Judgment Rendered OCT B

Transcription

1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CE 2166 uj M BLANCHE BAYLOCK VERSUS J ry DARDENNE LOUISIANA SECRETARY OF STATE IN HIS FFICIAL CAPACITY AND ANGIE LAPLACE COMMISSIONER OF ELECTIONS IN HER OFFICIAL CAPACITY Judgment Rendered OCT B On Appeal from the Eighteenth Judicial District Court in and for the Parish of Iberville State of Louisiana Trial Court No The Honorable Alvin Batiste Jr Judge Presiding Blanche Baylock St Gabriel La PlaintiffAppellant In Proper Person William E Crawford Jr David Sanders Bridget B Denicola Baton Rouge La Counsel for Defendants Appellees Jay Dardenne Secretary of State in his official capacity and Angie LaPlace Commissioner of Elections in her official capacity BEFORE CARTER cj WHIPPLE GUIDRY DOWNING AND McCLENDON JJ 1 i UU

2 PER CURIAM This is an election contest challenging the results of the October primary election for Justice of the Peace Justice of the Peace Ward 2 Precincts and 12 and Constable Justice of the Peace Ward 2 Precincts and 12 in lberville Parish Pursuant to La R S this appeal has been given expedited consideration For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Plaintiff Appellant Blanche Baylock was one of four candidates for Justice of the Peace Justice of the Peace Ward 2 in the October primary election The other candidates in the primary election were Jimmy Green III Joseph Oliver Jr and Alexander Wright Sr A certified copy of the tentative results of the election indicated that Ms Baylock received 201 votes Mr Green received 481 votes Mr Oliver received 255 votes and Mr Wright received 440 votes Also on the October ballot were three candidates seeking the office of Constable Justice of the Peace Ward 2 Kevin Brock Keith Edward Gordon and Lloyd Big Red Snowten Mr Brock received 423 votes Mr Gordon received 387 votes and Mr Snowten received 550 votes On October Ms Baylock filed suit in the Eighteenth Judicial District Court challenging the outcome of the election Specifically Ms Baylock asserts that the ballots used in the early voting held September and in the October primary election promoted I See La RS D 2 Jay Dardenne Louisiana Secretary of State and Angie LaPlace Commissioner of Elections were named as defendants in their official capacities in the caption proceedings For ease ofdiscussion we refer to them collectively as the State 2 of these

3 confusion leaving the impression that the Justice of the Peace and Constable share the same performance and are the same official office Ms Baylock sought several forms of relief She asked that all voting from September through October be thrown out Ms Baylock asked that the official ballot be corrected i e redrawn in a manner suggested by her in time for early voting to be held from October through October and for the November election Ms Baylock requested that the official ballot as corrected be published in The Morning Advocate and the Post South Newspaper She also asked that the Louisiana Secretary of State correct any literature whether on paper or in cyberspace Lastly Ms Baylock sought election campaign financial relief The election contest was allotted to Judge Alvin Batiste Jr In response Ms Baylock filed a motion to recuse Judge Batiste and on the day of the hearing on the motion to recuse she filed an amended motion Among other claims Ms Baylock alleged that Mr Gordon a candidate for Constable Justice of the Peace Ward 2 was a campaign contributor to Judge Batiste The motion to recuse was heard on October by Judge William C Dupont and denied that same day The case was then ordered returned to Judge Batiste s division of court for disposition In response to Ms Baylock s petition on October the Louisiana Secretary of State filed a motion to strike the monetary demand contained in Paragraph 10 of Ms Baylock s petition The motion asserted that monetary damages are not an available remedy in an election contest and such reliefmust be sought via an ordinary proceeding 3

4 Later on October Ms Baylock filed requests for production directed to the Secretary of State s office and to the lberville Clerk of Court In accordance with La R S the matter was heard by Judge Batiste on October Judge Batiste took up several outstanding matters prior to beginning trial First considered was Ms Baylock s request for an order of contempt due to the failure of several individuals to appear at trial Due in part to the lack of evidence of service in the record the motion was denied The court granted the State s motion to strike the request for money damages The State s motion to quash Ms Baylock s requests for production was held in abeyance 3 At trial Ms Baylock presented the testimony of eight witnesses She also offered without objection two documents The first document was a chart of qualifications for various candidates including JUSTICE OF THE PEACE and CONSTABLE Justice of the Peace Court The second document was titled the Louisiana Secretary of State Parish Candidate Data for the October election During the proceedings Ms Baylock attempted to offer into evidence an affidavit from Leo Mellieon a letter from Diane Marie Jones a Vote Tally Report with handwritten notations and a copy of Cleo Fields Ticket which lists select candidates for certain offices Each of these items was objected to as hearsay and excluded from evidence 4 The State also offered several items into evidence including certified copies of the sample ballot and election results from the October election for Justice of the Peace Justice of the Peace Ward 2 Parish of 3 We have found no ruling in the record on the State s motion to quash 4 The four items were proffered pursuant to La Code Civ P art

5 lberville and for Constable Justice of the Peace Ward 2 Parish ofiberville After Ms Baylock completed the presentation of her evidence the State moved for an involuntary dismissal On the same day as trial at a m the district court signed two judgments The first judgment granted the defendants motion to strike the monetary demand in paragraph 10 of Ms Baylock s petition The second judgment granted the motion for involuntary dismissal entered judgment in favor of the defendants dismissed plaintiff s petition with prejudice at her cost and pursuant to La R S ordered the release of the voting machines used in the October primary election for Justice of the Peace Justice of the Peace Ward 2 and Constable Justice of the Peace Ward 2 Ms Baylock appeals Ms Baylock lists sixteen issues for this court s consideration To facilitate review we have grouped these sixteen issues into six assignments of error 5 Generally Ms Baylock challenges the trial court s 1 denial of the motion to recuse Judge Batiste 2 grant of the motion to quash the requests for production 3 refusal to hold certain individuals in contempt for failing to appear at trial in particular Secretary of State Jay Dardenne 4 sustaining ofthe objection to the affidavit of Leo Mellieon as hearsay 5 grant of the motion for involuntary dismissal and 6 assessment of costs 5 Ms Baylock s briefconsists of a chronological list of events some of which cannot be verified in the record citations to La Code Civ P arts 151 and 1355 citations to La R S and and a list of cases Generally it is insufficient to merely list authority with no analysis or discussion Assignments oferror that are neither briefed nor argued are considered abandoned Uniform Rules Courts of Appeal Rule However in the interest of judicial efficiency and recognizing the strong public policy in favorof finality of elections this court will examine the issues raised by Ms Baylock 5

6 DISCUSSION Motion to Quash Request for Production Ms Baylock alleges the trial court erred in denying her discovery procedures The law is clear that t he authority for a candidate to conduct discovery under the provisions of this Section shall cease when an action contesting such election to office is filed pursuant to R S B La RS E Ms Baylock s election suit was filed on October On October subsequent to her filing the election contest suit Ms Baylock filed requests for production Under the clear language of La R S E the State was entitled to relief on its motion to quash This assignment of error has no merit Motion to Recuse Judze Batiste Ms Baylock sought to recuse Judge Batiste maintaining that Keith Gordon a candidate for Constable Justice of the Peace Ward 2 is a friend of Judge Batiste who assisted Judge Batiste with his campaign Ms Baylock avers the trial court was biased Louisiana Code of Civil Procedure article ISlA as amended by 2008 La Acts 663 SI effective August sets forth the mandatory grounds for recusal of a judge of any court Pertinent to this discussion is La Code Civ P art 15IA 4 which directs that a judge shall be recused when he is biased prejudiced or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings The bias or prejudice is required to be of a substantial nature and based on more than conclusory allegations Suazo v 6

7 Suazo p 13 La App 1 Cir So 2d writ denied La So 2d 539 The motion to recuse Judge Batiste was referred to Judge Dupont for a contradictory hearing According to Ms Baylock subpoenas were issued for several individuals who failed to appear at the hearing including Mr Gordon however no service returns were filed into evidence 6 In response to Mr Gordon s absence Ms Baylock moved for a continuance Judge Dupont denied the motion to continue in light of the short time delays associated with election contest suits Mr Green one of Ms Baylock s opponents for Justice of the Peace and Judge Batiste both testified at the hearing Ms Baylock s questioning of Mr Green offered little assistance to her claim as Mr Green testified he was unaware of a relationship between Mr Gordon and Judge Batiste During his testimony Judge Batiste stated that neither he nor his wife is related to any of the candidates running for Constable Judge Batiste testified that he and Mr Gordon are good friends According to Judge Batiste Mr Gordon helped him with his 2002 campaign receiving no more than for assisting in the campaign Judge Batiste did not give a campaign contribution to Mr Gordon in Mr Gordon s recent campaign and he is not supporting any of the candidates in the Justice of the Peace or Constable elections Judge Batiste explained that he did not vote for Mr Gordon or anyone else in the elections at issue because he is outside ofthe voting district Judge Batiste explained My function is to be fair and 6 On appeal Ms Baylock asserts the district court erred in allowing Keith Edward Gordon not to appear There is nothing in the record to indicate the trial court contributed to Mr Gordon s absence from the hearing Moreover Judge Batiste openly described his friendship with Mr Gordon and Mr Gordon s assistance with his 2002 campaign The allegations regarding the men s friendship appear undisputed 7

8 impartial and that s the only way that I can be That s the reason why I ran for this seat and I know that s the for me and for people that appear before me the primary objective is to be fair and impartial At the hearing on the motion to recuse Ms Baylock failed to prove by a preponderance of the evidence that Judge Batiste was biased in favor of Mr Gordon and against Ms Baylock to such an extent that Judge Batiste would be unable to conduct fair and impartial proceedings See La Code Civ P art 15IA 4 Suazo at p So 2d at 652 Moreover our review of the record establishes that the proceedings were conducted in a fair and impartial manner Judge Batiste presided over this expedited summary proceeding in accordance with the laws of this state showing consideration at trial in light of Ms Baylock s decision to represent herself We find no error in the trial court s denial of Ms Baylock s motion to recuse This assignment of error has no merit Motion to Strike Reauest for Monev Damazes In her district court petition Ms Baylock requested election campaign financial relief In response thereto the defendants filed a motion to strike Louisiana Revised Statutes A sets forth the remedies available in an action contesting an election If the party contesting the election is successful the judge may declare the election void and order a new election for all of the candidates or if appropriate the judge may order a restricted election specifying the date of the election the appropriate candidates for the election the office or other position for which the election shall be held and indicating which voters will be eligible to 8

9 vote Money damages are not an available remedy under La RS A for a successful plaintiff We find no error in the trial court s grant of the defendants motion to strike This assignment of error has no merit The Affidavit ofleo Mellieon In support of her claim that the ballot was confusing Ms Baylock attempted to offer into evidence the affidavit of Leo Mellieon The State objected on the basis that the affidavit was hearsay See La Code Evid arts 801C 802 As inadmissible hearsay Mellieon s affidavit was not competent legal evidence and was properly excluded from evidence by the trial court in response to the State s objection 7 Failure to Comvlv with Subvoenas Ms Baylock maintains the trial court erred in denying her the right to question all parties that were subpoenaed In particular Ms Baylock maintains the trial court erred in not holding Secretary of State Jay Dardenne in contempt for failing to appear at the hearing in response to a subpoena Contempt of court is any act or omission tending to obstruct or interfere with the orderly administration ofjustice or to impair the dignity of the court or respect for its authority La Code Civ P art 221 Contumacious failure to comply with a subpoena or summons proof of service of which appears of record is a direct contempt La Code Civ P art 222 Proceedings for contempt must be strictly construed and the law does not favor extending their scope Davis v Harmony House Nursing Home p 5 La App 2 Cir 1O So 2d writ 7 For the same reasons the trial court properly excluded the letter from Diane Marie Jones the Vote Tally Report with handwritten notations and the copy of Cleo Fields Ticket 9

10 denied La So 2d 1143 Moreover contempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant Davis at p So 2d at 96 For purposes of evaluating this issue we assume that any individuals failing to comply with subpoenas issued in connection with this expedited civil summary proceeding would at most be subject to civil contempt which requires a lesser burden of proof than criminal contempt See Rogers at pp So 2d at 945 The burden of proof for civil contempt is by a preponderance of the evidence Davis at p So 2d at 96 A trial court is vested with great discretion in determining whether a party should be held in contempt Rogers v Dickens p 7 La App I Cir So 2d Although a trial court s ultimate decision to hold a party in contempt of court is subject to review under the abuse of discretion standard the trial court s predicate factual determinations are reviewed on appeal under the manifest error standard of review Rogers at p So 2d at 945 The record reflects that Zaine Kasem Ms Baylock s daughter was appointed as a private process server At the hearing the trial court observed that no service returns were in the record and Ms Kasem was not present to testify Moreover under La R S A a contradictory hearing must be held before Secretary of State Dardenne as a statewide elected official is compelled to appear as a witness in a civil case In light of the noncompliance with La RS A and the absence of any evidence of willful disobedience of a valid subpoena on the 10

11 part of Secretary of State Dardenne or any of the other individuals named by Ms Baylock we cannot say the trial court abused its discretion in declining to issue an order or orders of contempt This assignment of error has no merit Grant ofthe Motion for Involuntary Dismissal Louisiana Code of Civil Procedure article 1672B provides for the involuntary dismissal of a case after the plaintiff s presentation of evidence Specifically In an action tried by the court without a jury after the plaintiff has completed the presentation of his evidence any party without waiving his right to offer evidence in the event the motion is not granted may move for a dismissal of the action as to him on the ground that upon the facts and law the plaintiff has shown no right to relief The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence The trial court s grant of an involuntary dismissal on the grounds that the plaintiff has shown no right to relief is subject to the well settled manifest error standard of review Broussard v Voorhies p 4 La App I Cir So 2d writ denied La So 2d 535 Accordingly in order to reverse the trial court s grant of involuntary dismissal we must find after reviewing the record that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous Broussard at p So 2d at 1042 The issue is not whether the trial court was right or wrong but whether its conclusion was reasonable Broussard at p So 2d at 1042 II

12 A party bringing an election contest suit must prove by a preponderance of the evidence that except for substantial irregularities or error fraud or other unlawful activities in the conduct of the election the plaintiff would have qualified for a second party primary election or for a general election or would have been elected La RS IB see La RS B Davis v Malveaux p 9 La App I Cir So 2d Thus the plaintiff s burden is two fold 1 the plaintiff must first prove either fraud or irregularities are present then 2 the plaintiff must prove that but for the fraud or irregularities the outcome of the election would have been different Davis at p So 2d at 76 Ms Baylock s challenge to the ballot was based on the repetition of the phrase Justice of the Peace Ward 2 after both the heading for Justice of the Peace and the heading for Constable g Ms Baylock submits these captions are confusing especially for new voters and the elderly Ms Baylock presented the testimony of eight witnesses Of these eight witnesses none personally found the ballot confusing Two witnesses Jacqueline Jackie Wesley and St Gabriel Chief of Police Kevin Ambeau Sr testified that the ballot was or could be confusing to others Ms Wesley testified that in her opinion the ballot should be changed None of the witnesses testified that ballot confusion interfered with their voting or prevented them from voting for Ms Baylock or any other candidate The trial court reasoned g Louisiana Revised Statutes A l provides in pertinent part that there shall be one constable for the court of each justice of the peace in the several parishes of the state 12

13 YJou failed to prove that there were any irregularities or that the ballot was so confusing that it caused voters to vote in the wrong election and vote for the wrong Y ou failed person to prove that except for this confusion that these people would have voted for you and that you would have made it into either the runoff or that you would have won the election Our examination of the October ballot indicates that different font sizes and headings were used to identify and direct the voter to the portion of the ballot at issue which sets forth the offices as Justice of the Peace and Constable However as appellant correctly notes a smaller font size below both headings states Justice of the Peace Ward 2 Even if the use of the exact language Justice of the Peace Ward 2 under both Justice of the Peace and Constable headings could arguably constitute an irregularity on the record before us we are constrained to find that the appellant did not prove that but for the alleged irregularity the outcome of the election would have been different The record amply supports the trial court s conclusion and we find no error in the grant of the motion for involuntary dismissal and entry of judgment in favor of the defendants This assignment of error is without merit Assessment of Costs Ms Baylock asks that all fees and court costs be waived regardless of whether she wins this appeal The trial court granted Ms Baylock pauper status Pursuant to Louisiana Code of Civil Procedure articles a party granted pauper status is allowed to have her suit continue without bond and without payment of costs as they accrue 9 These articles do not bar assessment of costs None of the Above v Hardy 377 So 2d La App I sl Cir Any procedural matter not specifically provided governed by the Code ofcivil Procedure La R S for in the Election Code shall be

14 We find no error in the trial court s assessment of costs against Ms Baylock This assignment of error has no merit CONCLUSION For the foregoing reasons the judgment appealed from is affirmed Costs of this appeal are assessed to the plaintiff appellant Blanche Baylock AFFIRMED 14