Opinion
No. 2015–CA–1034.
09-29-2015
Dionisha GRAHAM and Derrick A. Graham, Sr. v. Raymond C. CRAWFORD and Tom Schedler, In His Capacity As Louisiana Secretary of State.
Ike Spears, Spears & Spears, Shaun Mena, New Orleans, LA, for Plaintiffs/Appellees. Robert Emmet Couhig, Jr., Jeffrey T. Pastorek, Couhig Partners, LLC, New Orleans, LA, for Defendants/Appellants.
Ike Spears, Spears & Spears, Shaun Mena, New Orleans, LA, for Plaintiffs/Appellees.
Robert Emmet Couhig, Jr., Jeffrey T. Pastorek, Couhig Partners, LLC, New Orleans, LA, for Defendants/Appellants.
Opinion
ROSEMARY LEDET, Judge.
This is an election-disqualification suit arising out of a race for the office of Louisiana House of Representatives 99th District.Dionisha Graham and Derrick Graham, Sr.—both duly qualified voters and electors in the 99th District—filed this suit objecting to the candidacy of Ray Crawfordand seeking to disqualify him. The Grahams' sole ground for seeking to disqualify Mr. Crawford was pursuant to La. R.S. 18:492A(7)—falsely certifying that he filed his Louisiana individual tax return for one of the previous five years, the 2012 tax year.The trial court ruled in the Grahams' favor, disqualified Mr. Crawford, and ordered that his name be stricken from the ballot. SeeLa. R.S. 18:494A.From that judgment, Mr. Crawford appeals. The Grahams filed a motion to dismiss the appeal as untimely. For the reasons that follow, we deny the motion to dismiss the appeal and reverse the trial court's judgment.
This matter was heard by the Court en bancpursuant to La. R.S. 18:1409H.
In their Original Petition, the Grahams incorrectly identified the defendant as “Raymond C. Crawford”; however, they filed an Amended Petition to rename the defendant as “Ray Crawford.”
La. R.S. 18:492A(7) provides as follows:
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:
* * *
(7) The defendant falsely certified on his notice of candidacy 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 as provided in R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.
La. R.S. 18:494A provides:
When an objection to candidacy is sustained on the ground that the defendant failed to qualify for the primary election in the manner prescribed by law, that the defendant failed to qualify for the primary election within the time prescribed by law, or that the defendant does not meet the qualifications for the office he seeks, the final judgment shall disqualify the defendant as a candidate in the primary election for the office for which he failed to qualify properly.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2015, Mr. Crawford filed a signed and notarized Notice of Candidacy form for the office of Louisiana House of Representatives 99th District. Included in the form was a certification, as required by La. R.S.18:463A(2)(a)(iv), to the following:
8. If I am a candidate for any office other than United States senator or representative in congress, that for each of the previous five tax years, I have filed my federal and state income tax returns, have filed for an extension of time for filing either my federal or state income tax returns or both, or was not required to file either a federal or state income tax return or both.
On September 17, 2015, the Grahams filed an “Objection to Candidacy and Petition to Disqualify Candidate” (the “Original Petition”). The Grahams named as defendants “Raymond C. Crawford” and Tom Schedler, in his capacity as Louisiana Secretary of State. As noted at the outset, the Grahams' sole ground for their objection to Mr. Crawford's candidacy was La. R.S. 18:492A(7)—that he falsely certified his Notice of Candidacy form because he did not file his 2012 state tax return. For this reason, they averred that he should be disqualified from running as a candidate on the October 24, 2015 ballot.
On Saturday, September 19, 2015, the Grahams filed a Motion to Amend and Second Amended Objection to Candidacy and Petition to Disqualify Candidate (the “Amended Petition”). The Amended Petition was filed to correct the mistake in the name of the defendant. The Amended Petition renamed the defendant as “Ray Crawford.” The record, however, reflects that the trial court did not sign the order allowing the Grahams to amend the petition until September 23, 2015.
On September 21, 2015, the hearing in this matter was held. At the hearing, it was established that the Grahams' Original Petition was served on Mr. Crawford's agent for service of process—Arthur Morrell, Clerk of Orleans Parish Criminal District Court—pursuant to La. R.S. 18:1408.Although Mr. Crawford was not personally served, he indicated at the hearing that he received unofficial notice—a telephone call from a third party on the night of Friday, September 18th—and thus he appeared at the hearing pro se.He explained that he had insufficient time to retain counsel.
La. R.S. 18:1408provides:
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.
B. When service is made on the appointed agent, he shall immediately send notice thereof, together with a copy of the citation, by certified mail, return receipt requested, or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state, to addressee only, to the defendant at his domiciliary address as listed in his notice of candidacy. If the appointed agent has reason to believe that the candidate is temporarily absent from his domiciliary address as listed in his notice of candidacy, he shall give additional notice to the candidate in the manner required by this Subsection by mailing a copy of the citation to any place where the candidate temporarily resides.
C. Proof of mailing, certified by the official mark of the United States Postal Service, or by commercial courier as defined in R.S. 13:3204(D), when the person to be served is located outside of this state, along with the return receipt if received by the agent, shall be filed in the proceedings.
D. Service of process on and citation of the appointed agent, together with the posting of the petition as provided in R.S. 18:1406, shall be sufficient service to give the trial court jurisdiction over the person of the defendant.
At the hearing, the following three witnesses testified:
1. the defendant, Mr. Crawford;
2. the Custodian of Records for the Louisiana Department of Revenue (“LDR”), Vanessa LaFleur; and
3. Mr. Crawford's accountant, Ronald Cojoe.
The only documentary evidence introduced at the hearing was the following:
• the Grahams' affidavits establishing their standing to bring this suit,
• Mr. Crawford's Notice of Candidacy Form,
• the LDR's Public Record Request response (the “LDR's PR Response”), and
• Mr. Crawford's “2012 Individual Income Tax Declaration for Electronic Filing” form (the “2012 E–Filing Form”).
Mr. Crawford testified that for the previous five years he was employed as a minister. He testified that he not only filed his 2012 return, but also received a $17.00 refund for that tax year.
Ms. LaFleur, whose job duties include responding to public record requests, testified that the LDR received a public records request for Mr. Crawford's tax returns for the previous five years. She identified the LDR's PR Response that she prepared; the LDR's PR Response indicated that Mr. Crawford filed his state tax returns for all the previous five years except for the tax year 2012. She explained that, as a result of that public records request, it was discovered that “for the tax year 2012 our system does not have a filing for Mr. Crawford.” When asked whether she was absolutely certain that the LDR had no record of Mr. Crawford having filed a state return for the 2012 tax year, Ms. LaFleur replied: “I'm as certain as technology can be certain. We have a system. The system has been checked ever since the request came in up until 9:00 a.m. this morning [September 21, 2015] and we still do not show a filing in our system.”
Following Ms. LaFleur's testimony, the trial court granted Mr. Crawford's request for a short recess to allow him to produce his accountant, Mr. Cojoe.When the hearing resumed, Mr. Crawford questioned Mr. Cojoe whether he had any documentation showing that Mr. Crawford's 2012 state tax return was filed. Mr. Cojoe replied that he had the 2012 E–Filing Form, which Mr. Crawford signed on February 8, 2013. Mr. Cojoe, however, acknowledged that the 2012 E–Filing Form only authorized him to file Mr. Crawford's tax return electronically and that the form did not prove that the LDR actually received his tax return.
At that juncture, Mr. Crawford inquired regarding retaining an attorney to represent him. The trial court replied that Mr. Crawford could return to the hearing with both an accountant and an attorney. The hearing resumed with Mr. Crawford again proceeding pro se.
In an apparent attempt to bolster Mr. Crawford's case, Mr. Cojoe testified that in 2012 the LDR underwent a system upgrade, causing several taxpayers' returns to be deemed as unfiled by LDR. As a result, Mr. Cojoe explained that he had to resubmit several taxpayers' individual tax returns. Mr. Cojoe, however, acknowledged that this was not the case for Mr. Crawford who received a refund for 2012.Following this testimony, Mr. Crawford was allowed to recall Ms. LaFleur, who acknowledged that the LDR underwent a system upgrade in 2012. When questioned regarding the 2012 E–Filing Form, Ms. LaFleur testified that it documented Mr. Crawford's permission to have his return filed electronically, but “it would not indicate to me that that was actually done.” Continuing, she explained that “[i]f you want proof that it was filed electronically in our system, then you would request a certified copy showing that.”
Mr. Cojoe acknowledged that he had no proof that Mr. Crawford received a refund. According to Mr. Cojoe, “he [Mr. Crawford] spoke to me and told me he received it.”
Although at the hearing Mr. Crawford stated that he had a copy of his 2012 state tax return, he failed to introduce it. During his questioning of Ms. LaFleur, he showed her the copy of his alleged return. She testified that it was a tax return, but it was not a filed copy. She explained that it was a stamped “client,” file copy for his paperwork. She further explained that this “client” copy did not establish it was filed with the LDR.
At the close of the hearing, the trial court orally granted the Grahams' Objection to the Candidacy and Petition to Disqualify Mr. Crawford. On the following day, the trial court signed a written judgment disqualifying Mr. Crawford and ordering his name be stricken from the ballot. The judgment does not indicate the time it was rendered. SeeLa. R.S. 18:1409(providing that the judgment in an election-disqualification suit “shall indicate the date and time rendered.”). The judgment does indicate the following regarding the date on which it was rendered:
JUDGMENT RENDEREDon the 21st day of September, and READ AND SIGNEDon the 22nd day of September, 2015 in New Orleans, Louisiana.
This appeal followed.
Timeliness of the Appeal
The first issue to be addressed is the jurisdictional issue of the timeliness of the appeal. The time period for filing an appeal in an election-disqualification suit is set forth in La. R.S. 18:1409D, which provides, in part, that “[w]ithin twenty-four hours after renditionof judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs.” La. R.S. 18:1409D (emphasis supplied).
After this appeal was lodged, the Grahams filed a motion to dismiss the appeal as untimely. The Grahams contend that the trial court rendered judgment in open court at the close of the hearing on September 21, 2015, shortly before noon. The Grahams further contend that the trial court signed a written judgment the following day, which included the language quoted above—“JUDGMENT RENDEREDon the 21st day of September.” Citing the statutory language requiring an appeal be filed within twenty-four hours after the “rendition” of the judgment, the Grahams contend that Mr. Crawford's appeal filed two days—forty-eight hours—after the judgment was rendered is untimely.
By statute, a judgment is deemed to be rendered when it is signed by the trial judge. SeeLa. R.S. 18:1409J (providing that “[a]s used in this Chapter [CONTESTS AND CHALLENGES under Title 18, the Louisiana Election Code], judgment shall be deemed to have been rendered when signed by the judge.”); see alsoLa. C.C.P. art. 1911A (providing that “[e]xcept as otherwise provided by law, every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge.”).Although the trial court's judgment in this case indicates that it was “RENDERED” on September 21st, the trial court did not sign a judgment until the following day. By statute, the judgment was rendered on the day it was signed, September 22nd. The judgment does not indicate the time it was signed. Nonetheless, the well-settled principle is that “appeals are favored in the law. Unless the ground urged for dismissal is free from doubt, the appeal should be maintained.” Castillo v. Russell,05–2110 (La.2/10/06), 920 So.2d 863(citing U.S. Fire Insurance Co. v. Swann, 424 So.2d 240, 244–45 (La.1982)). Accordingly, we find Mr. Crawford's appeal, which was filed on the day after the judgment was signed and by statute rendered, is timely. We thus deny the Grahams' motion to dismiss the appeal.
See also Davis v. Malveaux,06–2096, p. 8 (La.App. 1 Cir. 10/24/06), 945 So.2d 70, 76(noting that “[a]lthough the judgment at issue was rendered in open court, no appeal may be taken from a final judgment until it has been signed by the trial judge” and citing La. C.C.P. art.1911 and La. R.S. 18:1409J); Walker v. Rinicker,29,361, p. 3 (La.App. 2 Cir. 9/6/96), 681 So.2d 1, 2(noting that “[t]he judgment is considered to have been rendered when it is signed by the trial judge” and citing La. R.S. 18:1409J); see also Fitzmorris v. Lambert, 382 So.2d 169, 183 (La.App. 1st Cir.1979)(noting that “[o]rderly procedure, in our opinion, requires a written, signed judgment.”); but see Buras v. Plaquemines Parish Democratic Executive Comm., 202 So.2d 678, 679 (La.App. 4th Cir.1967)(construing, in dicta, former La. R.S. 18:364, which provided “the appeal shall be filed in the appellate court within not more than five days from the Rendition of the judgment” to mean that “[t]he ‘rendition’, and not the possible delay in the ‘signing’ of a judgment in such a case, makes that date the beginning of the time allowed for an appeal.”).
Mr. Crawford's appeal
On appeal, Mr. Crawford asserts the following assignments of error:
1. The Trial Court did not have personal jurisdiction over Ray Crawford by the filing and constructive service of the Original Petition.
2. The Trial Court did not have personal jurisdiction over Ray Crawford by the late filing or waiver of service of the Amended Petition.
3. The Trial Court improperly extended the holding of Russo v. Burns,14–1963 (La.9/24/14), 147 So.3d 1111
to produce an unnecessarily harsh result and disregarded evidence establishing that Ray Crawford met his burden.
Because we find merit to Mr. Crawford's second assignment of error, we do not reach the other assignments.
A de novostandard of review applies to an appellate court's review of a trial court's finding on personal jurisdiction. See New Inv. Properties, LLC v. ABC Ins. Co.,07–0943, p. 3 (La.App. 4 Cir. 11/21/07), 972 So.2d 392, 395. To place Mr. Crawford's second assignment of error in context, we review the facts regarding service of both the Original Petition and the Amended Petition.
As the trial court noted in its reasons for judgment, the Original Petition was served pursuant to La. R.S. 18:1407on Mr. Crawford's agent for service of process, Mr. Morrell. The trial court further stated as follows:
La. R.S. § 18:1408does state that “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.” Here, while ultimately unsuccessful, this Court finds there was effort for domiciliary service through the Orleans Parish Sheriff on Crawford on the same date that the Clerk was served with the Petition. This is contrasted to Eugene v. Davenport,14–0953 (La.App. [4 Cir.] 9/9/14), 150 So.3d 56, wherein the Fourth Circuit found there was no effort, diligent or otherwise, to make domiciliary service on the candidate at his qualifying address and, thus the “failure to attempt to serve” the candidate with the lawsuit was sufficient reason alone to uphold the trial court's denial of the Objection to Candidacy.
The trial court thus found that service of the Original Petition was proper and provided jurisdiction. SeeLa. R.S. 18:1408D (providing that “[s]ervice of process on and citation of the appointed agent [the Clerk of Court], together with the posting of the petition as provided in R.S. 18:1406, shall be sufficient service to give the trial court jurisdiction over the person of the defendant.”)
The Grahams' petition included a request that a copy of their petition be “posted in a conspicuous place at the entrance of the office of the clerk of court pursuant to Louisiana Revised Statute § 18:1409.” There is no indication in the record that this was not done.
As noted earlier, the Grahams' named the wrong defendant in their Original Petition. As the Notice of Candidacy reflects, the candidate is “Ray Charles Crawford.” An election suit must be instituted against the person whose candidacy is challenged. SeeLa. R.S. 18:1402A(1) (providing that the proper party is “[t]he person whose candidacy is objected to.”). In an attempt to correct the mistake, the Grahams filed the Amended Petition on Saturday, September 19, 2015. In their certificate of service, the Grahams requested service on both Mr. Crawford and his agent for service of process, Mr. Morrell. There is no evidence that the Grahams made any attempt to have either Mr. Morrell or Mr. Crawford served with the Amended Petition before the hearing commenced on Monday, September 21, 2015.
At the hearing, the trial court raised the issue of service of the Amended Petition when Mr. Crawford, who was appearing pro se,was sworn in as the first witness. After Mr. Crawford identified himself as “Ray Charles Crawford,” the trial court asked him whether he was also known as “Raymond C. Crawford.” He responded in the negative and offered to produce his driver's license. At that point, the Grahams' attorney pointed out that they filed a motion to amend the petition to rename the defendant as Ray Crawford. The trial court asked whether the Amended Petition was served on the Clerk of Court. The Clerk of Court's attorney responded that he had not seen the Amended Petition. The trial court asked whether the Clerk of Court wished to waive service of the Amended Petition. Initially, the Clerk of Court's attorney responded as follows: “[W]e have no objection to it. We support it [the Amended Petition] being filed, but because we don't take a position in these kind of situations....” At this juncture, the following colloquy ensued:
THE COURT:
He has just indicated to the Court under oath that he is Ray C. Crawford which is in accordance with the motion to amend, so does the Clerk's Office wish to waive service on the motion to amend the petition and everything else in the original petition remains the same; is that correct?
MR. MENA [THE GRAHAMS' COUNSEL]:
Yes, Your Honor.
MR. DARNELL [THE CLERK OF COURT'S COUNSEL]:
We have no objection either way. We have no
THE COURT:
Objection to waiving service?
MR. DARNELL:
Correct.
THE COURT:
I'm not asking for anything substantive, just procedurally.
MR. DARNELL:
Right.
The trial court never asked Mr. Crawford whether he agreed to waive service of the Amended Petition.
On appeal, Mr. Crawford contends that the trial court erred in failing to find it lacked personal jurisdiction over him. In support, he cites the trial court's failure to obtain a waiver of service of the Amended Petition from him. He contends that there is no precedent for allowing the clerk of court to verbally waive service for a candidate in open court. He notes that La. C.C.P. art. 1201B and C state that a defendant may expressly waive citation and service by written waiver. He emphasizes that there was no written waiver. Moreover, he contends that “the proper individual to ask for a waiver of service would not be the agentfor service, but the principal—Ray Crawford, the purported defendant standing in court whose life was affected by this failure of due process.”
The Grahams counter that Mr. Crawford waived the objection to lack of personal jurisdiction by appearing at the hearing and participating. They also contend that Mr. Crawford was required to file a declinatory exception in order to preserve his objection of lack of personal jurisdiction.
Pursuant to La. R.S. 18:1407, a candidate appoints the clerk of court as his agent for service of process.Although the Original Petition was served on Mr. Morrell as Mr. Crawford's agent for service of process, the Original Petition named the wrong defendant. At the time of the hearing, neither Mr. Morrell nor Mr. Crawford had been served with the Amended Petition. Nor had the trial court granted the Grahams' motion to file their Amended Petition. Contrary to the Grahams' contention, Mr. Crawford could not waive personal jurisdiction by participating in the hearing because he was not named in the Original Petition. The fact that Mr. Crawford appeared at the hearing on the Original Petition thus was of no moment. Nor was Mr. Crawford required to file an answer to the Original Petition asserting a declinatory exception.SeeLa. R.S. 18:1406.
La. R.S. 18:1407provides:
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. 18:1406provides:
The defendant shall be served with citation directing him to appear in court no later than 10:00 a.m. on the fourth day after suit was filed, subject, however, to the provisions of R.S. 18:1408(D). The defendant is not required to answer the petition, but if he answers, he shall do so prior to trial.
Although the clerk of court is appointed and authorized by statute to accept service for the candidate, the clerk of court is not authorized to waive service. See Landiak v. Richmond,05–0758, pp. 6–7 (La.3/24/05), 899 So.2d 535, 541(holding any doubt must be resolved in favor of allowing a candidate to run for public office). We thus find merit to Mr. Crawford's contention that the clerk of court's waiver of service of the Amended Petition was without effect. Because he was not asked to do so, Mr. Crawford could not waive service. We thus find there was no waiver of service of the Amended Petition. Accordingly, we find that the trial court lacked personal jurisdiction over Mr. Crawford and that the judgment is thus invalid.
DECREE
For the foregoing reasons, the motion to dismiss the appeal filed by the appellees, Dionisha Graham and Derrick Graham, Sr., is denied. The judgment of the trial court is reversed.
MOTION TO DISMISS APPEAL DENIED; REVERSED
TOBIAS, J., concurs.
BONIN, J., concurs in the result with reasons.
LOBRANO, J., dissents with reasons.
TOBIAS, J., concurs.
I respectfully concur. I write primarily to emphasize that the appeal in this matter is timely.
In pertinent part, La. R.S. 18:1409states:
C. In all actions, the trial judge shall render judgment within twenty-four hours after the case is submitted to him and shall indicate the date and time rendered on the judgment. The clerk of the trial court shall immediately notify all parties or their counsel of record by telephone and/or facsimile transmission of the judgment.
D. Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appealand giving bond for a sum fixed by the court to secure the payment of costs. The clerk of the trial court shall give notice of the order of appeal to the clerk of the court of appeal and to all the parties or their counsel of record. The trial judge shall fix the return day at a time not to exceed three days after rendition of judgment. [Emphasis supplied.]
In my view, “rendition” of judgment means signinga judgment because Section 1409 D requires the dissatisfied party who wishes to appeal to obtain “an order of appeal.” Reading Section 1409 in pari materiawith La. C.C.P. art. 2121makes it clear that only a written judgment may be appealed. See Fitzmorris v. Lambert, 382 So.2d 169 (La.1979); Burkett v. Lewis,42,985 (La.App. 2 Cir.9/21/07), 966 So.2d 718; Davis v. Malveaux,06–2096 (La.App. 1 Cir. 10/24/06), 945 So.2d 70; Walker v. Rinicker,29,361 (La.App. 2 Cir. 9/6/96), 681 So.2d 1.
La. C.C.P. art. 2121states:
An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.
Unlike a writ application that may be taken from an oral ruling if commemorated by a minute entry or written judgment, an appeal may only be taken from a written judgment. La. C.C.P. arts. 2201and 2121; Rules 4–3 and 4–5 C(6), Unif. Rules, La. Cts. of App.
In the case at bar, the trial judge should have actually signed a judgment on the same day that she rendered her decision, which would have alleviated the confusion caused by rendering a decision on one day and signing a judgment on the next. Such would allow the clerk of court to “notify all parties or their counsel of record ... of the judgment.” That is, until a judgment is signed, nothing exists about which to notify. Mr. Crawford appealed within twenty-four hours of the signing of judgment.
As a matter of law, an amendment to a timely filed petition in an election contest is permitted. In the case before us, the Grahams did not name the proper party-defendant by 4:30 p.m. on 17 September 2015, the statutory deadline. SeeLa. R.S. 18:1406B. They named “Raymond C. Crawford,” not Ray Crawford, the appellant herein. This is no different from when the wrong person who is not solidarily liable with the person sued; if the wrong person is untimely sued, the claim against the proper party-defendant prescribes. In an election contest where all time limits are strictly construed and the time limits shortened dramatically from ordinary lawsuits, it is incumbent upon a plaintiff to name the correct party-defendant. In the case at bar, I do not find the amendments to the original petition by the Grahams filed after 17 September 2015 at 4:30 p.m., which are substantive in nature, to be timely or even permissible. See Lipsey v. Dardenne,07–1487 (La.App. 3 Cir. 11/29/07), 970 So.2d 1237; Garrison v. Connick, 288 So.2d 681 (La.App. 4th Cir.1974), rev'd on other grounds, 291 So.2d 778 (La.1974); Treadaway v. Plaquemines Parish Democratic Committee, 193 So. 609 (La.App.Orl.1940).
Qualifying for the primary election in this case closed on 10 September 2015.
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I further feel compelled to comment about my colleague's dissent in which he asserts, citing his dissent in Nixon v. Hughes,15–1036 (La.App. 4 Cir. 9/29/15), 176 So.3d 1135, 2015 WL 5708875, that the district court lacks subject matter jurisdiction to entertain a suit challenging a candidate for a seat in the Louisiana Legislature. La. Const. Art. III, § 4 sets forth the qualifications for a member of the legislature: (a) an elector; (b) at least 18 years of age on the date he qualifies for election; (c) residing in Louisiana for two years preceding his qualifying; and (4) actually being domiciled for one year in the legislative district from which he seeks election. La. Const. art. III, § 7 says that each house of the legislature is the judge of the qualifications and elections of its members. But La. Const. art. XI, § 1 requires the legislature to adopt an election code that provides “for the conduct of all elections.”
Pursuant to the Article XI mandate, the legislature adopted the Louisiana Election Code, La. R.S. 18:1, et seq.Without going into a detailed analysis of the Code, suffice it to say that the legislature has set up a framework for qualifying for and conducting all elections, including members of the legislature. Thus, the legislature provided a means for a citizen to question whether an individual possessed the qualifications to run for the office of a member of the legislature. Without that statutory authority, in theory, and by way of example, a 10–year–old, a non-elector, a non-citizen, or a Louisiana nonresident could qualify and run for the office of a Louisiana legislature member and only after such individual's election could it be questioned by a house of the legislature. Such is clearly not the intent.
The La. Const. art. III, § 7 provision (judging of the qualifications and elections) is intended to allow a house of the legislature to eject a member for bona fide cause, such as a serious crime. To embrace otherwise would allow a house of the legislature to eject a member because of his religion or his articulation or support of unpopular causes—in other words a supposed “nonconformist.” To think that the third branch of government, the judiciary, cannot provide a check upon the legislature in that regard would be pure bunkum.
BONIN, J., concurs in the result with reasons.
I concur because the result is that Reverend Ray Charles Crawford is permitted to stand for election to the House of Representatives. I, however, am of the view that the district court is without subject matter jurisdiction in a qualifications challenge to a candidate for a seat in the legislative branch of state government. See Nixon v. Hughes,15–1036 (La.App. 4 Cir. 9/29/15), 176 So.3d 1135, 2015 WL 5708875(Bonin, J., dissenting).
LOBRANO, J., dissents with reasons.
I respectfully dissent. I would affirm the district court's judgment, disqualifying Ray Crawford from candidacy for the 99thRepresentative District for the State of Louisiana. I do not find that the district court lacked personal jurisdiction over Crawford. I find that the procedural defects addressed in the majority opinion are issues of sufficiency of citation and service, to which Crawford waived any objection when he made a general appearance in person at trial before the district court on September 21, 2015. SeeLa. C.C.P. art 6; La. C.C.P. art. 925; La. C.C.P. art. 928.
I further find that, at the time Crawford signed his Notice of Candidacy, Crawford lacked sufficient knowledge of whether his accountant filed tax returns on Crawford's behalf for the year 2012. As Crawford did not know whether his accountant filed tax returns on his behalf for the year 2012, I find that Crawford falsely certified that he filed tax returns for the year 2012.
In Russo v. Burns,14–1963 (La.9/24/14), 147 So.3d 1111(“Burns II”), the Louisiana Supreme Court held that, without sending tax returns via certified mail or otherwise ensuring their delivery to the Louisiana Department of Revenue, the candidate, Burns, could not have known whether his tax returns were filed in compliance with Louisiana law when he signed his Notice of Candidacy. I do not interpret Burns IIto reach the question as to whether a court is permitted to consider a candidate's subjective intent or good faith beliefs in determining if a candidate should be disqualified for making an allegedly false certification. Instead, I read Burns IIto hold that it is false certification for a candidate to certify to facts of which the candidate does not have sufficient knowledge. I find the facts of Burns IIanalogous to the case on appeal, as Crawford could not have known whether the tax returns were filed by merely relying on the representations of his accountant, without further confirmation that the returns were filed. I would reach an equivalent result in this matter. For these reasons, I would affirm the judgment of the lower court disqualifying Crawford from candidacy for falsely certifying that he filed tax returns for the year 2012.