238 So. 2d 48 | La. Ct. App. | 1970
Lead Opinion
On June 12, 1970, Mr. Lemmon, an attorney, completed and filed forms necessary to qualify as a candidate in the Democratic Primary for the office of Judge of the Court of Appeal, Fourth Circuit, Third District. The plaintiff objected to the candidacy denying that Mr. Lemmon was a resident or elector of the District and lodging an appropriate petition with the Democratic Committee sponsoring the election.
A hearing was convened and testimony taken, after which, the Committee dismissed the petition. The plaintiff appealed the Committee’s decision to the Twenty-Ninth Judicial District Court. The court conducted a de novo hearing and, after considering the transcript and some additional testimony, affirmed the decision of the Committee. Plaintiffs then appealed to this court.
The constitutional provision at issue is Art. 7, § 22, of the La. Const, (as amended Acts 1958, No. 561, adopted Nov. 4, 1958).
“The judges of the courts of appeal shall be citizens of the United States and*50 qualified electors of the state, licensed to practice law in the state for at least six years immediately preceding their election. They shall be residents of the circuit or of the district from which they are respectively elected, and must have resided in their respective circuits or districts for at least two years immediately preceding their election.”
The principal question related to residence is not so obvious as it might seem. The plaintiffs for example argue in the main that Mr. Lemmon’s residence was somewhere other than Hahnville. More specifically, they contend that since 1967 the Lemmons’ exclusive residence has been their house on Napoleon Avenue in New Orleans, at which Lemmon admits he spends most of his nights. To state the question in these terms is, however, within itself, entirely misleading for it is plain that a Louisiana citizen may legally maintain as many residences as he wishes and his means will allow. See Stavis v. Engler, La.App., 202 So.2d 672. In this sense residence is not to be confused with domicile, the concept which, like the plaintiffs at bar, directs its focus to a citizen’s principal domestic establishment.
Whether or not the principal Lemmon domestic establishment has been or was always in Orleans or Jefferson is, therefore, entirely irrelevant. The sole question is whether Mr. Lemmon maintained a residence within the Third District for the two years preceding election.
The evidence is clear that for a period of time well in excess of that minimum Mr. Lemmon has maintained his offices in Hahnville and has spent virtually all of his working days there. Though he and his wife spend most nights elsewhere they have maintained, for their exclusive use, a suite of rooms in the home of Mr. and Mrs. James Vial, the parents of Mrs. Lemmon, in Hahnville, since their marriage. They have furniture there and keep clothing and necessities for their children on the premises. They spend at least 25 and perhaps 75 or more nights per year in these quarters. They have complete use of the utilities, equipment and necessities there, do their own entertaining in the house, come and go without prior arrangements and have their own key.
Both Mr. and Mrs. Lemmon are registered to vote in Hahnville and have been so registered since 1963. They have received mail there, paid taxes there and used the Hahnville address in dozens of other ways. Under' these circumstances, we see no basis upon which we might reasonably set aside the Committee and trial court fact finding of residence in Hahnville.
The plaintiffs also argue that Mr. Lemmon is not a qualified elector, asserting basically that the 1963 application was secured by misrepresentation. This question, however, is not properly before this court.
In the first place, the constitutional provisions currently governing registration seem to preclude collateral attack upon the registration rolls. See Art. 8, § 5. In the second, no charge of misrepresentation relevant to the 1963 registration was included in the petition filed with the Committee. As was held in Leopold v. Democratic Executive Committee, 8 La. App. 232 (1927), and as the Supreme Court observed in Melerine v. Democratic Parish Executive Committee for Parish of St. Bernard, 164 La. 855, 114 So. 711 (1927):
“ * * * any obj ection to a candidate shall set forth ‘in detail’ the reason why said candidate is not qualified; so that the only question before the committee is whether said objections be well founded. And since the court can only review the decision of the committee, it follows that any other objections which might have been made, but were not made, are wholly immaterial to the issues before the court. And since new objections cannot be urged before the*51 court which were not set up ‘in detail’ before the committee, it follows that this plaintiff was not called to anticipate any such new objections by setting forth in his petition, and later on proving, that he has all the qualifications required for the office which he seeks. To hold otherwise would amount, in effect, to allowing objections to plaintiff’s candidacy to be made for the first time in the courts and not before the committee, and to allow such objections to be made not ‘in detail,’ but in the most general manner conceivable * * (Emphasis added.)
For these reasons, the judgment appealed from is affirmed.
Affirmed.
SWIFT, J., dissents.
Concurrence Opinion
(concurring).
I subscribe to the majority opinion but would expand on its reasoning.
Appellants’ objections to appellee Lem-mon’s candidacy are by law required to be in writing and to “contain, in detail, the reasons for the objection”, LSA-R.S. 18:307, subd. A. We have noted that the detailed objections must alone be the source of the issues before this court; Melerine v. Democratic Parish Exec. Comm., 164 La. 855, 114 So. 711 (1927); Leopold v. Democratic Exec. Comm., 8 La.App. 232 (1927).
The only reasons contained in detail were:
(1) Lemmon’s residence, alleged to be exclusive, in Ward 4 of St. Charles Parish, from 1964 to 1967 while he was registered to vote (since January 1963) as a resident of Ward 2;
(2) his residence, also alleged to be exclusive, in New Orleans from 1967 until the present (or at least April 1970);
(3)his having applied for ad valorem tax homestead exemptions on his New Orleans residence for 1969, 1970 and 1971.
We may disregard the homestead exemptions because, as held in Stavis v. Engler, 202 So.2d 672 (La.App.1967), an exemption on one residence does not prevent a man from having another residence and being a qualified elector and candidate from the area of the other residence.
Thus, on the objections filed, we might disqualify Lemmon only;
(1) because he has not had a residence in the court of appeal district during the two years prior to the election; or
(2) because (even if he has had the required residence of the past two years) he is not a qualified elector because he did not have a residence in Ward 2 (where he has been a registered voter since January 1963) between 1964 and 1967.
The theory he may not be a qualified elector (even though a resident longer than required and even though a registered voter) rests on the unattractive notion that a defective registration cannot be cured by elimination of the defect. Appellants suggest in argument that a man who prematurely registered a few days prior to having the full six months’ residence in a parish could never be a qualified elector, not even after 15 years of residence, except by registering anew. We need not, however, decide the question whether residence defects in registration can be cured by subsequently completing residence. Here, the only evidence is that Lemmon’s residence in the Ward of his registration (at his father-in-law’s home) existed, or lacked existence, to the same extent during both periods in question. Accordingly, if Lemmon has had a residence in Ward 2 during the past two years, he has had it
(There is, of course, a difference in the explanations of purpose of having a residence elsewhere during the two periods. In the earlier period, 1964-67, Lemmon had since 1963 a 20-acre tract adjoining Mimosa Park Subdivision and purchased and built a house on a boundary lot in Mimosa Park as an investment and lived in that house while trying to clear, build up and develop the 20-acre tract. My dissenting brother BARNETTE says this house was “built by them for their home”, but their testimony is uncontradicted it was built as an investment. In the later period, 1967 to about now, Lemmon had very young children in nursery school and kindergarten in New Orleans because St. Charles Parish offered no such facilities, and Lemmon purchased and lived in a house in New Orleans to facilitate the schooling of his children. Nevertheless, although the motives for the residences elsewhere were different, the uncontradicted testimony of the Lemmons is that they always kept their residence to the same extent in Hahnville and that in fact their physical presence in and use of the Hahnville house was of approximately the same frequencies and duration during all pertinent periods. Thus, we may answer all issues here by determining whether that claimed residence in Hahnville satisfies the requirements of Const. Art. 7, § 22, of residence in the district for the two years immediately prior to the election.)
The claimed residence in Hahnville is the home of James P. Vial, father of Mrs. Lemmon. It is a very large house, having five bedrooms, six baths and four sitting rooms, outside barbecue area and swimming pool. The house is located 300 feet from Vial’s law office. The Vials maintain it well stocked with food, including six freezers. The only persons who reside there ordinarily at all times are Mr. and Mrs. Vial, who occupy one bedroom. They have a son who has ordinarily been away at school, including summer school, during the past five years; but a second bedroom is set aside for the son. Since Lemmon married the Vials’ daughter, a third bedroom has been used exclusively by them, and as their family grew at the rate of one every 11 months for their first five children, they took over the fourth and at times the fifth bedroom.
After his December 1961 marriage to Miss Vial, Lemmon worked in her father’s law office in Hahnville in the summer of 1962, and at that time, the Lemmons testified, they determined to make Hahnville their residence and to practice law there with Mr. Vial’s firm upon finishing law school. (And, although Mrs. Lemmon at some time left law practice to be more able to care for her growing family, Mr. Lemmon has continuously practiced with Mr. Vial at Hahnville, although he did handle trial of three or four cases for some lawyers in New Orleans, beginning in mid-1968.)
While the initial validity of the Lemmons’ residence with the Vials is not an issue, it may be pointed out that both Lemmon and his wife were law students in New Orleans at the time and had an apartment in Metairie, Jefferson Parish. It does not seem unusual that a man in Lemmon’s position, intending to practice law with his wife and his father-in-law where the father-in-law was long and well established, but having to remain elsewhere to finish law school, should establish a residence with his father-in-law, by residing in the latter’s home, to the extent his studies allowed. Indeed, if a man in Lemmon’s position wanted to establish a residence as he obviously did, it appears he did about all he could and accomplished his intent, unless as a matter of law his necessary absence while attending school prevented him from changing his residence to Hahnville. But see La.Const. Art. 8, § 11, preventing residence for schooling from affecting voting residence.
The first question, then, is whether, when both Lemmon and his wife had finished law
As a matter of fact, they testify, they continued the same use of their Hahnville residence. And their intention was then, at that unsuspicious time, to retain their residence at Hahnville, as their retained voter registration there shows.
As a matter of law, they could unquestionably have had two residences and selected either as their voting residence; Melerine v. Democratic Parish Exec. Comm., supra; Stavis v. Engler, supra; Leopold v. Democratic Exec. Comm., supra; Caufield v. Cravens, 138 La. 283, 70 So. 226 (1915) ; Daley v. Morial, 205 So.2d 213 (1967). And as a matter of constitutional law, Const. Art. 8, § 11, Lemmon’s absence for schooling could not deprive him of a voting residence.
Thus, from the time of his registration to vote in January, 1963, until he finished law school he certainly could have “resided” in Hahnville although usually sleeping elsewhere; and the same condition prevailed until his wife finished law school in 1964. At that time they had a residence in Hahnville and a residence in Jefferson Parish, spending the bulk of their week day nights at the latter.
When they moved to Mimosa Park under the circumstances above described, they still continued to use, to the same extent or more, their Hahnville residence at the Vials’. The legal question whether they could (as they intended and attempted by remaining registered voters in Hahnville and using the Hahnville residence) in law retain their Hahnville residence; and the same legal question upon their taking a residence in New Orleans for the facility of schooling their children, appear to require an affirmative answer under the jurisprudence.
In Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921), the candidate was held not a resident of the area in which he occupied from time to time a hotel room. The Supreme Court expressly disclaimed any implication that mere physical absence would prevent one from being a resident. At 90 So. 150 it adds
“However, we think that he is required to maintain such a relation with the place or premises so selected as will entitle him at his will, and without making new arrangements therefor upon each return, to occupy such place whenever his necessities or pleasure require, and this without having to ask the permission of some one else.”
Again, in Melerine v. Democratic Parish Exec. Comm., supra, at 114 So. 713, our Supreme Court emphasized the quoted language from the Godchaux case.
The testimony of the Lemmons is quite clear that they did come and go at will at the Vials’ large house in Hahnville, with their several children, without any notice to the Vials and at times when the Vials were out of town. They had their own keys to the house and in the house kept some furniture, clothing (though not their complete wardrobes), medicines and children’s toys. Mr. Vial paid the costs of running the house, as many fathers do although their major children may yet reside with them. We think they meet the test of Hall and Melerine as entitled at will and without new arrangements to occupy the Hahnville residence whenever their necessities or pleasure require, without having to ask Mr. Vial’s permission or anyone else’s.
The factual quantity of use of such a residence is immaterial, Leopold v. Democratic Exec. Comm., supra. In Leopold, the candidate had sold his home in Plaque-mine Parish three years prior to his candidacy for senator from that district, but following the sale recorded a declaration of domicile and obtained from his purchaser an agreement reserving two rooms of the house for Leopold’s personal use as long as the mortgage for the price re
“desired to maintain a political domicile in Plaquemine * * * it seems equally evident that he did not choose to live there. The two rooms which he reserved, though he was free to occupy them at any time, were at one time rented to schoolteachers by Mr. Shayot [the purchaser], although he admits that if Mr. Leopold had appeared the teachers would have had to move. * * * ” 8 La.App., at 235.
We held Leopold’s candidacy valid even though it is obvious he did not make any regular use of his reserved rooms, since the owner rented them to others.
It is true that in other cases, such as Daley v. Morial, supra, and Stavis v. En-gler, supra, the quantity of nights spent per year at the claimed residence exceeded the number claimed here. But Leopold surely shows that this court has considered residence not a quantitative concept but a qualitative concept under the rulings of our Supreme Court in Hall and Melerine. See also Caufield v. Cravens, supra.
Even so, the Lemmons testified their actual presence at the Hahnville residence was regular throughout the period in question. Lemmon’s first statement of the number of nights was “That is difficult to say. I would say twenty-five just as a wild guess.” He explained his prior 60 or 70 percent Hahnville-time estimate thus: “Again I am talking about 24 hours of the day. Like almost every weekend we were in Hahnville and that would be Saturday, Saturday night, Sunday. * * * That would only be only one night but would include a substantial amount of time. Every day during the week I am in Hahnville from early morning to early evening.”
Lemmon testified that was his practice during the school term for his children, but in summertime “quite a bit of the time we were out here, a great percentage during the summer.” And, “We have done that [spent a week in Hahnville] many times, we have spent as long as a week and more, frequently we spent like three days.”
As a qualitative concept, the cases which have rejected a candidate include Hall v. Godchaux, supra, already discussed, and McIntire v. Carpenter, 202 So.2d 297 (La.App.1967). In Mclntire, the candidate was a doctor whose only claim to the additional residence was “[spending] one or two nights a week sleeping on a small ambulance cot which was located in his office”, which also contained a “hot-plate” and a refrigerator. Surely the Vials’ spacious residence is a residence, and an ambulance cot does not make a doctor’s office a residence.
From the fact of voter registration since January 1963, unchanged to the present, and income tax returns since 1964 (for 1963 taxes) reciting Hahnville as their address, and acts relating to immovables reciting St. Charles as their residence (except the 1967 purchase of their New Orleans house, which recites they are residents “of the state” and gives their “mailing address” as the house being purchased although they did not occupy it for some months while repairing it), the trial judge’s conclusion the Lemmons as a fact intended to keep Hahnville as a residence seems free of error.
And from their testimony, which he obviously believed (although only Mr. Lem-mon testified in person before him), we could not say the trial judge erred in accepting as fact the uncontradicted recitals as to use of the residence at Hahnville, etc.
And, to the extent that residence entails a legal conclusion as well as a factual conclusion, we could not, in view of the Mel-erine and Leopold cases, hold that Lemmon as a matter of law had to relinquish his residence at Hahnville when, for reasons he deemed adequate, he maintained another residence first in St. Charles Parish and then in New Orleans, and spent the bulk of his evenings at those other residences.
Dissenting Opinion
(dissenting).
I dissent for the reason that the candidate, Harry T. Lemmon, does not possess the qualifications required of a candidate for the Court of Appeal, Fourth Circuit, as provided in Article 7, Sec. 22 of the Constitution of 1921. The relevant portion of this constitutional mandate requires that the candidate shall be a resident of the Court of Appeal district from which he chooses to run and must have actually resided therein for at least two years immediately preceding his election.
A cursory reading of the record herein discloses absolutely and without equivocation that Mr. Lemmon has not satisfied the aforementioned residence requirements. The facts upon which this inevitable conclusion is based are contained in the testimony of the candidate himself. Mr. Lem-mon testified, and it cannot be gainsaid, that he maintains a residence in Napoleon Avenue in the City of New Orleans. His wife and children reside there, his children attend school in New Orleans and he has filed an application for a homestead exemption for the benefit of the New Orleans residence. It is therefore obvious that the residence maintained by him in New Orleans is his principal residence. It is also clear that Mr. Lemmon has in fact maintained a residence in St. Charles Parish only since April of 1970, a period of approximately five months, in a home rented from Mr. James Vial’s uncle. The whole tenor of the record leads us to the inevitable conclusion that this was done in a futile effort to create the necessary residence requirements which had previously been lacking.
He also insists that for at least two years prior to the election he has maintained a bona fide residence in Hahnville, within the confines of St. Charles Parish, at the home of his father-in-law, James Vial. It is undisputed that this home is owned by Mr. Vial, and that Mr. Lemmon pays no rent, no utilities, and no taxes with respect to this nebulous residence. By his own testimony the candidate conceded that he spent, at most, a total of twenty-five nights per year in his father-in-law’s residence, the remainder of the nights being spent in New Orleans with his wife and children. The only wardrobe maintained in Hahnville by Mr. Lemmon are several items of sport clothes, however, he candidly admitted that his complete wardrobe, including his business attire, is maintained in his New Orleans residence.
The only furniture to which Mr. Lem-mon makes any claim of ownership in Hahnville is the bedroom set which he and his wife use when they spend the aforementioned nights there, together with two baby beds. However, this record points out that the bedroom set belonged to Mrs. Lemmon prior to her marriage.
Contrary to the statements in the majority opinion, Mr. Lemmon did not maintain a “suite of rooms” in the Vial residence. He and his wife used her former bedroom, and the children were accommodated in whatever part of the house was available for their use on any particular visit. Moreover, and again contrary to the majority opinion, he did not engage in social entertaining in his own behalf in the Vial home. The only evidence in the record of entertainment there was political parties held after his decision to run for this office. These facts show, and he admits, that his presence and that of his wife in the Vial residence was in the nature of visits rather than one of residence. A fair interpretation of the facts here simply shows that the James Vials, like most parents, simply provided an excellent environment for their daughter, son-in-law and grandchildren to enjoy their weekend visits to Hahnville.
To reiterate, only for the purpose of emphasis, the facts disclose, beyond any reasonable doubt, and actually leave no room for dispute, or disagreement, that Mr. Lemmon is not a bona fide resident of the
If the opinion of the majority in this case should stand it would render nugatory and completely obliterate the constitutional requirement that a candidate for this Court be a bona fide resident from the district from where he runs for two years prior to election. If the residence requirement is to be abandoned, this action must be taken by the people by amendment to the constitutional provision referred to hereinabove. It is not the function of this or any other court to reform or amend the basic organic law of the State of Louisiana.
Since this Court is under the statutory duty to decide the issue posed by this appeal within twenty-four hours after its submission, we are unable to engage in a full and scholarly discussion of the jurisprudence relevant thereto.
For the foregoing reasons I am compelled to dissent from the opinion of the majority and conclude without equivocation that Mr. Lemmon should be disqualified as a candidate for Judge of the Court of Appeal, Fourth Circuit, third district.
. 202 So.2d 297
Dissenting Opinion
(dissenting).
I am in complete agreement with the principles of law applied by the majority to the facts as the majority has interpreted them, but I must respectfully dissent from the conclusion reached.
There is little or no disagreement among us on the pertinent and chronological facts, but we are in disagreement on the interpretation to be given to them.
Mr. and Mrs. Harry T. Lemmon were both students of a Law School in the City of New Orleans at the time of their marriage in 1961. Mr. Lemmon at that time maintained an apartment on Metairie Road in Jefferson Parish. There is no question that Mrs. Lemmon prior to marriage continued to reside in the home of her parents, Mr. and Mrs. James Vial, in Hahnville, St. Charles Parish. After their marriage Mrs. Lemmon’s residence became that of her husband in the apartment in Jefferson Parish.
During the time they were both students in the Law School and as they looked to the future after graduation, I have no doubt that they planned to make their home in Hahnville where prospects for the practice of their profession were very bright. At this point and consistent with such plans for the future, they did in January, 1963 both register to vote in St. Charles Parish, giving as their residence the home of the father-in-law (and father), Mr. James Vial. In so registering, they declared that they had maintained residence at that address since June of 1962.
Mr. Lemmon graduated in 1963 and began a legal connection with his father-in-law in Hahnville, but continued to reside with his wife in Jefferson Parish while she continued the pursuit of her degree in law. Mrs. Lemmon graduated in 1964 and there was no need for them to maintain any longer their apartment on Metairie Road.
At this point, in my opinion, a very significant event occurred. They did move all their personal possessions to St. Charles Parish. This move, I think, was with full intent to make their principal establishment there, but the significant thing is that they moved not to the home of James Vial but to their own home in Mimosa Park into a house built by them for their home. Mimosa Park is in a different ward from that of the Vial home, the address at which they were registered to vote.
It is true that they did not change their voting registration, but I think it is clearly evident that it was their intention to establish their home at the Mimosa Park address. The use of the Vial home address was one of convenience while they were students to serve as a temporary residence in Hahnville until they could establish their own home and professional practice.
They lived at the Mimosa Park address from July, 1964 until September, 1967 when they bought a home on Napoleon Avenue in the City of New Orleans. They moved their, now large, family into that home which became their principal residence. They remained at that address until April, 1970 when they established a residence on River Road at Hahnville in a home owned by a great-uncle of Mrs. Lemmon and which they are now renting.
Even conceding, arguendo, that they did unequivocally establish a new residence at that address, it came too late to meet the residence requirement for Mr. Lemmon’s candidacy. The decision to move to that address, I think, was made after the decision to become a candidate had been reached and it was deemed politically expedient to be an unquestioned resident of the district from which he would seek election. It might have been considered necessary to bolster his doubtful residence status in that Parish, but this is sheer speculation which is unnecessary to indulge in in view of the fact that, in any event, the move to the River Road address came too late.
During the time that Mr. and Mrs. Lem-mon were students I would agree that they could legally claim residence at the Vial home, but when Mrs. Lemmon completed her course of stduy and they were no longer required to also maintain a residence in close proximity to the University, their return to Hahnville, not to the Vial home but to their own home, was a clear negation of intent that the Vial home any longer be their residence.
It is evident that the Vial family is one of strong ties and every member is free to come and go from the paternal home at will. Mr. and Mrs. Lemmon and their children have enjoyed the openness of the Vial home to members of the family. They are welcome guests at any time to stay as long as they like and they keep some personal things there, such as baby beds, medicines, diapers and articles of clothing for the family. They have since their marriage and to the present time freely and generously accepted the hospitality and affectionate sharing of the home. They have never paid rent nor contributed in any manner to the expense of the home. It is my firm opinion that their periodic occupancy of the home at least since July, 1964 is that
It is my opinion, therefore, that Mr. Lem-mon does not meet the residence requirement of law to be a candidate for the office he seeks.
I would personally much prefer that he be qualified and that the electorate of the district make the important decision in which we, as judges of this Court, are much concerned; but I must express my convictions which are firmly fixed on the question at issue.
I therefore respectfully dissent.
