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In Eugene, supra, the Louisiana Fourth Circuit considered a candidacy challenge where the challenger failed to present any evidence that the candidate 6received service of process of the petition, or that any effort was made, diligent or otherwise, to make personal service on the candidate at his domiciliary address listed on his qualifying form.
Summary of this case from Williams v. GainesOpinion
No. 2014–CA–0953.
2014-09-9
Eliza EUGENE and Lawrence Galle v. Samuel DAVENPORT and Tom Schedler, in his Capacity as Louisiana Secretary of State.
Ike Spears, Spears & Spears, New Orleans, LA, for Plaintiffs/Appellants. Scott L. Sternberg, Bernard H. Ticer, II, Baldwin, Haspel, Burke, & Mayer, L.L.C., New Orleans, LA, for Defendant/Appellee.
McKay, C.J., concurred in result.
Bagneris, J., concurred in result.
Belsome, J., concurred in result and assigned reasons.
Bonin, J., concurred in result and assigned reasons.
Dysart, J., concurred in result and assigned reasons.
Love, J., dissented and assigned reasons with which Lombard, J., joined.
Jenkins, J., dissented and assigned reasons.
Ike Spears, Spears & Spears, New Orleans, LA, for Plaintiffs/Appellants. Scott L. Sternberg, Bernard H. Ticer, II, Baldwin, Haspel, Burke, & Mayer, L.L.C., New Orleans, LA, for Defendant/Appellee.
(Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
Plaintiffs, Lawrence Galle and Eliza Eugene, appeal the trial court's September 3, 2014 judgment denying their petition to disqualify Samuel Davenport as a candidate for the office of United States Representative of Louisiana's Second Congressional District. For reasons that follow, we affirm.
On August 22, 2014, Samuel Davenport filed a notarized “Notice of Candidacy” for the office of United States Representative of Louisiana's Second Congressional District. On August 29, 2014, plaintiffs filed an “Objection to Candidacy and Petition to Disqualify Candidate” in Civil District Court for the Parish of Orleans. In that petition, plaintiff Galle alleged that he is a registered voter and qualified elector in the Parish of Orleans, and plaintiff Eugene alleged that she is a registered voter and qualified elector in the Parish of St. John the Baptist. Both plaintiffs alleged that they are qualified electors in Louisiana's Second Congressional District.
Plaintiffs based their objection to Davenport's candidacy on La. R.S. 18:492(A)(1), which states:
A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(1) The defendant failed to qualify for the primary election in the manner prescribed by law.
Plaintiffs alleged that Davenport's Notice of Candidacy form was defective and fatally flawed for the following reasons:
(1) Davenport certified that he was running for a primary election to be held on August 20, 2014 when there is no Congressional election scheduled in Louisiana on that date;
(2) Davenport listed his domicile as 317 St. James Place, Laplace, Louisiana 70068, and certified that he was a duly qualified elector of St. John the Baptist in Ward/District 1, Precinct 5 when he was not a resident, registered voter or qualified election in the Parish of St. John the Baptist at the time that he qualified for office; and
(3) Davenport certified that, “All the statements contained herein are true and correct.”
Based on these allegedly false statements, plaintiffs maintain that Davenport must be disqualified as a candidate on the November 4, 2014 ballot.
In response to plaintiffs' petition, Davenport raised the declinatory exception of insufficiency of service of process and the peremptory exception of no cause of action. In support of his exception of insufficiency of service of process, Davenport argued he was not served with citation after service was made on the Clerk of Court, and that there was no “diligent effort” to effect personal service on him as required by La. R.S. 18:1408. In support of his exception of no cause of action, Davenport states that plaintiffs' petition does not state a valid cause of action because there is no allegation that he does not meet the requirements to serve in the United States House of Representatives as set forth Article I, 2, cl. 2 of the United States Constitution.
Following the hearing on plaintiffs' objection to candidacy, the trial court rendered judgment denying the petition to disqualify Davenport and denied the requests of both plaintiffs and Davenport for attorneys' fees and costs. In reasons for judgment,
the trial court stated that plaintiffs failed to prove that they had standing
The judgment and reasons for judgment were included in the same document, contrary to the mandate of La. C.C.P. article 1918, which states, in pertinent part: “When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.” An appeal lies only from the judgment, not from the reasons. I.F. v. Administrators of the Tulane Educational Fund, 2013–0696, p. 6 (La.App. 4 Cir. 12/23/13), 131 So.3d 491, 496, citing Greater New Orleans Expressway Com'n v. Olivier, 2002–2795, p. 3 (La.11/18/03), 860 So.2d 22, 24. This error does not invalidate a judgment that is complete and valid except for the inclusion of reasons. Id.
to object to Davenport's candidacy, and that their failure to submit any evidence to support this element of their case was fatal to their action. Although plaintiffs alleged in their petition that they were registered voters and qualified electors in the Second Congressional District, their petition was unverified and no stipulation or testimony was offered at the hearing in support of this allegation. Because the trial court found that lack of standing is dispositive of this matter, the court stated that it did not need to reach the remaining issues raised by the parties. Plaintiffs now appeal.
The statutes cited by the trial court regarding standing to bring a suit objecting to candidacy are La. R.S. 18:491(A), which states that “[a] registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office for which the plaintiff is qualified to vote,” and La. R.S. 18:1401(A), which states that “[a] qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote.”
In their sole assignment of error, plaintiffs argue that the trial court erred in denying plaintiffs' Objection to Candidacy and Petition to Disqualify Candidate based solely on standing and in not addressing the merits of plaintiffs' election challenge. Plaintiffs argue that the ruling of the trial court should be reversed.
In an election contest, the person opposing the candidacy bears the burden of proving the candidate is disqualified. Becker v. Dean, 2003–2493, p. 7 (La.9/18/03), 854 So.2d 864, 869. The laws governing the conduct of elections must be liberally construed so as to promote rather than defeat candidacy. Id. Any doubt as to the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Id.
Plaintiffs argue that the proper procedure to object to standing is a peremptory exception of no right of action, which could have been raised by Davenport or by the trial court on its own motion. Because the issue of standing was not raised by Davenport or the trial court at any time prior to or during the hearing of the matter, plaintiffs argue that the trial court erred in dismissing plaintiffs' suit for lack of standing without allowing the plaintiffs to cure any alleged deficiencies on this issue.
In Howard v. Administrators of the Tulane Educational Fund, 2007–2224 (La.7/1/08), 986 So.2d 47, the Louisiana Supreme Court stated the following rules regarding an exception of no right of action:
When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit. Harry T. Lemmon & Frank L. Maraist, 1 Louisiana Civil Law Treatise, Civil Procedure 6.7, 121 (West 1999). The objection is urged through the peremptory exception of no right of action raised by the defendant or noticed by the court on its own motion, in either the trial or appellate court. Id.; La.Code Civ. Proc. arts. 927 and 2163. If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence, but the plaintiff should be permitted to amend to state a right of action if he or she can do so. Lemmon & Maraist, supra; R.G. Claitor's Realty v. Juban, 391 So.2d 394, 398–99 (La.1980); La.Code Civ. Proc. art. 934. If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections. Lemmon & Maraist, supra; La.Code Civ. Proc. art. 931.
Id., pp. 16–17, 986 So.2d at 59–60; (footnote omitted).
In this case, although the trial court had the right to notice an exception of no right of action on its own motion, the record shows that at no time prior to the final judgment in this matter were plaintiffs made aware that there was any issue as to their standing to bring this action. As a result, plaintiffs had no opportunity to introduce evidence to controvert any objections to their right to bring this action.
A similar situation was presented in the case of Eubanks v. Hoffman, 96–0629 (La.App. 4 Cir. 12/11/96), 685 So.2d 597. In Eubanks, the trial court dismissed a plaintiff's claim for no right of action, and plaintiff argued on appeal that he was not given an opportunity in the trial court to present evidence to show his right of action. Agreeing with the plaintiff's argument, this Court stated:
Thus, we might affirm the trial court's dismissal of Mr. Eubanks' claim, under an exception of no right of action, but we are concerned that Mr. Eubanks did not have the required procedural opportunity to present evidence to prove that he, as opposed to Diamond, has a right of action for recovery of the alleged advances. Mr. Eubanks' brief states that at no time did Mr. Hoffman or Resource Development file an exception of no right of action and, based upon our review of the record, Mr. Eubanks appears to be correct in that regard. Thus, it appears that the trial court raised the exception of no right of action upon its own motion which, of course, the trial court had authority to do. La.Code Civ. Proc. art. 927; Teachers' Retirement System v. Louisiana State Employees' Retirement System, 456 So.2d 594, 598 (La.1984). Mr. Eubanks' brief also states that, at no time during the trial, was Mr. Eubanks' right of action ever questioned and, based upon our review of the trial transcript, that appears to be correct as well. Thus, the first notice to Mr. Eubanks that his right of action was at issue came in the trial court's Judgment and Reasons For Judgment which decided the entire case. That is, at no time prior to submission of the case to the trial court for decision, was Mr. Eubanks put on notice, by the pleadings or otherwise, that he needed to present evidence to show his right of action.
Id., pp. 4–5, 685 So.2d at 599.
Although this Court, in Eubanks, vacated the trial court's dismissal of plaintiff's claim for no right of action, and remanded the case for an evidentiary hearing as to plaintiff's right of action, such action is not necessary in the instant case. The trial court's statements regarding plaintiffs' failure to prove standing are part of the reasons for judgment, which are not controlling and do not constitute the judgment of the court. Kaufman v. Adrian's Tree Service, Inc., 2000–2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. Furthermore, even assuming that plaintiffs have standing, we find no error in the trial court's denial of plaintiffs' objection to Davenport's candidacy based on our conclusion that Davenport's exceptions of insufficiency of service of process and no cause of action have merit.
In support of his exception of insufficiency of service of process, Davenport cites La. R.S. 18:1407 and 18:1408. La. R.S. 18:1407 states:
By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a general election, or contesting his election to office.
La. R.S. 18:1408(A) states:
If service of process is to be made on the appointed agent, as authorized by R.S. 18:1407, such service shall be made by serving citation on this agent, but at the same time that service is made on the appointed agent, a diligent effort shall be made to make personal service on the defendant at his domiciliary address as shown by his qualifying papers.
As noted by the trial court in reasons for judgment, the record shows that on August 29, 2014, Arthur Morrell, Clerk of Court for Orleans Parish Criminal District Court, was served with this lawsuit in his capacity as Davenport's agent for service of process pursuant to La. R.S. 18:1407. However, there is no evidence or allegation in the record that Davenport was ever served with process, or that any effort was made, diligent or otherwise, to make personal service on him at his domiciliary address listed on his qualifying form, as is required under La. R.S. 18:1408(A). Significantly, plaintiffs have not presented any argument to the contrary, either at the hearing in this matter, in their response to Davenport's posttrial brief or in their appeal brief.
Plaintiffs do not dispute the statement of Davenport's attorney made at the hearing that Davenport first learned of the lawsuit challenging his candidacy on the morning of the hearing when a friend told him about it. Considering that the laws governing the conduct of elections must be liberally construed so as to promote rather than defeat candidacy, Becker v. Dean, supra, we conclude that the failure to attempt to serve Davenport with this lawsuit is sufficient reason alone to affirm the trial court's denial of plaintiffs' objection to Davenport's candidacy. Additionally, we find no error in the trial court's judgment because plaintiffs' petition fails to state a valid cause of action.
The U.S. Const. Art. I, 2, cl. 2 sets forth qualifications for membership to the United States House of Representatives as follows:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
See also La. R.S. 18:1275. On the subject of qualifications for membership to the United States House of Representatives, the United States Supreme Court, in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), further stated:
In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from ‘any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that ‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office’; and 3 of the 14th Amendment disqualifies any person ‘who, having previously taken an oath * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.’
Id. at 521, 89 S.Ct. at 1963, fn. 41. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805, 115 S.Ct. 1842, 1856, 131 L.Ed.2d 881 (1995), the Court stated: “[i]n the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.”
The States cannot add to this exclusive list of qualifications. Plaintiffs' petition makes no allegation that Davenport does not meet the qualifications set forth in the United States Constitution to be elected and serve as a member of the United States House of Representatives.
We are mindful of this Court's opinion in Williams v. Fahrenholtz, 2008–0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, but find that it is distinguishable from the instant case. In Fahrenholtz, this Court was equally divided on the correctness of the trial court's ruling disqualifying James Fahrenholtz as a candidate in the Second Congressional District for the United States House of Representatives. Pursuant to La. Const. Art. V, § 8(B) and Parfait v. Transocean Offshore, Inc., 2007–1915, 2007–1998, p. 1 (La.3/14/08), 980 So.2d 634, 635, this Court issued a per curiam decree stating that the judgment of the trial court was affirmed in that the Court could not render a majority decree.
In Fahrenholtz, a petition was filed to disqualify the candidacy of Fahrenholtz based on the allegation that the candidate made a false representation on his Notice of Candidacy in that he stated that he did not owe outstanding fines, fees or penalties to the Campaign Finance Oversight Board, when in fact he did. Fahrenholtz filed an exception of no cause of action asserting that candidates for the United States House of Representatives were exempt from the Campaign Finance Disclosure Act (“CFDA.”) Fahrenholtz argued that the qualifications set forth in U.S. Const. Art. I, § 2, cl. 2 are exclusive and that state law cannot add or take away from the stipulated qualifications therein. In finding that the trial court correctly overruled Fahrenholtz's exception of no cause of action, the five judges of this Court voting to affirm the trial court found that the CFDA did not impose substantial qualifications upon the right to hold the office of a member of the United States House of Representatives.
The instant case does not involve alleged violations of the CFDA as in Fahrenholtz, and is therefore distinguishable from that case. The plaintiffs' main argument in this case is that Davenport should be disqualified because he falsely certified that he was domiciled and registered to vote in St. John the Baptist Parish, when he was in fact domiciled and registered to vote in Jefferson Parish. Plaintiffs' arguments regarding Davenport's incorrect listing of the election date are clearly without merit because that statement was obviously a mistake rather than a false certification.
With regard to the qualifications for membership in the United States House of Representatives set forth in the United States Constitution, it is undisputed that Davenport is currently over twenty-five years of age, and has been a United States citizen for more than seven years. Although it is also undisputed that he is currently an inhabitant of the State of Louisiana, that requirement only exists as of the time of election. Because a State cannot impose additional qualifications for becoming a member of the United States House of Representatives, questions on the Notice of Candidacy as to parish of domicile and parish in which a candidate is a qualified elector are irrelevant as to candidates seeking election to that office.
Given the fact that plaintiffs' petition does not include any allegation that Davenport does not meet the qualifications for membership in the United States House of Representatives as set forth in the United States Constitution, we conclude that plaintiffs' petition fails to state a valid cause of action for disqualifying him as a candidate for that office.
For the reasons stated above, we affirm the trial court's judgment denying plaintiffs' petition to disqualify Samuel Davenport as a candidate for the office of United States Representative of Louisiana's Second Congressional District.
AFFIRMED. McKAY, C.J., concurs in the result.
BAGNERIS, J., concurs in the result.
BELSOME, J., concurs in the result with reasons.
BONIN, J., concurs in the result with additional reasons DYSART, J., concurs, with reasons.
LOVE, J., dissents and assigns reasons.
LOMBARD, J., dissents for reasons assigned by LOVE, J.
JENKINS, J., dissents and assigns reasons. BELSOME, J., concurs in the result with reasons.
I concur with the result reached by the majority, but write separately to discuss one issue: may a state impose additional qualifications upon a candidate seeking a federal office other than those qualifications contained in the United States Constitution? The answer is no. Has the State of Louisiana attempted to impose greater qualifications on a candidate seeking to qualify for federal office? Yes. Specifically, the State legislature has enacted La. R.S. 18:463,
which has manifested itself in an administrative form filled out by candidates when registering to run for office. The statute and correlating form, commonly termed the “Qualifying Form,” does promote a legitimate state interest in assisting the Secretary of State and local electors in properly categorizing candidates for the ballot. However, due to numerous amendments, La. R.S. 18:463 has exceeded the scope of an administrative function and evolved into a list of qualifications/disqualifications that would compel the exclusion of otherwise constitutionally qualified candidates. Consequently, the form proposes additional qualifications not established in our Constitution.
La. R.S. 18:463(A)(2)(a) provides, in pertinent part, as follows:
The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
(i) That he has read the notice of his candidacy.
(ii) That he meets the qualifications of the office for which he is qualifying.
(iii) That he is not currently under an order of imprisonment for conviction of a felony and that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana.
(iv) Except for a candidate for United States senator or representative in congress, that for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.
(v) That he acknowledges that he is subject to the provisions of the Campaign Finance Disclosure Act if he is a candidate for any office other than United States senator, representative in congress, or member of a committee of a political party and that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act.
(vi) That, if he is a major or district office candidate as defined in R.S. 18:1483, he has filed each report he has been required to file by the Campaign Finance Disclosure Act, if any were previously due.
(vii) That he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.
(viii) That all of the statements contained in it are true and correct.
The United States Constitution in Article I, Section 2, Clause 2, establishes only three qualifications. The representative must be twenty-five years of age, a United States Citizen for seven years, and an inhabitant of the State when elected. Id. These qualifications are exclusive, and neither a state constitution nor state law can add to or take away from such qualifications. See Strong v. Breaux, 612 So.2d 111, 112 (La.App. 1st Cir.1992) (citation omitted). See also, Williams v. Fahrenholtz, 08–961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 106 (Murray, J., dissenting). Additionally, the State legislature has enacted identical qualifications for this office, and has further provided that the enumerated qualifications are exclusive.
La. R.S. 18:1275(B) and (C).
In particular, the Louisiana Election Code provides: “No person shall be a representative in Congress who has not attained the age of twenty-five years and who has not been a citizen of the United States for seven years and who is not, when elected, an inhabitant of this state.” La. R.S. 18:1275(B).
The plaintiffs' objection to the defendant's candidacy primarily involves whether he failed to comply with the directives set forth in La. R.S. 18:463. In particular, the plaintiffs allege that his Qualifying Form included incorrect and/or false information regarding the date of the election and the plaintiff's address, which are grounds for disqualification under La. R.S. 18:492(A)(1).
Such clerical errors should not defeat candidacy. As already discussed, these statutes cannot serve to incorporate additional qualifications for candidacy beyond those required under the United States Constitution and La. R.S. 18:1275. Since the defendant meets the constitutional qualifications for office, I find no error in the trial court's judgment denying the plaintiff's petition to disqualify the defendant. For these reasons, I concur in the result.
La. R.S. 18:492(A)(1) sets forth the following ground for objecting to candidacy:
(1) The defendant failed to qualify for the primary election in the manner described by law.
BONIN, J., concurs in the result with additional reasons.
I concur in affirming the trial court judgment. I write separately, however, to express three aspects of the majority opinion with which I may differ.
First, I agree with the concurring opinion of JUDGE DYSART that neither plaintiff offered any proof whatsoever at the trial that either was a qualified elector as a precondition to maintaining a challenge under La. R.S. 18:491 A and, accordingly, failed to establish an essential element of the cause of action to disqualify Mr. Davenport.
Second, by failing to timely file a declinatory exception of insufficiency of service of process and by appearing and participating in the expedited summary proceedings before the trial court, Mr. Davenport waived the objection of insufficiency of service of process. See La. C.C.P. arts. 925 C, 2593; see also Reed v. St. Charles General Hospital, 08–0430, p. 22 (La.App. 4 Cir. 5/6/09); 11 So.3d 1138, 1153.
Third, with respect to the evenly split decision as well as the rationales expressed in Williams v. Fahrenholtz, 08–0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, I view the so-called “dissenting” opinions of Judges Murray, Tobias, Belsome, and Landrieu
as dispositive of the issues presented in this case and find no need to distinguish Fahrenholtz in order to reach the result.
Retired Judge Moon Landrieu of this court, having reached the mandatory retirement age, was appointed by the Louisiana Supreme Court to serve as judge pro tem during the vacancy occasioned by Judge Cannizzaro's resignation from the court. See La. Const. art. 5, § 22(B).
DYSART, J., concurs, with reasons.
I join in the result reached by the majority, but write separately to provide my reason for reaching the same conclusion.
The fundamental prerequisite in a suit to object to the qualifications of a candidate is that the plaintiff(s) must be a qualified elector. Here, as found by the trial court, petitioners did not file a verified petition, nor was there testimony, affidavits or any stipulation offered that they were qualified electors. Absent proof petitioners were qualified to vote in the election, they are not qualified to object to the candidacy of an individual running in that election. See Booth v. Jefferson, 34,446 (La.App. 2 Cir. 9/6/00), 765 So.2d 1249.
LOVE, J., dissents and assigns reasons.
I respectfully dissent from the majority's opinion regarding standing and the merits of the plaintiff's objections to the qualification of Mr. Davenport.
The plaintiffs' Objection to Candidacy and Petition to Disqualify Candidate provided the following:
Plaintiff herein, LAWRENCE GALLE, is a person of the full age of majority residing and domiciled in the State of Louisiana, Parish of Orleans; at all material times herein LAWRENCE GALLE was a registered voter and qualified elector in the Parish of Orleans and Louisiana's Second Congressional District.
* * *
Plaintiff herein, ELIZA EUGENE, is a person of the full age of majority residing and domiciled in the State of Louisiana, Parish of St. John the Baptist; at all material times herein ELIZA EUGENE was a registered voter and qualified elector in the St. John the Baptist and Louisiana's Second Congressional District.
La. R.S. 18:491 does not place a burden upon a plaintiff objecting to candidacy to prove by affidavit or otherwise that he/she is a registered voter qualified to vote in the election wherein the candidate is seeking elected office.
The proper procedural vehicle to object to a plaintiff's standing is through the usage of a peremptory exception of no right of action, which can be urged by the defendant or raised by the court sua sponte. Howard v. Administrators of Tulane Educ. Fund, 07–2224, p. 16 (La.7/1/08), 986 So.2d 47, 59. “A proper analysis of a no right of action exception requires a court to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Id., 07–2224, p. 17, 986 So.2d at 60. “If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections.” Id., 07–2224, pp. 16–17, 986 So.2d at 59.
Counsel for Mr. Davenport did not include an exception of no right of action based on the plaintiffs' standing with the exceptions of insufficiency of service of process and no cause of action. The trial court never raised the issue of standing during the hearing on the merits. Accordingly, neither party was afforded an opportunity to introduce evidence to controvert the opposition, as standing did not become a known issue in the present matter until the trial court rendered its judgment. Although a trial court's reasons for judgment are not controlling upon this Court, the reasons are nonetheless procedurally helpful, in that the record demonstrates that the plaintiffs were never permitted to contest the trial court's beliefs as to standing. See Kaufman v. Adrian's Tree Serv., Inc., 00–2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. Thus, pursuant to La. C.C.P. art. 934
, I would remand the present matter to the trial court to afford the plaintiffs an opportunity to amend their petition and defend against the trial court's assertion that they lack standing. See Eubanks v. Hoffman, 96–0629, p. 2 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 598.
La. C.C.P. art. 934: Effect of sustaining peremptory exception, provides:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.
Assuming the plaintiffs have standing, I also dissent from the majority's holding that the trial court did not err in denying the plaintiffs' objection to Mr. Davenport's candidacy. Mr. Davenport's Notice of Candidacy included August 20, 2014, as the primary election date and certified that he was “a duly qualified elector of” St. John the Baptist Parish. Finally, Mr. Davenport certified that “[a]ll the statements contained herein are true and correct.”
Unlike the majority, I do not find that Williams v. Fahrenholtz, 08–0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 101; writ denied, 08–1680 (La.7/30/08), 986 So.2d 671, is distinguishable. Both Fahrenholtz and the present matter involve the integrity of the information provided by candidates and sworn to, in regards to the truthfulness, on the qualification forms. Five judges of this Court affirmed the trial court in Fahrenholtz, finding that Mr. Fahrenholtz should be disqualified based on the false certifications contained in his “Notice of Candidacy.” Fahrenholtz, 08–0961, p. 8, 990 So.2d at 105.
It is undisputed that Mr. Davenport was not a candidate in a primary election on August 20, 2014. It is also undisputed that Mr. Davenport is a registered voter of Jefferson Parish, as opposed to St. John the Baptist Parish. Accordingly, I find that Mr. Davenport should be disqualified from being a candidate in the election of the United States Representative for the Second Congressional District, as sufficient evidence established a prima facie case for disqualification based on a false certification in the “Notice of Candidacy” filed by Mr. Davenport. Therefore, unlike the majority, I find that the petition states a cause of action as to the false certifications as opposed to creating additional qualifications as a candidate.
Furthermore, Mr. Davenport's exception of insufficiency of service of process fails based upon the provisions contained in La. R.S. 18:1407, which states:
By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a general election, or contesting his election to office.
La. R.S. 18:1408 provides, in pertinent part, that:
A. If service of process is to be made on the appointed agent, as authorized by R.S. 18:1407, such service shall be made by serving citation on this agent, but at the same time that service is made on the appointed agent, a diligent effort shall be made to make personal service on the defendant at his domiciliary address as shown by his qualifying papers.
It is undisputed that Arthur Morrell, Clerk of Court for Orleans Parish Criminal District Court, was served with the plaintiffs' Objection to Candidacy and Petition to Disqualify Candidate on August 29, 2014, pursuant to La. R.S. 18:1407. Therefore, Mr. Davenport's exception of insufficiency of service of process lacks merit.
JENKINS, J., dissents and assigns reasons.
I respectfully dissent and find that the trial court should have allowed the plaintiffs to introduce evidence to controvert the court's objection to the plaintiffs' standing. The trial court found that the plaintiffs had not proven their right to bring the action objecting to the candidacy 67 of Mr. Davenport and that the issue of standing was dispositive of the entire matter. As the majority notes, the trial court had the right to notice an exception of no right of action on its own motion. However, prior to the final judgment, these parties were not aware that the plaintiffs' standing was in question. “If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to present evidence thereon.” La. C.C.P. art. 929(B). “On an exception of no right of action (as opposed to an exception of no cause of action), evidence may be admitted to either rebut or support the exception.” Eubanks v. Hoffman, 96–0629, pp. 5–6 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600 citing Teacher's Retirement System v. La. State Employees Retirement System, 456 So.2d 594, 597 (La.1984); see also, La. C.C.P. art. 931. If the trial court had raised this exception of no right of action during the hearing on September 2, 2014, or at any time prior to submission of the case for decision, the plaintiffs would have had notice and opportunity to present evidence of standing. In Eubanks, this Court found that the Louisiana Code of Civil Procedure provides the procedural opportunity to the plaintiff to controvert an objection to the right of action and that the plaintiff should be allowed the opportunity to present evidence to prove his right of action. 96–0629, p. 7, 685 So.2d at 600. This Court vacated the judgment insofar as it dismissed the plaintiff's claim due to no right of action and remanded the case for an evidentiary hearing on that exception of no right of action. Id., p. 9, 685 So.2d at 601–02. As in Eubanks, the trial court judgment, in this case, hinged on the finding that the plaintiffs had no standing to sue in this matter and the trial court did not provide plaintiffs the opportunity to rebut the exception of no right of action. Further, as the Court found in Eubanks, I find that the trial court erred by not affording the plaintiffs the opportunity to present evidence to rebut the objection to plaintiffs' standing or right of action. Consequently, I would vacate the trial court's judgment and remand this matter for an evidentiary hearing on the exception of no right of action and for such further proceedings to determine the merits of the remaining issues in this matter.