150 So. 3d 324
La. Ct. App.2014Background
- Mary Hotard Becnel qualified as a candidate for Division B of the 40th Judicial District Court (St. John the Baptist Parish) for the November 4, 2014 primary.
- Melanie L. Trosclair, a qualified elector, filed an objection contesting Becnel’s qualification on grounds the notice of candidacy was not executed in the manner required by law (La. R.S. 18:463 and related notary statutes).
- At a bench trial, Trosclair argued the qualifying form was defective because it was notarized by Janet L. Kavanagh (a deputy clerk/ex officio notary) rather than a "notary public," omitted Kavanagh’s ex officio title and notary identification number, and was not sworn.
- Kavanagh testified she is a deputy clerk and the Secretary of State records list her notary type as "deputy clerk;" deputies possess the clerk’s notarial powers under La. C.C.P. arts. 255 and 287.
- After Trosclair presented her case, Becnel moved for involuntary dismissal under La. C.C.P. art. 1672(B); the trial court granted the motion and dismissed Trosclair’s action with prejudice.
- The court of appeal affirmed, applying liberal construction of election laws and concluding the alleged notarial defects did not invalidate the qualifying form.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether execution before an ex officio notary satisfies statute requiring execution before a "notary public" | Trosclair: form was invalid because it was notarized by an "ex officio notary" (deputy clerk), not a "notary public" | Becnel: deputy clerk is authorized to act as ex officio notary; execution valid | Held: execution before ex officio notary does not render form null; deputy clerk authorized to notarize |
| Whether failure to indicate ex officio title invalidates the document (La. R.S. 35:12(C)) | Trosclair: omission of ex officio title means noncompliance and nullity | Becnel: omission does not invalidate the qualifying form; any defect is not fatal | Held: omission does not invalidate the qualifying form (citing analogous precedent) |
| Whether omission of notary identification number (La. R.S. 35:12(B)) voids the document | Trosclair: absence of notary ID number renders notarization defective and form invalid | Becnel: omission may expose notary to penalty but does not affect document validity | Held: noncompliance does not affect validity of candidacy; such faults may be subject to penalty but not nullity |
| Whether the qualifying form required an oath ("Sworn to and subscribed before me") | Trosclair: absence of sworn oath invalidates form | Becnel: La. R.S. 18:463 does not require an oath; form sufficient | Held: statute does not require swearing; lack of oath does not invalidate form |
Key Cases Cited
- Christiana v. S. Scrap Recycling, 131 So.3d 1059 (La. App. 5 Cir. 2013) (burden and standard on involuntary dismissal)
- Russell v. Goldsby, 780 So.2d 1048 (La. 2000) (objector bears burden to prove disqualification; interpret election laws liberally)
- Messer v. London, 438 So.2d 546 (La. 1983) (objector’s burden in election contests)
- Hamilton v. Royal Int’l Petroleum Corp., 934 So.2d 25 (La. 2006) (mandatory statutory duties do not imply nullity absent prescribed penalty)
- Millen v. State Dep’t of Pub. Safety & Corr., 978 So.2d 957 (La. App. 1 Cir. 2007) (omission of ex officio title did not invalidate affidavit)
- Am. Bank & Trust Co. v. Michael, 244 So.2d 882 (La. App. 1 Cir. 1971) (notary’s failure to comply with notary statutes may subject notary to penalty but not affect document validity)
- Succession of Adler, 334 So.2d 799 (La. App. 4 Cir. 1976) (failure to comply with notary requirements subjects notary to fine but does not invalidate document)
- Dixon v. Hughes, 587 So.2d 679 (La. 1991) (doubt about candidate qualifications resolved in favor of permitting candidacy)
- Senegal v. Obafunwa, 745 So.2d 74 (La. App. 3 Cir. 1999) (purpose of notice of candidacy is to show sufficient information of qualification)