Soniat v. Barthelemy

436 So. 2d 707, 1983 La. App. LEXIS 9056
CourtLouisiana Court of Appeal
DecidedJuly 27, 1983
DocketNo. C-1112
StatusPublished
Cited by2 cases

This text of 436 So. 2d 707 (Soniat v. Barthelemy) 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
Soniat v. Barthelemy, 436 So. 2d 707, 1983 La. App. LEXIS 9056 (La. Ct. App. 1983).

Opinion

GULOTTA, Judge.

This mandamus suit is before this court on certiorari.

This litigation involves a petition to amend the Home Rule Charter of the City of New Orleans by deleting the prohibition in Sec. 4-201 against a Mayor who has served two full consecutive terms from succeeding himself.1

The Charter provides for amendments by an affirmative vote of a majority of qualified electors of the City. Proposed amendments may originate either by ordinance of the City Council or by a petition of not less than 10,000 of the duly qualified registered voters of the City.2

On May 12, 1983, a petition for the proposed Charter amendment with 18,336 signatures was submitted to the City Council. The Council referred the matter to the Registrar of Voters for the Parish of Orleans to determine whether it was signed by 10,000 duly qualified registered voters. On May 20 and June 20, supplemental lists of signatures were submitted and forwarded to the Registrar for verification. On June 22, the Registrar certified in excess of 10,000 signatures from the original and supplemental petitions. He further stated that if the verification process were to continue he would “eventually verify 10,000 signatures from the May 12, 1983 submission.”

Plaintiffs, who are citizens and taxpayers of the City, filed a suit on July 12, 1983, against the Registrar of Voters and the City Council seeking (1) to mandamus the Registrar to continue verifying signatures submitted-to him on May 12, 1983 to determine if the petition contains the signatures of 10,000 duly qualified registered voters of the City, and (2) to mandamus the Council to provide by ordinance for an election on the proposed Charter change to be set not less than 90 days nor more than 120 days after July 12, 1983. The next scheduled election day within that time frame is October 22, 1983.

Based on the Registrar’s certification to the Council on June 22, 1983 of 10,000 verified signatures from the original and supplemental petitions, the trial judge denied mandamus against the Registrar, thereby dismissing the petition against him. He further ordered the Council to provide by ordinance for an election on the proposed amendment “... if the Council received 10,000 signatures of qualified registered voters on May 12, 1983.” The trial judge noted “The fact that the Council may not at this writing, have received the certification of the Registrar of Voters, must not impede said Council in its mandated duty to pass an ordinance within sixty (60) days of May 12.”

When the Council, at its meeting on Thursday, July 21, did not adopt the ordinance, plaintiffs filed a motion in the trial court for clarification of judgment and contempt of court. In that motion, plaintiffs claimed that the July 21 meeting of the Council was the last regular meeting for calling an election on October 22, 1983, in [710]*710compliance with the 90 day notice requirement of Sec. 9-202(2) of the Charter.

When the trial judge set the contempt rule for hearing on July 27, plaintiffs sought supervisory writs in this court to have the motion for clarification and contempt heard on or before July 23,1983, and to order the Council to meet and pass the appropriate ordinance on or before that date. Alternatively, plaintiffs request this court call an election in accordance with the Charter.

On July 22, we issued certiorari ordering the matter be submitted in its entirety on July 26, 1983, by all parties to the original litigation.

The Registrar claims that he has no further duty to perform and the judgment dismissing him from this suit should be affirmed because he has certified 10,000 signatures. Citing LSA-R.S. 18:221, the Registrar further contends that in this mandamus proceeding he can only be sued as a “sole defendant”, and that joinder of the Council as a party defendant contravenes the statute.3

The question confronting us is whether the phrase, “sole defendant”, in the statute not only allows the Registrar to be sued alone but also prohibits the joinder of other parties who are proper parties in the overall determination of a justiciable issue. In this dispute, the Registrar and City Council, whose functions interrelate in the resolution of the problem, are indispensable parties to the suit. An example of interrelationship is a letter attached to the petition from the Registrar to the Clerk of the Council stating that, if the request came from the Council for verification of the signatures on the May 12,1983 petition, the Registrar would continue the process of verification.

Although we find no jurisprudence interpreting the applicable part of LSA-R.S. 18:221, our brothers on the First Circuit in Groves v. Board of Trustees of Teach. Retire. Sys., 324 So.2d 587 (La.App. 1st Cir. 1975), writs denied 326 So.2d 378 (La.1976) and 326 So.2d 380 (La.1976), recognized the right of intervention in a mandamus suit. Furthermore, if we take the view that the phrase “sole defendant” is a prohibition against joining an indispensable party, the statute would run in direct contravention and conflict with LSA-C.C.P. Art. 641 which provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

We point out further that if plaintiffs had chosen to file one suit against the Registrar of Voters seeking mandamus ordering the Registrar to continue the inspection and certification of the names on the May 12 petition, and a second, separate suit had been filed against the Council, it would be within the Court’s discretion to consolidate both matters, putting both cases in virtually the same posture as the present litigation. Under the circumstances, we reject the Registrar’s contention regarding a misjoin-der of parties.

Accordingly, we conclude that the Registrar of Voters is properly joined with the Council as party defendants and both defendants are properly before this court.

Turning now to the central issue in this matter, we are confronted with the Council’s argument that the 10,000 signatures of qualified voters were not certified until June 22, 1983, and, accordingly, that the Council has until August 21,1983 to call an election pursuant to the mandate of the Home Rule Charter. Based on this factual conclusion, the Council asserts that the ex[711]*711ercise of supervisory jurisdiction is not appropriate where there has been no showing of irreparable injury.

The Council further contends that Sections 9-201 and 9-202 of the Charter do not provide for the filing of supplemental petitions and, because the original petition submitted to the Council on May 12 did not contain a sufficient number of signatures of duly qualified registered voters, the trial judge erred in prematurely mandating the Council to call the election.

We do not agree. On June 22,1983, the Registrar of Voters certified to the Clerk of the Council that as of noon of that date he had verified the signatures of more than 10,000 qualified registered voters from the original petition submitted on May 12, 1983 and the supplemental petitions submitted on May 27, 1983 and June 21, 1983.

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Related

Davis v. Carter
677 So. 2d 1147 (Louisiana Court of Appeal, 1996)
Soniat v. Barthelemy
437 So. 2d 286 (Supreme Court of Louisiana, 1983)

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Bluebook (online)
436 So. 2d 707, 1983 La. App. LEXIS 9056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soniat-v-barthelemy-lactapp-1983.