author: BELSOME, J., BONIN, J., DYSART, J., LOVE, J., JENKINS, J.,

text:
    Eliza EUGENE and Lawrence Galle v. Samuel DAVENPORT and Tom Schedler, in his Capacity as Louisiana Secretary of State.
    No. 2014-CA-0953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 2014.

      Ike Spears, Spears & Spears, New Orleans, LA, for Plaintiffs/Appellants.
    Scott L. Sternberg, Bernard H. Ticer, II, Baldwin, Haspel, Burke, & Mayer, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   | plaintiffs, Lawrence Galle and Eliza Eugene, appeal the trial court’s September 3, 2014 judgment denying their petition to disqualify Samuel Davenport as a candidate for the office of United States Representative of Louisiana’s Second Congressional District. For reasons that follow, we affirm.

On August 22, 2014, Samuel Davenport filed a notarized “Notice of Candidacy” for the office of United States Representative of Louisiana’s Second Congressional District. On August 29, 2014, plaintiffs filed an “Objection to Candidacy and Petition to Disqualify Candidate” in Civil District Court for the Parish of Orleans. In that petition, plaintiff Galle alleged that he is a registered voter and qualified elector in the Parish of Orleans, and plaintiff Eugene alleged that she is a registered voter and qualified elector in the Parish of St. John the Baptist. Both plaintiffs alleged that they are qualified electors in Louisiana’s Second Congressional District.

Plaintiffs based their objection to Davenport’s candidacy on La. R.S. 18:492(A)(1), which states:

LA. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(1)The defendant failed to qualify for the primary election in the manner prescribed by law.

Plaintiffs alleged that Davenport’s Notice of Candidacy form was defective and fatally flawed for the following reasons:

(1) Davenport certified that he was running for a primary election to be held on August 20, 2014 when there is no Congressional election scheduled in Louisiana on that date;
(2) Davenport listed his domicile as 317 St. James Place, Laplace, Louisiana 70068, and certified that he was a duly qualified elector of St. John the Baptist in Ward/District 1, Precinct 5 when he. was not a resident, registered voter or qualified election in the Parish of St. John the Baptist at the time that he qualified for office; and
(3) Davenport certified that, “All the statements contained herein are true and correct.”

Based on these allegedly false statements, plaintiffs maintain that Davenport must be disqualified as a candidate on the November 4, 2014 ballot.

In response to plaintiffs’ petition, Davenport raised the declinatory exception of insufficiency of service of process and the peremptory exception of no cause of action. In support of his exception of insufficiency of service of process, Davenport argued he was not served with citation after service was made on the Clerk of Court, and that there was no “diligent effort” to effect personal service on him as required by La. R.S. 18:1408. In support of his exception of no cause of action, Davenport states that plaintiffs’ petition does not state a valid cause of action because there is no allegation that he does not meet the requirements to |sserve in the United States House of Representatives as set forth Article I, 2, cl. 2 of the United States Constitution.

Following the hearing on plaintiffs’ objection to candidacy, the trial court rendered judgment denying the petition to disqualify Davenport and denied the requests of both plaintiffs and Davenport for attorneys’ fees and costs. In reasons for judgment, the trial court stated that plaintiffs failed to prove that they had standing to object to Davenport’s candidacy, and that their failure to submit any evidence to support this element of their case was fatal to their action. Although plaintiffs alleged in their petition that they were registered voters and qualified electors in the Second Congressional District, their petition was unverified and no stipulation or testimony was offered at the hearing in support of this allegation. Because the trial court found that lack of standing is dispositive of this matter, the court stated that it did not need to reach the remaining issues raised by the parties. Plaintiffs now appeal.

In their sole assignment of error, plaintiffs argue that the trial court erred in denying plaintiffs’ Objection to Candidacy and Petition to Disqualify Candidate | ¿based solely on standing and in not addressing the merits of plaintiffs’ election challenge. Plaintiffs argue that the ruling of the trial court should be reversed.

In an election contest, the person opposing the candidacy bears the burden of proving the candidate is disqualified. Becker v. Dean, 2003-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869. The laws governing the conduct of elections must be liberally construed so as to promote rather than defeat candidacy. Id. Any doubt as to the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Id.

Plaintiffs argue that the proper procedure to object to standing is a peremptory exception of no right of action, which could have been raised by Davenport or by the trial court on its own motion. Because the issue of standing was not raised by Davenport or the trial court at any time prior to or during the hearing of the matter, plaintiffs argue that the trial court erred in dismissing plaintiffs’ suit for lack of standing without allowing the plaintiffs to cure any alleged deficiencies on this issue.

In Howard v. Administrators of the Tulane Educational Fund, 2007-2224 (La.7/1/08), 986 So.2d 47, the Louisiana Supreme Court stated the following rules regarding an exception of no right of action:

When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to .institute the suit. Harry T. Lemmon & Frank L. Maraist, 1 Louisiana Civil Law Treatise, Civil Procedure 6.7, 121 (West 1999). The objection is urged through the peremptory exception of no right of action raised by the defendant or noticed by the court on its own motion, in either the trial or appellate , court. Id.; La.Code Civ. Proc. arts. 927 and 2163. If the pleadings fail to disclose a right of action, the claim may be dismissed without evidence, but the plaintiff should be Ispermitted to amend to state a right of action if he or she can do so. Lemmon & Maraist, supra; R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 398-99 (La. 1980); La.Code Civ. Proc. art. 934. If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections. Lemmon & Maraist, supra; La.Code Civ. Proc. art. 931.

Id., pp. 16-17, 986 So.2d at 59-60; (footnote omitted).

In this case, although the trial court had the right to notice an exception of no right of action on its own motion, the record shows that at no time prior to the final judgment in this matter were plaintiffs made aware that there was any issue as to their standing to bring this action. As a result, plaintiffs had no opportunity to introduce evidence to controvert any objections to their right to bring this action.

A similar situation was presented in the case of Eubanks v. Hoffman, 96-0629 (La. App. 4 Cir. 12/11/96), 685 So.2d 597. In Eubanks, the trial court dismissed a plaintiffs claim for no right of action, and plaintiff argued on appeal that he was not given an opportunity in the trial court to present evidence to show his right of action. Agreeing with the plaintiffs argument, this Court stated:

Thus, we might affirm the trial court’s dismissal of Mr. Eubanks’ claim, under an exception of no right of action, but we are concerned that Mr. Eubanks did not have the required procedural opportunity to present evidence to prove that he, as opposed to Diamond, has a right of action for recovery of the alleged advances. Mr. Eubanks’ brief states that at no time did Mr. Hoffman or Resource Development file an exception of no right of action and, based upon our review of the record, Mr. Eubanks appears to be correct in that regard. Thus, it appears that the trial court raised the exception of no right of action upon its own motion which, of course, the trial court had authority to do. La. Code Civ. Proc. art. 927; Teachers’ Retirement System v. Louisiana State Employees’ Retirement System, 456 So.2d 594, 598 (La.1984). Mr. Eubanks’ brief also states that, at no time during the trial, was Mr. Eubanks’ right of action ever questioned and, | abased upon our review of the trial transcript, that appears to be correct as well. Thus, the first notice to Mr. Eubanks that his right of action was at issue came in the trial court’s Judgment and Reasons For Judgment which decided the entire case. That is, at no time prior to submission of the case to the trial court for decision, was Mr. Eubanks put on notice, by the pleadings or otherwise, that he needed to present evidence to show his right of action.

Id., pp. 4-5, 685 So.2d at 599.

Although this Court, in Eubanks, vacated the trial court’s dismissal of plaintiffs claim for no right of action, and remanded the case for an evidentiary hearing as to plaintiffs right of action, such action is not necessary in the instant case. The trial court’s statements regarding plaintiffs’ failure to prove standing are part of the reasons for judgment, which are not controlling and do not constitute the judgment of the court. Kaufman v. Adrian’s Tree Service, Inc., 2000-2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. Furthermore, even assuming that plaintiffs have standing, we find no error in the trial court’s denial of plaintiffs’ objection to Davenport’s candidacy based on our conclusion that Davenport’s exceptions of insufficiency of service of process and no cause of action have merit.

In support of his exception of insufficiency of service of process, Davenport cites La. R.S. 18:1407 and 18:1408. La. R.S. 18:1407 states:

By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a general election, or contesting his election to office.

La. R.S. 18:1408(A) states:

If service of process is to be made on the appointed agent, as authorized by R.S. 18:1407, such service shall |7be made by serving citation on this agent, but at the same time that service is made on the appointed agent, a diligent effort shall be made to make personal service on the defendant at his domiciliary address as shown by his qualifying papers.

As noted by the trial court in reasons for judgment, the record shows that on August 29, 2014, Arthur Morrell, Clerk of Court for Orleans Parish Criminal District Court, was served with this lawsuit in his capacity as Davenport’s agent for service of process pursuant to La. R.S. 18:1407. However, there is no evidence or allegation in the record that Davenport was ever served with process, or that any effort was made, diligent or otherwise, to make personal service on him at his domiciliary address listed on his qualifying form, as is required under La. R.S. 18:1408(A). Significantly, plaintiffs have not presented any argument to the contrary, either at the hearing in this matter, in their response to Davenport’s posttrial brief or in their appeal brief.

Plaintiffs do not dispute the statement of Davenport’s attorney made at the hearing that Davenport first learned of the lawsuit challenging his candidacy on the morning of the hearing when a friend told him about it. Considering that the laws governing the conduct of elections must be liberally construed so as to promote rather than defeat candidacy, Becker v. Dean, supra, we conclude that the failure to attempt to serve Davenport with this lawsuit is sufficient reason alone to affirm the trial court’s denial of plaintiffs’ objection to Davenport’s candidacy. Additionally, we find no error in the trial court’s judgment because plaintiffs’ petition fails to state a valid cause of action.

The U.S. Const. Art. I, 2, cl. 2 sets forth qualifications for membership to the United States House of Representatives as follows:

|sNo Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

See also La. R.S. 18:1275. On the subject of qualifications for membership to the United States House of Representatives, the United States Supreme Court, in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), further stated:

In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from ‘any Office of honor, Trust or Profit under the United States’; Art. I, § 6, cl. 2, provides that ‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office’; and 3 of the 14th Amendment disqualifies any person ‘who, having previously taken an oath * * * to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.’

Id. at 521, 89 S.Ct. at 1963, fn. 41. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805, 115 S.Ct. 1842, 1856, 131 L.Ed.2d 881 (1995), the Court stated: “[i]n the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.”

The States cannot add to this exclusive list of qualifications. Plaintiffs’ petition makes no allegation that Davenport does not meet the qualifications set forth in the United States Constitution to be elected and serve as a member of the United States House of Representatives.

We are mindful of this Court’s opinion in Williams v. Fahrenholtz, 2008-0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, but find that it is distinguishable | afrom the instant case. In Fahrenholtz, this Court was equally divided on the correctness of the trial court’s ruling disqualifying James Fahrenholtz as a candidate in the Second Congressional District for the United States House of Representatives. Pursuant to La. Const. Art. V, § 8(B) and Parfait v. Transocean Offshore, Inc., 2007-1915, 2007-1998, p. 1 (La.S/14/08), 980 So.2d 634, 635, this Court issued a per curiam decree stating that the judgment of the trial court was affirmed in that the Court could not render a majority decree.

In Fahrenholtz, a petition was filed to disqualify the candidacy of Fahrenholtz based on the allegation that the candidate made a false representation on his Notice of Candidacy in that he stated that he did not owe outstanding fines, fees or penalties to the Campaign Finance Oversight Board, when in fact he did. Fahrenholtz filed an exception of no cause of action asserting that candidates for the United States House of Representatives were exempt from the Campaign Finance Disclosure Act (“CFDA.”) Fahrenholtz argued that the qualifications set forth in U.S. Const. Art. I, § 2, cl. 2 are exclusive and that state law cannot add or take away from the stipulated qualifications therein. In finding that the trial court correctly overruled Fahrenholtz’s exception of no cause of action, the five judges of this Court voting to affirm the trial court found that the CFDA did not impose substantial qualifications upon the right to hold the office of a member of the United States House of Representatives.

The instant case does not involve alleged violations of the “CFDA as in Fah-renholtz, and is therefore distinguishable from that case. The plaintiffs’ main argument in this case is that Davenport should be disqualified because he falsely certified that he was domiciled and registered to vote in St. John the Baptist Parish, when he was in fact domiciled and registered to vote in Jefferson Parish. | inPlaintiffs’ arguments regarding Davenport’s incorrect listing of the election date are clearly without merit because that statement was obviously a mistake rather than a false certification.

With regard to the qualifications for membership in the United States House of Representatives set forth in the United States Constitution, it is undisputed that Davenport is currently over twenty-five years of age, and has been a United States citizen for more than seven years. Although it is also undisputed that he is currently an inhabitant of the State of Louisiana, that requirement only exists as of the time of election. Because a State cannot impose additional qualifications for becoming a member of the United States House of Representatives, questions on the Notice of Candidacy as to parish of domicile and parish in which a candidate is a qualified elector are irrelevant as to candidates seeking election to that office.

Given the fact that plaintiffs’ petition does not include any allegation that Davenport does not meet the qualifications for membership in the United States House of Representatives as set forth in the United States Constitution, we conclude that plaintiffs’ petition fails to state a valid cause of action for disqualifying him as a candidate for that office.

For the reasons stated above, we affirm the trial court’s judgment denying plaintiffs’ petition to disqualify Samuel Davenport as a candidate for the office of United States Representative of Louisiana’s Second Congressional District.

AFFIRMED.

McKAY, C.J., concurs in the result.

BAGNERIS, J., concurs in the result.

BELSOME, J., concurs in the result with reasons.

BONIN, J., concurs in the result with additional reasons DYSART, J., concurs, with reasons.

LOVE, J., dissents and assigns reasons.

LOMBARD, J., dissents for reasons assigned by LOVE, J.

JENKINS, J., dissents and assigns reasons.

BELSOME, J.,

concurs in the result with reasons.

|,I concur with the result reached by the majority, but write separately to discuss one issue: may a state impose additional qualifications upon a candidate seeking a federal office other than those qualifications contained in the United States Constitution? The answer is no. Has the State of Louisiana attempted to impose greater qualifications on a candidate seeking to qualify for federal office? Yes. Specifically, the State legislature has enacted La. R.S. 18:46s, which has manifested itself in an administrative form filled out by candidates when registering to run for office. The statute and correlating form, commonly termed |2the “Qualifying Form,” does promote a legitimate state interest in assisting the Secretary of State and local electors in properly categorizing candidates for the ballot. However, due to numerous amendments, La. R.S. 18:468 has exceeded the scope of an administrative function and evolved into a list of qualifications/disqualifications that would compel the exclusion of otherwise constitutionally qualified candidates. Consequently, the form proposes additional qualifications not established in our Constitution.

The United States Constitution in Article I, Section 2, Clause 2, establishes only three qualifications. The representative must be twenty-five years of age, a United States Citizen for seven years, and an inhabitant of the State when elected. Id. These qualifications are exclusive, and neither a state constitution nor state law can add to or take away from such qualifications. See Strong v. Breaux, 612 So.2d 111, 112 (La.App. 1st Cir.1992) (citation omitted). See also, Williams v. Fahren-holtz, 08-961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99,106 (Murray, J., dissenting). Additionally, the State legislature has enacted identical qualifications for this office, and has further provided that the enumerated qualifications are exclusive. La. R.S. 18:1275(B) and (C).

The plaintiffs’ objection to the defendant’s candidacy primarily involves whether he failed to comply with the directives set forth in La. R.S. 18:463. In particular, the plaintiffs allege that his Qualifying Form included incorrect and/or false information regarding the date of the election and the plaintiffs address, which are grounds for disqualification under |aLa. R.S. 18:492(A)(1). Such clerical errors should not defeat candidacy. As already discussed, these statutes cannot serve to incorporate additional qualifications for candidacy beyond those required under the United States Constitution and La. R.S. 18:1275. Since the defendant meets the constitutional qualifications for office, I find no error in the trial court’s judgment denying the plaintiffs petition to disqualify the defendant. For these reasons, I concur in the result.

BONIN, J.,

concurs in the result with additional reasons.

Li concur in affirming the trial court judgment. I write separately, however, to express three aspects of the majority opinion with which I may differ.

First, I agree with the concurring opinion of JUDGE DYSART that neither plaintiff offered any proof whatsoever at the trial that either was a qualified elector as a precondition to maintaining a challenge under La. R.S. 18:491 A and, accordingly, failed to establish an essential element of the cause of action to disqualify Mr. Davenport.

Second, by failing to timely file a decli-natory exception of insufficiency of service of process and by appearing and participating in the expedited summary proceedings before the trial court, Mr. Davenport waived the objection of insufficiency of service of process. See La. C.C.P. arts. 925 C, 2593; see also Reed v. St. Charles General Hospital, 08-0430, p. 22 (La.App. 4 Cir. 5/6/09); 11 So.3d 1138,1153.

Third, with respect to the evenly split decision as well as the rationales expressed in Williams v. Fahrenholtz, 08-0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, I view the so-called “dissenting” opinions of Judges MurRay, Tobias, 12Belsome, and Lan-drieu as dispositive of the issues presented in this case and find no need to distinguish Fahrenholtz in order to reach the result.

DYSART, J.,

concurs, with reasons.

|)I join in the result reached by the majority, but write separately to provide my reason for reaching the same conclusion.

The fundamental prerequisite in a suit to object to the qualifications of a candidate is that the plaintiffis) must be a qualified elector. Here, as found by the trial court, petitioners did not file a verified petition, nor was there testimony, affidavits or any stipulation offered that they were qualified electors. Absent proof petitioners were qualified to vote in the election, they are not qualified to object to the candidacy of an individual running in that election. See Booth v. Jefferson, 34,446 (La.App. 2 Cir. 9/6/00), 765 So.2d 1249.

LOVE, J.,

dissents and assigns reasons.

hi respectfully dissent from the majority’s opinion regarding standing and the merits of the plaintiffs objections to the qualification of Mr. Davenport.

The plaintiffs’ Objection to Candidacy and Petition to Disqualify Candidate provided the following:

Plaintiff herein, LAWRENCE GALLE, is a person of the full age of majority residing and domiciled in the State of Louisiana, Parish of Orleans; at all material times herein LAWRENCE GALLE was a registered voter and qualified elector in the Parish of Orleans and Louisiana’s Second Congressional District.
Plaintiff herein, ELIZA EUGENE, is a person of the full age of majority residing and domiciled in the State of Louisiana, Parish of St. John the Baptist; at all material times herein ELIZA EUGENE was a registered voter and qualified elector in the St. John the Baptist and Louisiana’s Second Congressional District.

La. R.S. 18:491 does not place a burden upon a plaintiff objecting to candidacy to prove by affidavit or otherwise that he/she is a registered voter qualified to vote in the election wherein the candidate is seeking elected office.

The proper procedural vehicle to object to a plaintiffs standing is through the usage of a peremptory exception of no right of action, which can be urged by the defendant or raised by the court sua sponte. Howard v. Administrators of Tulane Educ. Fund, 07-2224, p. 16 (La.7/1/08), 986 So.2d 47, 59. “A proper ^analysis of a no right of action exception requires a court to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Id., 07-2224, p. 17, 986 So.2d at 60. “If the pleadings state a right of action in the plaintiff, the exceptor may introduce evidence to controvert the pleadings on the trial of the exception, and the plaintiff may introduce evidence to controvert any objections.” Id., 07-2224, pp. 16-17, 986 So.2d at 59.

Counsel for Mr. Davenport did not include an exception of no right of action based on the plaintiffs’ standing with the exceptions of insufficiency of service of process and no cause of action. The trial court never raised the issue of standing during the hearing on the merits. Accordingly, neither party was afforded an opportunity to introduce evidence to controvert the opposition, as standing did not become a known issue in the present matter until the trial court rendered its judgment. Although a trial court’s reasons for judgment are not controlling upon this Court, the reasons are nonetheless procedurally helpful, in that the record demonstrates that the plaintiffs were never permitted to contest the trial court’s beliefs as to standing. See Kaufman v. Adrian’s Tree Serv., Inc., 00-2381, p. 3 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. Thus, pursuant to La. C.C.P. art. 934 I would remand the present matter to the trial court to afford the plaintiffs an opportunity to amend their petition and defend against the trial court’s assertion that they lack standing. See Eubanks v. Hoffman, 96-0629, p. 2 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 598.

Assuming the plaintiffs have standing, I also dissent from the majority’s holding that the trial court did not err in denying the plaintiffs’ objection to Mr. Davenport’s candidacy. Mr. Davenport’s Notice of Candidacy included August |s20, 2014, as the primary election date and certified that he was “a duly qualified elector of’ St. John the Baptist Parish. Finally, Mr. Davenport certified that “[a]ll the statements contained herein are true and correct.”

Unlike the majority, I do not find that Williams v. Fahrenholtz, 08-0961 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 101; writ denied, 08-1680 (La.7/30/08), 986 So.2d 671, is distinguishable. Both Fahrenholtz and the present matter involve the integrity of the information provided by candidates and sworn to, in regards to the truthfulness,. on the qualification forms. Five judges of this Court affirmed the trial court in Fahrenholtz, finding that Mr. Fahrenholtz should be disqualified based on the false certifications contained in his “Notice of Candidacy.” Fahrenholtz, 08-0961, p. 8; 990 So.2d at 105.

It is undisputed that Mr. Davenport was not a candidate in a primary election on August 20, 2014. It is also undisputed that Mr. Davenport is a registered voter of Jefferson Parish, as opposed to St. John the Baptist Parish. Accordingly, I find that Mr. Davenport should be disqualified from being a candidate in the election of the United States Representative for the Second Congressional District, as sufficient evidence established a prima facie case for disqualification based on a false certification in the “Notice of Candidacy” filed by Mr. Davenport. Therefore, unlike the majority, I find that the petition states a cause of action as to the false certifications as opposed to creating additional qualifications as a candidate.

Furthermore, Mr. Davenport’s exception of insufficiency of service of process fails based upon the provisions contained in La. R.S. 18:1407, which states:

By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a general election, or contesting his election to office.

|4La. R.S. 18:1408 provides, in pertinent part, that:

A. If service of process is to be made on the appointed agent, as authorized by R.S. 18:1407, such service shall be made by serving citation on this agent, but at the same time that service is made on the appointed agent, a diligent effort shall be made to make personal service on the defendant at his domiciliary address as shown by his qualifying papers.

It is undisputed that Arthur Morrell, Clerk of Court for Orleans Parish Criminal District Court, was served with the plaintiffs’ ' Objection to Candidacy and Petition to Disqualify Candidate on August 29, 2014, pursuant to La. R.S. 18:1407. Therefore, Mr. Davenport’s exception of insufficiency of service of process lacks merit. •

JENKINS, J.,

dissents and assigns reasons.

¡J respectfully dissent and find that the trial court should have allowed the plaintiffs to introduce evidence to controvert the court’s objection to the plaintiffs’ standing. The trial court found that the plaintiffs had not proven their right to bring the action objecting to the candidacy of Mr. Davenport and that the issue of standing was dispositive of the entire matter. As the majority notes, the trial court had the right to notice an exception of no right of action on its own motion. However, prior to the final judgment, these parties were not aware that the plaintiffs’ standing was in question. “If the peremptory exception has been pleaded after the trial of the case, the court may rule thereon at any time unless the party against whom it has been pleaded desires and is entitled to present evidence thereon.” La. C.C.P. art. 929(B). “On an exception of no right of action (as opposed to an exception of no cause of action), evidence may be admitted to either rebut or support the exception.” Eubanks v. Hoffman, 96-0629, pp. 5-6 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600 citing Teacher’s Retirement System v. La. State Employees Retirement System, 456 So.2d 594, 597 (La.1984); see also, La. C.C.P. art. 931. If the trial court had raised this exception of no right of action during the hearing on September 2, 2014, or at any time prior to submission of the case for decision, the plaintiffs would have had notice and opportunity to present evidence | ¡of standing. In Eubanks, this Court found that the Louisiana Code of Civil Procedure provides the procedural opportunity to the plaintiff to controvert an objection to the right of action and that the plaintiff should be allowed the opportunity to present evidence to prove his right of action. 96-0629, p. 7, 685 So.2d at 600. This Court vacated the judgment insofar as it dismissed the plaintiffs claim due to no right of action and remanded the case for an evidentiary hearing on that exception of no right of action. Id., p. 9, 685 So.2d at 601-02. As in Eubanks, the trial court judgment, in this case, hinged on the finding that the plaintiffs had no standing to sue in this matter and the trial court did not provide plaintiffs the opportunity to rebut the exception of no right of action. Further, as the Court found in Eubanks, I find that the trial court erred by not affording the plaintiffs the opportunity to present evidence to rebut the objection to plaintiffs’ standing or right of action. Consequently, I would vacate the trial court’s judgment and remand this matter for an evidentiary hearing on the exception of no right of action and for such further proceedings to determine the merits of the remaining issues in this matter.

      . The judgment and reasons for judgment were included in the same document, contrary to the mandate of La. C.C.P. article 1918, which states, in pertinent part: "When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.” An appeal lies only from the judgment, not from the reasons. I.F. v. Administrators of the Tulane Educational Fund, 2013-0696, p. 6 (La.App. 4 Cir. 12/23/13), 131 So.3d 491, 496, citing Greater New Orleans Expressway Com’n v. Olivier, 2002-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24. This error does not invalidate a judgment that is complete and valid except for the inclusion of reasons. Id.

      . The statutes cited by the trial court regarding standing to bring a suit objecting to candidacy are La. R.S. 18:491(A), which states that "[a] registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office for which the plaintiff is qualified to vote,” and La. R.S. 18:1401(A), which states that ”[a] qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote.”

      . La. R.S. 18:463(A)(2)(a) provides, in pertinent part, as follows:
      The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
      (i) That he has read the notice of his candidacy.
      (ii) That he meets the qualifications of the office for which he is qualifying.
      (iii) That he is not currently under an order of imprisonment for conviction of a felony and that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana.
      (iv) Except for a candidate for United States senator or representative in congress, that for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.
      (v) That he acknowledges that he is subject to the provisions of the Campaign Finance Disclosure Act if he is a candidate for any office other than United States senator, representative in congress, or member of a committee of a political party and that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act.
      (vi) That, if he is a major or district office candidate as defined in R.S. 18:1483, he has filed each report he has been required to file by the Campaign Finance Disclosure Act, if any were previously due.
      (vii) That he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.
      (viii) That all of the statements contained in it are true and correct.

      . In particular, the Louisiana Election Code provides: "No person shall be a representative in Congress who has not attained the age of twenty-five years and who has not been a citizen of the United States for seven years and who is not, when elected, an inhabitant of this state.” La. R.S. 18:1275(B).

      . La. R.S. 18:492(A)(1) sets forth the following ground for objecting to candidacy:
      (1) The defendant failed to qualify for the primary election in the manner described by law.

      . Retired Judge Moon Landrieu of this court, having reached the mandatory retirement age, was appointed by the Louisiana Supreme Court to serve as judge pro tem during the vacancy occasioned by Judge Cannizzaro’s resignation from the court. See La. Const, art. 5, § 22(B).

      . La. C.C.P. art. 934: Effect of sustaining peremptory exception, provides: When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge. McKAY, C.J., TOBIAS, J., BELSOME, J., BONIN, J., LANDRIEU, J.,

license: Public Domain

text:
    Anthony J. RUSSO v. Lionel BURNS, Jr., and The Honorable Arthur A. Morrell.
    No. 2014-CA-0952.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 9, 2014.

      William M. Ross, W. Raley, Alford III, Richard C. Stanley, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, for Defendant/Appellant/In Proper Person.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).

      . Judge Sandra Cabrina Jenkins is recused.

   DENNIS R. BAGNERIS, SR., Judge.

L This appeal results from an election contest suit. The appellant, Lionel Lon Burns, appeals the trial court’s judgment that granted the petition of plaintiff, Anthony Russo, to disqualify Mr. Burns as a candidate for the position of Orleans Parish District Attorney. For the reasons that follow, we vacate the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2014, Mr. Burns filed a Notice of Candidacy (Notice) form to declare his candidacy for the office of Orleans Parish District Attorney. The signed and notarized Notice included the representation that:

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 return or both, or was not required to file either a federal or state income tax return of both.

Thereafter, on August 29, 2014, Mr. Russo filed his petition to object to Mr. Burns’ candidacy. Mr. Russo contended that a public records request to the 12Louisiana Department of Revenue revealed that the department had no record of a Louisiana individual income tax return for Mr. Burns for tax years 2010, 2011, 2012, and 2013. Consequently, he alleged that Mr. Burns had falsely certified that he had filed his federal and state income tax returns for the previous five years, and sought to have him disqualified, a sanction allowed by La. R.S. 18:494(A).

Mr. Russo served the petition on Mr. Burns through his statutory agent for service of process, Arthur A. Morrell, the Clerk of Criminal District Court, the official before whom Mr. Burns qualified his candidacy for district attorney. Mr. Russo also served the petition on Dale N. Atkins, the Clerk of Civil District Court. Mr. Russo retained private process servers to attempt personal service on Mr. Burns; however, they were unable to complete service. Mr. Russo also had a copy of the petition posted in a “conspicuous” place at Civil District Court for Orleans Parish.

The matter was fixed for trial on September 2, 2014. Mr. Burns complained that he had not been personally served with the petition and had only been advised that the proceedings were pending when his assistant received a call from the trial court. The trial court gave Mr. Burns about fifteen or twenty minutes to review the |spetition. At the start of trial, the plaintiff called several witnesses to discuss service of the petition. Major Martin Blossom, an employee of the Orleans Parish Sheriffs Office, testified that he served the petition on the clerks of court for criminal district court and civil district court. Kasie Marie Chauvin, a private process server, testified that she made seven attempts to serve Mr. Burns at the address provided on his qualifying form, another residence, and his law office. Helen Rose Shear, a law firm employee, stated that she was involved in the filing of the petition and that she saw a member of the Clerk’s office post the petition on a wall near the entrance of the office.

Mr. Russo then testified. He stated that he was registered to vote in Orleans Parish. He also identified the letter that he sent to the Louisiana Department of Revenue that requested Mr. Burns’ tax returns for the years 2008, 2009, 2010, 2011, 2012, and 2013, and the response letter he received. These documents were admitted into evidence.

Testimony and evidence relative to whether Mr. Burns falsely certified that he filed his Louisiana tax returns for the years 2010 through 2013 came from two witnesses. They were Mr. Burns and Bradley S. Blanchard, an attorney and representative from the Louisiana Department of Revenue.

Mr. Burns admitted that he signed the certification notice regarding his tax returns. He maintained that he anticipated that his opponents might make his tax returns an issue; therefore, he instructed his tax preparers to file his returns for the |42010, 2011, 2012, and 2013 tax years. He reiterated that although he did not file the returns himself, at the time of qualifying, he believed that they had been filed by his tax preparers. Mr. Burns thought that the returns had been filed in early August, perhaps, around August 11, 2014.

Mr. Blanchard testified that upon performing a diligent search, the Department of Revenue had no record of receiving individual tax returns from Mr. Burns. He admitted that the public records request was forwarded to him by Mr. Bar-field, the Secretary of the Department, and that the initial request sent to Mr. Barfield was made by Graymond Martin, later identified as an assistant district attorney. The trial court limited Mr. Burns’ request to inquire further into Mr. Martin’s role in the public records request. The trial court indicated that Mr. Martin’s involvement was not relevant because there was no evidence to show that Mr. Martin’s involvement tainted the research results.

The trial recessed at 11:48 a.m. The trial court instructed Mr. Burns to bring any documents he had to support that the tax returns had been filed when court resumed at 1:30 p.m.

When the trial resumed, Mr. Burns provided the court with his copies of records that purportedly showed the tax returns that had been prepared. Plaintiffs counsel examined Mr. Burns as to the validity and reliability of the returns. He argued in part that the returns should not be admitted into evidence because they were hearsay evidence, citing that they did not contain the signature of the tax | ^preparer; and moreover, did not provide any verification that the tax preparer had actually filed the returns. Mr. Burns again acknowledged that he did not file the returns himself; instead, he relied on his belief that his tax preparers had filed the returns. He eventually identified Monica Jackson as the person who prepared the returns and claimed that he had signed the returns in her office. The returns were admitted into evidence.

The trial court asked Mr. Blanchard to conduct an updated search to see if the Department of Revenue had received Mr. Burns’ tax returns. Upon his return to the stand, Mr. Blanchard testified that he directed his department to do an updated search. However, as of the date of the .trial, it still had no record that Mr. Burns had filed his tax returns for the disputed years.

Mr. Burns requested that he be allowed to call Ms. Jackson as a witness on the following morning. The trial court judge denied the request, explaining that “according to the statute, I have to complete the hearing.” The trial court judge then advised Mr. Burns that what he might want to do is file an objection and make a notation that he would like to proffer Ms. Jackson’s testimony. She surmised that maybe the proffer could go up to the Court of Appeal; however, the trial judge could not consider Ms. Jackson’s testimony at that juncture in the proceedings in making her ruling.

The trial court then rendered judgment in favor of Mr. Russo. The judgment found that Mr. Russo had established a prima facie case that had not been rebutted by Mr. Burns and disqualified him as a candidate.

| fiThis appeal followed.

DISCUSSION

Upon appeal, Mr. Burns assigns as errors that the trial court erred by not continuing the matter when he had not been served with the petition; by not allowing him adequate time and notice to prepare for the trial; by not giving him adequate time and notice for him to secure counsel, witness(es), and gather documentation to carry his burden of proof; in not allowing him to call the Assistant District Attorney Graymond Martin to discuss Martin’s contacts with the Department of Revenue; and in disqualifying Burns when the tax returns he admitted into evidence were sufficient to continue his candidacy in light of case law that supports that doubts as to candidacy should be resolved in favor of candidacy. In support of his appeal, Mr. Burns submitted proffers of an affidavit from Monica Jackson and a certificate of mailing from the United States Postal Office. The appellee filed a motion to strike, contending that these proffers were not properly before this Court because they had not been filed in the trial court record.

Mr. Burns’ assignments of error generally question whether he was properly served with the petition and whether the proceedings below afforded him due process. We find that the record shows that Mr. Burns was properly served with the petition in accordance with La. R.S. 18:1407 and that service of process on his agent gave the trial court jurisdiction over Mr. Burns. See La. R.S. 18:1408(D). 17However, we also find that Mr. Burns’ claims that the proceedings below did not afford him due process have merit.

. The essence of due process is notice and an opportunity to be heard. Darnell v. Alcorn 99-2405, p. 12 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 723. Here, the evidence that Mr. Burns wanted to elicit from Ms. Jackson-whether she filed his tax return-is material as to whether he falsely certified that he had indeed filed the returns at the time he qualified. Therefore, the denial of his request to call Ms. Jackson clearly prejudiced him in .meeting his burden of proof.

La. C.C.P. articles 1631 and 1632 give the trial court the power over trial proceedings and the order of witnesses; and in general, a trial 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 trial court’s discretion is exercised in such a way that deprives a litigant of his day in court. Anderson v. Cunningham, 34,859, p. 2 (La.App. 2 Cir. 5/9/01), 786 So.2d 940, 942. In the present matter, the record suggests that the trial court denied Mr. Burns’ request to call Ms. Jackson as a witness on the following morning because of the expedited procedures imposed by the Louisiana Election Code as to when the trial court must hear and resolve election suits. Although this Court acknowledges that the Election Code provides for an expedited process, 'it poses no time constraints as to the duration of a hearing, such as to deny a litigant due process.

|sThe trial court’s denial of Mr. Burns’ request to call Ms. Jackson as a witness effectively denied him his day in court. Therefore, the trial court abused its discretion in not allowing Mr. Burns to call Ms. Jackson.

Finding that the trial court abused its discretion, we need not address the issue as to whether the proffers submitted by Mr. Burns are properly before this Court.

Accordingly, based on the foregoing reasons, the decision to disqualify Mr. Burns is vacated and the matter is remanded to the trial court in order to allow Mr. Burns the opportunity to present testimony from Ms. Jackson.

VACATED AND REMANDED.

BELSOME, J., concurs with additional reasons.

BONIN, J., concurs with additional reasons.

McKAY, C.J., dissents.

TOBIAS, J., dissents and assigns reasons.

LANDRIEU, J., dissents with reasons.

LOBRANO, J., dissents for the reasons assigned by Judge TOBIAS and Judge LANDRIEU.

McKAY, C.J.,

dissents.

hi find no violation of the defendant’s due process rights and would affirm the judgment of the trial court disqualifying his candidacy.

TOBIAS, J.,

dissents and assigns reasons.

|,I respectfully dissent.

I find the majority errs by granting a remand in this case.

I start with the jurisprudential rule that candidacies for public office are favored and the courts should uphold a candidacy if an interpretation of the laws would promote the candidacy. Landiak v. Richmond, 05-0758, p. 7 (La.3/24/05), 899 So.2d 535, 541; Becker v. Dean, 03-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869; Russell v. Goldsby, 00-2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051; Ogden v. Gray, 12-1314, pp. 3-4 (La.App. 4 Cir. 9/11/12), 99 So.3d 1088, 1091, ' writ denied, 12-2041 (La.9/17/12), 98 So.3d 315; Scaglione v. Juneau, 10-1109, p. 12 (La.App. 4 Cir. 8/4/10), 45 So.3d 191, 199, unit denied, 10-1831 (La.8/9/10), 42 So.3d 380; Williams v. Fahrenholtz, 08-0961, p. 7 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 104, writ denied, 08-1680 (La.7/30/08), 986 So.2d 671, cert, denied, 555 U.S. 1045, 129 S.Ct. 627, 172 L.Ed.2d 609 (2008). Because election laws must be interpreted to give the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. See Landiak, pp. 6-7, 899 So.2d at 541.

On appeal, Mr. Burns assigns the following errors: the trial court erred (1) by not granting him a continuance because he was not served with the petition and 1 ¡.citation until he appeared in court on 2 September 2014; (2) by not granting him adequate time to prepare for trial because he is a lawyer and thus an officer of the court; (3) by not giving him adequate time to secure counsel, witnesses, and necessary documentation, which are fundamental to his due process rights of notice and an opportunity to be heard; (4) by not allowing him to call Orleans Parish First Assistant District Attorney Graymond Martin regarding Mr. Martin’s contacting the Louisiana Department of Revenue on behalf of the plaintiff/appellee; and (5) by disqualifying him, giving him only the lunchtime break to retrieve his personal tax information and to bring his tax return preparer (who was unavailable) to court, although the court did allow him to proffer the information.

After the trial began, the trial court granted Mr. Burns’ request for a recess in order to obtain copies of his 2010-2013 tax returns from his Algiers office. Approximately an hour and forty-five minutes later, Mr. Burns presented tax returns bearing original signatures of himself and his tax preparer dated 14 August 2014. These tax returns appear in the record on appeal. Mr. Burns does not clearly explain how he possessed original tax returns; he seems to say that he signed two copies of each of his tax returns, left one with the tax preparer for mailing, and kept one with the cover letter of transmittal to him dated 11 August 2014 for his records.

I do not find erroneous the trial judge’s conclusions that Mr. Burns’ candidacy must be stricken and that he is disqualified to run for the office of district attorney. The trial judge implicitly concluded that Mr. Burns did not file his state income tax returns before he qualified for office on 20 August 2014 . The finding is not manifestly erroneous or clearly wrong. If, as Mr. Burns contended in |3the trial court that his tax preparer mailed the returns on 14 August 2014 *, the returns clearly had not been received by the Louisiana Department of Revenue (“LDR”) by 29 August 2014 or during the 2 September 2014 trial, when the LDR witness was testifying I do not find it credible that he relied upon his tax preparer (as he testified) to timely mail the returns given the exigent circumstances.

I would reject the proffers of Mr. Burns and strike them as the appellees have so moved. He did not file the proffers in the trial court and they do not form a part of the record on appeal. No law or rule of court permits proffers to be filed in the first instance in an appellate court. Therefore, unlike the majority, I would not consider anything in the proffers.

If I were to consider the proffers, however, I note the following matters which make them questionable and unreliable.

Mr. Burns’ appellate brief was to be filed in this court by 1:00 p.m. on 5 September 2014. On 5 September 2014, he filed a motion requesting an extension of time to file his appellate brief later that day; the extension was granted. He delivered with his motion two proffers: (1) a purported affidavit of his tax return preparer (Monica Jackson, whose tax preparing service, “Error Proof Tax Service,” is apparently located somewhere west of New Orleans, such as LaPlace or Kenner, Louisiana), stating that she mailed his four state tax returns to the LDR on 15 August 2014: and (2) a U.S. Postal Service certificate of mailing with a cancellation stamp/postmark from a branch post office in uptown New Orleans (zip code 70115) bearing the date of 15 August 2014.

This first purported original affidavit dated 5 September 2014 does not bear the signature of the tax preparer, Ms. Jackson; it is signed by two witnesses and the notary public only. Later on 5 September 2014, Mr. Burns filed a motion to ^supplement the record to replace the first purported affidavit. The second affidavit bears the signature of his tax preparer, Ms. Jackson. A comparison of the first purported affidavit with the second affidavit strongly suggests that the notary public and witnesses signed the document pri- or to the affiant and were not present when Ms. Jackson signed. The signatures of the notary public and witnesses are identical in every respect whatsoever, including and even to the extent that the signature of the notary public crosses the handwritten number “5” in the date of the jurat at the precise same place. The handwritten word “September” in both ju-rats is distinctively identical with an imperfection in the “ep” of the word “September.” I do not place much credence or credibility in the second affidavit presented to this court on 5 September 2014. I would, therefore, reject this proffer.

The certificate of mailing is questionable. The certificate of mailing has no postage affixed as the certificate itself says should be and I wonder why a tax preparer would mail a letter in uptown New Orleans when her office is in Kenner and, as stated by Mr. Burns in oral argument, she resides in LaPlace. I would reject the proffer.

Mr. Burns statements about being unprepared ring hollow. Mr. Burns testified that he was unprepared for the 2 September 2014 trial because he did not know until that morning that a challenge to his candidacy had been filed by Mr. Russo. He asserts various versions of his actions over the preceding Labor Day weekend: that he was in Atlanta, Georgia visiting his minor son over the Labor Day weekend (29 August through 1 September); that he was halfway to Georgia and had to turn back because of this election contest; that he was at his 5740 Eastover Drive home (where service of the petition and citation was attempted three times) several times over the Labor Day weekend, which he later modified to |fisay that he was there only for about five minutes early Saturday morning, 30 August 2014. Mr. Burns’ credibility is obviously suspect in these regards.

The trial judge was under statutory item restraints to begin the trial of the case, and refused to recess the trial for yet a second time to permit Mr. Burns to bring his tax preparer into court the following day to testify that she mailed the tax returns prior to 20 August 2014 (the day Mr. Burns qualified for office with the clerk of court). I cannot say that the trial judge abused her discretion in refusing to entertain the second recess; it is apparent from the testimony the judge heard and evidence presented that the judge did not believe Mr. Burns.

Our statutory expedited procedures to challenge candidacy have been adhered to by the trial court. I do not find a remand in order. I would affirm the judgment of the trial court.

, Further, Mr. Burns moved and the trial court granted a stay of her 3 September 2014 judgment. No law permits the granting of a stay in an election contest. I would order the stay entered by the trial court vacated.

BELSOME, J.,

concurs with additional reasons.

hi agree with the majority’s decision to vacate the trial court’s judgment disqualifying the defendant as a candidate for the office of District Attorney for Orleans Parish. Yet again, we are posed with the narrow issue of whether the State legislature may enact additional qualifications for State candidates beyond what is required by the Louisiana Constitution.

The plaintiffs’ objection to the defendant’s candidacy primarily involves whether he failed to comply with the directives set forth in La. R.S. 18:46s. Specifically, the plaintiff alleges that the defendant should be' disqualified, under |2La. R.S. 18:463(A)(2)(a)(iv) because he falsely certified that he had filed his federal and state income tax returns for the previous five ■ years.

La. Const. Art. V, Sec. 26 sets forth only two qualifications for candidates of the office of District Attorney: “[h]e shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election.” Although our justice system has always favored candidacy, see Becker v. Dean, OS-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869; La. R.S. 18:463 has evolved into a list of qualifications/disqualifications that promotes the exclusion of otherwise constitutionally qualified candidates.

Although this case presents an issue slightly distinguishable from those involving a federal constitutional article: the principal remains the same: an act of legislature should not circumvent a constitutional article, whether state or federal. Given that these extensive statutory qualifications are not enumerated in our State Constitution, the plaintiffs challenge to the defendant’s candidacy must fail. As a result, this writer would reverse/vacate the trial court judgment, dismiss the plaintiffs action, and reinstate the defendant’s candidacy.

BONIN, J.,

concurs with additional

reasons.

hi concur and write separately to emphasize that this is a limited remand. On remand, Mr. Burns may only call Monica Jackson as a witness. She will be subject to cross-examination by Mr. Russo. Of course, Mr. Russo may then call witnesses to rebut her testimony.

LANDRIEU, J.,

dissents with reasons.

hi respectfully dissent. The Majority correctly concludes that service on Mr. Burns was timely and proper. It then concludes, however, that Mr. Burns was denied due process because he was afforded insufficient time to' present his evidence.

The record supports a finding that Mr. Burns was well aware that his candidacy might be challenged on the basis of his failure to file his tax returns. Anticipating such a challenge, he testified that he recently instructed his “tax preparer” to file his returns for the years 2010, 2011, 2012 and 2013 and believed they were filed shortly before qualifying. The record is also replete with evidence of multiple attempts to notify Mr. Burns of the scheduled hearing and the nature of the challenge against him. In fact, Mr. Burns testified that he neither looked at his email nor checked his voice mail over the course of the four days between the challenge being filed and the hearing.

It is quite reasonable, under these facts, for the trial court to find incredible Mr. Burns’ contention that he needed more time than was afforded him to present competent evidence sufficient to rebut the plaintiffs prima facie case. The trial court was within its discretion to deny Mr. Burns’ request for more time. This decision by the' trial court did violate his right to due process.

      . La. R.S. 18:494 states the effect of sustaining an objection to candidacy as follows:
      A. Disqualification. 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.

      .La. R.S. 18': 1407 provides: 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.

      . Hereinafter, the use of "tax returns” will reference the disputed tax years of 2010, 201 1, 2012, and 2013.

      . Later, if one were to believe the certificate of mailing as discussed infra, the correct date is 15 August 2014.

      . It appears that the affidavit was notarized and witnessed in blank and then delivered to Ms. Jackson for her signature.

      . La. R.S. 18:463(A)(2)(a) provides, in pertinent part, as follows:
      The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
      (i) That he has read the notice of his candidacy.
      (ii) That he meets the qualifications of the office for which he is qualifying.
      (iii) That he is not currently under an order of imprisonment for conviction of a felony and that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana.
      (iv) Except for a candidate for United States senator or representative in congress, that for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.
      (v) That he acknowledges that he is subject to the provisions of the Campaign Finance Dis-
      closure 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.

      . See Eugene and Galle v. Davenport et al., 2014-953 (La.App. 4 Cir. 9/9/14), 150 So.3d 56, 2014 WL 4437624 and Richmond v. Landrieu et al, 2014-957 (La.App. 4 Cir. 9/9/14), 150 So.3d 43, 2014 WL 4437315 (complete cites not available as cases will be handed down within a twenty-four hour period.)


author: JAMES F. McKAY III, Chief Judge.

text:
    STATE of Louisiana in the Interest of R.P.
    No. 2014-CA-0468.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Donna R. Andrieu, Assistant District Attorney of Orleans Parish, Christopher J. Ponoroff, Assistant Dis-
    trict Attorney of Orleans Parish, New Orleans, Louisiana for State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Chief Judge.

hOn March 31, 2014, the Orleans Parish Juvenile Court adjudicated R.P. delinquent for the illegal possession of a handgun by a juvenile in violation of La. R.S. 14:95.8. R.P. was sentenced to the Department of Public Safety and Corrections for six months. Three months of the sentence was suspended, and R.P. was given credit for time served. The juvenile court judge further ordered that upon release, R.P. would be “placed under the supervision of the Office of Juvenile Justice on ACTIVE PAROLE for a period of three (3) months.” For the reasons that follow, we affirm the adjudication and disposition subject to the amendment discussed herein.

STATEMENT OF FACTS PROCEDURAL HISTORY

At the adjudication hearing, Detective Kurt Eischen (“Det. Eischen”) with the New Orleans Police Department (“NOPD”) testified that he participated in the arrest of R.P. Det. Eischen stated that on March 2, 2014, he and his partner, Detective Jennifer Payne (“Det. Payne”), were in plain clothes working the 700 block of Canal Street in New Orleans. R.P. walked by the officers smoking a hand-rolled cigar, from which Det. Eischen detected the aroma of burning ^marijuana. Det. Eischen stated that he approached R.P., identified himself as a police officer, and took possession of the hand-rolled cigar. At that point, R.P. let the backpack, which he was seen wearing, slide off his back and then he took off running. Det. Eischen gave chase and quickly apprehended R.P. within the same block of Canal Street. During the chase, Det. Eis-chen somehow lost possession of the hand-rolled cigar. Det. Eischen explained that Det. Payne recovered the backpack where R.P. dropped.it. After R.P. was detained for marijuana possession and resisting arrest, Det. Payne recovered a handgun from the backpack. Det. Eischen identified the backpack, the handgun, and R.P. in open court.

Det. Payne testified that on the night of R.P.’s arrest, she, along with the 8th District narcotics unit, was working in. a plain clothes capacity along Canal Street, tasked with combating criminal activity along the parade route. Det. Payne reiterated Det. Eischen’s testimony that they observed R.P. walk by smoking a hand-rolled cigar that smelled of burning marijuana. Det. Payne observed that R.P. was wearing a black Bob Marley backpack on his back, with both straps around the right and left arms. She explained that the backpack was on R.P.’s back the entire time she observed him. Det. Payne and Det. Eis-chen approached R.P., verbally identified themselves, and exposed their NOPD badges. Det. Payne testified that when Det. Eischen took possession of the hand-rolled cigar, R.P. let the backpack slide off his back and fled. Det. Payne immediately recovered the backpack and maintained possession of it. After R.P. was detained and handcuffed, Det. Payne recovered a semi-automatic nine millimeter handgun from the backpack. R.P. was taken to the 8th District police station. Det. Payne testified that they obtained R.P.’s Uname and date of birth, which they ran through the NOPD computer. At that time, it was discovered that R.P. had an outstanding warrant. Det. Payne identified the handgun, and R.P. in open court.

Following the testimony of Det. Eischen and Det. Payne, and the introduction of the backpack and handgun, R.P. was adjudicated delinquent for the illegal possession of a handgun by a juvenile in violation of La. R.S. 14:95.8. This appeal followed. LAW AND ANALYSIS

In State in the Interest of J.J., 2013-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250, this Court recently reiterated the appellate standard of review in juvenile cases as follows:

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.C. art. 883. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of J.W., p. 3 (La.App. 4 Cir. 6/6/12), 95 So.3d 1181, 1184. As a court of review, we grant great deference to the juvenile court’s factual findings, credibility determinations, and assessment of witness testimony. State ex reí. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard of review is applicable in juvenile delinquency cases. Id.

In addition, La. Const, art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature.” State in the Interest of D.R., 2010-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930. |4(Emphasis in the original). Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. State in Interest of KG., 2011-1559, p. 4 (La.App. 4 Cir. 3/21/12), 88 So.3d 1205, 1207, citing State in the Interest of Batiste, 367 So.2d 784 (La.1979); State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571; State in the Interest of S.S., 557 So.2d 407 (La.App. 4 Cir.1990). In sum, we apply the “clearly wrong-manifest error” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

R.P. asserts that the trial court erred in finding that the State presented sufficient evidence to prove each element of illegal possession of a handgun by a juvenile pursuant to La. R.S. 14:95.8. Specifically, R.P. argues that the State failed to establish beyond a reasonable doubt that R.P. was: 1) carrying a handgun on his person; and 2) under the age of seventeen at the time of the offense.

La. R.S. 14:95.8 A provides: “It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person.” Pursuant to La. R.S. 14:95.8 A, “[c]on-structive possession alone by the juvenile of a handgun is insufficient for a finding beyond a reasonable doubt that a juvenile unlawfully possessed a handgun.” State in Interest of R.D., 2012-0619, p. 4 (La.App. 4 Cir. 10/3/12), 126 So.3d 504, 506, (citing State in the Interest of T.M., 2011-1238 p. 9 (La.App. 4 Cir. 3/28/12), 88 So.3d 1228, 1235 rev’d in part on other grounds, 2012-0964 (La. 12/14/12), 104 So.3d 418).

In the instant case, R.P. acknowledges that the backpack contained the handgun. He maintains, however, that the handgun was not directly on his person. We find no merit in this argument.

In State ex rel. TM, supra, p. 7, 88 So.3d at 1234 (citing State v. Jones, 168 La. 55, 121 So. 300 (La.1929)), we recognized that the carrying of a knapsack, whether suspended from the shoulder or in the hand, which contains a concealed |5weapon, is “on or about his person.” In State in the Interest ofKM., 2010-0649 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, we affirmed an adjudication for the delinquent act of carrying a concealed weapon in a purse pursuant to La. R.S. 14:95 A(l), which provides, in pertinent part, that the illegal carrying of a weapon is “the intentional concealment of any firearm ... on one’s person.” As we stated in State ex rel. TM, supra, p. 9, 88 So.3d at 1234-35, “the requirement of § 95 A(l) (“on one’s person”) and § 95.8 A (“on his person”) are identical and only proof beyond a reasonable doubt of actual possession of a handgun on the person of someone under seventeen-years old can suffice for an adjudication of delinquency under § 95.8 A.”

In the present case, the undisputed testimony .by the arresting officers demonstrated that R.P. wore the backpack, which contained the handgun, securely on his back throughout the entire incident. We find this sufficient to prove that the handgun was on his person pursuant to La. R.S. 14:95.8. Thus, that element of the statute has been satisfied.

R.P. also asserts that the State did not put forth any evidence to prove that he was under the age of seventeen, an essential element of the offense set forth in La. R.S. 14:95.8. We disagree.

The testimony of Det. Payne revealed that R.P.’s name and date of birth were provided during the booking proceedings. R.P.’s date of birth (1/11/98) was thereafter reflected on numerous court records, including: 1) the delinquency petition; 2) the March 6, 2014 judgment for continued custody, ordering that R.P. be detained in the Youth Study Center (R.P. and his mother were present in court | fion March 6, 2014); and 3) the March 10, 2014 judgment remanding R.P. to the Youth Study Center pending the adjudication hearing. Additionally, we note that R.P. did not present any evidence to contradict the State’s allegation of his age, nor did he move to dismiss the proceedings on the basis of lack of jurisdiction due to his age, as he was permitted to do under La. Ch.C. art. 875.

In State in the Interest of Metoyer, 606 So.2d 74, 76 (La.App. 3 Cir.1992), the juvenile argued on appeal that the juvenile court" did not have jurisdiction over him because there was no proof he was under the age of seventeen. However, the record contained the juvenile’s age in the petition for adjudication, as well as in two earlier petitions for adjudication involving that child, with whom the juvenile court was very familiar. Although the juvenile made an oral motion for acquittal at trial, which the appellate court treated as a motion to dismiss, the appellate court found the juvenile court did not err in the denial of the motion, finding proof of the child’s age so as to permit the court to exercise jurisdiction. Id.

In State v. D.L., 29,789, pp. 5-6 (La.App. 2 Cir. 6/18/97), 697 So.2d 706, 709-10, the juvenile contended that the State failed to establish jurisdiction of the juvenile court because it failed to establish his age during its case-in-chief. Citing State in the Interest of Metoyer, supra, the appellate court found that no error patent occurred where the juvenile’s age was included in the delinquency petition but not presented at the hearing. The court noted that the juvenile did not move to dismiss the proceedings on the basis of lack of jurisdiction due to his age, nor did he present any evidence that contradicted the State’s allegation of his age. Id.

Here, we find that the record contains sufficient proof to establish that R.P. was under the age of seventeen at the time of the alleged offense. Thus, we find that all the elements of La. R.S. 14:95:8 were proven beyond a reasonable doubt.

|7Finally, R.P. contends that the juvenile court erred in its disposition by sentencing him to “active parole”. This argument has merit. Clearly, the juvenile court lacked authority to impose a term of three months active parole, and we can only presume that “active probation” was the intended disposition. Nevertheless, we find no need to remand the case to correct this obvious oversight.

As this Court has held, “[wjhere the defect in sentencing does not involve the exercise of discretion, the sentence may be corrected on appeal by amendment rather than remand.” State ex rel. H.L.F., 97-2651, p. 6 (La.App. 4 Cir. 5/20/98), 713 So.2d 810, 813. Thus, we amend the disposition order of the juvenile court to provide for three months active probation rather than active parole.

CONCLUSION

For the foregoing reasons, the juvenile court’s adjudication of delinquency based on a violation of La. R.S. 14:95.8 is affirmed. We amend the disposition to provide for three months active probation rather than active parole, and the disposition is affirmed as amended. The matter is remanded to the juvenile court with instructions to amend the custody order and minutes to reflect this modification.

ADJUDICATION AFFIRMED; DISPOSITION AFFIRMED AS AMENDED; CASE REMANDED WITH INSTRUCTIONS.

      . Det. Eischen testified that he worked in narcotics for three years and knew the smell of marijuana.

      . R.P. would have been just over sixteen at the time of the offense.