James Roy Chrishon v. Louis J. Marshall, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-923

JAMES ROY CHRISHON

VERSUS

LOUIS J. MARSHALL, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 232,153
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

Philip G. Hunter
Hunter & Morton
Post Office Box 1270
Alexandria, LA 71315-1270
(318) 487-1997
COUNSEL FOR DEFENDANT/APPELLEE:
Louis J. Marshall, Jr.

Darrell K. Hickman
1758 Elliott Street
Alexandria, LA 71309
(318) 448-6353
COUNSEL FOR PLAINTIFF/APPELLANT:
James Roy Chrishon

Amy, Judge.

Pursuant to La.R.S. 18:1409, this is an expedited appeal of a trial court

judgment, dismissing a petition to challenge Louis J. Marshall, Jr.’s (Marshall)

candidacy to run for election to the Alexandria City Council, District 1. The plaintiff-

appellant, James Roy Chrishon (Chrishon), asserted that La.Const. art. 1, § 10,

prevented Marshall from qualifying as a candidate for the office because Marshall

had been convicted by a federal district court in 1993 for illegally transporting

firearms in interstate commerce in violation of 18 U.S.C. § 922(a)(2). The trial court

ruled that La.Const. art. 1, § 10 would only bar Marshall from qualifying as a

candidate if he could also have been charged under Louisiana law for a felony for the

acts committed. Finding no such corresponding felony offense under Louisiana law,

the trial court denied the petition. For the following reasons, the judgment of the trial

court is affirmed.

Factual and Procedural Background

Marshall obtained a federal dealer’s license to sell firearms in 1988. He was

prosecuted in federal district court in 1993 for violating 18 U.S.C. § 922(a)(2)1, which

prohibits licensed dealers from shipping or selling firearms in interstate commerce

to anyone other than other licensed dealers. On December 3, 1993, Marshall pled

guilty to violating one count of the statute, as a consequence of sending a pistol(s) to

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18 U.S.C. § 922(a)(2) provides, in relevant part:

§ 922. Unlawful acts

(a) It shall be unlawful--
....
(2) for any importer, manufacturer, dealer, or collector licensed under the
provisions of this chapter to ship or transport in interstate or foreign commerce any
firearm to any person other than a licensed importer, licensed manufacturer, licensed
dealer, or licensed collector, . . . .

an individual in New York state who was not a licensed dealer. He completed all

terms of his sentence.

Marshall has since been elected to two terms on the Alexandria City Council,

representing District 1. This appeal arises out of a suit challenging his attempt to

qualify as a candidate for the seat again. The challenger to his candidacy, the

plaintiff-appellant, Chrishon, alleged that Marshall’s conviction prohibits him from

qualifying as a candidate for elective office in Louisiana, according to La.Const. art.

1, § 10. He further alleged that the actions that served as the basis of Marshall’s

federal conviction also constituted a violation of La.R.S. 40:1784, which makes it a

felony to transfer certain firearms without approval of the Louisiana Department of

Public Safety.

The parties stipulated at trial to the following:

1. Chrishon has standing to file the petition;

2. Marshall was convicted of a federal felony for the transfer of a pistol
with a valid serial number across state lines;

3. Fewer than fifteen years have elapsed since the completion of Marshall’s
sentence; and

4. Marshall is not currently under an order of imprisonment.

The trial court also received as evidence the federal bill of information and related

documents concerning Marshall’s prosecution, plea, and sentence.

The trial court found that La.Const. art. 1, § 10 provides that a person

convicted of a federal felony cannot qualify for office if that crime, had it been

committed in Louisiana, would be a Louisiana felony. The court stated that

Marshall’s actions did not meet the legal definition of a felony under La.R.S.

40:1784, since Marshall was convicted of transporting a pistol(s) with a valid serial

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number(s) across state lines to a person who was not licensed to receive such

weapons.

Chrishon contends on appeal that the trial court misinterpreted La.Const. art.

1, § 10 as requiring a corresponding or “matching” Louisiana felony offense in order

to disqualify a federally convicted individual from seeking elective office in the state.

Chrishon has also presented to this court an issue for appellate review that was not

argued before the trial court. He alternatively argues that Marshall could have been

charged in Louisiana for the felony offense of criminal conspiracy, La.R.S. 14:26, for

the actions that served as the basis of his federal conviction. Crishon argues that

Marshall should be disqualified as a candidate for the City Council election on this

basis as well.

Discussion

Effect of Federal Felony Conviction

The facts of this case are not in dispute. The issue of whether the trial court

correctly found that La.Const. art. 1, § 10 prohibits an individual from qualifying to

seek elective office in Louisiana due a felony conviction, only if the crime would be

a felony under Louisiana law as well, presents a purely legal question. Because there

are no contested issues of fact, and the only issue is the application of the law to the

undisputed facts, this court’s review will consist of determining whether the trial

court’s decision is legally correct or incorrect. Leger v. Sonnier Exterminating Co.,

05-1291 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, writ denied, 06-1033 (La. 6/23/06),

930 So.2d 982. This requires a review of the constitutional provision at issue.

The fundamental principles of constitutional construction have been stated as

follows:

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The starting point in the interpretation of constitutional provisions
is the language of the constitution itself. Louisiana Mun. Ass’n v. State,
00-0374, p. 5 (La.10/6/00), 773 So.2d 663, 667. When a constitutional
provision is plain and unambiguous, and its application does not lead to
absurd consequences, its language must be given effect. Id. at pp. 5-6,
773 So.2d at 667; State ex rel. Guste v. Board of Com'rs of Orleans
Levee Dist., 456 So.2d 605, 609 (La.1984); Bank of New Orleans &
Trust Co. v. Seavey, 383 So.2d 354, 356 (La.1980).

East Baton Rouge Parish School Bd. v. Foster, 02-2799, p. 16 (La. 6/6/03), 851 So.2d

985, 996. “Unequivocal constitutional provisions are not subject to judicial

construction and should be applied by giving words their generally understood

meaning.” Ocean Energy v. Plaquemines Parish Gov’t, 04-0066, p. 7 (La. 7/6/04),

880 So.2d 1, 7. Moreover, the supreme court has stated:

[W]here the language of a constitutional prohibition makes its aim
evident and unequivocal, courts need not consider the historical basis for
the prohibition and may not, by separately considering related
constitutional provisions, arrive at a construction that detracts from the
effectiveness or manifest meaning and purpose of the related provisions.

Ocean Energy, 880 So.2d at 7 (citing Perschall v. State, 96-0322 (La. 7/1/97), 697

So.2d 240). “Accordingly, effect should be given to the purpose indicated by a fair

interpretation of the language used, and that construction which effectuates, rather

than that which destroys a plain intent or purpose of a constitutional provision, is not

only favored but will be adopted.” Succession of Lauga, 624 So.2d 1156, 1166

(La.1993) (citations omitted).

The pertinent part of the constitutional provision asserted by Marshall as a

barrier to Chrishon’s qualifying as a candidate is as follows:

§ 10. Right to Vote; Disqualification From Seeking or Holding an
Elective Office

....

(B). Disqualification. The following persons shall not be
permitted to qualify as a candidate for elective public office or take

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public elective office or appointment of honor, trust, or profit in this
state:

(1) A person who has been convicted within this state of a felony
and who has exhausted all legal remedies, or who has been convicted
under the laws of any other state or the United States or of any foreign
government or country of a crime which, if committed in this state,
would be a felony and who has exhausted all legal remedies and has not
afterwards been pardoned either by the governor of this state or by the
office of the state, nation, government or country having such authority
to pardon in the place where the person was convicted and sentenced.

(Emphasis added.)

Applying the principles of constitutional construction, we conclude that Article

1, Section 10(B) unambiguously requires that as a prerequisite to disqualification, the

individual’s actions must be those which would also constitute a felony offense under

Louisiana law. See Cook v. Skipper, 99-1448 (La.App. 3 Cir. 9/27/99), 749 So.2d 6,

writ denied, 99-2827 (La. 9/30/99), 745 So.2d 601; Tucker v. Huval, 374 So.2d 745

(La.App. 3 Cir. 1979).2

At the trial of this matter, it was stipulated that Marshall had been convicted

of the felony of the unlawful shipping and transporting of firearms by a licensed

dealer in violation of 18 U.S.C. § 922 (a)(2). Louisiana Code of Criminal Procedure

Article 933 defines “felony” as “an offense that may be punished by death or by

imprisonment at hard labor.” At trial, Chrishon argued that Marshall’s actions that

resulted in the federal conviction, also violated La.R.S. 40:17843, which is a felony

2
The Louisiana Supreme Court has observed that similar language, which appears in
La.R.S. 15:529.1, requires that a federal conviction can be used to support multiple offender
adjudications, that statute’s focus, only if the crime upon which it is based is a felony under an
analogous Louisiana statute. See State ex rel. Wilson v. Maggio, 422 So.2d 1121 (La.1982). See
also State v. Wills, 545 So.2d 1038 (La.1989); State v. Singleton, 352 So.2d 191 (La.1977).
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§ 1784. Application to possess or transfer; use of information or evidence

No person shall continue to possess or shall transfer any firearm without the
prior approval of the department. Interested persons shall file written applications
in duplicate on application forms issued in blank for those purposes by the

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under Louisiana law, punishable by a fine and imprisonment with or without hard

labor for a first offense and by a larger fine and imprisonment at hard labor for

subsequent offenses. La.R.S. 40:17914. Although the trial court correctly found

La.R.S. 40:1784 constitutes a felony offense in Louisiana, the court also found that

the term “firearm,” as referenced in La.R.S. 40:1784, does not include the type of

gun(s) involved in Marshall’s case and, therefore, does not constitute a felony offense

for which he could have been charged in this state.

We find no error in the trial court’s conclusion that the type of gun(s)

transferred by Marshall was expressly exempted from the definition of “firearm” as

department. In the case of transfers of any firearm, applications shall be filed by both
the proposed vendor and the proposed vendee.

The applications shall set forth, in the original and duplicate, the
manufacturer's number or other mark identifying the firearm. Both the original and
duplicate shall be forwarded to the department. If approved, the original shall be
returned to the applicant.

No information or evidence obtained from an application, registration or
records required to be submitted or retained by a natural person in order to comply
with any provision of this Part or regulations issued thereunder shall, except as
provided by the laws on perjury or false swearing, be used, directly or indirectly, as
evidence against that person in a criminal proceeding with respect to a violation of
law occurring prior to or concurrently with the filing of the application or
registration, or the compiling of the records containing the information or evidence.
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§ 1791. Penalty

Upon the first violation of any provision of this Part the penalty shall be a fine
of not less than five hundred dollars nor more than two thousand dollars and
imprisonment with or without hard labor for not less than one nor more than five
years. For any subsequent violation of this Part the penalty shall be a fine of not less
than two thousand dollars nor more than five thousand dollars and imprisonment at
hard labor for not less than five years nor more than ten years.

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set forth in La.R.S. 40:1781(3)5, as it was stipulated to at trial that the object at issue

was a pistol with a valid serial number.

We note that in an election contest, the person objecting to another’s

qualifications as a candidate bears the burden of proof. See La.R.S. 18:492. No other

evidence was presented at trial by Chrishon of a Louisiana felony offense for which

Marshall could have been charged under the circumstances. Accordingly, we find no

error in the trial court’s dismissal of Chrishon’s petition.

The Claim of Felony Conspiracy Under La.R.S. 14:26

The appellant, Chrishon, asserts on appeal for the first time, that La.R.S. 14:26,

the Louisiana felony offense of criminal conspiracy, is a crime that Marshall could

have been charged with in Louisiana for the acts that resulted in his federal

conviction. He asserts that Marshall must be disqualified from qualifying to seek

election to the city council on this basis.

The Uniform Rules—Courts of Appeal, Rule 1–3, states that issues not

submitted to, and decided by, the trial court are not generally reviewable on appeal.

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§ 1781. Definitions

For the purpose of this Part, the following terms have the meanings ascribed
to them in this Section:
....
(3) "Firearm" means a shotgun having a barrel of less than eighteen inches in
length; a rifle having a barrel of less than sixteen inches in length; any weapon made
from either a rifle or a shotgun if said weapon has been modified to have an overall
length of less than twenty-six inches; any other firearm, pistol, revolver, or shotgun
from which the serial number or mark of identification has been obliterated, from
which a shot is discharged by an explosive, if that weapon is capable of being
concealed on the person; or a machine gun, grenade launcher, flame thrower,
bazooka, rocket launcher, excluding black powder weapons, or gas grenade; and
includes a muffler or silencer for any firearm, whether or not the firearm is included
within this definition. Pistols and revolvers and those rifles and shotguns which
have not previously been defined in this Paragraph as firearms from which serial
numbers or marks of identification have not been obliterated are specifically exempt
from this definition.

(Emphasis added).

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This issue was not presented to the trial court and is not properly before this court for

review.

DECREE

The trial court did not legally err in determining that La.Const. art. 1, § 10 does

not prevent the defendant-appellee, Louis J. Marshall, Jr., from qualifying as a

candidate for City Council, District 1, in Alexandria, Louisiana. Accordingly, the

judgment of the trial court is affirmed, and costs of this appeal are assessed to the

plaintiff-appellant, James Roy Chrishon.

AFFIRMED.

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