Opinion
NO. 2019-CA-0703
08-22-2019
Karen Carter PETERSON v. Allen Helwick BORNE, Jr., Kyle Ardoin, in his Official Capacity as the Secretary of State, and C. Arthur Morrell, in his Official Capacity as the Chief Election Officer for Orleans Parish
James J. Carter, Randy George McKee, CARTER & MCKEE, LLC, 1100 Poydras Street, Suite 1475, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLEE Madro Bandaries, MADRO BANDARIES, P.L.C, P.O. Box 56458, New Orleans, LA 70156, COUNSEL FOR DEFENDANT Allen H. Borne, Jr., 4902 S. Claiborne Avenue, New Orleans, LA 70118, PRO SE DEFENDANT/APPELLANT
James J. Carter, Randy George McKee, CARTER & MCKEE, LLC, 1100 Poydras Street, Suite 1475, New Orleans, LA 70163, COUNSEL FOR PLAINTIFF/APPELLEE
Madro Bandaries, MADRO BANDARIES, P.L.C, P.O. Box 56458, New Orleans, LA 70156, COUNSEL FOR DEFENDANT
Allen H. Borne, Jr., 4902 S. Claiborne Avenue, New Orleans, LA 70118, PRO SE DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Tiffany G. Chase )
Judges Daniel Dysart and Paula Brown were unable to participate. Judge Dale Atkins recused herself.
Judge Regina Bartholomew-Woods
This appeal arises out of the disqualification of Allen Helwick Borne, Jr., from candidacy for the Louisiana State Senate District 5. The trial court disqualified Mr. Borne because it found that he failed to sign the notice of candidacy form as required by La. R.S. 18:463(A)(2)(a) and (A)(3). We find that the trial court did not err when it disqualified Mr. Borne. Accordingly, we affirm.
FACTUAL BACKGROUND
Mr. Borne states that on July 26, 2019, he appointed Paul A. Bello as his agent to file his Notice of Candidacy for Louisiana State Senate District 5. According to Mr. Borne, at this same time, Mr. Borne executed, and Mr. Bello notarized, a notice of candidacy, as well as an agent affidavit authorization to file notice of candidacy form, both of which were signed by Mr. Borne.
Mr. Borne concedes that the notarized agent affidavit was dated for August 26, 2019, rather than July 26, 2019. Mr. Borne asserts that this error was inadvertent.
Mr. Borne further states that on August 8, 2019, at approximately 3:00 p.m., Mr. Bello reported to the Clerk of Court for Orleans Parish Criminal District Court and Chief Election Officer, Arthur M. Morrell to file Mr. Borne's notice of candidacy. According to the testimony of Mr. Bello, he brought the following documents with him to the Clerk's Office: a "personal" affidavit, an affidavit authorizing him to act on behalf of Mr. Borne, and a notarized notice of candidacy signed by Mr. Borne.
Mr. Morrell is named as a nominal defendant in the above-captioned matter.
According to the testimony elicited, Mr. Bello submitted Mr. Borne's documents and paid the $600.00 filing fee. Next, and arguably the crux of the matter, rather than accept the notice of candidacy signed by Mr. Borne, Mr. Bello alleges that an employee with Mr. Morrell's office generated a "new" notice of candidacy form, because the one he had brought with him did not match the name that was contained in the registrar of voters' database. Mr. Morrell could not confirm or deny that the form was or was not accepted, but stated that he remembered seeing two documents, one allegedly signed by Mr. Borne, but he could not confirm that it was, in fact, signed by Mr. Borne. He further asserted that his office is authorized to receive any documents that are brought in by anyone for any candidate.
The newly generated form listed Mr. Borne's name as Allen Helwick Borne, Jr. (using his middle name rather than just an initial), included the filing fee in the amount of $600.00, and listed Mr. Borne's race as "W." According to Mr. Borne and Mr. Bello, the candidacy form that Mr. Borne executed only listed his middle initial and it failed to identify his race.
Mr. Bello further testified that he proceeded to the notary who was employed in the Clerk's office, on this day, whereupon he executed a notice of candidacy form on behalf of Mr. Borne, as his agent. He alleges that Mr. Morrell looked at the form and indicated to him that his candidate would be challenged. Contrary to this assertion, Mr. Morrell testified that he made a statement that "all candidacy applications can be challenged," in response to a question that was posed to him, and not to Mr. Bello, in particular.
It is based upon the notice of candidacy form executed by Mr. Bello, that Plaintiff-Appellee, Karen Carter Peterson ("Appellee") challenges Mr. Borne's candidacy.
PROCEDURAL HISTORY
On August 14, 2019, Appellee, a resident and registered voter in Louisiana State Senate District 5 and the incumbent, filed, in Civil District Court for the Parish of Orleans, an Objection to Candidacy and Petition to Disqualify Candidate against Mr. Borne. Appellee alleged that Mr. Borne "failed to qualify for the primary election in the manner prescribed by law" because Mr. Bello, Mr. Borne's agent, and not Mr. Borne, signed the certificate included in the notice of candidacy pursuant to La. R.S. 18:492(A)(1) , La. R.S. 18:463(A)(2)(a) and (A)(3) .
The grounds for an objection to candidacy are set forth in La. R.S. 18:492, and provide, in pertinent part, that "[a]n 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."
The required elements of the notice of candidacy are set forth in La. R.S. 18:463(A)(2)(a)-(b) 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.
(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.
(b) The certificate shall be executed before a notary public or shall be witnessed by two persons....
Pursuant to La. R.S. 18:463(A)(3) :
The notice of candidacy also shall include a certificate, signed by the candidate, certifying that he is knowledgeable of the laws governing election offenses as provided in Chapter 10 of this Title and that he is knowledgeable of the prohibitions relative to erecting, displaying, or posting political campaign signs on any highway right-of-way, publicly owned property or right-of-way, or to or on any public utility pole or stanchion, as provided in R.S. 48:347(D), R.S. 30:2544, and R.S. 18:1470. Except as provided in R.S. 30:2544, whoever so erects, displays, or posts political campaign signs on any publicly owned property or right-of-way, or to or on any public utility pole or stanchion shall be guilty of a misdemeanor and shall be fined not in excess of one hundred dollars or imprisoned for not more than thirty days, or both.
DISCUSSION
In his appellate brief, Mr. Borne raises a number of assignments of error. In summary, Mr. Borne argues that the trial court erred in disqualifying his candidacy.
STANDARD OF REVIEW
This Court has explained that
[a]ppellate courts review a trial court's findings of fact utilizing the manifest error or clearly wrong standard of review. Duhon v. Briley , [20]12-1137, p. 3 (La. App. 4 Cir. 5/23/13), 117 So.3d 253, 257. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id.
"Regarding issues of law, the standard of review of an appellate court is simply whether the court's interpretive decision is legally correct." Id. , [20]12-1137, p. 4, 117 So.3d at 257-58. "Accordingly, if the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court." Id. , [20]12-1137, p. 4, 117 So.3d at 258.
Nixon v. Hughes , 2015-1036, p.2 (La. App. 4 Cir. 9/29/15), 176 So.3d 1135, 1137
DISQUALIFICATION
"In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified." Russell v. Goldsby , 2000-2595, p. 4 (La. 9/22/00), 780 So.2d 1048, 1051. "The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy." Id.
It is undisputed that the only notice of candidacy form filed with Mr. Morrell's office, on the last day of qualifying for the Louisiana State Senate District 5, was executed not by the candidate, Mr. Borne, but rather, by his agent, Mr. Bello. Louisiana Revised Statute 18:463 sets forth the requirements for filing a notice of candidacy. In particular, subsections (A)(2)(a) and (A)(3) both state that "the notice of candidacy also shall include a certificate, signed by the candidate ..." [Emphasis supplied].
Even when a candidate is a member of the United States Armed Forces, he "shall" submit a signed notice of candidacy. R.S. 18:463(A)(1)(d).
We are asked to decide whether the trial court correctly disqualified Mr. Borne as a candidate because of his lack of signature on the notice of candidacy form. We recognize that this issue is res nova in this State. While there have been numerous election cases based on a myriad of challenges, this is the first election challenge case that turns on the candidate's failure to sign the notice of candidacy form. Thus, the focus of our decision shall lie solely with the statute governing the notice of candidacy form. While we recognize that the law favors liberal construction with regard to election laws, we are bound by the clear and unambiguous mandates set forth in the applicable statute. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9.
Louisiana Revised Statute 18:463(A)(2)(a) and (A)(3) specifically state that the candidate "shall" sign the notice of candidacy certifying an enumerated list of qualifiers. The use of the word "shall" establishes a mandatory duty. La. R.S. 1:3 ; Hamilton v. Royal Int'l Petroleum Corp. , 2005-846, p. 11 (La. 2/22/06), 934 So.2d 25, 33. Likewise, "statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done." Id. (citing Sanders v. Dep't of Health & Human Resources , 388 So.2d 768, 770 (La. 1980) ) Nowhere in the statute does it allow for an agent to sign the notice of candidacy in the candidate's stead. Thus, in accordance with the plain language of the statute and the jurisprudence interpreting the mandatory language, we find the trial court correctly found that Appellee made her prima facie case of showing that Mr. Borne was not qualified as a candidate for the seat he was seeking, due to his lack of signing the notice of candidacy. He was mandated by the statute to sign, which he did not do; accordingly, his disqualification is the result of his failure to sign in accordance the mandatory language of the statute.
Further, once Appellee proved her prima facie case, the burden shifted to Mr. Borne to prove why he should not be disqualified. We find that Mr. Borne failed to overcome the Appellee's prima facie case.
CONCLUSION
For the aforementioned reasons, we affirm the trial court's judgment disqualifying Mr. Borne as a candidate in the Louisiana State Senate District 5 race.
Moreover, because we conclude that the notice of candidacy form was not properly executed, we pretermit discussion of the remaining assignments of error as moot.
AFFIRMED
MCKAY, C.J., DISSENTS FOR THE REASONS ASSIGNED BY J. BELSOME
BELSOME, J., DISSENTS WITH REASONS
LOBRANO, J., DISSENTS WITH ADDITIONAL REASONS TO FOLLOW
JENKINS, J., DISSENTS WITH REASONS
CHASE, J., CONCURS IN THE RESULT
MCKAY, C.J., DISSENTS FOR THE REASONS ASSIGNED BY J. BELSOME
I dissent for the reasons assigned by Judge Belsome.
BELSOME, J., DISSENTS WITH REASONS
I respectfully agree with the majority opinion's finding that the Notice of Candidacy form in the record is invalid, but dissent from the affirmation of the trial court's disqualification of Mr. Borne. In dissenting, I write separately to discuss Mr. Borne's argument that he was not afforded due process in this proceeding.
Mr. Borne was served at 3:30 p.m. notifying him of the 9:00 a.m. hearing set for the following day. Once in court, Mr. Borne sought a continuance in order to determine the name of the clerk that processed his filing. Given the brief turnaround, he claimed that he was unable to discover the information in time for trial, and the clerk was an essential witness to his case. That request was denied by the trial court. Mr. Borne proceeded.
During Chief Election Officer, Arthur Morrell's testimony, Mr. Borne was informed that approximately six employees were assigned to process election filings. He was also provided the name of the supervisor on duty during that time. When Mr. Borne requested that Mr. Morrell have the supervisor come to the courthouse for questioning, Mr. Morrell declined that request. Next, Mr. Borne asked that the trial court aid him in securing the supervisor's appearance. That request was also denied.
The issue of due process in a challenge to candidacy was discussed by this Court, in Russo v. Burns , 2014-0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67. There, the plaintiff challenged Lionel Burns Jr.'s candidacy for Orleans Parish District Attorney. Id. That challenge was focused on the filing of tax returns. Mr. Burns had certified that he had filed his Louisiana tax returns for the years 2010-2013. Based on the Louisiana Department of Revenue's records, those tax returns had not been filed. At the hearing to determine whether Mr. Burns should be disqualified as a candidate for the Orleans Parish District Attorney's race, he requested additional time in which to present his tax preparer, Monica Jackson, to testify regarding the filing of the returns. The trial court denied that request. On appeal, this Court found that the trial court's decision, reviewed under an abuse of discretion standard, denied Mr. Burns his due process rights. The matter was remanded to allow for Ms. Jackson's testimony. Id.
The challenge to Mr. Borne's candidacy is founded on an invalid Notice of Candidacy form. However, he has suggested that the filing of the invalid form was a result of improper procedures by the clerk's office. He maintains that the testimony of the clerk who allegedly rejected the valid form would prove that the clerk's office erred in receiving his filing and that he should be found to be a valid candidate. Mr. Borne asserts that his inability to call the supervisor and/or the clerk prejudiced his ability to meet his burden of proof that he should be qualified a valid candidate.
In Burns, this Court recognized that "[t]he essence of due process is notice and an opportunity to be heard." Burns, 2014-0952, p.7, 150 So.3d at 71 (citing Darnell v. Alcorn, 99-2405, p. 12 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 723 ). The testimony that Mr. Borne seeks from the employee of the clerk's office is paramount to proving that he had his valid Notice of Candidacy form rejected.1 I find Mr. Borne's request for additional time even more compelling than Mr. Burns' request given the fact that Mr. Borne did not know the identity of the person he sought to call as a witness. Like in Burns, I would find that denying Mr. Borne the right to call that witness denied him his day in court. For these reasons, I would reverse the trial court's disqualification and remand for further proceedings to commence within 24 hours from the release of this opinion.
LOBRANO, J., DISSENTS AND ASSIGNS ADDITIONAL REASONS
I respectfully dissent. I would reverse the district court's decision and find that petitioner, Karen Carter Peterson ("Petitioner"), did not meet her burden to prove that the defendant, Allen Helwick Borne, Jr. ("Defendant"), "failed to qualify for the primary election in the manner prescribed by law." La. R.S. 18:492(A)(1). I find that the original candidacy documents including the Notice of Candidacy signed by Defendant , Defendant's mandate affidavit, the affidavit of Defendant's agent, Paul A. Bello ("Agent") , and the qualifying fee (original candidacy documents collectively referred to as "First Notice") deposited by Agent and received by a deputy clerk at the office of the Clerk of Court for Orleans Parish Civil District Court ("Clerk of Court") effectuated a timely filing of a notice of candidacy by Defendant.
The notarized Notice of Candidacy form signed by Mr. Borne was proffered into evidence.
Upon deposit by Agent and receipt by the deputy clerk, the deputy clerk did not record into the public record the notice of candidacy signed by Defendant. Despite testimony from Mr. Morrell, Defendant, and Agent of the deposit and receipt of the Notice of Candidacy signed by Defendant at the clerk's office, the district court refused to enter this notice into evidence, but allowed Defendant to proffer the document. Defendant argues that the district court's "evidentiary impediments unnecessarily and detrimentally hindered" his ability to present a meaningful defense to "a case seeking to deny his substantial right in participating in local governance and democracy through candidacy for State Senate in Louisiana's 5th District and denied the voters of the 5th District a choice in a meaningful election." I agree. The district court erred in not allowing the Notice of Candidacy form sign by Defendant to be admitted into evidence. See La. C.E. art 402 ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation..."); see also La. C.E. art 401 (" ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
The deputy clerk recorded into the public record the Defendant's mandate affidavit. The district court allowed Defendant's mandate affidavit into evidence.
The deputy clerk recorded into the public record the Agent affidavit. The district court allowed the Agent affidavit into evidence.
It is undisputed that a qualifying fee was paid. The payment of the $600 qualifying fee is noted by the Clerk of Court on recorded documents.
La. R.S. 18:422 and 471 provide the clerk of court's function and responsibilities. La. R.S. 18:422 states:
The clerk of court is the chief election officer of the parish. Except as otherwise provided by law, a deputy clerk of court shall possess all of the powers and authority granted by law to the clerk, and may perform any of the duties and exercise any of the functions of the clerk. Deputy clerks and other employees of a clerk of court are subject to his direction and supervision, and shall perform the duties assigned to them by law, the court, and the clerk. The clerk of court is responsible for the performance or nonperformance of their official duties by his deputies and other employees.
La. R.S. 18:471 states:
Wherever in this Code any act is required to be performed with or by the clerk of court, such act shall be performed in the office of the clerk and may be performed by or with the clerk of court or any deputy clerk employed by him designated by him for the purpose.
I agree with the majority that the Notice of Candidacy signed by Agent and received by a deputy clerk at the office of the Clerk of Court at 3:26 p.m. on August 8, 2019 ("Second Notice"), did not properly qualify Defendant as a candidate for State Senate District 5. In fact, I opine that the Second Notice was invalid on its face and, when filed by the deputy clerk, a misdemeanor under La. R.S.18:463(A)(4) was arguably committed. A proper review by the deputy clerk of the First Notice when it was deposited and received by the deputy clerk clearly indicated that Defendant authorized Agent to file the First Notice, not the Second Notice. The district court and the majority erred in using a patently unauthorized, illegal notice as grounds for a disqualification. La. R.S. 18:492(B) provides: "A violation of R.S. 18:463(A)(1)(c) by an agent shall not constitute ground for objecting to a candidacy..." La. R.S. 18:463(A)(1)(c) provides that "[w]hen an agent files a notice of candidacy on behalf of a candidate, the agent shall file with the qualifying official an affidavit attesting that the agent has the authorization and consent of the candidate to file the notice." It is undisputed that Agent did not have the authority to file the Second Notice on behalf of Defendant. The record shows that Defendant's mandate affidavit, the affidavit of Agent, and the qualifying fee that were attached to the First Notice were improperly removed and attached to the Second Notice by the deputy clerk. Thus, I find that the Second Notice is of no great evidentiary value in Petitioner's suit to disqualify a candidate.
La. R.S. 18:463(A)(4) states:
(4) An agent who files a notice of candidacy without the authorization or consent of the candidate to file such notice of candidacy shall be guilty of a misdemeanor and shall be fined not in excess of five hundred dollars or imprisoned for not more than thirty days, or both.
However, I find that the First Notice documents deposited by Agent and received by the deputy clerk effectuated a timely filing. It is unrefuted that Agent possessed only the authority to file the Original Notice of Candidacy signed by Defendant along with the Defendant's mandate affidavit and Agent affidavit, as well as the qualifying fee. It is undisputed that Agent delivered and deposited the First Notice to a deputy clerk in the Clerk's office. When Agent delivered the First Notice to the deputy clerk, the Clerk of Court was in receipt of it, and it was timely filed in accordance with La. R.S.18:466, which reads:
The First Notice includes the Notice of Candidacy signed by Defendant, which was deposited by Agent but not recorded by the deputy clerk upon receipt, and the other documents, which were recorded by the deputy clerk, i.e., Defendant's mandate affidavit, the agent affidavit, and the qualifying fee.
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A notice of candidacy, accompanied by the qualifying fee ...... is timely filed only if received by the ...clerk of court, for local or municipal candidates, during
the qualifying period for candidates in the primary election.
See, e.g., Lambert v. Kelley , 270 So.2d 532, 535 (La. 1972) ( "The act of depositing the document or pleading is the filing," not the marking of the "document or pleading ‘filed’ and designating the date;" these are "evidence of the act of filing, it is not the act of filing itself."); Hayes v. Woodworth Trucking Co. , 353 So.2d 478, 479 (La. App. 3d Cir. 1977) (citing Lambert , 270 So.2d 532 )("a suit is filed when it is timely placed in the hands of the clerk of court of competent jurisdiction for filing"); Ellzey v. Employers Mut. Liab. Ins. Co., 388 So.2d 843, 848 (La. App. 2d Cir. 1980), writ denied , 394 So.2d 617 (La. 1980) ("plaintiff's delivery of the letters requesting a trial date to the clerk of court constituted a filing of them... failure of the clerk to comply with his responsibility cannot detract from the actions of the plaintiff establishing that he had not abandoned the prosecution of his case. The plaintiff was entitled to establish his action before the court by extrinsic evidence..."); Borning v. Bush , 517 So.2d 183, 184 (La. App. 1st Cir. 1987) ; Acosta v. Hepplewhite Home, Inc., 450 So.2d 770, 773 (La. App. 5th Cir. 1984). Thus, I find that Defendant qualified for the election in the manner prescribed by law upon deposit and delivery of the First Notice by Agent and receipt by the deputy clerk of the First Notice.
The testimony from Agent demonstrates that he arrived at the Clerk of Court's office during the qualifying period in question. He arrived with the First Notice. The deputy clerk took the First Notice, and was in receipt of it. The deputy clerk then used the information contained in the First Notice to generate the Second Notice. Agent was instructed to fill it out and sign it as Agent. Agent's signature on the Second Notice was then notarized by a notary in the Clerk of Court's office. Agent testified that the clerk's office kept the Notice of Candidacy signed by Defendant contained in the First Notice until Agent was finished with the notary, requiring him to carry the Second Notice throughout the qualification filing process. Agent testified that the original Notice of Candidacy was returned to him, and he was lead to believe that this was standard practice of the Clerk's Office and that he had fulfilled his agency obligations.
Petitioner failed to present any evidence to refute Defendant's evidence proving that Agent deposited the First Notice with a deputy clerk and the deputy clerk received the First Notice. Mr. Morrell did not refute this in his testimony. Additionally, no deputy clerks from his office were called to refute the receipt of the First Notice.
Petitioner failed to submit evidence regarding the circumstances surrounding the return by the deputy clerk of the Notice of Candidacy signed by Defendant. She presented no evidence that upon deposit and receipt of the First Notice that it was returned pursuant to the policy of the clerk's office. She failed to elicit testimony regarding the Clerk of Court's policy for the return of documents deposited by filers and received by deputy clerks. Although inapplicable, La. R.S. 18:470(3)(b) requires in election suits that "[i]f a notice of candidacy, together with the qualifying fee or a nominating petition, is not filed timely or is filed with the wrong official, the official receiving the papers shall endorse the date and time of receipt upon them and shall return them forthwith, either personally or by registered or certified mail, to the candidate filing them." No such testimony was presented by Petitioner further failing to meet her burden of proof as to circumstances of the filing of the First Notice. It is irrelevant in a petition to disqualify a candidate as to the actions or inactions of the Clerk of Court upon proof of the deposit by Agent and receipt by the deputy clerk of the First Notice effectuating qualification. The undisputed receipt of the First Notice within the qualifying period qualified Defendant as a candidate. Thereafter, the Clerk of Court has a duty to endorse on the notice the date and time of filing and amount of qualifying fee pursuant to La. R.S.18:470 which reads:
A. Notices of candidacy. (1) Upon receipt of a notice of candidacy, the secretary of state or the clerk of court, as the case may be, shall endorse upon it the date and time of filing and either the amount of the qualifying fee paid by the candidate or a statement that a nominating petition was filed by the candidate. If a candidate qualifies in person, a certified copy of the original notice of candidacy shall be furnished to the candidate at the time he qualifies with the qualifying official but after the date and time have been endorsed thereon. If a candidate qualifies by submitting his notice of candidacy by certified mail, commercial carrier, or agent, the qualifying official shall mail a certified copy of the original notice of candidacy after the date and time have been endorsed thereon to the candidate at the address of his domicile as set forth in the notice of candidacy within forty-eight hours after receipt of the notice of candidacy.
(2) At the time a candidate files his notice of candidacy with the clerk of court it shall become a public record and shall be recorded by the clerk of court in the same manner as sales of immovables and the recordation of mortgages and miscellaneous acts are recorded with him. The clerk of court shall place all notices of candidacy for each election in a separate book which he shall keep in his office, and each such notice of candidacy shall be the official document and the official public record. The clerk of court shall daily post a list of all the candidates, and the offices for which they qualify, whose notices of candidacy have been filed with his office.
(3)(a) After the close of the qualifying period, the secretary of state shall transmit a list of the candidates who have qualified with him to the clerk of court in each parish in which the office is to be voted on. After the close of the qualifying period for candidates in a primary election, the clerk of court shall immediately transmit to the secretary of state a certified list of the candidates for each office who have qualified with him. This list shall include the name of each candidate as said candidate designated his name to appear on the ballot on his notice of candidacy form. The clerk shall also immediately forward qualifying fees for candidates to the secretary of state.
(b) If a notice of candidacy, together with the qualifying fee or a nominating petition, is not filed timely or is filed with the wrong official, the official receiving the papers shall endorse the date and time of receipt upon them and shall return them forthwith, either personally or by registered or certified mail, to the candidate filing them.
B. Qualifying fees. The secretary of state shall deliver all qualifying fees to the state treasurer, who shall remit all funds to the state treasury in accordance with law.
It is noted that the Clerk of Court, pursuant to La. R.S. 18:470 (A)(3)(a), transmitted to the secretary of state a certified list of candidates for the senate office who have qualified with his office including Defendant. However, the information on the Second Notice was improperly transmitted to the secretary of state. La. R.S. 18:463(E)(2) allows the Clerk of Court to correct information contained in a notice of candidacy after the close of qualifying period "to correct an error made by the qualifying official who entered the information contained in the notice of candidacy into the database of the Department of State." I would instruct the Clerk of Court to correct its error and enter into the Secretary of State's database the information contained in the First Notice.
The laws governing the conduct of elections must be liberally construed "so as to promote rather than defeat candidacy." Landiak v. Richmond , 2005-0758, p. 7 (La. 3/24/05), 899 So. 2d 535, 541. "Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office." Id. Accordingly, I would reverse the district court's decision to disqualify Defendant.
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent from the majority's decision to affirm the district court's disqualification of Mr. Borne. Upon review of the record, and in consideration of the unusual facts of this case, I find the district court abused its discretion in denying Mr. Borne time to subpoena witnesses from the Clerk's Office for Criminal District Court, who could testify regarding the alleged rejection of his signed Notice of Candidacy form.
La. C.C.P. arts. 1631 and 1632 give the district court authority over trial proceedings and the order of witnesses requiring the court to conduct the proceeding with dignity and to control the proceedings "so that justice is done." In general, a district court's judgment as to these decisions will not be disturbed in the absence of an abuse of discretion. "However, an abuse of discretion occurs when the district court's discretion is exercised in such a way that deprives a litigant of his day in court." Russo v. Burns , 14-0952, p. 7 (La. App. 4 Cir. 9/9/14), 150 So.3d 67, 72. Furthermore, the laws governing the conduct of elections must be liberally construed "so as to promote rather than defeat candidacy." Landiak v. Richmond , 05-0758, p. 7 (La. 3/24/05), 899 So.2d 535, 541. "Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office." Id. In this case, I find that the record reflects the district court conducted the proceedings and exercised its discretion in such a way that Mr. Borne was not afforded due process and was deprived of his day in court.
Consequently, I would vacate the trial court's judgment and remand the matter with instructions that the district court reopen the hearing within 24 hours from the decision of this Court and afford the appellant the opportunity to subpoena and call witnesses.