Opinion
No. 2014–CA–0957.
09-09-2014
Cedric L. RICHMOND v. Gary C. LANDRIEU and Tom Schedler, in his Capacity as Louisiana Secretary of State.
Ernest L. Jones, Elie Jones & Associates, New Orleans, LA, for Plaintiff/Appellee. Henry L. Klein, New Orleans, LA, for Defendant/Appellant.
Ernest L. Jones, Elie Jones & Associates, New Orleans, LA, for Plaintiff/Appellee.
Henry L. Klein, New Orleans, LA, for Defendant/Appellant.
(Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., 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 ).
Judge Terri F. Love and Judge Madeleine M. Landrieu are recused.
Opinion
DENNIS R. BAGNERIS, SR., Judge.
Appellant, Gary C. Landrieu (“Landrieu”), appeals a September 2, 2014 judgment, which ordered his disqualification as a candidate for the United States House of Representatives for the Second Congressional District. For the following reasons, we hereby reverse the judgment of the trial court.
FACTS
On August 20, 2014, Landrieu filed a “Notice of Candidacy” seeking to qualify for the office of United States Representative for Louisiana's Second Congressional District in an election to be held on Tuesday, November 4, 2014. Thereafter, on August 29, 2014, Cedric L. Richmond (“Richmond”) filed an Objection to Candidacy and Petition to Disqualify Landrieu alleging that Landrieu's Notice of Candidacy provided grounds for objection under Louisiana Revised Statute 18:492. Also made defendant in this lawsuit is Tom Schedler, solely in his official capacity as Louisiana Secretary of State.
Richmond argues in his petition that Landrieu should be disqualified because he signed a certification that he did not owe any outstanding fines, fees, or penalties when Landrieu did in fact owe approximately $700.00 in fines and fees to the Louisiana Board of Ethics. Attached to the petition were: (1) a copy of Landrieu's notice of candidacy, where he certified that he owed no outstanding fines, fee or penalties; and (2) copies of late fee assessment orders against Landrieu from the Louisiana Board of Ethics from April 14, 2014.
Although service was made on the Clerk of Court as agent for Landrieu, Landrieu was not personally served by the Civil Sheriff until after the hearing, on September 2, 2014 at 10:55 a.m. In light of Landrieu's absence at the hearing, the trial court appointed attorney Dennis W. Moore as curator ad hoc to represent Landrieu's interests.
The record contains copies of the sheriff returns for August 29th, 2014, as well as September 2, 2014.
Following a hearing on Richmond's objection to candidacy, the trial court rendered judgment granting the petition to disqualify Landrieu as a candidate for the United States House of Representatives for the Second Congressional District. Landrieu now appeals this final judgment.
DISCUSSION
On appeal, Landrieu essentially argues that he was not provided with proper notice of the suit and hearing, and that the trial court erred in disqualifying him from the congressional candidacy without proof that the alleged fee, fine or penalty was in fact due on August 20, 2014.
With regard to the sufficiency of service and notice of the petition objecting to the candidacy, La. R.S.18:1406 provides, in part:
Petition; answer; notification
A. An action objecting to the calling of a special election, objecting to candidacy, or contesting any election shall be instituted by filing a petition in a court of competent jurisdiction and venue and posting a copy of the petition in a conspicuous place at the entrance of the office of the clerk of court where the petition is filed.
B. The petition shall set forth in specific detail the facts upon the objection or contest is based....
C. 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.
La. R.S. 18:1407 provides:
Appointment of agent for service of process
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 second
party primary election or in a general election, or contesting his election to office.
La. R.S. 18:1408 provides:
Service of process; sending notice and copies; documents to be filed
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.
La. R.S. 18:1409 provides, in part:
Trial; decision; appeal
A. (1) Actions objecting to the calling of a special election, objecting to candidacy, or contesting an election shall be tried summarily, without a jury, and in open court. The trial shall begin no later than 10:00 a.m. on the fourth day after suit was filed.
(2) If the trial defendant does not appear on the date set for the trial, either in person or through counsel, the court shall appoint an attorney at law to represent him by instanter appointment made prior to the commencement of the trial. In a case where a court appointment of an attorney to represent the defendant is made, the proceedings shall be conducted contradictorily against the court-appointed attorney.
In this case, we find that the record reflects compliance with these provisions of law as (1) service was made on the Clerk of Court through Arthur Morrell, (2) a copy of the petition was posted on the fourth floor leading to the Clerk of Court's office as well as the first floor of the courthouse, and (3) the Sheriff made an attempt to serve Landrieu on August 29, 2014 at the address listed on his notice of candidacy, and eventually served Landrieu on September 2, 2014. Thus, we find that Landrieu was provided proper notice as required for due process.
The second issue for this Court to address is whether Richmond carried his burden of proof to establish a prima facie case that Landrieu owed, on the date he executed his qualifying form, any late fees under the Campaign Finance Disclosure Act.
The person objecting to the candidacy of a person bears the burden of proof. Landiak v. Richmond, 05–0758, p. 6 (La.3/24/05), 899 So.2d 535, 541. “Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified.” Id. However, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party. As the Louisiana Supreme Court stated in Landiak:
Generally, the legal term “burden of proof” “denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law.” Black's Law Dictionary (8th ed). Under Louisiana's civil law, the “burden of proof” may shift back and forth between the parties as the trial progresses. Therefore, when the burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on which the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is not required to present any countervailing evidence. On the other hand, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party to present sufficient evidence to overcome the other party's prima facie case.
Landiak v. Richmond, 05–0758, p. 8, 899 So.2d 535, 542.
Although Richmond attaches copies of late fee assessment orders against Landrieu from the Louisiana Board of Ethics from April of 2014, he fails to establish a prima facie case that Landrieu had late fees pending on August 20, 2014. In fact, when asked by the trial court whether the State knew if the fines had been paid, the State responded that it did not know. Thus, we find that Richmond failed to establish a prima facie case that Landrieu should be disqualified. Further, the parties do not dispute that Landrieu possesses the necessary qualifications required under Article 1, Section 2, Clause 2 of the United States Constitution in that he is over twenty-five years of age and has been a United States citizen for more than seven years . Accordingly, after reviewing this record, we find that Richmond failed to carry his burden of proof to establish a prima facie case that Landrieu owed, on the date he executed his qualifying form, any late fees under the Campaign Finance Disclosure Act. Because our decision regarding this issue is dispositive of this case, we need not address Landrieu's motion to strike and thus, deny the motion as moot.
The United States Constitution, Article I, § 2, sets forth the qualifications for members of 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.
For the reasons stated above, the judgment of the trial court is hereby reversed. Landrieu's candidacy for the office of United States Representative of Louisiana's Second Congressional District is hereby reinstated.
REVERSED; MOTION TO STRIKE DENIED.
TOBIAS, J., concurs and assigns reasons.BELSOME, J., concurs in the result and assigns reasons.
BONIN, J., concurs with additional reasons.
LOBRANO, J., concurs for the reasons assigned by Judge TOBIAS.
JENKINS, J., concurs in the result.
McKAY, C.J., dissents with reasons.
LOMBARD, J., dissents.
TOBIAS, J., concurs and assigns reasons.
A review of the record reveals that defendant/appellant, Gary C. Landrieu, timely submitted all documents and fees required to qualify as candidate for the United States House of Representatives, Second Congressional District. Pursuant to instructions from the Louisiana Secretary of State, Mr. Landrieu executed a form entitled “Notice of Candidacy-(Qualifying Form),” which contained the following language:
9. I acknowledge that I am subject to the provisions of the Campaign Finance Disclosure Act if I am a candidate for any office other than United States senator, representative in congress, or member of a committee of a political party and that I do not owe any outstanding fines, fees or penalties pursuant to the Campaign finance [sic] Disclosure Act.
The record fails to reflect whether Mr. Landrieu has outstanding fines payable to the Campaign Finance Oversight Board. However, believing that Campaign Finance Disclosure Act (“CFDA”) does not apply to candidates for the United States Congress, Mr. Landrieu signed the certification.
Plaintiff/Appellee, Cedric L. Richmond, filed the instant lawsuit against Mr. Landrieu and Tom Schedler, in his official capacity as Secretary of State and Commissioner of Elections for the State of Louisiana, to disqualify Mr. Landrieu from running for federal office on the ground that his notice of candidacy certification regarding outstanding state campaign finance fines was “false.”
The trial court rendered judgment on 2 September 2014, disqualifying Mr. Landrieu as a candidate for the Second Congressional District for the United States House of Representatives. Mr. Landrieu has filed the instant appeal, arguing, inter alia, that state election finance laws are preempted by federal law. I agree with Mr. Landrieu.
Article I, § 2, cl. 2 of the United States Constitution states:
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.
In recognition of federal law, Louisiana has adopted the requirements to run for federal office in La. R.S. 18:1275 :
A. No person shall be a United States senator who has not attained the age of thirty years and who has not been a citizen of the United States for nine years and who is not, when elected, an inhabitant of this state.
B. 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.
C. Notwithstanding any other provision of law to the contrary, the qualifications for United States senators and members of the United States House of Representatives as provided in this
Section shall be exclusive. [Emphasis added.]
Against this backdrop, I examine La. R.S. 18:463, which sets forth the requirements for filing a notice of candidacy. One of the requirements states that the notice of candidacy include a certificate signed by the candidate certifying that he does not owe any outstanding fines, fees, or penalties pursuant to the CFDA and that all statements contained in the notice are true and correct. La. R.S. 18:492 provides the grounds for objecting to a candidacy, stating in pertinent part:
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:
* * *
(5) The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act as provided in R.S. 18:463(A)(2).
Reviewing again the notice of candidacy, I find this part of the form to be ambiguous. On the one hand, the first part of numbered paragraph 9 of the form indicates that one is not subject to the CFDA when one is a candidate for congressional office and then continues to talk about not owing fines, fees, and penalties. One can read the clauses conjunctively. Given that a candidate running for a Representative in Congress is not subject to the CFDA, the conjunctive language of the form creates ambiguity. Based on the jurisprudence, such ambiguity must be construed in favor of allowing the candidate to run for office. As the Louisiana Supreme Court has stated, “[t]he laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office.” Russell v. Goldsby, 00–2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051, citing Dixon v. Hughes, 587 So.2d 679 (La.1991).
It is undisputed that candidates for federal office are subject to the Federal Election Campaign Act (“FECA”), 52 U.S.C.A. § 30101 et seq., whereby all federal campaign funds must be timely and accurately reported to the Federal Election Commission. It is further undisputed that candidates for federal office are not subject to Louisiana's Campaign Finance Disclosure Act, La. R.S. 18:1481 et seq. 1
In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the United States Supreme Court reviewed the history and text of the Qualifications Clauses in a case involving an attempted exclusion of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl.1, to judge the “Qualifications of its own Members” included the power to impose qualifications other than those set forth in the text of the Constitution. In the majority opinion, the Court held that it did not. Id. at 522, 89 S.Ct. 1944.
The “state” lawyer who appeared at the trial represented the Secretary of State and not the Supervisory Committee.
These fines and fees were assessed because Mr. Landrieu's 2013 supplemental report for the March 24, 2012 election for New Orleans City Council–at–Large was filed seven days late.
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It stands to reason that if Congress is without the power to impose any additional qualifications on its own members, then the Louisiana Legislature is likewise powerless to do so. However, if Mr. Landrieu wins the election, the Congress would be the appropriate entity to judge his qualifications in light of the alleged false certification in his Notice of Candidacy filed with the Louisiana Secretary of State.
In United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), the Court struck down an amendment to the Arkansas Constitution that prohibited the name of an otherwise eligible candidate for Congress from appearing on the general ballot if that candidate had already served a specified number of terms. The Court framed the issue in terms of “whether the Constitution forbids States from adding to or altering the qualifications specifically enumerated in the Constitution.” The Court explicitly referred to term limits as “qualifications.” Id. at 837, 115 S.Ct. 1842 (“[t]erm limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish.”). Similarly, the Court repeatedly used the term “qualifications” to refer to the age and residency requirements for membership in the United States Congress. The Court ultimately held that the challenged term limits amendment imposed an additional and unconstitutional “qualification” upon Congressional candidates that would effect a fundamental change in the Federal constitutional framework. Id.
To the extent that one might argue that the Williams v. Fahrenholtz, 08–0961 (La.App.4 Cir.7/25/08), 990 So.2d 99, writ denied 08–1680 (La.7/30/08), 986 So.2d 671, cert. denied Fahrenholtz v. Williams, 555 U.S. 1045, 129 S.Ct. 627, 172 L.Ed.2d 609 (2008), is precedent or support for the position that the trial court's decision should be affirmed, I note that this court's decision is not precedent for anything, the court having split evenly on a five-to-five vote, and the denial of a writ application is likewise not precedent for anything. State v. Williams, 00–1725, p. 4 n. 3 (La.11/28/01), 800 So.2d 790, 795 ; St. Tammany Manor, Inc. v. Spartan Building Corp., 509 So.2d 424, 428 (La.1987). Further, the notice of candidacy form now before us reads differently from that in Williams v. Fahrenholtz.
Under Parfait v. Transocean Offshore, Inc., 07–1915, 07–1998 (La.3/14/80), 980 So.2d 634, an even split of the judges in the court of appeal operates only to leave the trial court's decision undisturbed.
Because I find the certification in the Notice of Candidacy ambiguous and in violation of both state and federal law by imposing an additional qualification on the ability of one to run for federal office, I concur in the majority's decision to reverse the trial court and permit Mr. Landrieu to run for United States House of Representatives, Second Congressional District.
BELSOME, J., concurs in the result and assigns reasons.
I respectfully concur in the majority's reversal of the trial court's ruling. However, I would reverse on the grounds that La. R.S. 18:463 attempts to impose greater qualifications on a candidate. A candidate for the United States House of Representatives must be twenty-five years of age, a United States Citizen for seven years, and an inhabitant of the State when elected. That list is exclusive and cannot be added to by a state constitution or state law.See Strong v. Breaux, 612 So.2d 111, 112 (La.App. 1st Cir.1992), See also, Williams v. Fahrenholtz, 08–961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 106 (Murray, J., dissenting).BONIN, J., concurs with additional reasons.
52 U.S.C.A. § 30143(a) states:
Subject to subsection (b) of this section, the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State lawwith respect to election to Federal office. [Emphasis added.]
U.S. Const. art. 1, § 2, cl. 2.
There are two orders, dated March 6, 2014 and April 14, 2014, which appear to cover the same late-filing transgression, involving the filing of a 2013 Supplemental campaign finance disclosure report on February 25, 2014, which was seven days late.
Mr. Richmond is the incumbent United States Representative from the Second Congressional District of Louisiana and is running for re-election to that office.
I concur fully in the views expressed in the majority opinion and at the same time associate myself with the views expressed in the concurring opinions of JUDGES Tobias and Belsome amplifying that aspect of the majority opinion concerning the exclusivity of the constitutional qualifications for the office of a member of Congress.
I write separately to answer the arguments of the dissenting judges that Mr. Richmond made a sufficient prima facie showing that Mr. Landrieu owed an outstanding late fee imposed under authority of the Campaign Finance Disclosure Act at the time he filed his qualifying form for U.S. Representative from Louisiana's second congressional district.
“The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant.” Goldfinch v. United Cabs, Inc., 08–1447, p. 4 (La.App. 4 Cir. 5/13/09); 13 So.3d 1173, 1178 (emphasis added) (citing Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993) ). Thus, it is Mr. Richmond who must prove that Mr. Landrieu owed any outstanding late fee. But here, even assuming that Mr. Landrieu was obliged by La. R.S. 18:463 A(2)(v) to certify “that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act,” the evidence offered by Mr. Richmond that Late Fee Assessment Orders were previously issued to Mr. Landrieu only support a finding that at some time before Mr. Landrieu qualified he owed a late fee.1 The accompanying assessment letters, which were also introduced into evidence, noted that Mr. Landrieu under La. R.S. 18:1511.4.1 B and C(1) had three options: (1) pay the assessed late fee, (2) seek a waiver from the Supervisory Committee on Campaign Finance Disclosure (the Board of Ethics), or (3) appeal to the Ethics Adjudicatory Board. Thus, clearly, the documentary evidence did not establish that Mr. Landrieu had not taken any one of those three courses of action.
If Mr. Landrieu paid the late fee in full before he qualified, there is by definition no “outstanding” fee to trigger a violation under § 463 A(2)(v). See La. R.S. 18:463 A(2)(c)(iii) (“ ‘Outstanding fine, fee, or penalty’ shall not mean any fine, fee, or penalty that has been paid in full as of the time of the filing of the notice of candidacy.”)
If Mr. Landrieu received a waiver of payment from the Supervisory Committee, then again there would be no outstanding fee triggering a violation. See La. R.S.18:1511.4.1 B (noting that the Supervisory Committee may waive all or part of any fee assessed by the staff).
If Mr. Landrieu timely appealed the assessment order, and an adverse disposition of his appeal was not yet final, again by definition there is no outstanding fee due. See La. R.S. 18:463 A(2)(c)(i) (referencing determination of finality due to exhaustion of appeals or court proceedings).
Because Mr. Richmond bore the burden of disqualifying Mr. Landrieu, he was required to establish that there was an “outstanding late fee” due at the time of qualification; Mr. Landrieu was not required to prove the absence of an outstanding late fee. Oddly, Mr. Richmond offered some evidence that the late fee had once been assessed, but no evidence that it was “outstanding.” For example, the letters accompanyingthe Late Fee Assessment Orders warned that unpaid late fees “will be posted on the Board's website.” And, notably, the letter advised that “[i]f you timely submit a waiver request or appeal, your name will not be posted on the website pending the result of your appeal.” No evidence was offered by Mr. Richmond that Mr. Landrieu's name and late fee ever appeared on the Board's website.
The burden of establishing an outstanding late fee as of the time of qualifying is hardly burdensome because the Supervisory Committee on Campaign Finance Disclosure itself “shall bring or join in an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office on the grounds provided in R.S. 18:492(A)(6).” La. R.S. 18:491 C(1) (emphasis added). See, e.g., Louisiana State Bd. of Ethics v. Murray, 07–1219, p. 2 (La.App. 4 Cir. 9/21/07), 968 So.2d 1076, 1078 ; Louisiana State Bd. of Ethics v. Garrett, 06–0263, p. 4 (La.App. 4 Cir. 3/21/06), 929 So.2d 176, 178. Here, the Supervisory Committee did not join in the action and was not represented at the trial,2 suggesting that Mr. Richmond could not bear his burden of proving that there was an outstanding late fee.
McKAY, C.J., dissents with reasons.
For the following reasons, I respectfully dissent from the majority opinion and would affirm the judgment of the trial court.
In an election contest, the person opposing candidacy bears the burden of proving the candidate is disqualified. Becker v. Dean, 03–2493, p. 7 (La.9/18/03), 854 So.2d 864 (citing La. R.S. 18:492 ). Once the burden of proof is carried, the burden shifts to the person opposing disqualification to rebut the showing. See Landiak v. Richmond, 05–0758 (La.3/24/05), 899 So.2d 535 ; see also Louisiana State Board of Ethics v. Garrett, 06–0263 (La.App. 4 Cir. 3/21/06), 929 So.2d 176. If that party is unable to successfully rebut the evidence establishing the prima facie case for disqualification, the objection to candidacy is to be sustained. See Id. According to La. R.S. 18:494(A), the effect of sustaining an objection to candidacy is disqualification.
On August 20, 2014, Gary C. Landrieu filed a notice of candidacy seeking to qualify for the office of United States Representative from Louisiana's Second Congressional District in an election to be held on Tuesday, November 4, 2014. Cedric L. Richmond, a person of the full age of majority and a qualified elector for the Second Congressional District, filed an objection to candidacy and petition to disqualify the candidacy of Gary C. Landrieu on August 29, 2014.1 Also made defendant in this lawsuit was Tom Schedler, solely in his official capacity as Louisiana Secretary of State. In his petition, Mr. Richmond argues that Mr. Landrieu should be disqualified because Mr. Landrieu signed a certification that he did not owe any outstanding fines, fees, or penalties when Mr. Landrieu did in fact owe approximately $700.00 in fines and fees to the Louisiana Board of Ethics.2 Attached as exhibits to Mr. Richmond's petition were: 1) a copy of Mr. Landrieu's notice of candidacy, where he certified that he owed no outstanding fines, fees or penalties; and 2) documentation from the Louisiana Board of Ethics, which established that Mr. Landrieu had a fee assessed against him for the late filing of a campaign finance report from a previous election and as of April 14, 2014, those fees had never been paid. At trial, the trial court found that the plaintiff made a prima facie case and disqualified the defendant.
For a prima facie case, a party must present sufficient evidence to establish facts necessary to convince the trier of fact of the existence of the contested fact. Landiak v. Richmond, 05–0758 (La.3/24/05), 899 So.2d 535. The exhibits attached to Mr. Richmond's petition make a prima facie case that Mr. Landrieu signed a certification that he owed no outstanding fines, fees or penalties under the act when he did owe approximately $700.00. The exhibits clearly show that Mr. Landrieu was assessed with a late fee by the Louisiana Board of Ethics on April 14, 2014. This fee remains assessed until it is either paid or waived. As far as we know, the fine was still due at the time Mr. Landrieu qualified on August 20, 2014. If the fee was no longer due it was incumbent upon the defendant to rebut the prima facie case made by the plaintiff. I also take issue with the majority opinion's statement that the attorney for the State could not tell whether the fees were still due at the time of qualification; that attorney represented the Louisiana Secretary of State, not the Louisiana State Board of Ethics. These are two distinct entities.
Although it is not addressed by the majority, I believe it is necessary that I address the underlying issue in this case, i.e., what qualifications apply to candidates for congress. Regarding the qualifications for members of the United States House of Representatives, the Qualifications Clause of the United States Constitution provides:
Section 2, Clause 2. Qualifications of Members
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.
U.S.C.A. Const. Art. I, § 2, cl. 2.
The Elections Clause of the United States Constitution (U.S. Const. Art. I, § 4, cl.1) further provides that state legislatures shall prescribe the times, places and manner of congressional elections; however, Congress is expressly given authority to make or alter such state regulations. Under this constitutional authority, the states have the right to create those laws and regulations necessary to ensure the integrity and reliability of the election process. Therefore, “[s]tates are entitled to adopt ‘generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.’ ” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995), quoting Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). “These justifications are substantial, and reflect a legitimate and compelling state interest in orderly, consistent, and honest government.” Joyner v. Mofford, 706 F.2d 1523, 1533 (9th Cir.1983).
In Louisiana, the manner in which a candidate qualifies for election to public office and the requirements for such qualification are provided for in the Louisiana Election Code. See La. R.S. 18:1 et seq. Any person desiring to become a candidate in a primary election for United States senator or representative in Congress shall file notification of his candidacy and declaration of his qualifications as provided for state candidates in Chapter 5 of this Title. La. R.S. 18:1274. La. R.S. 18:461(A)(1) provides that “a person who desires to become a candidate in a primary election shall qualify as a candidate by timely filing notice of his candidacy.” In pertinent part, La R.S. 18:463 states:
A. (1)(a) A notice of candidacy shall be in writing and shall state the candidate's name, the office he seeks, the address of his domicile, and the parish, ward, and precinct where he is registered to vote. The candidate shall list on the notice of candidacy the name of the political party if he is registered as being affiliated with a recognized political party, “other” if he is registered as being affiliated with a political party that is not a recognized political party, or “no party” or an abbreviation thereof if he is registered with no political party affiliation. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he qualified for the election.
. . . . .
(2)(a) The notice of candidacy shall include a certificate, signed by the candidate, certifying all of the following:
. . . . .
(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.
. . . . .
(vii) That he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.
La. R.S. 18:492(A) provides the grounds for an objection to candidacy. That statute 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 of the following grounds:
(1) The defendant failed to qualify for the primary election in the manner prescribed by law.
(2) The defendant failed to qualify for the primary election within the time prescribed by law.
(3) The defendant does not meet the qualifications for the office he seeks in the primary election.
(4) The defendant is prohibited by law from becoming a candidate for one or more of the offices for which he has qualified.
(5) The defendant falsely certified on his notice of candidacy that he does not know any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act as provided in R.S. 18:463(A)(2).
(6) The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics as provided in R.S. 18:463(A)(2).
(7) The defendant falsely certified on his notice of candidacy that for each of the previous five tax years he has filed both 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.In the instant case, the trial court disqualified Mr. Landrieu's candidacy for United States Representative for Congress from the Second District of Louisiana because Mr. Landrieu owed outstanding fines, fees or penalties pursuant to the Louisiana Board of Ethics pursuant to the Louisiana Code of Governmental Ethics and/or the Louisiana Campaign Finance Disclosure Act, and Mr. Landrieu signed a certification that he did not owe such fines. This Court has addressed this same issue before in Williams v. Fahrenholtz, 08–0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99. In that case, an equally divided Court could not render a majority decree and the trial court's judgment, disqualifying the congressional candidate who signed a similar declaration as the one in the instant case and also owed outstanding fines, fees or penalties, was affirmed.Id.
The reasoning used by Judge Love in Williams v. Fahrenholtz found the notice of candidacy form signed by Mr. Fahrenholtz and the provisions of La. R.S. 18:463(A)(2)(v) contained two distinct requirements: 1) the candidate is to acknowledge that the terms of the Louisiana Campaign Finance Disclosure Act applies to him unless he is a candidate for United States Senator or United States Representative to Congress; and 2) he owes no outstanding fines, fees or penalties under the Louisiana Campaign Finance Disclosure Act. The same rationale applies in the instant case; Mr. Landrieu is not being asked to admit that the act applies to him as a congressional candidate, but rather he is being asked only to certify that he owes no outstanding fines, fees or penalties for any other reason. The exhibits attached to Mr. Richmond's petition make a prima facie case that Mr. Landrieu signed a certification that he owed no outstanding fines, fees or penalties under the act when he did owe approximately $700.00.
Surely, the State of Louisiana has a compelling interest to adopt procedures, requirements and even restrictions to protect the integrity of the electoral process. This is a very legitimate interest on the part of the State. The dissenting opinions in Williams v. Fahrenholtz stress that there are only three qualifications for the office of United States Representative for Congress and they are provided for solely in the United States Constitution Article I, Section 2, Clause 2 and La. R.S. 18:1275. This viewpoint, however, ignores the fact that there are a number of other requirements or qualifications that an individual must meet before he is actually allowed to run for (and ultimately assume a seat in) Congress. First of all, at the time of qualification for that office in Louisiana, an individual is required to pay $900.00 or attach a nominating petition with a requisite number of signatures or be a member of the U.S. armed forces stationed/deployed outside the U.S. Even the United States Constitution provides for additional qualifications. Article I, Section 3, Clause 7 authorizes the disqualification of any person convicted in an impeachment proceeding from “any Office of Honor, Trust or Profit under the United States.” Also, Article I, Section 6, Clause 2 provides that “no person holding any Office under the United States, shall be a Member of either House during his continuance in Office.” Further, Section 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 an insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Therefore, there are clearly more than the three qualifications enumerated in Article 1, Section 2, Clause 2 and La. 18:1275. The aforementioned qualifications or requirements are no different than what Mr. Landrieu was disqualified for in the instant case. Accordingly, the trial court did not err in disqualifying the candidacy of Mr. Landrieu.