted a Boykin12 colloquy regarding the proposed plea agreement in accordance
with La. C.Cr.P. art. 930.10(B)13 during which defendant was advised that by his
post-conviction guilty plea he was waiving his right to a trial. Subsequently, the
district court found “there is a factual basis for the defendant’s plea and that the plea
is freely, intelligently, and voluntarily made.” At the conclusion of the hearing, the
district court accepted and approved defendant’s plea of guilty to an amended charge
of manslaughter. Accordingly, defendant’s prior conviction and sentence were
vacated. In accordance with the post-conviction plea agreement, defendant was
resentenced to 35 years of imprisonment at hard labor with credit for time served and
benefits.
On March 9, 2022, the attorney general filed a “Motion and Incorporated
Memorandum to Vacate Post-conviction Plea Agreement as Unconstitutional.”
According to the attorney general, La. C.Cr.P. art. 930.10 “is an unconstitutional
usurpation of the authority to grant an offender clemency, which is constitutionally
granted exclusively to the executive branch.” He further asserted that “reduction of
a final sentence is the equivalent of commutation, which is a power
constitutionally reserved solely for [the] executive branch of state government.”
The attorney general argued that the “pardoning power is an executive function,
11 The district court was informed that Ms. Bland’s family, who were not present at the hearing, did
not respond to the efforts of the district attorney’s office to contact them by telephone or email
regarding the hearing.
12 Boykin v. Alabama, 395 U.S. 238 (1969).
13 In pertinent part, La. C.Cr.P. art. 930.10(B) provides:
The court shall, prior to accepting the post conviction plea agreement, address the
petitioner personally in open court, inform him of and determine that he understands
the rights that he is waiving by entering into the post conviction plea agreement, and
determine that the plea is voluntary and is not the result of force or threats, or of
promises apart from the post conviction plea agreement.
8

which cannot be exercised or limited in its effect by the legislature” or the judiciary.
Clemency is an exclusive power of the governor; by enacting Article 930.10, the
legislature granted to the judiciary the authority to grant clemency. The attorney
general characterized a resentencing conducted pursuant to a post-conviction plea
agreement under Article 930.10 as a commutation of the sentence. Therefore, he
argued that Article 930.10 violates the separation of powers. The attorney general
prayed for the court to “(1) strike down La. C.Cr.P. Art. 930.10 as an unconstitutional
infringement upon the power to grant clemency, which the Louisiana Constitution
exclusively and absolutely confers upon the governor; and (2) vacate the January 19,
2022 post conviction plea agreement entered into pursuant to the unconstitutional La.
C.Cr.P. Art. 930.10.”
In his opposition to the attorney general’s motion, defendant urged that the
attorney general’s motion to vacate should be denied because (1) “the attorney
general lacks standing,” (2) “the attorney general’s motion is time-barred,” and (3)
“Article 930.10 is constitutional.”
At the June 15, 2022 hearing on the motion to vacate, the attorney general
argued that Article 930.10 violates the separation of powers since it “allows the
courts and the judicial branch, which includes the District Attorney’s Office, to usurp
[the parole and pardon] power of the governor and release someone or throw out a
conviction.” The procedural issues related to standing and mootness raised in
defendant’s opposition were not addressed by the attorney general at the hearing.
Relative to defendant’s standing challenge, defendant’s counsel pointed out
that “[t]here is no evidence that [the district attorney] made a request to [the attorney
general to have the attorney general] parachute into this case and make the arguments
[he’s] making today.” According to defense counsel, absent written request by the
9

district attorney, the attorney generally lacks standing to assert the unconstitutionality
of Article 930.10 in this case. Concerning the timeliness of the attorney general’s
motion to vacate, counsel for defendant noted that review of a judgment/ruling must
be sought within 30 days. Here, the attorney general’s motion to vacate was filed
more than 30 days after the district court’s ruling/judgment on the joint motion to
amend defendant’s conviction and sentence and is, thus, untimely. Furthermore,
because of the finality of that judgment, defense counsel urged that an adverse ruling
on the constitutionality issue would not affect defendant. Despite these procedural
hurdles, counsel for defendant also asked the district court to rule on the
constitutional issue since the district attorneys are now reluctant to utilize Article
930.10 in resolving post-conviction relief matters.
Following argument by counsel, the district court upheld the constitutionality
of La. C.Cr.P. art. 930.10 and denied the attorney general’s motion to vacate its prior
ruling that accepted and approved defendant’s post-conviction plea agreement. The
district court judge provided the following thorough oral reasons:
To sort of reiterate that the bill in question was drafted by
Louisiana District Attorney’s Association, I guess with the help of
Innocence Project of New Orleans. It was supported by the Louisiana
Sheriff’s Association as well as the District Attorney’s Office for at least
Jefferson Parish and others that I’m aware of.
I think significantly, the Article 930.10, and that is the issue here,
whether or not it’s constitutional or unconstitutional. It was passed
unanimously by both houses, and it was signed by the governor recently
on June 4, 2021.
Since this is a constitutional issue and something that was drafted
and approved by the legislature, I believe that there is a presumption that
it is constitutional, so the burden would be on the Attorney General’s
Office to prove that it’s not constitutional.
The Attorney General’s Office argues that the statute violates [ ]
separation of powers because it interferes with the governor’s right of
clemency, and I disagree.
10

I find that the article does not interfere with [ ] separation of
powers and does not infringe upon the governor’s right to issue
clemency.
I view this more in comparison to the DNA cases where in this
case there was at least allegedly some new evidence that was found that
could, not necessarily would result in acquittal, but could have affected
the jury’s decision.
So under the statute, the defense could go to the District Attorney
and see if they would present the evidence to them, and then the District
Attorney has a decision.
They can either turn them down at that point as far as them asking
for a new trial based on the evidence, or they could proceed under
Article 930.10, and there are safeguards to this.
I don’t see this as tossing the jury’s finding out. I see this
being used in a situation like this where there is possibly new
evidence that could result in a new trial. [Emphasis added.]
I’m not saying it would have but could result in a new trial, so the
District Attorney has to make the decision do they want to face a
possible new trial or do they want to proceed under Article 930.10.
And there are safeguards there in that the District Attorney not
only has to agree to it, but then it has to get Court approval.
So in this case, the District Attorney, at least at one point, was
impressed enough with the possible new evidence that they proceeded
under Article 930.10, and again, I just find that it does not violate the
separation of powers and does not infringe upon the governor’s right to
issue clemency.
That’s my ruling, so I find that it’s not unconstitutional.
The minutes reflect that the district court “ruled that the Post-Conviction Plea
Agreement is not unconstitutional.” Having ruled in favor of defendant on the issue
of constitutionality, the district court’s ruling was silent as to the standing and
timeliness issues raised by defendant. Pursuant to the attorney general’s request, the
district court set the return date for 30 days from ruling.
The attorney general’s writ application to the court of appeal was “NOT
CONSIDERED” initially because it was missing “a notarized Affidavit verifying the
11

allegations of the application and certifying that a copy has been delivered” to the
district court judge, to opposing counsel, and to the district attorney as required by
court rules. See State v. Lee, 22-0741 (La.App. 1 Cir. 9/26/22) (unpub’d writ
action), (citing Uniform Rules, Louisiana Courts of Appeal, Rule 4-5(A)). The
attorney general was advised that supplementation of the writ application with the
missing affidavit and/or an application for rehearing would not be considered and that
“[a]ny future filing on this issue should include the entire contents of this application,
the missing item noted above, and a copy of this ruling.” Id. The attorney general’s
refiled writ application was denied without reasons. State v. Lee, 22-1060 (La.App.
1 Cir. 11/21/22) (unpub’d writ action).
From the November 21, 2022 writ denial, the attorney general filed a writ
application with this court, urging that the lower courts erred in failing to declare La.
C.Cr.P. art. 930.10 unconstitutional. The attorney general’s writ application was
granted to allow this court to determine whether the legislature impermissibly
intruded into the domain of the executive branch when it enacted La. C.Cr.P. art.
930.10. See State v. Lee, 22-1827 (La. 2/24/23), 355 So.3d 1095.
DISCUSSION
“Although this court generally possesses the power and authority to decide the
constitutionality of [a law], it is required to decide a constitutional issue only ‘if the
procedural posture of the case and the relief sought by the appellant demand that [it]
do so.’” State v. Mercadel, 03-3015, p. 7 (La. 5/25/04), 874 So.2d 829, 834 (quoting
Ring v. State, Dept. of Transp. and Development, 02-1367, pp. 6-7 (La. 1/14/03),
835 So.2d 423, 428). “Among the threshold requirements that must be satisfied
before reaching a constitutional issue is the requirement that the party seeking a
declaration of unconstitutionality have standing to raise a constitutional challenge.”
12

Greater New Orleans Expressway Com’n v. Olivier, 04-2147, p. 4 (La. 1/19/05),
892 So.2d 570, 573 (citing Mercadel, 03-3015 at 7-8, 874 So.2d at 834). In this
context, the requirement of standing is jurisdictional. To determine if the attorney
general has standing in the instant matter, courts must resort “to general principles of
constitutional law regarding legal standing to challenge the constitutionality of code
articles and statutes.” See Mercadel, 03-3015 at 7, 874 So.2d at 834.
“[C]ourts sit to administer justice in actual cases”; “they do not and will not act
on feigned ones, even with consent of the parties.” Bd. of Sup’rs, La. State
University & Agr. & Mechanical College, 228 La. at 955, 84 So.2d at 599. “This
principle ... in reality, is determinative of the matter of the jurisdiction of [the] courts,
original and appellate.” Id., 228 La. at 956, 84 So.2d at 599. The district courts have
“original jurisdiction of all civil and criminal matters.” See La. Const. art. V, §
16(A)(1). “Thus, in order for the court to become seized of jurisdiction in the first
instance, there must be a dispute or controversy over some matter or right in which
the opposing parties have an interest.” Bd. of Sup’rs, La. State University & Agr.
& Mechanical College, 228 La. at 956, 84 So.2d at 599. Generally, “the person
bringing the challenge must have rights in controversy.” Mercadel, 03-3015 at 8,
874 So.2d at 834 (citing Ring, 02-1367 at 7, 835 So.2d at 428). “More specifically,
‘[a] person can challenge the constitutionality of a statute only if the statute seriously
affects his or her rights,’” or he or she is “injuriously affected by the enforcement of
a statute.” Mercadel, 03-3015 at 8, 874 So.2d at 834 (quoting Latour v. State,
00-1176, p. 5 (La. 1/29/01), 778 So.2d 557, 560); Louisiana Motor Vehicle
Comm’n v. Wheeling Frenchman, 235 La. 332, 344, 103 So.2d 464, 468-69 (1958).
“[A] party must complain of a constitutional defect in the application of the statute
to him or herself, not of a defect in its application to third parties in hypothetical
13

situations.” Kinnett v. Kinnett, 20-01134, 20-01143, 20-01156, p. 11 (La.
12/10/21), 332 So.3d 1149, 1157 (quoting In re Melancon, 05-1702, p. 8 (La.
7/10/06), 935 So.2d 661, 667, and Greater New Orleans Expressway Com’n, 04-
2147 at 4, 892 So.2d at 574).
A. Standing
By challenging the constitutionality of a provision in the Louisiana Code of
Criminal Procedure in connection with his motion to vacate, the attorney general has
placed himself in a position that he does not normally occupy. Generally, the attorney
general defends the constitutionality of laws. Furthermore, the attorney general fails
to cite in his motion to vacate any support for his ability to challenge the
constitutionality of La. C.Cr.P. art. 930.10,14 nor does the record indicate that the
attorney general responded to or provided any such support in response to
defendant’s opposition in which defendant challenged the attorney general’s
“standing to enter into this case.”
“The powers of government of the state are divided into three separate
branches: legislative, executive, and judicial.” La. Const. art. II, § 1. The concept of
separation of powers is provided for in La. Const. art. II, § 2 (“Except as otherwise
provided by this constitution, no one of these branches, nor any person holding office
in one of them, shall exercise power belonging to either of the others.”). The
legislative branch enacts the law. See La. Const. art. III, § 1, et seq. The executive
branch, which includes the Department of Justice that is headed by the attorney
14 Nowhere in his motion and memorandum at the district court level or in his writ application or
brief to this court does the attorney general allege facts or law to establish his standing to file a
motion to vacate the district court’s ruling on the joint motion to amend in this post-conviction
proceeding or to attack the constitutionality of this codal provision. Despite the lack of any
arguments by the attorney general in this regard, the majority opinion attempts to supply reasons.
See Lee, 22-01827, slip op. p. 5 n.4. However, that attempt by the majority is unavailing.
14

general, enforces the law. See La. Const. art. IV, § 1, et seq. The judicial branch
interprets and construes the law. See La. Const. art. V, § 1, et seq. The judicial
branch “has the right[,] and it is its duty[,] to determine whether or not the Legislative
or the Executive Departments’ actions have transcended and exceeded the
constitutional authority vested in them”; “each branch operates as a check or balance
against the others so that there will not be a usurpation of power or a consolidation
of all of the powers in one department.” Graham v. Jones, 198 La. 507, 608, 3 So.2d
761, 794 (1941).
“The requirement of standing serves to facilitate deference to the legislature in
matters within the legislature’s purview.” Greater New Orleans Expressway
Com’n, 04-2147 at 4, 892 So.2d at 573. “Because legislators owe the same duty to
obey and uphold the constitution as do judges,[15] legislators are presumed to have
weighed the relevant constitutional considerations in enacting legislation.” Id. (citing
Bd. of Supervisors, La. State Univ. & Agric. & Mechanical College, 228 La. at
958-59, 84 So.2d at 600). Stated differently, the legislature is presumed to have acted
15 “[C]ourts [are prohibited] from sua sponte striking down constitutional and statutory law.” State
v. Hodge, 19-0568, 19-0569, p. 4 (La. 11/19/19), 286 So.3d 1023, 1026. “[T]he prohibition against
a court raising a constitutional challenge sua sponte is rooted in the fact that ‘judges were charged
by their judicial oaths to enforce’ the laws as written.” Id., 19-0568 at 5, 286 So.3d at 1026-27
(quoting State v. Bazile, 11-2201, p. 5 (La. 1/24/12), 85 So.3d 1, 4). In Greater New Orleans
Expressway Com’n, 04-2147, pp. 3-4 (La. 1/19/05), 892 So.2d 570, 573-74, this court found that
the defendants, who were judges, did not have standing to challenge the constitutionality of a statute
in a mandamus proceeding seeking to compel compliance with a statute, explaining:
Although it is uniquely the province of judges to interpret the law, it is essential that
they constrain themselves to do so only when an appropriate case is presented to
them for adjudication. To condone defendants’ refusal to comply with a
presumptively constitutional legislative act, when no litigant had challenged the act’s
validity, would tend to hasten the “inextricable confusion” and “collision in the
administration of public affairs as to materially impede the proper and necessary
operations of government[.]”
Greater New Orleans Expressway Com’n, 04-2147 at 9, 892 So.2d at 576 (citing State ex rel.
New Orleans Canal & Banking Co. v. Heard, 18 So. 746 (La. 1895), which involved a mandamus
action against certain state executive officers to compel the performance of ministerial duties).
15

“within its constitutional authority in enacting legislation.” City of New Orleans v.
Louisiana Assessors’ Ret. & Relief Fund, 05-2548, p. 12 (La. 10/1/07), 986 So.2d
1, 12. Accordingly, “[a]ll legislative acts are presumed constitutional, until declared
otherwise in proceedings brought contradictorily between interested persons.’”
Greater New Orleans Expressway Com’n, 04-2147 at 4 , 892 So.2d at 573 (quoting
Bd. of Sup’rs, La. State Univ. & Agr. & Mech. Coll., 228 La. at 959, 84 So.2d at
600).
The district attorney and attorney general both have power relative to a
criminal prosecution. Concerning a district attorney’s powers and duties, La. C.Cr.P.
art. 61 provides:
Subject to the supervision of the attorney general, as provided in
Article 62, the district attorney has entire charge and control of every
criminal prosecution instituted or pending in his district, and determines
whom, when, and how he shall prosecute.
Relative to the authority of the attorney general, La. C.Cr.P. art. 62 provides:
A. The attorney general shall exercise supervision over all district
attorneys in the state.
B. The attorney general has authority to institute and prosecute,
or to intervene in any proceeding, as he may deem necessary for the
assertion or protection of the rights and interests of the state.
C. In any criminal action or proceeding involving a homicidal
death, if deemed necessary for the assertion or protection of the rights
and interests of the state, and in accordance with the provisions of
Article IV, Section 8 of the Constitution of Louisiana, the attorney
general may, with the consent of the district attorney, investigate,
prosecute or intervene in the action or proceeding.
The federal court’s decision in White Hat v. Landry, 475 F.Supp.3d 532, 548 (M.D.
La. 2020),16 which can be regarded as persuasive authority in this case, recognizes
16 Although it is the responsibility of Louisiana state courts to interpret Louisiana law, “the holdings
of Federal courts [on state law issues] are persuasive and are entitled to much respect.” Hinchee v.
Long Bell Petroleum Co., 235 La. 185, 193, 103 So.2d 84, 87 (1958); see Shell Oil Co. v.
Secretary, Revenue & Taxation, 96-0929, pp. 8-9 (La. 11/25/96), 683 So.2d 1204, 1209-10.
16

that the attorney general’s “authority to prosecute criminal cases is limited by the
terms of [La. Const. art. IV, § 8 (1974)].” The broad powers previously vested in the
attorney general by the Louisiana Constitution of 1921,17 were restricted, with voter
approval, by the adoption of the Louisiana Constitution of 1974. See La. Const. art.
IV, § 8 (1974), which provides:
There shall be a Department of Justice, headed by the attorney
general, who shall be the chief legal officer of the state. The attorney
general shall be elected for a term of four years at the state general
election. The assistant attorneys general shall be appointed by the
attorney general to serve at his pleasure.
As necessary for the assertion or protection of any right or interest
of the state, the attorney general shall have authority (1) to institute,
prosecute, or intervene in any civil action or proceeding; (2) upon the
written request of a district attorney, to advise and assist in the
prosecution of any criminal case; and (3) for cause, when authorized by
the court which would have original jurisdiction and subject to judicial
review, (a) to institute, prosecute, or intervene in any criminal action or
proceeding, or (b) to supersede any attorney representing the state in any
civil or criminal action.
The attorney general shall exercise other powers and perform
other duties authorized by this constitution or by law.
This constitutional provision authorizes action by the attorney general in certain
circumstances and in a prescribed manner. See State v. Neyrey, 341 So.2d 319, 322
(La. 1976) (“Besides the change in terminology vesting the Attorney General with the
authority to institute criminal prosecutions, it is also clear from the proceedings that
the intent of the Constitutional Convention delegates was definitely to restrict the
Attorney General’s power to institute criminal proceedings.” (emphasis added)).
17 See La. Const. art. VII, § 56 (1921), which provided:
The Attorney General and the assistants ... or one of them, shall attend to, and
have charge of all legal matters in which the State has an interest, or to which the
State is a party, with power and authority to institute and prosecute or to intervene
in any and all suits or other proceedings, civil or criminal, as they may deem
necessary for the assertion or protection of the rights and interests of the State. They
shall exercise supervision over the several district attorneys throughout the State, and
perform all other duties imposed by law.
17

Louisiana’s system of government is replete with checks and balances, and the
provisions of La. Const. art. IV, § 8, serve as a check and balance on the powers of
the attorney general relative to the powers of a district attorney.
As recognized by the White Hat court and this court in Neyrey, the attorney
general’s broad codal authority “to institute and prosecute, or to intervene in any
proceeding”18 is limited by the constitution.19 See id., 475 F.Supp.3d at 549. An
analysis of the attorney general’s standing begins with a consideration of whether the
instant action was “necessary for the assertion or protection of any right or interest
of the state.” See La. Const. art. IV, § 8.
As previously indicated, the issue of the attorney general’s right or interest in
instituting litigation to test the constitutionally of a law in the context of an action for
declaratory judgment was addressed by this court in Bd. of Sup’rs, La. State
18 See La. C.Cr.P. art. 62(B), quoted supra.
19 As the White Hat court stated:
[A]lthough the attorney general of Louisiana is responsible for enforcement of the
state’s laws,
[u]nlike district attorneys, [the attorney general of Louisiana] does not
have original jurisdiction to prosecute criminal cases. He may assist
in a criminal prosecution “upon written request of a district attorney.”
La. Const. Art. 4, § 8. Alternatively, he may institute, prosecute or
intervene in a criminal case “for cause, when authorized by the court”
having original jurisdiction. Id. Consequently, any involvement the
Attorney General might have in prosecuting cases under the statute
is indirect and remote.
Id., 475 F.Supp.3d at 549; see Entertainment Software Ass’n v. Foti, 451 F.Supp.2d 823, 828
(M.D. La. 2006).
18

University & Agr. & Mechanical College,20 which was written when the powers of
the attorney general were governed by La. Const. art. VII, § 56 (1921):21
In the matter at hand, it is perfectly plain that neither the
Attorney General22 nor the Commissioner of Agriculture and
Immigration23 have any interest or right to have a State statute
declared constitutional. Since all Acts of the Legislature are
constitutional until declared otherwise in proceedings brought
contradictorily between interested persons, it is evident that the object
sought in the petition of these officers, whose duty it is to uphold the
laws as written, is moot and they are without right or interest in
instituting litigation to test the constitutionality of Act 230 of 1954, or
any other statute. Such a suit carries an affirmative pregnant and invites
an attack upon the validity of the statute.
Id., 228 La. at 958-59, 84 So.2d at 600 (emphasis added).24 As stated by the Bd. of
Sup’rs, La. State University & Agr. & Mechanical College court, the attorney
20 The 1955 Bd. of Sup’rs, La. State University & Agr. & Mechanical College case remains good
law, as it has not been called into question and has recently been cited and relied on by this court in
resolving standing issues in Kinnett, 20-01134, 20-01143, 20-01156, at 10-11, 332 So.3d at
1156-57, and Hodge, 19-0568 at 4-5, 286 So.3d at 1026-27.
21 As indicated, the power and authority of the attorney general was limited vis-a-vis the power and
authority of the district attorney when comparing the 1921 and 1974 Constitutions.
22 “Under Section 56 of Article 7 of the Constitution, the Attorney General is given power to
institute proceedings for and on behalf of the State for the assertion or protection of the rights of the
State. This suit, obviously, is not concordant with that purpose.” Bd. of Sup’rs, La. State
University & Agr. & Mechanical College, 228 La. at 958 n.6, 84 So.2d at 600 n.6.
23 “The Commissioner of Agriculture and Immigration, whose duties and powers are prescribed by
the Legislature, R.S. 3:1 to 3:12, under constitutional mandate, Section 13 of Article 6 of the
Constitution, is an administrative officer and, insofar as Act 230 of 1954 is concerned, is charged
merely with the duty of collecting the fees or assessments which are to be pledged as security for the
payment of the bonds to be issued under that statute. Other than this, the statute has no effect
whatever on the duties imposed on him by law.” Bd. of Sup’rs, La. State University & Agr. &
Mechanical College, 228 La. at 958 n.7, 84 So.2d at 600 n.7.
24 The court’s finding in Bd. of Sup’rs, La. State University & Agr. & Mechancial College is
consistent with the following pronouncement in Louisiana Motor Vehicle Comm’n v. Wheeling
Frenchman, 235 La. 332, 344, 103 So.2d 464, 468-69 (1958):
As a general rule, a public officer or body is without interest or right to question the
constitutionality of a statute which he or it is entrusted to administer. See Dore v.
Tugwell, 228 La. 807, 84 So.2d 199 [(1955)], and the many authorities cited therein.
This doctrine is founded, among other reasons, on the basic tenet that, since all
legislative acts are entitled to great respect and are presumptively constitutional, it
is inimical to public policy to permit a party who is not injuriously affected by the
enforcement of a statute to assail its validity.
19

general has a duty to “uphold the laws [which are presumed to be constitutional] as
written.”25 Id. at 959, at 600. Like its predecessor,26 La. Const. art. IV, § 8 (1974)27
authorizes the attorney general to institute proceedings “for the assertion or protection
of any right or interest of the state.” After considering the attorney general’s
constitutional authority to institute proceedings under the 1921 Constitution, the Bd.
of Sup’rs, La. State University & Agr. & Mechanical College court found that the
institution of a suit by the attorney general for the purpose of raising the
constitutionality of a legislative enactment or law “obviously, is not concordant” with
“the assertion or protection of the rights of the state.” See Id., 228 La. at 958 n.6, 84
So.2d at 600 n.6.28 Indeed, the presumption of constitutionality instructs that it is not
in “the interest of the state” to have a law declared unconstitutional. Although the
attorney general’s constitutional challenge was incidental to his motion to vacate,
rather than simply an action for declaratory judgment, his proceeding first and
foremost seeks to “strike down La. C.Cr.P. art. 930.10 as an unconstitutional
infringement upon the power to grant clemency.” As his prayer for relief indicates,
the validity of his motion to vacate depends on whether the district court declares the
codal provision to be constitutional or not.
25 Based on this duty, the attorney general must “be served with a copy of the proceeding and be
entitled to be heard” in a civil proceeding when a law “is alleged to be unconstitutional.” State in
Interest of A.N., 18-01571, pp. 5-6 (La. 10/22/19), 286 So.3d 969, 973 (quoting La. C.C.P. art.
1880).
26 See La. Const. art. VII, § 56 (1921) (quoted supra).
27 In pertinent part, La. Const. art. IV, § 8 (1974) provides: “As necessary for the assertion or
protection of any right or interest of the state, the attorney general shall have authority ....”
(Emphasis added.)
28 See State v. Lee, 22-01827, slip op. at 5 n.4, in which the majority opinion attempts to justify the
attorney general’s standing to “protect the interest of the state.” This court has already decided that
very issue adverse to the majority’s opinion. As indicated, the majority opinion does not mention,
much less distinguish, the Bd. of Sup’rs, La. State University & Agr. & Mechanical College case
which has remained good law for decades.
20

Based on the analysis in Bd. of Sup’rs, La. State University & Agr. &
Mechanical College, this court should find that the attorney general’s constitutional
challenge in the instant proceeding is not consistent with “the assertion or protection
of any right or interest of the state.” The attorney general is without a right or interest
in instituting litigation to test the constitutionality of a legislative act or law. Id., 228
La. at 958-59, 84 So.2d at 600-01. Id. Moreover, the attorney general does not have
rights in the controversy, if any so exist, under the facts of this case,29 as he has
neither alleged nor shown in the record before this court that La. C.Cr.P. art. 930.10
seriously affects his rights or that he personally is “injuriously affected by the
enforcement of [La. C.Cr.P. art. 930.10].” See Mercadel, 03-3015 at 8, 874 So.2d
at 834; Louisiana Motor Vehicle Comm’n, 235 La. at 344, 103 So.2d at 469.30 An
attack of a law by the attorney general that does not impact the attorney general
directly has long been held to be impermissible. This court has said such an attack
on a presumed constitutional state law is “inimical,” which is defined as “tending to
obstruct or harm.”31, 32 See Louisiana Motor Vehicle Comm’n, 235 La. at 344, 103
So.2d at 469.
29 Whether a justiciable controversy exists is discussed infra.
30 In Louisiana Motor Vehicle Commission, 235 La. at 344, 103 So.2d at 469, this court found that
the Louisiana Motor Vehicle Commission, a public board charged with administering and enforcing
the Motor Vehicle Commission Law, La. R.S. 32:1251-1260, was “not injuriously affected by the
enforcement of [one section of] a statute to assail its validity.”
31 THE NEW OXFORD AMERICAN DICTIONARY at 873.
32 In effect, the attorney general’s constitutional argument would limit the authority of the legislature
to legislate, limit the discretion of the district attorney locally to address criminal matters, eliminate
the judiciary’s authority to decide cases, and concentrate authority in the governor, who is not a party
to the litigation. If the governor’s authority is undermined, it is the governor who should litigate this
issue, not the attorney general. Thus, the majority’s rationale that only the attorney general can bring
an action is inaccurate, as it is the governor’s authority that is at issue and, thus, the governor has
standing.
21

Other provisions in La. Const. art. IV, § 8 lend further support for a finding that
the attorney general lacks standing to “enter this case.” Although the attorney general
has authority “to institute, prosecute, or intervene in any civil action or proceeding,”
the instant proceeding for post conviction relief is clearly not a “civil action or
proceeding.” La. Const. art. IV, § 8(1). “[P]ost conviction relief, which is procedural
in nature, and speaks to matters of remedy, is not criminal litigation per se; rather,
post conviction relief proceedings, which are designed to allow petitioners to
challenge the legality of their confinement, are hybrid, unique, and have both criminal
and civil legal characteristics.” State v. Harris, 18-1012, pp. 10-11 (La. 7/9/20), 340
So.3d 845, 853. Nonetheless, the law on post conviction relief is placed in Title
XXXI-A of the Louisiana Code of Criminal Procedure,33 and defendant’s confinement
resulted from a criminal proceeding against him.34 The attorney general’s authority
to file the motion to vacate the prior district court ruling is clearly not derived from
La. Const. art. IV, § 8(1) (quoted supra).
For the attorney general “to advise and assist in the prosecution of any criminal
case,” he or she must have received “written request of a district attorney.” See La.
Const. art. IV, § 8(2) (quoted supra). Here, there is no proof in the record that the
district attorney sent a written request to the attorney general “to advise and assist”
in this post-conviction relief proceeding.35 In the introductory paragraph of the
33 A post-conviction criminal proceeding is established by and defined in the Code of Criminal
Procedure. State in Interest of A.N., 18-01571 at 6, 286 So.3d at 973-74; see La. C.Cr.P. arts. 924
to 930.10.
34 The post conviction relief petition is “a collateral action to test the detention of a criminal
defendant after his sentence and conviction have become final.” Harris, 18-1012 at 11, 340 So.3d
at 853.
35 In addressing the need for notice to the attorney general in a criminal matter, this court in State
in Interest of A.N., 18-01571 at 6-7, 286 So.3d at 974 stated:
In a criminal matter ... the State is always a party to the proceeding through its district
attorneys. See C.Cr.P. art. 61 (“Subject to the supervision of the attorney general, as
22

attorney general’s motion to vacate, the attorney general indicated that “[t]he District
Attorney does not object to the Attorney General’s motion.” Additionally, the district
attorney signed after counsel for the attorney general to indicate that he had “NO
OPPOSITION.” The noted benign lack of an opposition by the district attorney is
insufficient to satisfy the affirmative constitutional requirement for a “written
request” by a district attorney for the attorney general “to advise and assist” in this
matter prior to the attorney general’s participation. Otherwise, an attorney general
could simply insert himself or herself into matters without the constitutionally
required prior written request to the attorney general by the district attorney.
Expressing a lack of opposition is far removed from a constitutionally-mandated,
written request to advise and assist in the matter. For these reasons, I disagree with
the majority’s finding that the district attorney’s “acquiesce[nce] in the Attorney
General’s entry into the proceeding” can be “infer[red].” Lee, 22-01827, slip op. at
3. An equally reasonable inference is that the district attorney who brought the action
initially, simply capitulated rather than acquiesced. Alternatively, the district attorney
extended a professional courtesy to the attorney general by filing no opposition. He
provided in C.Cr.P. art. 62, the district attorney has entire charge and control of every
criminal prosecution instituted or pending in his district, and determines whom,
when, and how he shall prosecute.”); C.Cr.P. art. 927 (“If an application alleges a
claim which, if established, would entitle the petitioner to relief, the court shall order
the custodian, through the district attorney in the parish in which the defendant was
convicted, to file any procedural objections he may have, or an answer on the merits
if there are no procedural objections, within a specified period not in excess of thirty
days.”). Any concern . . . that the Attorney General’s interest should be represented
in criminal court proceedings related to the constitutionality of a statute is thus
quelled by . . . understanding that the State–through its acting district attorney–is on
notice of any constitutional argument made in the district court, and the State’s
interests are thus represented in all criminal matters. State v. Hatton, 2007-2377
(La. 7/1/08), 985 So. 2d 709, 721 (recognizing the purpose of procedural
requirements for challenging the constitutionality of a statute is “to give the parties
an opportunity to brief and argue the constitutional grounds and to prepare an
adequate record for review.”). Furthermore, nothing prohibits the Attorney General
from exercising his statutory authority to participate in such proceedings if he
believes the circumstances warrant his intervention. C.Cr.P. art. 62(B). This
argument is without merit. [Footnote omitted; emphasis omitted.]
23

merely stated he had “no opposition” to the attorney general inserting himself in the
limitation without a “written request” from the district attorney to “advise and assist.”
Clearly, the constitution requires more. The district attorney must make a request in
writing. An “inference,” with no factual support, is a poor substitute for the
constitutional requirement that the district attorney request in writing the attorney
general enroll “to advise and assist” in the “prosecution of a criminal case.” The
prosecution of the case was concluded and already final when the attorney general
invervened. Further, there is no evidence in the record the district court held a
hearing to ascertain the propriety of the district attorney injecting himself into this
litigation.36
Even more on point is La. Const. art. IV, § 8(3), which authorizes the attorney
general “for cause, when authorized by the court which would have original
jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in
any criminal action or proceeding, or (b) to supersede any attorney representing the
state in any civil or criminal action.” This provision requires as a prerequisite to the
attorney general’s participation in a local criminal action or proceeding the filing of
a request by the attorney general seeking the court’s permission to participate in the
underlying proceeding followed by a “cause” determination by the district court after
a hearing. The majority bypasses this requirement, concluding that “the Attorney
General seeks to protect the interest of the state by preventing the application of an
unconstitutional [code article]” and that “intervention by the Attorney General was
necessary to test the constitutionality of this unique [code article]” as “[n]either the
36 Having ruled against the attorney general on the constitutional issue, it was unnecessary for the
district court to rule on the propriety of the attorney general entering the suit. Again, the attorney
general offers no argument or rational to justify why he is legally authorized to intervene in this
litigation or that the intervention was timely.
24

District Attorney nor the defendant had a reason to challenge the law’s
constitutionality.”37 Lee, 22-01827, slip op. at 5 n. 4. Once again, Bd. of Sup’rs,
La. State University & Agr. & Mechanical College long ago held that the attorney
general simply cannot protect the interest of the state by attacking the
constitutionality of a law he swore to support.
“The ‘cause’ requirement refers to a showing that the district attorney is not
adequately asserting some right or interest of the state.” Plaquemines Parish
Commission Council v. Perez, 379 So. 2d 1373, 1377 (La. 1980) (citing Hargrave,
The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 835
(1977)). The record currently before this court is devoid of evidence that the attorney
general sought any such authorization from the court or that he was, in fact,
authorized by the court to participate in the instant proceeding. The simple fact that
the district attorney did not oppose the attorney general’s filing of a motion to vacate
does not dispense with the constitutional requirement of court authorization.
Accordingly, I disagree with the majority’s finding that explicit authorization by the
court is only required under La. Const. art. IV, § 8(3) when “the district attorney
opposes intervention.” Lee, 22-01827, slip op. at 5 n.4.38
37 As indicated, there is no “necessity” for the attorney general to intervene to “test the
constitutionality” of the code article. If a challenge is to be made, it should be made by the governor.
Instead, the intervention by the attorney general is unauthorized and inimical. See Bd. of Sup’rs,
La. State University & Agr. & Mechanical College, which case is not addressed by the attorney
general or the majority.
38 Any fear that this procedure might serve as a work-around of State v. Reddick, 21-01893
(10/21/22), 351 So.3d 273, is misplaced. Allowing the attorney general to act here, in an effort to
ostensibly preserve gubernatorial authority, affords the attorney general authority denied even when
the attorney general’s authority was significantly more robust under the 1921 Constitution. This
court in Bd. of Sup’rs, La. State University & Agr. & Mechanical College limited the attorney
general’s authority to attack the constitutionality of laws. Twenty years later the delegates who wrote
the 1974 Constitution did not see fit to afford the attorney general the authority to attack the
constitutionality of legislative enactments, which are presumed constitutional, and chose not to
modify the law to change the result in Bd. of Sup’rs, La. State University & Agr. & Mechanical
College. This court should continue to honor the wisdom of the past as reflected in Bd. of Sup’rs,
La. State University & Agr. & Mechanical College, which has been cited recently as having
25

B. Timeliness of the attorney general’s filing in the district court
Further support for upholding the district court’s ruling on the joint motion lies
in the fact that the justiciable controversy presented in the attorney general’s motion
to vacate, if any ever existed, was not asserted timely by the attorney general.
In his motion to vacate filed on March 9, 2022, the attorney general challenged
the district court’s January 19, 2022 ruling on the joint motion to amend defendant’s
conviction and sentence. Clearly, the attorney general’s challenge was made outside
of the 30-day window39 for filing a writ application with the court of appeal40 or
applying for reconsideration by the district court41 relative to the district court’s ruling
on the joint motion to amend.42 In summary, the attorney general failed to meet the
deadline for challenging the January 19, 2022 ruling in either the district court or the
continued viability by members of the current court.
39 The motion to vacate was filed by the attorney general 49 days after the district court’s ruling and
19 days after that ruling became final.
40 See Uniform Rules, Louisiana Courts of Appeal, Rule 4-3, which provides:
The judge who has been given notice of intention as provided by Rule 4-2
shall immediately set a reasonable return date within which the application shall
be filed in the appellate court. The return date in civil cases shall not exceed 30
days from the date of notice, as provided in La. C.C.P. art. 1914. In criminal cases,
unless the judge orders the ruling to be reduced to writing, the return date shall not
exceed 30 days from the date of the ruling at issue. When the judge orders the ruling
to be reduced to writing in criminal cases, the return date shall not exceed 30 days
from the date the ruling is signed. In all cases, the judge shall set an explicit return
date; an appellate court will not infer a return date from the record.
Upon proper showing, the trial court or the appellate court may extend the
time for filing the application upon the filing of a motion for extension of return date
by the applicant, filed within the original or an extended return date period. An
application not filed in the appellate court within the time so fixed or extended
shall not be considered, in the absence of a showing that the delay in filing was
not due to the applicant's fault. The application for writs shall contain
documentation of the return date and any extensions thereof; any application that
does not contain this documentation may not be considered by the appellate court.
[Emphasis added.]
41 See La. C.Cr.P. art. 881.1 (governing “motions to reconsider sentence”).
42 “[T]he intervenor[, who is a stranger to the underlying post-conviction relief proceeding,] takes
the case as he finds it.” Gorman v. Gorman, 158 La. 274, 278, 103 So. 766, 767 (1925).
26

court of appeal. The attorney general’s argument for the need for finality of
defendant’s original conviction is undermined by the attorney general’s actions in
filing after this matter became final on February 18, 2022. The irony is palpable.
While finality is essential in every legal proceeding, the actions of the district
attorney in recognizing that the interest of justice demanded further consideration of
this defendant’s case is supported by legislation, and the attorney general did not
timely complain in the district court. Because the ruling on the joint motion to amend
became final before the attorney general filed his motion to vacate, a ruling on the
attorney general’s motion to vacate, even if he had standing to file such motion,
would provide no effective relief to the attorney general relative to this defendant.
C. Timeliness of the attorney general writ application to this court
Notwithstanding the procedural hurdles presented by the standing and
timeliness issues, the attorney general’s writ application to this court should not have
been granted, as the untimeliness of the attorney general’s filings were repeated in
this court.
The attorney general correctly states that he timely filed a writ application in
the court of appeal from the district court’s denial of his motion to vacate.43 The court
of appeal refused to consider the attorney general’s application on September 26,
2022. See Lee, 22-0741 (La.App. 1 Cir. 9/26/22) (unpub’d writ action). Absent the
filing of an application for rehearing in the court of appeal, the attorney general’s
30-day delay for filing a writ application with this court44 began to run on September
43 However, the so-called “timely filing” of a writ application with the court of appeal was of no
moment because the underlying case was already final when the attorney general filed his motion
to vacate in the district court. The attorney general cannot breathe life into a final matter after
missing the deadline in the district court by subsequently filing in the court of appeal.
44 See Rules of Supreme Court of Louisiana, Rule X, § 5 (A)(1), which provides:
An application seeking to review a judgment of the court of appeal either after
27

27, 2022. Thus, the attorney general had until October 26, 2022, to seek review by
this court of the district court’s ruling on his motion to vacate. The attorney general’s
application in this court was not filed until December 16, 2022, fifty-one days late.
This court routinely finds matters filed minutes, hours, or a day late to be untimely.
All litigants should be treated similarly. In the absence of a timely application to this
court, the district court’s ruling on the attorney general’s motion to vacate became
final on October 26, 2022. See La. C.Cr.P. art. 922(B).
Instead of following the rules of the court of appeal and the supreme court, the
attorney general chose to file a second writ application with the court of appeal on
September 27, 2022, in an effort to obtain a “second bite of the apple.” The fact that
the court of appeal “denied” the attorney general’s second writ application, rather
than “refused to consider it,” as the majority points out, is irrelevant.45 See Lee, 22-
01827, slip op. at 3 n.2. The court of appeal lacked authority to breathe new life into
the attorney general’s efforts to have the district court’s ruling on his motion to vacate
reviewed or to control the timeliness of the attorney general’s filing with this court,
by the wording of its September 26, 2022 writ action or by its purported
“consideration” of the attorney general’s second writ application.
an appeal to that court, or after that court has granted relief on an application for
supervisory writs (but not when the court has merely granted an application for
purposes of further consideration), or after a denial of an application, shall be made
within thirty days of the mailing of the notice of the original judgment of the court
of appeal; however, if a timely application for rehearing has been filed in the court
of appeal in those instances where a rehearing is allowed, the application shall be
made within thirty days of the mailing of the notice of denial of rehearing or the
judgment on rehearing. No extension of time therefor will be granted.
45 It is the judgment, and not the reasons for judgment, which is significant and important. An
appeal is taken from the judgment, not the written reasons for judgment. Greater New Orleans
Expressway Com’n v. Olivier, 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24 (citing La. C.C.P.
arts. 2082, 2083 governing appealable judgments). See also State v. Alexander, 22-12, p. 5 (La.
App. 5 Cir. 6/21/23), __ So.3d __, __ (citing La. C.C.P. art. 1918 governing the form of a final
judgment); State v. Gravois, 17-341, p. 9 n.12 (La. App. 5 Cir. 12/13/17), 234 So.3d 1151, 1160
n. 12 (citing La. C.C.P. art. 1918). In this case, the court of appeal’s judgment was “denied” which
has the same effect as a refusal to consider the application.
28

For these reasons, I respectfully disagree with the majority’s finding that
“[s]ince the appellate court denied the second application, rather than refused to
consider it, the Attorney General’s application to this Court was properly filed.” Lee,
22-01827, slip op. at 3 n.2.
D. Constitutionality of La. C.Cr.P. art 930.10
Although I find it unnecessary to address the constitutionality of La. C.Cr.P.
art. 930.10 based on the preceding reasons, the following discussion explains why I
believe the majority also errs in declaring that “Article 930.10 of the Code of
Criminal Procedure is hereby declared unconstitutional.” See Lee, 22-01827, slip op.
at 11.
Consistent with the presumed constitutionality of all statutory and codal
enactments, where a law “is subject to more than one reasonable interpretation,” it
should be interpreted “in such a way as to uphold its constitutionality.” State v.
LeCompte, 406 So.2d 1300, 1311 (La. 1981) (on reh’g). The presumption of
constitutionality is significant; “[b]ecause of the presumption ..., in determining the
validity of a constitutional challenge, a Court ‘must construe a statute so as to
preserve its constitutionality when it is reasonable to do so.’” Westlawn Cemeteries,
L.L.C. v. Louisiana Cemetery Bd., 21-01414, p. 13 (La. 3/25/22), 339 So.3d 548,
559 (citing Carver v. Louisiana Department of Public Safety, 17-1340, p. 6 (La.
1/30/18), 239 So.3d 226, 230; M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371,
p. 22 (La. 7/1/08), 998 So. 2d 16, 31).
I agree with the majority and the attorney general that only the governor can
grant pardons and commutations because this is an exclusive, constitutional power
of the executive branch. See La. Const. art. IV, § 5(E)(1), which provides in relevant
part:
29

The governor ... upon favorable recommendation of the Board of
Pardons, may commute sentences, pardon those convicted of offenses
against the state, and remit fines and forfeitures imposed for such
offenses. [Emphasis added.]
See also LeCompte, 406 So.2d at 1307 (“The courts of this state cannot
constitutionally reduce or commute a sentence.”); State ex rel. Francis v. Resweber,
31 So.2d 697, 699 (La. 1947); State ex rel. Esteen v. State, 16-0949, p. 2 (La.
1/30/18), 239 So.3d 233, 240 (Weimer, J., dissenting) (“the power to reduce final
sentences belongs to the executive branch”).
While the power of commutation is bestowed by La. Const. art. IV, § 5(E)(1)
on the executive branch, a pardon, as the majority recognizes, is simply an act of
grace from the governing power. See Lee, 22-01827, slip op. at 7. The governor’s
power to pardon is unfettered and can be granted without any supporting evidence.
As recognized by the majority, “[a] pardon reaches both the punishment prescribed
for the offence and the guilt of the offender.” Lee, 22-01827, slip op. at 7 (quoting
Ex parte Garland, 71 U.S. 333, 380 (1866)). A full pardon “blots out of existence
the guilt, so that in the eye of the law the offender is as innocent as if he had never
committed the offence.” Id.
The majority holds that the district “court’s action pursuant to Article 930.10
is ... like a pardon, an act of ‘grace.’” Lee, 22-01827, slip op. at 8. I disagree. The
actions of the parties and the district court here neither released defendant of
punishment nor “blot out of existence the guilt.” Id., 22-01827, slip op. at 7 (quoting
Ex parte Garland, 71 U.S. at 380). A legal basis existed to support the joint motion
filed by the district attorney and defendant, and it was presented for consideration by
the district court. A closer evaluation of the evidence resulted in a change in the
30

facts,46 which called into question the integrity of defendant’s conviction, and led to
the district attorney, in his role as “a minister of justice,”47 reviewing the matter and
jointly moving with defendant to resolve a case.48 Clearly, the post-conviction plea
agreement at issue in this case is not equivalent to a matter of grace. Such a finding
is further supported by the fact that the parties are giving up certain legal rights in
connection with the post-conviction plea agreement. This defendant, following a
Boykin procedure, waived further rights to appeal and pled guilty to a lesser offense
for which he was sentenced.
Furthermore, as recognized by this court, “[t]here is some inevitable overlap
of the functions and each branch of government must strive to maintain the separation
of powers by not encroaching upon the power of the others.” Hoag v. State,
04-0857, p. 8 (La. 12/1/04), 889 So.2d 1019, 1024; see Newman Marchive
Partnership, Inc. v. City of Shreveport, 07-1890, p. 3 (La. 4/8/08), 979 So.2d 1262,
1265 (“The separation of powers is not always defined precisely.” One branch “may
not usurp those powers which are vested in the other two branches.”). Nothing in La.
C.Cr.P. 930.10 “limits or controls [or encroaches upon] the executive branch’s
exercise of its prerogatives.” See State ex rel. Esteen, 16-0949 at 5, 239 So.3d at
237.
46 The district attorney was obviously persuaded by the evidence unearthed by defendant’s new
expert, which could have served as the basis for a request for a new trial by defendant.
47 See Lee, 22-01827, slip op. at 11.
48 This clearly is not a case where no credible evidentiary basis existed to support the district
attorney and defendant’s joint motion. Although “the parties did not assert that defendant was
entitled to relief based on any law other than Article 930.10,” see Lee, 22-01827, slip op. at 9, the
parties addressed in their joint motion the recent findings of Dr. Arden that call into question the
validity of defendant’s conviction, thus suggesting factual innocence. In fact, the district court
expressly found “a factual basis for the defendant’s plea.”
31

Concerning post-conviction plea agreements, Article 930.10 provides:
A. Upon joint motion of the petitioner and the district attorney,
the district court may deviate from any of the provisions of this Title.
B. Notwithstanding the provisions of Article 930.3 or any
provision of law to the contrary, the district attorney and the petitioner
may, with the approval of the district court, jointly enter into any post
conviction plea agreement for the purpose of amending the petitioner's
conviction, sentence, or habitual offender status. The terms of any post
conviction plea agreement pursuant to this Paragraph shall be in writing,
shall be filed into the district court record, and shall be agreed to by the
district attorney and the petitioner in open court. The court shall, prior
to accepting the post conviction plea agreement, address the petitioner
personally in open court, inform him of and determine that he
understands the rights that he is waiving by entering into the post
conviction plea agreement, and determine that the plea is voluntary and
is not the result of force or threats, or of promises apart from the post
conviction plea agreement.
The procedure authorized by Article 930.10 does not diminish or reduce the
governor’s exclusive authority. It is not a given that the district attorney, who
represents the state, and defendant, who are adversaries, will reach an agreement, or
that the district court will “accept[] the post conviction plea agreement.” Instead,
stripping the court and the district attorney of the authority afforded by Article 930.10
diminishes the constitutional authority of the district attorney to serve the interest of
justice and the court to decide cases.
I stand by my position in State ex rel. Esteen that courts have no authority to
pardon a defendant or to commute a sentence, as that authority is vested in the
governor.49 See id. 16-0949, pp. 3-4 (La. 3/13/18), 239 So.3d 266, 267 (Weimer, J.,
49 Curiously, Justice Crichton, the author of the majority opinion in this case, cites my “would grant
rehearing” in State ex rel. Esteen, see Lee, 22-01827 slip op. at 5 (citing State ex rel. Esteen,
16-0949, p. 3 (La. 3/13/18), 239 So.3d 266, 267 (Weimer, J., would grant reh’g)), which is
distinguishable from this matter as will be discussed. He concurred in the majority opinion in State
ex rel. Esteen, which stated:
This court erred in State v. Dick[, 06-2223 (La. 1/26/07), 951 So.2d 124,] to
the extent we resolved the tension between these provisions by finding that the only
avenue to gain the benefit of the more lenient penalty provisions retroactively is by
application to the Risk Review Panel at that time (subsequently amended to authorize
32

would grant reh’g). The legislature cannot restrict the pardon or commutation power
of the governor; however, nothing in the constitution prohibits the legislature from
enacting legislation in the area of post conviction relief to provide a process in which
the parties can negotiate a settlement regarding a conviction or sentence to prevent
an injustice. The legislation in question, La. C.Cr.P. art. 930.10, does not restrict nor
limit the authority of the governor, but does establish criteria in the area of post
conviction relief for a joint motion by the district attorney and the defense, which has
been approved jurisprudentially, following a hearing. Nor does Article 930.10
authorize the district court to grant a pardon or commute a sentence, which involve
“grace” and can wipe away guilt and the related sentence.
The distinction between my dissent and my vote to grant a rehearing in State
ex rel. Esteen and my dissent in this matter is plain. In State ex rel. Esteen, the
statute required a “vetting procedure” that involves an evaluation by the committee
on parole prior to an offender receiving the benefit of a reduction in sentence. The
majority in State ex rel. Esteen simply read the role of the committee on parole out
of the statutory language, which I found to be problematic. In the current matter,
again paying deference to the legislature, once the district attorney, the party
representing the “state,” agrees with the defense, which is adversarial to the district
attorney, the district court judge must then exercise discretion to accept the joint
motion. In both State ex rel. Esteen and this matter, I simply applied the law as
enacted by the legislature and paid deference to the legislature.
application to the committee on parole). Instead, we find these provisions can be
harmonized in a way that avoids the separation of powers problem on which the
holding of Dick depended.
Id., 16-0949 at 3, 239 So.3d at 236. The majority in State ex rel. Esteen further noted that Dick
court erred in “equat[ing] the judicial amendment of a final sentence in accordance with a retroactive
legislative act to ‘allow[ing] the judiciary to exercise the power of commutation.’” Id., 16-0949 at
4, 239 So.3d at 236.
33

Any concern over the court usurping the pardon power by reducing a sentence
is relieved by the codal requirement that the district attorney and the defense jointly
agree, and by the fact that the district court judge is given the authority thereafter to
determine if the joint motion will be granted. It goes without saying that the
discretion afforded to the district court will only be exercised if the facts demonstrate
that justice and the interests of the society warrant the court’s decision.
The importance of La. C.Cr.P. art. 930.10 cannot be overstated. Louisiana
incarcerates more citizens per capita than any state in the Union and any nation in the
world. Non-unanimous juries exacerbated the problem and increased these numbers.
It is well-documented that the poor and minorities have been disproportionally
impacted by the ill-conceived practices of the past. Perhaps as a direct consequence,
Louisiana experiences a significant number of exonerations of incarcerated
individuals.
The post-conviction legislation at issue here was unanimously enacted by the
legislature, the people’s representatives, and signed into law by the governor. Its
obvious purpose is to insure justice is done and to act as a counter balance or check
on the renegade practices and prejudices of the past. It will only afford a post-
conviction remedy in those matters in which an individual is proven to be not guilty
of the crime charged and is designed to right wrongs in certain specific cases. The
legislature was obviously concerned about past practices and the ineffectiveness of
the poorly developed post-conviction relief procedures. Carried to its logical
conclusion, the attorney general’s effort could have the disastrous effect of
undermining, and further limiting, the post-conviction relief procedure that has
operated to correct the evils of the past. Finality for finality’s sake is an important
34

concept, but our system of justice and our sense of fairness recoil at the thought that
an innocent person remains punished for a crime not committed.
The multi-step process established by Article 930.10 is replete with checks and
balances, requiring opposing sides to agree. Just as the governor is granted authority
to commute sentences, the district attorney is charged with prosecuting cases and the
courts are charged with deciding cases properly brought. The attorney general is
seeking to strip the district attorney and judiciary of authority to resolve injustice on
a case-by-case basis. The decision of the district attorney and defendant to bring this
case to the court is not commutation from a constitutional standpoint, which is wholly
within the authority of the governor, but the resolution of a case that was carefully
reviewed by the district attorney. After that careful review here, the district attorney
obviously determined that it was not in society’s best interest to spend untold
resources in trying this matter. Rather, exercising the prudence and discretion
afforded to his office, the district attorney determined the additional facts presented
by defendant here dictated the agreed-upon resolution, which the district court
evaluated and granted, promoting judicial economy and saving other valuable public
resources. That is not a commutation by the governor but the resolution of a case.
Such an interpretation of Article 930.10 is reasonable and does not result in a
violation of separation of powers. See LeCompte, 406 So.2d at 1311 (on reh’g).
Accordingly, I respectfully dissent from the majority’s reversal of the district court’s
June 15, 2002 ruling, as I believe that La. C.Cr.P. art. 930.10 is not facially
unconstitutional and is, in fact, constitutional, as applied in this case.
35

1
SUPREME COURT OF LOUISIANA
No. 2022-KK-01827
STATE OF LOUISIANA
VS.
WILLIAM WAYNE LEE, JR.
On Supervisory Writ to the 22nd Judicial District Court, Parish of St. Tammany
GRIFFIN J., dissents and assigns reasons.
Respectfully, the majority’s opinion is contrary to the original intent of the
framers of the Louisiana Constitution. The constitutional question presented is
whether La. C.Cr.P. art. 930.10 violates the separation of powers by impinging on
the governor’s pardon, clemency, reprieve, an d commutation power ( “pardon
power”). In Louisiana, the separation of power s between the three branches of
government is not absolute. Article IV § 5 does not explicitly forbid the legislature
from going beyond the pardon power of the governor.
The framers of the Louisiana Constitution of 1974 explicitly intended to allow
the legislature to extend its own version of the pardon power, provided the legislature
did not limit the power granted to the governor in Article IV § 5. The framers initially
had a specific provision in what is now Article IV that stated:
Except in cases of conviction of impeachment, the governor may
reprieve, may grant commutation of sentence, and may pardon those
convicted of offenses against the state and may remit fines and
forfeitures imposed for such offenses. In addition, the legislature may
provide additional methods for the foregoing and other postconviction
remedies.
Transcript Records of the Louisiana Constitutional Convention of 1973 at 577
(“Records”) (emphasis added). That this language was left out of the final draft does
not preclude it from being the rule, especially where a general intent is discoverable.
See Edwards v. Parker , 332 So. 2d 175, 186 (La. 1976) (Tate and Calogero

2

concurring in part and dissenting in part). The language was left out because (1) the
framers were worried about the length of the article; and (2) the delegates assumed
that this legislative pardon power would be included anyway, so any language
referencing it would be superfluous. See Records at 578-579 (discussing keeping the
Executive Article short). Indeed, Delegate Jack, who rose to defend the amendment
that would be incorporated into the Constitution of 1973 (that did not include the
express last sentence cited above) stated “It’s replacing the entire power of pardon,
commutation, etc. in the governor even though it also stated that the legislature
would have a concurrence right.” Records at 591. Here, the word “concurrenc e”
should have been “concurrent,” otherwise, it has no real meaning. No delegate
disagreed with the notion that the legislature could use its own pardon power over
and above that of the governor , as long as it did not limit the governor’s power as
stated in the constitution.
The frame rs also expressly said they intended the legislature to have this
expansive pardon power.1 Delegate Gravel, speaking for the committee that drafted
the Executive Article, stated:

The governor retains the ultimate right [to pardon etc.]. Now
many people thought that in addition to the governor having that
right that some other provision should be authorized whereby the
legislature by supplementary provisions could also provide other
methods and other means by which a pardon, commutation or
reprieve could be granted. The upshot of it all is probably going
to be that the legislature will devise and will develop a plan
which in practically every instance will be utilized for the
purpose of granting this kind of relief but I don’t think there’s
any question but that because of the position he occupies in state
government that in the very last analysis that the governor’s
authority to act in these instances should be retained, so what I
think that we should do and hope that we do do, is to stay with
the committee proposal which gives the ultimate authority to the
governor but also authorizes the legislatures to provide

1 This reading is further supported by the fact that the framers intended to allow the legislature to
expand and direct the duties and powers of the district attorneys as well as help maintain their
independence. Records at 915-927 (discussing the duties, powers, and independence of the district
attorneys).

3

supplemental methods whereby post conviction relief can be
granted to persons charged with offenses…

Records at 583. Delegate Gravel then stated in response to a question as to whether
the legislature could adopt an expansive version of the governor’s pardon:
As a matter of fact the legislature can and should and I suggest
will provide some model method by which this kind of release
can be cons idered and will be granted but it would be
supplementary or corollary to the same right that the governor as
the chief executive officer of the state would have under this
proposal.

Records at 584. Delegate Gravel responded to a statement that he would want a
situation where the legislature could limit the powers of the governor to grant
pardons etc., by saying:
Let me dispel the impression because I don’t think I said that, if
I did I certainly didn’t intend to. I wanted to make it clear I
thought, that the governor did have total and complete power and
that the power of the legislature would be supplementary and
corollary to that power…

Records at 584. Delegate Burson stated “well, I ’m glad we agree on that point…”
Records at 584.
It is also clear that the legislative pardon power is not just some theoretical
version of habeas corpus. The framers made absolutely clear that they were
discussing this as the legislature’s own expansive version of the governor’s pardon
power. With the pardon board being a limit on the governor’s pardon power; but the
legislature’s only being limited by the voters.2 See generally, Records at 577-600.

2 When the framers discussed all of this , they did so in the context of post -conviction and the
governor’s traditional powers. For example, Delegate Burns noted, during the debate over the
executive article, which included the legislature’s own pardon power, that there needed to be a
check on the governor’s traditional power and his suggestion was the pardon board. See Records
at 592. He said that the delegates spoke to him and that they all agreed with it. No one objected to
his statements. And no one sought to limit the legislature’s expansive pardon power.

The framers then again rejected using the legislative pardon power as the limit on the governor’s
pardon power. See e.g. Records at 593 -595 (several delegates’ discussion). Thus , they kept the
original plan of letting the governor have his power and the legislature having their expansive
power, so long as they did not restrict what was granted to the governor. Records at 577, 583, 584,
591 (stating that the legislature has this concurrent power with the governor’s traditional power).
All throughout these debates, they discussed the traditional pardon power of the governor in their
discussion of the legislature’s expansive pardon power. See e.g., 577 (governor’s pardon power

4

The majority opinion places an extreme burden on the courts to determine
what constitutes enough of a pardon to cross the separation of powers line. It risks
the very independence of prosecutors that the framers sought to protect. Records at
915-927 (discussing the duties, powers, and independence of the district attorneys).3
For these reasons, I respectfully dissent.

and legislature’s in the same column on the same page), 582 (discussing possible limits on the
governor’s traditional powers), 583 (discussing traditional governor’s pardon and the legislature’s
power to make its own in the same paragraph by the same Delegate who spoke for the committee
that drafted the executive article), 584 (reflecting everyone’s agreeing on this statement). The list
of examples are legion.
3 Any prosecutor or defendant who otherwise could have sought relief under La. C.Cr.P. art. 930.10
may have standing to seek reversal of the majority’s decision.