Hurd v. McKeithen

663 So. 2d 537, 1995 La. App. LEXIS 2737, 1995 WL 638218
CourtLouisiana Court of Appeal
DecidedOctober 31, 1995
DocketNo. 28,371-CW
StatusPublished

This text of 663 So. 2d 537 (Hurd v. McKeithen) 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
Hurd v. McKeithen, 663 So. 2d 537, 1995 La. App. LEXIS 2737, 1995 WL 638218 (La. Ct. App. 1995).

Opinions

IrPER CURIAM.

This matter comes before us in an unusual procedural posture, pursuant to a transfer of a writ application from the Louisiana Supreme Court “for expedited consideration and action.” Thus we exercise our supervisory jurisdiction to review a trial court judgment granting a preliminary injunction that affects the calling of a special election to fill a vacancy in the office of the associate supreme court justice for the Fourth Supreme Court District.

[539]*539The district court’s preliminary injunction prohibits the Secretary of State from including the name of any candidate on any ballot for the special or general elections set for November 18, 1995, and December 16, 1995, to fill the vacancy at issue. For reasons we assign, we not only affirm the district court’s judgment, but also hold that, because the scheduled dates violate statutory law, no election to fill the vacancy shall be held on dates other than those provided by the Election Code.

The petitioner herein is Paul Loy Hurd, a duly registered elector of Ouachita Parish. Hurd is qualified to be a candidate for the vacancy and alleges that he is a prospective candidate for that vacant judgeship. After Hurd sought injunctive relief against the Secretary of State and successfully obtained a preliminary injunction, the Governor was allowed to intervene and a hearing was scheduled in the trial court on November 2, 1995, apparently to consider dissolution of the injunction. The Governor then sought writs from the Supreme Court both in this matter and a similar case arising in a parish of another circuit where a preliminary injunction also had been granted stopping the election to fill the vacancy.

laA host of issues have been raised by the parties herein, including the proper characterization of this litigation, the proper party to represent the state’s interest and the applicable statutory and constitutional provisions. However, the real dispute and ultimate issue is the Governor’s power to call the election at the time announced. With less than twenty days until the first election date, and about one week until absentee voting, the urgency of the circumstances mandates immediate resolution of the ultimate issue.

The supervisory jurisdiction of the supreme court and this court is exercised to allow us reach the ultimate issue which concerns the interest of justice regarding a fundamental political (election) process. In Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964), the late jurist Albert Tate, Jr. illustrated this plenary power by discussing State ex rel. LeBlanc v. Democratic State Cen. Comm., 229 La. 549, 86 So.2d 189 (1956); 229 La. 556, 86 So.2d 192 (1956). As explained by then Judge Tate:

There, upon the application of the relator, the supreme court granted supervisory writs immediately after the suit was filed. The question at issue was whether a statewide second primary was necessary. The supreme court’s supervisory intervention took place even before responsive pleadings were filed in the trial court; the trial court had not yet ruled on this legal question of widespread public concern. However, without this immediate intervention by the appellate court under its supervisory jurisdiction, orderly and timely resolution of a question involving a fundamental political process of the state was otherwise impossible. 38 Tul.L.Rev. at 431.

The matter before us is heavily impressed with the public interest that requires an immediate answer. The Secretary of State has stated that the Election Code requires absentee ballots to be delivered to the registrars of voters at least twenty days before the primary election and that absentee voting begins on November 6, 1995, twelve days before the election. ^Considering the extreme time constraints present, and the fact that we have briefs from all parties asserting their respective positions, we resolve the issue.

Relying upon LSA-Const. Art. 5, § 22(B), the Governor argues that he has the specific authority to call judicial elections, and that the provisions of Art. 5, § 22(B) do not refer to any powers of the legislature to limit that authority. That provision states:

A newly-created judgeship or a vacancy in the office of a judge shall be filled by special election called by the governor and held within twelve months after the day on which the vacancy occurs or the judgeship is established, except when the vacancy occurs in the last twelve months of an existing term.

The Governor further argues that the provisions of LRS 18:402 et seq, relied upon by plaintiff, are inapplicable, contending the Governor has the discretion, but not the obligation, to use the time lines in Title 18 for guidance.

The provisions of LRS. 18:402(E) concern special elections to fill a newly-created office [540]*540or a vacancy in an office, including a vacancy in a judgeship. See LRS 18:621 quoted infra. The statute sets forth the dates upon which special primary elections and special general elections shall be held, and require the Secretary of State to exclude the name of any candidate on any ballot for a special election to fill a vacancy in any office to which Subsection E is applicable unless the special election has been called in accordance with the provisions of the subsection and scheduled on one of the dates provided therein. Subsection E concludes by stating that any elector who is eligible to vote in any such special election may apply for injunctive relief to prohibit the placing of the name of any candidate on the ballot in an |4improperly-called election. Venue for such an application is the parish in which the election is called, and the Secretary of State shall be the proper party defendant.1

IsThe Legislature obviously intended the provisions of R.S. 18:402 to apply to vacan[541]*541cies in judicial office. This is shown by the provisions of LSA-R.S. 18:621 which state in pertinent part:

A(l). Within 24 hours after having knowledge of a vacancy in the office of a judge, including a vacancy by reason of a newly-created judgeship, the supreme court shall give written notice to the governor that the vacancy exists, the date on which it occurred, and the cause thereof.
(2). If more than 12 months of the term remain unexpired, then within 10 days after being notified of the vacancy, the governor shall determine the dates on which the special elections to fill the vacancy shall be held and the dates of the qualifying period and shall issue his proclamation ordering a special election and specifying the dates on which the primary and general elections will be held and the dates of a qualifying period for the election.
(3). The governor shall call any special election to fill a newly-created judgeship or a vacancy in an existing judgeship in accordance with the dates for elections set forth in R.S. 18:402, if such dates can be utilized to fill a newly-created judgeship or fill a. vacancy in an existing judgeship within the period of time prescribed in Art. V, Section 22(B) of the Louisiana Constitution. In selecting the date for such special elections, the governor shall first choose a gubernatorial or congressional election date; if no such date is available during the constitutionally prescribed time period, the governor shall then select another election date, as provided for in R.S. 18:402.

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Bluebook (online)
663 So. 2d 537, 1995 La. App. LEXIS 2737, 1995 WL 638218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurd-v-mckeithen-lactapp-1995.