Opinion
No. 2008 CE 2166.
October 22, 2008.
ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF IBERVILLE STATE OF LOUISIANA TRIAL COURT NO. 67,069 THE HONORABLE ALVIN BATISTE, JR., JUDGE PRESIDING.
Blanche Baylock St. Gabriel, La., Plaintiff/Appellant, 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, C.J, WHIPPLE, GUIDRY, DOWNING, AND McCLENDON, JJ.
This is an election contest challenging the results of the October 4, 2008, primary election for Justice of the Peace-Justice of the Peace Ward 2, Precincts 7, 8, 10, 11, and 12; and Constable-Justice of the Peace Ward 2, Precincts 7, 8, 10, 11, and 12 in Iberville Parish. Pursuant to La.R.S. 18:1409, 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 4, 2008, 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.
See La.R.S. 18:574D.
Also on the October 4, 2008, 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 10, 2008, 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 20-27, 2008, and in the October 4, 2008, primary election "promoted confusion[,] leaving the impression that the Justice of the Peace and Constable share the same performance and are the same official office."
Jay Dardenne, Louisiana Secretary of State, and Angie LaPlace, Commissioner of Elections, were named as defendants, in their official capacities, in the caption of these proceedings. For ease of discussion, we refer to them collectively as the "State."
Ms. Baylock sought several forms of relief. She asked that all voting, from September 20, 2008, through October 4, 2008, 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 21, 2008, through October 28, 2008, and for the November 4, 2008, 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 14, 2008, 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 15, 2008, 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 relief must be sought via an ordinary proceeding.
Later on October 15, 2008, Ms. Baylock filed requests for production directed to the Secretary of State's office and to the Iberville Clerk of Court.
In accordance with La.R.S. 18:1405, the matter was heard by Judge Batiste on October 16, 2008. 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.
We have found no ruling in the record on the State's motion to quash.
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 4, 2008, 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.
The four items were proffered pursuant to La. Code Civ. P. art. 1636.
The State also offered several items into evidence, including certified copies of the sample ballot and election results from the October 4, 2008, election for Justice of the Peace-Justice of the Peace, Ward 2, Parish of Iberville and for Constable-Justice of the Peace, Ward 2, Parish of Iberville. After Ms. Baylock completed the presentation of her evidence, the State moved for an involuntary dismissal.
On the same day as trial, at 10:21 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. 18:1376, ordered the release of the voting machines used in the October 4, 2008, 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. 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 of the objection to the affidavit of Leo Mellieon as hearsay; (5) grant of the motion for involuntary dismissal; and (6) assessment of costs.
Ms. Baylock's brief consists 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. 13:2583 and 2583.1; and a list of cases. Generally, it is insufficient to merely list authority with no analysis or discussion. Assignments of error that are neither briefed nor argued are considered abandoned. Uniform Rules-Courts of Appeal, Rule 2-12.4. However, in the interest of judicial efficiency and recognizing the strong public policy in favor of finality of elections, this court will examine the issues raised by Ms. Baylock.
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. 18:1405(B)." La.R.S. 18:1415E. Ms. Baylock's election suit was filed on October 10, 2008. On October 15, 2008, subsequent to her filing the election contest suit, Ms. Baylock filed requests for production.
Under the clear language of La.R.S. 18:1415E, the State was entitled to relief on its motion to quash. This assignment of error has no merit.
Motion to Recuse Judge 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 151A, as amended by 2008 La. Acts 663, § 1 (effective August 15, 2008), sets forth the mandatory grounds for recusal of a judge of any court. Pertinent to this discussion is La. Code Civ. P. art. 151A(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. Suazo, 2007-0795, p. 13 (La.App. 1 Cir. 9/14/07), 970 So.2d 642, 651, writ denied, 2007-2291 (La. 12/14/07), 970 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. 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.
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.
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 $350.00 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 of the voting district. Judge Batiste explained: "My function is to be fair and 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. 151A(4); Suazo, 2007-0795 at p. 14, 970 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 Request for Money Damages
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 18:1432A 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 vote. Money damages are not an available remedy under La.R.S. 18:1432A 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 of Leo 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.
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."
Failure to Comply with Subpoenas
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 of justice, 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, 35,080, p. 5 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, 96, writ denied, 2001-3162 (La. 2/22/02), 810 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, 35,080 at p. 5, 800 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, 2006-0898 at pp. 7-8, 959 So.2d at 945.
The burden of proof for civil contempt is by a preponderance of the evidence. Davis, 35,080 at p. 6, 800 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, 2006-0898, p. 7 (La.App. 1 Cir. 2/9/07), 959 So.2d 940, 945. 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, 2006-0898 at p. 7, 959 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. 13:3667.3A, 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.R.S. 13:3667.3A and the absence of any evidence of willful disobedience of a valid subpoena on the 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 of the 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, 2006-2306, p. 4 (La.App. 1 Cir. 9/19/07), 970 So.2d 1038, 1041-1042, writ denied, 2007-2052 (La. 12/14/07) 970 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, 2006-2306 at p. 4, 970 So.2d at 1042. The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable. Broussard, 2006-2306 at p. 4, 970 So.2d at 1042.
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.R.S. 18:1401B; see La.R.S. 18:1406B, Davis v. Malveaux, 2006-2096, p. 9 (La.App. 1 Cir. 10/24/06), 945 So.2d 70, 76. 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, 2006-2096 at p. 9, 945 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." Ms. Baylock submits these captions are confusing, especially for new voters and the elderly.
Louisiana Revised Statutes 13:2583A(1) provides in pertinent part that "[t]here shall be one constable for the court of each justice of the peace in the several parishes of the state."
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:
[Y]ou 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 person. . . . [Y]ou failed 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 4, 2008, 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 5181— 5188, a party granted pauper status is allowed to have her suit continue without bond and without payment of costs as they accrue. "These articles do not bar assessment of costs." None of the Above v. Hardy, 377 So.2d 385, 387 (La.App. 1st Cir. 1979).
"Any procedural matter not specifically provided for in [the Election] Code shall be governed by the Code of Civil Procedure." La.R.S. 18:1414.
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.