Bougere v. Edwards

517 So. 2d 351, 1987 La. App. LEXIS 10787, 1987 WL 1988
CourtLouisiana Court of Appeal
DecidedNovember 25, 1987
DocketNo. 87-CA-825
StatusPublished
Cited by2 cases

This text of 517 So. 2d 351 (Bougere v. Edwards) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bougere v. Edwards, 517 So. 2d 351, 1987 La. App. LEXIS 10787, 1987 WL 1988 (La. Ct. App. 1987).

Opinion

DUFRESNE, Judge.

This is a suit by the Mayor of the City of Harahan, Parish of Jefferson, contesting the validity of a proposed election to recall him. The district court dismissed his petition for failure to state a cause of action. The Mayor has appealed.

Because our Supreme Court held, on a previous writ application, that this matter is subject to the procedural provisions of the Louisiana Election Code, we have granted an expedited hearing and have rendered our opinion within the applicable time limitations. See LSA-R.S. 18:1409.

[352]*352PROCEDURAL BACKGROUND

On October 27, 1987, Citizens for a Better Harahan, Inc., a Louisiana corporation, filed with the Jefferson Parish Registrar of Voters a petition to recall Gary M. Boug-ere, Mayor of the City of Harahan. On November 4, 1987, the Registrar certified the petition as valid. Subsequently the Governor set the recall election for January 16, 1988.

On November 6, 1987, Mayor Bougere filed a suit against the Governor, the Secretary of State and the Commissioner of Elections for the State of Louisiana, challenging the validity and legality of the recall procedure and the certification of the recall petition. The Mayor requested an injunction prohibiting the defendants from proclaiming, ordering, conducting and/or coordinating a recall election directed against him. At the Mayor’s request, the district court issued a temporary restraining order and set the matter for trial on January 22, 1988.

On November 10, 1987, Citizens for a Better Harahan, Inc., filed a petition of intervention and the district judge signed an ex parte order granting leave to intervene. On the same date, the Intervenor filed an ex parte motion to set the matter for expedited trial pursuant to the Louisiana Election Code, specifically LSA-R.S. 18:1401-1413. The district court granted the motion and set the trial for 10:00 a.m. on November 12, 1987.

The Mayor filed an exception of no right of action to the intervention, on the ground that a corporation, because it is not a member of the electorate, has no right to file a recall petition or to intervene in an action challenging the validity of a recall petition. He also filed a motion to rescind the order setting the trial for November 12th, contending that the provisions of the Election Code do not apply to this suit.

At the hearing on the exception and motion on November 12th, the Intervenor orally moved to amend its petition to add as intervenors two individuals who are Hara-han voters (Tony Giambelluca, Chairman of Citizens for a Better Harahan, Inc., and Don Ludlow, Vice-Chairman of that organization); the district judge allowed the oral amendment. (The intervenor filed a written supplemental and amending petition the next day, formally adding Giambel-luca and Ludlow as intervenors.)

The judge dismissed the Mayor’s exception of no right of action to the intervention and denied his motion to rescind the trial setting, but issued an order directing the Registrar of Voters to allow the Mayor’s attorney to review the records relating to the recall petition the same day. The judge set the trial for the following day, November 13, 1987.

The Mayor immediately filed a writ application with this Court, requesting a stay of the trial pending determination of the application and asserting that R.S. 18:1406 (requiring the expedited hearing) does not apply to this suit. We granted the stay order (No. 87-C-789, November 12, 1987) and issued a ruling on the merits of the writ on the following day.

Relying on Page v. Madere, 472 So.2d 595 (La.App. 5 Cir.1985), we held that R.S. 18:1406 does not apply to this suit because it is a pre-election challenge, but that the matter must be heard with dispatch rather than waiting until the original trial date of January 22, 1988. We remanded the case to the trial court, ordering the judge to schedule a hearing on the Mayor’s request for a preliminary injunction within ten days of the order setting the date.

On November 13th, the district judge set the matter for trial on November 16th. On that day, however, the Intervenors filed a writ application in the Supreme Court and the matter was continued to November 23rd by agreement of all counsel.

On November 20, 1987, the Supreme Court issued the following order:

“Writ granted in part and denied in part. The Court of Appeal was correct in ordering that the matter be tried with dispatch and in remanding the matter to the trial court for the re-scheduling of trial. Their essential holding, that La.R.S. 18:1406 does not apply to this matter, and their application of Page v. Madere, 472 So.2d 595 (5th Cir.1985), is reversed. [353]*353La.R.S. 18:1300.17 as amended by Act 669 of 1986 unambiguously and specifically provides that the procedural provisions of the Election Code apply to situations similar to the one presented here, i.e. the right to contest the recall of an elected official or any proceeding in relation thereto.”

On November 12th, the original inter-venor had filed a pleading entitled “peremptory exception to rule nisi,” alleging the Mayor’s petition discloses no cause of action because it fails to allege that, except for the irregularities complained of, the recall petition could not and would not have been certified. The substituted intervenors subsequently filed a similar “peremptory exception to rule nisi,” reasserting the ground stated in the original exception and also asserting that the Mayor’s petition did not state a cause of action because “its allegations are general.”

On November 23rd, the district judge granted the Intervenors’ exception of no cause of action, at the same time refusing the Mayor’s oral motion to amend his pleadings. It is that judgment the Mayor appeals.

In written reasons for judgment rendered after this appeal was lodged, the judge stated he had maintained the exception of no cause of action because the May- or failed to allege in his petition that but for any irregularities or fraud in the election the result would have been different and because he felt the Mayor’s petition failed to set forth in specific detail the facts upon which his objections are based.

The judge further stated he had denied the Mayor’s oral request to amend the petition because he felt the Mayor had failed to show good cause for the amendment; he also felt “in the interests of justice the Court believes it would be unfair and improper to expect Defendants and Inter-venors to prepare a defense to amended charges in such a short period of time.” In addition, the judge stated the plaintiff had been aware of the pending exception of no cause of action since November 12, 1987, but took no steps thereafter to amend his petition until after the court maintained the exception on November 23, 1987.

REQUIREMENTS OF THE ELECTION CODE

LSA-R.S. 18:1300.17 provides that a public officer whose recall is sought has the right to contest the recall or any proceedings relating thereto for fraud or other illegality, and that the procedural provisions of Chapter 9, Part I, of the Election Code apply. Chapter 9 of the Election Code deals with contests and challenges; Part I (LSA-R.S. 18:1401-1414) prescribes the procedure for objections to candidacy and election contests.

Under R.S.

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Related

Becnel v. Madere
535 So. 2d 387 (Louisiana Court of Appeal, 1988)
Bougere v. Edwards
517 So. 2d 142 (Supreme Court of Louisiana, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
517 So. 2d 351, 1987 La. App. LEXIS 10787, 1987 WL 1988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bougere-v-edwards-lactapp-1987.