Opinion
No. 6200.
January 4, 1974.
Gibson Tucker, Jr., Tucker Schonekas, Jerald N. Andry and Gilbert V. Andry, III, New Orleans, of counsel, J. David McNeill, New Orleans, for Jim Garrison, plaintiff-appellant.
Fritz H. Windhorst, William F. Wessel, Peter J. Abadie, Jr., Anita L. Connick, David S. Cressy, New Orleans, Peter E. Duffy, Metairie, Maurice G. Indest, Adolph J. Levy, Frank A. Marullo, Jr., Samuel C. Gainsburgh, Calvin H. McBride, Richard S. McBride, Jr, James A. McPherson, John M. Mamoulides, John A. Mmahat, New Orleans, Melvin Giepert, Algiers, for Harry Connick, defendant-appellee.
Before SAMUEL, REDMANN, GULOTTA, STOULIG, BOUTALL, SCHOTT and MORIAL, JJ., and BAILES and MARCELL, JJ., Pro Tem.
This is a second primary election contest involving the office of District Attorney for the Parish of Orleans. Plaintiff is seeking to be declared the democratic nominee or, alternatively, is seeking to set aside the results of the election.
The total tabulation as promulgated by the Orleans Parish Democratic Executive Committee shows Harry F. Connick to be the Democratic nominee by a vote of 64,952 for Connick and 62,731 for Garrison, or a majority of 2,221.
Jim Garrison alleges in his petition, as amended, that 2,369 fraudulent votes were cast in precincts by persons who did not appear at the polling both based upon the fact that names were entered on the poll lists and votes were cast through the voting machine in a corresponding number resulting in more votes being cast than are registered on the precinct register.
He further alleges in his original and supplemental and amended petitions in excess of 10,000 instances of irregularities consisting of incorrect dates or no dates on the registration cards (3,883); no signatures of the commissioners on the precinct cards (3,003); voters who were allowed to vote who did not sign the precinct register (1,025); persons were allowed to vote without providing a sample signature (1,997); "alterations and line-outs" on the precinct cards (1,930).
According to Garrison's petition, all of the commissioners and/or watchers were representing Connick or were supporters of his political faction or sympathetic to his faction and fraudulent votes were cast surreptitiously; and, accordingly, Connick's margin of victory (2,221 votes) came as a result of fraud and irregularities. From a judgment maintaining an exception of no cause of action, plaintiff appeals.
We are confronted first with the question of whether supplemental and amended petitions can be considered in determining if a cause of action has been stated. The trial judge concluded in reasons for judgment that only the allegations contained in the original petition can be considered. However, he further reasons that assuming the supplemental and amended petitions were considered, a cause of action is not stated.
The controlling statute is LSA-R.S. 18:364, which provides as follows in setting forth the requirements of the petition.
"* * * The petition shall set forth specifically in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made. * * *"
The original petition fails to state specifically and in detail the fraud and irregularities relied upon to set aside the election. However, our interpretation of the statutes and jurisprudence as reflected by Burch v. McClendon, 123 So.2d 636 (La.App. 1st Cir. 1960), and Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755 (1958), permits the filing of a supplemental and amended petition where the amended pleadings particularize or amplify the original allegations.
While it appears that the language concerning supplemental and amended petitions in the Dowling case is dicta, nevertheless, we believe the wording and rationale contained therein are sound.
True, the statute places stringent requirements on the expeditious filing of election contests; nevertheless, the language of the statute cannot be so strictly construed as to deprive the contesting candidate of an opportunity to obtain specific information and to allege specific fact in detail prior to the date fixed for the hearing, provided those specific allegations contained in the amended pleadings particularize or amplify the original pleading. Applying this interpretation to the instant case, we are of the opinion that the supplemental and amended petitions must be considered in determining if a cause of action has been stated.
LSA-R.S. 18:364 provides that no contest shall be entertained unless brought within two days of promulgation.
LSA-R.S. 18:364 requires a hearing to be held within five days from the date of filing.
We next turn to the consideration of whether the petition, as amended, states a cause of action. As pointed out herein above, the controlling statute (LSA-R.S. 18:364) requires that the allegations of irregularity or fraud must be set forth specifically in detail. The petition, as amended, contains in excess of 10,000 allegations of irregularity and 2,369 allegations of fraud.
We fail to find merit in the plaintiff's argument that the irregularities complained of constitute the basis for setting aside the election.
In Smith v. Washington Parish Democratic Committee, 239 La. 827, 120 So.2d 257, 260 (1960), the Supreme Court had before it a complaint of irregularities similar to those contained in the original and supplemental petitions in the instant case. The court stated in that case:
"Counsel for plaintiff in this Court bases his case entirely upon the contention that where the commissioners fail to perform any of their ministerial duties such as entering the date, signing the registration certificate after the voter or filling in all of the poll lists properly, the election must be annulled if the number of votes where these oversights occur exceeds the difference in the vote between the two candidates. That is not the law.
"In the absence of fraud, mere failure of election officials to perform a ministerial duty will not warrant the setting aside of the election."
Accordingly, when we apply the language of the Smith case to the instant one, we conclude that the petition, as amended, does not allege irregularities sufficient to state a cause of action. See also Landry v. Ozenne, 194 La. 853, 195 So. 14 (1940).
However, we are more concerned here with the allegations relating to the 2,369 alleged or fraudulent votes. Plaintiff's petition, as amended, alleges that persons who did not appear at the polling booth were entered on the poll lists and votes were actually cast through the voting machine in a corresponding number and that more votes were cast than are registered on the precinct register. He further alleges that forged signatures were entered on the precinct register, and a corresponding number of votes were cast on the voting machine though the persons whose names were forged did not appear to cast their vote or sign their names. The petition further states that if such illegal and fraudulent votes were eliminated, the results of the election would have been materially changed, and Garrison would have been nominated.
The requirement as set forth in the statute is that the fraud be specifically alleged in detail. We are squarely confronted with the question of whether the allegations relating to fraud contained in the petitions, as amended, meets that requirement. We think not.
While the petition, as amended, particularizes in certain precincts and wards that more votes were cast than there are signatures on the precinct register, the allegations presume fraud resulted in these instances where the discrepancies exist which was either perpetrated by the commissioners or watchers or by others with the approval of the commissioners or watchers. These are conclusions presuming that fraud occurred in 2,369 instances. Some of these discrepancies could have resulted from commissioner negligence. See footnote 1 to opinion of Justice Howard E. McCaleb in the Dowling case, supra, 102 So.2d at page 767. Furthermore, allegations that merely because commissioners and/or watchers were all sympathetic to one candidate cannot serve as a basis of specifying in detail that those irregularities in all of those precincts resulted in votes being cast for one candidate. Particularly is this true where, as in the instant case, there were four second primary elections and the commissioners and watchers could have been designated by any of the runoff candidates. The extra votes might have been cast for some other candidates and not for Connick. Allegations of this nature constitute complaints of a general nature which cannot be permitted under the statute. It cannot be presumed that the commissioners and/or watchers committed fraud. Factual allegations of fraud must be alleged, not conclusions presuming fraud. Plaintiff must allege the persons who perpetrated the fraud and those electors who did not appear at the polls and whose names were placed on the poll list for whom votes were allegedly cast on the machine. If plaintiff knows the names of the persons, he should allege; and he alleges he knows who did not appear at the polls. Fraud cannot be alleged in a vacuum. See Molero v. Rowley, 194 La. 527, 194 So. 7 (1940).
Plaintiff strongly relies on the holding of the Louisiana Supreme Court in Dowling v. Orleans Parish Democratic Committee, supra, in which the court by a majority vote set aside the election results and declared the contesting candidate the party nominee. Garrison calls to our attention the language in the Dowling case which states:
"* * * Since the election officers themselves, according to the uncontradicted testimony, were the only persons in a position to cast the illegal ballots or to permit them to be cast, and since they were supporting O'Hara it is inconceivable that the votes would have been cast for a candidate other than the one of their choice. We have therefore concluded that the 17 fraudulent votes were cast for O'Hara and should be deducted from the total vote credited to him, thus leaving plaintiff with a clear majority of the legal votes cast and entitling him to the nomination for the Democratic Party for the office of District Attorney of Orleans Parish. * * *"
However, it is significant in that case that the court concluded that 17 instances of illegally or fraudulently cast votes were proved to have been committed by the commissioners in one precinct. The vote differential, in that case, between the two candidates was 13. However, here, 2,369 instances of fraud are alleged. With specific reference to the Dowling case, the court in Smith v. Washington Parish Democratic Committee, supra, said, 120 So.2d at page 261:
"Plaintiff, in support of his position, relies upon language in the case of Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755, 765 to wit: 'We also find it unnecessary to discuss further the failure of commissioners to sign the precinct register after the voter has placed his signature thereon, and to enter the date of the election in the proper space, other than to say that such gross irregularities cannot be condoned. * * *' Counsel for plaintiff interprets this passage from the Dowling case to mean that such votes are illegal in the eyes of the law even in the absence of fraud sufficient to alter the result of the election. This is not a proper interpretation of that language. In the Dowling case the majority opinion held that sufficient fraud was proved to alter the result of the election."
In Landry v. Ozenne, supra, a case involving the nominee for sheriff, the Supreme Court affirmed the judgment of the trial court maintaining an exception of no cause of action where fraud and irregularity were alleged in that ballots were spoiled. The court stated on page 18 in that opinion:
"* * * Certainly, if plaintiff knew of any specific ballots being spoiled for a specific reason, he should have so stated and not rely upon language which would cover every conceivable means of irregularity. * * *"
The Court went on further to say:
"* * * Such language as plaintiff has used in these charges now being dealt with are, to say the least, speculative, and only give rise to a mere suspicion and ultimately present a matter purely problematical. * * *"
See also Treadaway v. Plaquemines Parish D. Committee, 193 So. 609 (Orl., La.App. 1940); State v. Mills, 191 La. 1, 184 So. 350; Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292.
While the statute places a heavy burden of alleging and proving irregularities or fraud upon a contesting candidate, nevertheless, the language contained in the statute is clear. The legislature in its wisdom has required specificity in detail.
We conclude that the petition, as amended, does not meet the statutory and jurisprudential requirements since it does not specifically allege in detail the fraud relied upon to set aside the election. The judgment maintaining the exception of no cause of action is affirmed.
Affirmed.
I cannot agree with the majority conclusion that the trial judge erred in refusing to allow the filing of the second and third amended and supplemental petitions.
R.S. 18:364, which controls this election contest, is sui generis and the only vehicle under our law by which primary elections can be contested. That statute must be followed strictly. The Code of Civil Procedure articles relative to amended and supplemental pleadings are applicable here only insofar as those articles are not in conflict with R.S. 18:364. While the election laws may appear to be harsh as compared with most non-election cases, such harshness is necessary because of the time requirements which must be met regardless of any other considerations. The primary election must be final in time for the winning party nominee to be a candidate in the general election.
Pertinent to when the election contest must be heard by the trial court, R.S. 18:364B provides:
". . . The contestee shall answer not later than ten o'clock A.M. on the fifth day after service, including Sunday and legal holidays; if the fifth day is a Sunday or other legal holiday, then on the next succeeding legal day. At that time, whether the contestee has answered or not, the court shall proceed without further delay and in a summary manner to try the issue presented . . ." (LSA-R.S. 18:364B)
The quoted language requires trial, on both exceptions and merits, on the fifth day after service or, if that day be a legal holiday, then on the next succeeding day which is not a legal holiday. Quite clearly, there can be no delay which could possibly result in a failure to choose the party nominee by election.
In the instant case Mr. Garrison filed his suit on December 21, 1973. Service was made on the defendants the same day and they answered on December 23rd. Plaintiff then filed a first amended and supplemental petition on December 22nd. He attempted to file second and third amended and supplemental petitions on December 24th and December 26th, respectively. The date of trial, as set by the court in accordance with the above quoted statutory provisions, was December 26th. No objection was made to the filing of the first supplemental petition; objections were made to the other two.
Under Article 1151 of the Code of Civil Procedure, in the absence of written consent by the adverse party a petition may be amended after answer only by leave of court and the granting of such leave is within the sound discretion of the trial judge. Here, in view of the fact that the permission to amend would necessarily include additional time given to the defendants to prepare their defense and file an answer, and in view of the additional fact that the trial of this matter unquestionably would have consumed a long time, it is quite possible that the matter could not have been heard and finally disposed of in sufficient time to permit the party nominee, chosen by election, to enter the general election. Under these circumstances the trial judge did not abuse his discretion by refusing to permit the filing of the second and third amended and supplemental petitions.
As I agree with the majority conclusion affirming the judgment which maintained the exceptions and dismissed the suit, I respectfully concur.
I dissent.
The basic issue before us is whether the contestant met the requirements of LSA-R.S. 18:364 which provides that the petition shall set forth specifically in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made. My disagreement with the majority is mainly a matter of the degree of specificity in detail required.
The contestant alleges in Article 10 of his original petition the following:
"In many precincts on December 15, 1973, the names of persons who did not personally appear in the polling booth were entered on the poll lists and votes were actually cast through the voting machines in a corresponding number."
This is followed by an itemization of each precinct complained of, showing the number of votes on each machine, the number of voters appearing on the precinct register, and the difference between these two numbers. This itemization was amplified in a supplemental petition and demonstrates more than 100 votes above the contestee's majority.
These facts are then used as the basis for the following allegations:
"11.
"Said votes were illegally and fraudulently cast and are of such a nature and in such a quantity that the results of this election will be materially changed if such illegal and fraudulent votes are eliminated from the tabulation, and but for such fraudulent and illegal votes petitioner would have received the majority of the legal votes cast; as a result of said illegality and fraud, your petitioner who has been legally nominated for the office of District Attorney for the Parish of Orleans may be deprived of his nomination."
* * * * * *
"14.
"All of the commissioners and/or watchers were representing HARRY F. CONNICK or were supporters of his political faction and all of the fraudulent and illegal votes were cast surreptitiously so that petitioner had no opportunity to lodge a formal protest."
Based upon the rationale of Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755 (1958), I am of the opinion that these allegations meet the statutory requirement of specific grounds and specific illegalities or frauds. To require that the contestant additionally name each of the 2400 or so allegedly fraudulent voters and the commissioners at the various precincts presents to me a rather insurmountable obstacle in the limited time afforded by statute.
I agree that the other grounds of contest relied upon are either too generally alleged or are removed from consideration by the case of Smith v. Washington Parish Democratic Committee, 239 La. 827, 120 So.2d 257 (1960), but that case did not pass upon the illegality stated above. Although this ground is mentioned in that case, an examination of the final issues presented by the 252 contested votes therein discloses that none of those votes were cast by voters who did not personally appear to vote.
Although this dissent is based primarily upon the Dowling case, supra, I cannot subscribe to all of the views expressed therein. The contestant has stated a cause of action under the rationale of that case, and should be permitted to have his day in court in order to offer proof of his allegations. I cannot agree that mere failure of a voter to sign the precinct register is sufficient ground of itself to consider the nullity of an election, but fraud is alleged here in an amount sufficient to have judicial inquiry into the fairness of the election and the true expression of the electorate. What the proof of these allegations will be is an entirely different issue.
REDMANN, Judge (dissenting).
This dissent is not based on any supposition that election irregularities are attributable to the contestee, Harry Connick, or to persons aligned with him. It merely expresses the view that the contestant, Jim Garrison, should have the opportunity to prove his allegations which leave the election outcome questionable.
Unfortunately, the appearance is sometimes falsely created that the courts and the legislature are striving to encourage rather than suppress election irregularities. The legislature attempts to limit courts not only by one or two-day action deadlines, but also by providing (as the courts interpret R.S. 18:362) that election contests become moot unless finished by absentee ballot printing time. See Downs v. Pharis, 1960, 240 La. 580, 124 So.2d 553.
The pressure of these deadlines effectively prevent the preparation and trial of any election contest with a large number of irregularities. If the contestant must discover the names of, say, 2,369 voters and list each, all in the space of 48 hours, he will probably not have time. And, if it is a fraud case in which he must present the testimony of each of those 2,369 voters by 30 days before the next election, perhaps six weeks off, he will probably not have time.
Paradoxically, then, the laws that are presumably to protect against fraud, illegality and irregularity are only effective against small frauds, etc. If the fraud or the like is big enough, the law guarantees that it will go undetected and therefore succeed.
This problem calls especially to the Legislature for solution, but meanwhile the courts could at least avoid compounding it.
The only question at this stage of this election contest is whether contestant Jim Garrison should be allowed a trial.
Louisiana's Constitution, art. 8 § 12, declares "The Legislature shall provide by law for the trial and determination of contested elections of all public officers, * * * which trials shall be by the courts of law, and at the domicile of the party defendant." Our Supreme Court has ruled that this provision applies to primary elections as well as general elections. McCall v. Regan, 1948, 214 La. 254, 36 So.2d 830.
The only election contests in which trial has been refused (when the court did have jurisdiction and the contest was timely) were cases where the number of absolutely illegal votes specifically alleged was not as large as the number by which the contestant lost the election. A court may constitutionally refuse actual trial in a case where, for example, the loser lost by 136 votes but only complained that 105 votes were illegally cast. The court in such a case may in effect concede that trial could prove 105 illegal votes, but the winner would still win by 31 (instead of the original 136) votes.
Thus there was no trial in McCall, supra, but no jurisdiction; in Downs v. Pharis, supra, but no time remained to print ballots. Another category is exemplified by Treadaway v. Plaquemines Parish, D.Comm., La.App. 1940, 193 So. 609, a two-vote margin case where six votes of registered voters were challenged, by a claim the voters were aliens; the court held registration cannot be attacked collaterally and therefore refused trial.
See, e. g., Lafargue v. Galloway, 1936, 184 La. 707, 167 So. 197.
Those were the numbers involved in Smith v. Washington Parish Demo. Comm., 1960, 239 La. 827, 120 So.2d 257 (in which the case did, in fact, go to trial). The Supreme Court there reasoned that, as to 147 votes, failures of the commissioners to date or sign after the voter's signature were mere "oversights" in their "ministerial duties" (120 So.2d at 260) and refused to declare those 147 votes illegal. There accordingly remained only 105 other votes in contest. The Court explained, at 120 So.2d 261: "Conceding, but not holding, that all of these 105 votes are illegal there are not enough votes to change the result of the election."
Here Garrison, the apparent loser by 2,221 votes, has set forth by ward and precinct a total of 2,369 votes cast in the names of persons who did not sign the precinct register. If it is conceded that 2,369 illegal votes were included in the tally, that number is "enough votes to change the result of the election."
The allegations as to those 2,369 illegal votes are not sufficient (if proven) to show that Garrison won, but they are sufficient to show that one cannot be certain who did win. Conceivably all 2,369 illegal votes went to Garrison, in which case he should have lost by 4,590; but conceivably all went to Connick, in which case Garrison should have won with 148 more legal votes than Connick. The point is that the results of the legal votes cast is unclear; the expression of the will of the people cannot be determined with certainty.
If our election laws are "to secure fairness in party primary elections", as our Constitution expressly requires in art. 8 § 4, we cannot tolerate elections with more votes than voters, when the extra votes number enough to decide the winner.
Specificity
In Garrison's original petition, as amplified by his first supplemental and amending petition (to which no objection was taken), he alleged (in several typed pages) for approximately 150 specified precincts the specific number of voter signatures and the specific number of votes shown by the voting machines in each precinct, then the specific number of extra votes in each precinct, and finally a total of 2,406 extra votes (reduced to 2,369 by a second supplemental and amending petition which amended some earlier figures).
The law, R.S. 18:364, subd. B, is that the "petition shall set forth specifically in detail the grounds on which the contest is based and the irregularities or frauds of which complaint is made."
This specificity requirement is met by allegations such as "In Ward 11 Precinct 14 the machines and poll lists registered 369 votes, the precinct register contained 353 signatures, for a difference of 16 illegal or fraudulent votes." The defendant is made 100% aware of exactly what he faces at trial: plaintiff must produce poll lists and precinct registers to show the votes were illegal.
He might further, but in my view is not obliged to, produce the voters in person to show the votes were fraudulent, i. e., not even cast by the voter.
Our Supreme Court in Landry v. Ozenne, 1940, 194 La. 853, 195 So. 14, 22, reaffirmed its explanation of the specificity requirement stated in State v. Mills, 1938, 191 La. 1, 184 So. 350, 354: "[O]ur decisions are uniform to the effect that general charges of fraud, mistake, intimidation, irregularities, etc., will be disregarded. If a contestant has a solid legal basis for complaint, he can readily state the specific facts on which he bases his complaint. A petition in which the complaints are couched in general terms can be regarded in no other light than as a mere fishing expedition which courts do not countenance." (Emphasis added.)
In my opinion Garrison had a "solid legal basis for complaint" and did state "the specific facts on which he bases his complaint." His petition is unlike that in Landry, of which the court said, 195 So. at 18, it declared "a certain number of ballots, or more, were spoiled. Needless to say, such an averment is a conclusion of the pleader. * * * The sum and substance of the language he has used is nothing but generalities. He conveys to the Court the averment that, if a certain ballot is not spoiled for one reason, it may or may not be spoiled for some other reason, and this, ad infinitum."
Garrison does not couch his first complaint (that of the 2,369 extra votes) in generalities. He specifies precinct, then machine and poll list total, then precinct register total in every instance of discrepancy.
Illegality
One may characterize some votes as merely irregular but legal (e. g., commissioner fails to sign, as in Smith, supra). At the other extreme is the fraudulent vote (e. g., commissioners vote persons who do not appear, as in Dowling, infra). But there is a third category of votes which are illegal and void though perhaps not fraudulent. The 2,369 votes which Garrison "specifically in detail" alleged were cast for persons who did not sign the precinct register fall into this middle category (though some may also be fraudulent).
See R.S. 18:238.
In Dowling v. Orleans Parish Demo. Comm., 1958, 235 La. 62, 102 So.2d 755, the majority and each of the three part concurrer, part dissenters unanimously and expressly agreed that the 17 votes in question were illegal (the majority said the court was unanimous they were "fraudulent") and could not be counted. Yet of those 17 votes only ten were by voters who testified they did not vote, so that seven had to be from the category of persons as to whom there was no other showing than that their names "were entered on the poll list as having voted, although their signatures did not appear on the precinct register." 102 So.2d at 763, n. 9. See also Justice McCaleb's partial dissent, 102 So.2d at 767, n. 1, where he suggests that if defendant had shown that the unsigning but otherwise qualified voters had actually cast the votes, "this deduction of illegality would be questionable * * *."
It is possible to argue that the critical margin in Dowling was only 9 votes, because that was the parish custodian's margin; R.S. 18:1193. See 102 So.2d at 757, n. 2. However, the court's ratio decidendi was expressly not limited to the ten proven fraudulent votes.
This unanimous declaration of illegality by the Supreme Court is unchanged by Smith v. Washington Parish Demo. Comm., supra. Smith's only reference to Dowling is to Dowling's dictum about "the failure of commissioners to sign the precinct register after the voter has placed his signature thereon * * *." See 120 So.2d at 261. (Emphasis added.)
Remedy
As Dowling indicated (and the three partial dissenters there would have ruled), "as an alternative, it has been recognized that if the Court finds the proven frauds and irregularities are of such a serious nature as to deprive the voters of the free expression of their will, it will decree the nullity of the entire election — even though the contestant might not be able to prove that he would have been nominated but for such fraud and irregularities (Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292; Vidrine v. Eldred, 153 La. 779, 96 So. 566)." 102 So.2d 762.
See also Hart v. Picou, 1920, 147 La. 1017, 86 So. 479, where an election was nullified because of emergency use of locally-printed ballots which did not safeguard by perforated numeration against "endless chain" vote fraud. Surely fraud is similarly invited (especially for future elections) if the law would tolerate votes without the voters' signatures: the commissioners could vote missing voters and even require the doubtfully-faithful partisans to stay home to be sure their votes were voted for the faction's choice.
The proper remedy, if Garrison upon trial can prove the 2,369 illegal votes he specifically alleged, is to annual the election.
Conclusion
Garrison's petition specifically alleges grounds for annulling the election. He may very well not be able to prove those grounds and therefore lose after trial. But Louisiana's constitutional provisions, for both fairness in primary elections and for "trial" of election contests, require that he be allowed to go to trial.