PER CURIAM.
Japhet P. Ogden and Alton J. Crowden,
The trial court found that, considering the testimony of the parties and the relevant documentary evidence, discussed below, Mr. Gray was qualified to run for New Orleans City Council, District E, because he was in fact domiciled at 6051 Winchester Park Drive located in District E for at least two years preceding the scheduled November 6, 2012 primary election.
In this case, questions of law are decided using a de novo standard of review. Factual issues are reviewed using the manifest error/clearly wrong standard of review. A court of appeal gives great deference to a trier of fact's factual findings based on credibility judgments. See Rosell v. ESCO, 549 So.2d 840, 845 (La. 1989); Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). But, "[w]here documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's
Henderson v. Nissan Motor Corp., 03-0606 (La.2/6/04), 869 So.2d 62, 68-69 [internal citations omitted]. See also Steinhardt v. Batt, 00-0328 (La.App. 4 Cir. 2/11/00), 753 So.2d 928, 930, ("[t]he trial judge's conclusion [regarding domicile] is clearly a factual finding subject to the manifest error standard of appellate review.")
The manner of qualifying for election to public office in Louisiana is set forth in La. R.S. 18:461 A(1), which provides, in pertinent part, that "[a] person who desires to become a candidate in a primary election shall qualify as a candidate by timely filing notice of his candidacy." La. R.S. 18:463 A(1)(a) states: "A notice of candidacy shall be in writing and shall state the candidate's name, the office he seeks, the address of his domicile, the parish, ward, and precinct where he is registered to vote, and the political party, if any, with which he is registered as being affiliated." [Emphasis added.] An objection to candidacy is governed by La. R.S. 18:1401 A, which provides that "[a] qualified elector may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office in which the plaintiff is qualified to vote."
Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. See Landiak, p. 7, 899 So.2d at 541; Becker v. Dean, 03-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869; Russell v. Goldsby, 00-2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051. It follows that, when a particular domicile is required for candidacy, the burden of showing the lack of domicile rests on the party objecting to the candidacy. Landiak, id.; Becker, id.; see also Pattan v. Fields, 95-2375 (La.9/28/95), 661 So.2d 1320. Further, a court determining whether the person objecting to candidacy has carried his burden of proof must liberally construe the laws governing the conduct of elections "so as to promote rather than defeat candidacy." Becker, id.; Russell, id. Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Landiak, id.; Becker, id.; Russell, id.
La. R.S. 18:451, relative to "qualifications of candidates," specifically requires that when "the qualifications for an office
The terms "residence" and "domicile" are legal terms that are not synonymous. Landiak, p. 8, 899 So.2d at 542; Becker, p. 10, 854 So.2d at 871. The most significant difference between the two concepts is that a person can have several residences, but only one domicile. Id. Domicile is an issue of fact that must be determined on a case-by-case basis. Landiak, id.; Darnell v. Alcorn, 99-2405, p. 5 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 719.
La. C.C. art. 38 provides that: "[t]he domicile of a natural person is the place of his habitual residence," whereas La. C.C. art. 39 states: "[a] natural person may reside in several places but may not have more than one domicile. In the absence of habitual residence, any place of residence may be considered one's domicile at the option of persons whose interests are affected." Finally, La. C.C. art. 44 reads: "[d]omicile is maintained until acquisition of a new domicile. A natural person changes domicile when he moves his residence to another location with the intent to make that location his habitual residence."
Louisiana case law has traditionally held that domicile consists of two elements: residence and intent to remain. Landiak, p. 9, 899 So.2d at 542; Becker, p. 10, 854 So.2d at 871; Russell, p. 5, 780 So.2d at 1051. When a party has not declared his intention in the manner prescribed by La. C.C. art. 42, proof of a person's intention regarding domicile "shall depend upon circumstances." La. C.C. art. 43; Landiak, id. Determination of a party's intent to change his or her domicile must be based on the actual state of the facts, not simply on what the person declares them to be. Landiak, p. 9, 899 So.2d 543, citing Davis v. Glen Eagle Ship Management Corp., 97-0878, p. 2 (La.App. 4 Cir. 8/27/97), 700 So.2d 228, 230.
The case law regarding domicile reveals that Louisiana courts commonly consider a number of different factors when trying to determine domicile in fact. Because domicile is generally defined as residence plus intent to remain, a party's uncontroverted testimony regarding his intent may be sufficient to establish domicile, in the absence of documentary or other objective evidence to the contrary. However, in the absence of a formal declaration of domicile, when documentary or other objective evidence casts doubt on a person's statements regarding intent, courts must weigh the evidence presented in order to determine domicile-in-fact, lest the legal concept of domicile be rendered meaningless and every person would be considered legally domiciled wherever he says he is domiciled. Landiak, p. 10, 899 So.2d at 543. Some of the types of documentary evidence commonly considered by courts to determine domicile-in-fact include such things as (a) voter registration, (b) homestead exemptions, (c) vehicle registration records, (d) driver's license address,
The record reveals that Mr. Gray and his wife purchased the house at 6051 Winchester Park Drive in District E of New Orleans in 1988; they do not own any other property in that district. The house sustained substantial damage in Hurricane Katrina in 2005, requiring a complete renovation. After the storm, they lived in a trailer located on Downman Road in eastern New Orleans. They also lived with his mother at 78 Avenue
The plaintiffs introduced exhibits, including a Louisiana Tax Commission change order that did not issue Mr. Gray a homestead exemption
The plaintiffs also introduced the notarial act of collateral mortgage that Mr. Gray and his wife executed on July 31, 2012, which stated that they were domiciled and residing in Orleans Parish with the North Dupre Street mailing address. The money obtained from that mortgage is being used to renovate 6051 Winchester Park Drive.
The plaintiffs called Mr. Gray to testify in their case-in-chief. Mr. Gray stated he had slept at various places since Hurricane Katrina, but has only one domicile, 6051 Winchester Park Drive, where he intends to return once the renovations are done in the latter part of this year. He admitted that he has used at least two different mailing addresses during this time, but his domicile has never changed. He returned shortly after Hurricane Katrina and had to completely gut his house due to the flood waters. Within months of that, he hired an electrician to rewire the house. He testified that he still receives a bill from the Sewerage and Water Board for that property.
Mr. Gray admitted that he purchased the house on Bennington Avenue in Baton Rouge and stayed there on a number of occasions in 2006; he also listed Bennington Avenue as his permanent mailing address.
Mr. Gray testified that most of his clothing is on North Dupre Street; he also has clothing at 6051 Winchester Park Drive and some at 78 Avenue in Scotlandville. He was not granted a homestead exemption on the Winchester Park Drive property in 2012, but he has appealed that with the state tax commission.
He placed a trailer in front of his house on Winchester Park Drive sometime in 2006. Sometime before the end of 2008, the Federal Emergency Management Agency removed its trailers from the city. He presently has a little trailer on the property where he will stay if he is cutting the grass the next day, but he does not live in it. His building permit to perform repairs on the house was issued in 2011.
When he testified on direct, Mr. Gray testified that he registered to vote in District E when he and his wife purchased 6051 Winchester Park Drive in 1988, and that his voter registration has remained the same to the present day. He stated that he and his wife purchased the house at 5833 Bennington Avenue in Baton Rouge because his mother-in-law's health was deteriorating and specialized medical care was not then available in the New Orleans area. The house was sold two years later, after his mother-in-law passed away. Regardless of their listing 1628 North Dupre Street as their mailing address, it was neither his nor his wife's intention to change their domicile to that address. For most of the time, no mailbox existed at his residence at 6051 Winchester Park Drive; thus, much of his mail was sent to the address of his law office.
Mr. Gray testified that he hired an electrician to rewire the house in late 2005 or early 2006. In addition, he stated that he knew carpentry and did much of the work himself. He did not get a permit when the work first began. He has not cleared all his personal effects from 6051 Winchester Park Drive. Some personal effects are in a "pod" that is presently located on the property; some are in the pool house behind the house; and some are in his office. He also stated that he probably took some things to his mother's home and has some with him at North Dupre Street.
Mr. Gray testified that he has never taken any steps or put anything in writing that would evidence his desire or intent to change his domicile address. He took out the collateral mortgage of close to $300,000 because he wants to complete the repairs on 6051 Winchester Park Drive so that he and his wife can live there.
Mr. Gray produced witnesses and documentary evidence to prove that he always intended to return to 6051 Winchester Park Drive. Specifically, he filed for a 2011 homestead exemption on Winchester Park Drive and testified that since the home was purchased in 1988, he has not filed for a homestead exemption on any other property. He also produced a driver's license listing 6051 Winchester Park Drive as his residence
Also testifying was Jesse Earls, a carpenter and contractor. He stated that he first discussed repairs on the house at 6051 Winchester Park Drive in April or May 2011. Mr. Earls visited the house at that time and did some work there. He told Mr. Gray that work that had been done previously was not going to pass inspection because the building codes were changed after Hurricane Katrina. He was hired by Mr. Gray to complete the renovation. The house was in such bad shape that Mr. Earls suggested to Mr. Gray that the house should be abandoned. However, in response, Mr. Gray stated, "Brother Earls, I?m not going to tear my house down." Mr. Earls stated that while Mr. Gray has occasionally eaten at the house, it does not have electricity and is not in a condition in which to be lived.
Because Mr. Gray was displaced from his home by Hurricane Katrina in 2005, we are bound to examine La. R.S. 18:451.3 (amended in 2010), which states as follows:
The amendment became effective on August 15, 2010, exactly two years to the day before Mr. Gray filed his notice of candidacy.
No case has previously applied La. R.S. 18:451.3 to circumstances as those presented to us here; thus, this is a case of first impression. As such, we must determine
We first begin by examining the statute in question before it was revised in 2010. At that time, Acts 2010, No. 827, § 1 rewrote this section, which previously read:
Obviously, the amendment of the statute is significant. As previously written, candidates could be displaced from their domiciles indefinitely and not lose that domicile, as long as they neither established a new domicile nor registered to vote in a voting district other than the one for which they sought election. Clearly, the legislature wanted to place a time limit on the involuntary displacement.
Consequently, we do not find that this statute, as amended, is applicable to the instant matter because the gubernatorially-declared state of emergency was prior to 15 August 2010. While in committee, Representative LaFonta discussed Hurricane Katrina and the fact that everyone should be back in their homes by now, such was not specified in the wording of the statute.
However, even if applied, we do not find that the statute bars Mr. Gray's candidacy.
The appellants argue that the one-year is absolute; in other words, to qualify for District E, Mr. Gray had one year since the state of emergency was lifted following Hurricane Katrina to be actually residing at 6051 Winchester Place Drive or lose that address as his domicile. Conversely, Mr. Gray argues that the one-year is a "safe haven" and after its expiration, the court is to consider the facts and circumstances of the particular case and apply pre-existing law on the establishment of domicile.
We see the reasonableness of each argument, but we agree with Mr. Gray's interpretation of the statute under the facts presented herein. Under normal circumstances, one should return to his/her home within a year of displacement. And we agree, as pointed out by the plaintiffs, seven years is a very long time; it seems that the legislature seeks to prevent these types of situations in the future. However, Hurricane Katrina was not an ordinary storm. We find that, instead, we should apply existing law on the issues of residence and domicile as applicable to the political arena.
Again we note that the well-settled law of this state favors candidacy and the law must be liberally construed so as to promote candidacy, rather than defeat it. Any doubt concerning the qualifications of a candidate should be resolved in favor of the candidate to run for public office. We find that Mr. Gray has proven through his testimony, as well as the testimony of his witnesses, along with the documentary evidence, that he has his domicile at 6051 Winchester Park Drive for the two years preceding the scheduled November 6, 2012 primary election. Consequently, we affirm the judgment of the trial court, finding
McKAY, J., concurs with reasons.
LANDRIEU, J., concurs with reasons.
McKAY, J., concurs with reasons.
I concur with the majority and would affirm the trial court's judgment finding that Mr. Gray is qualified to be a candidate for District E seat on the New Orleans City Council.
It is evident that Mr. Gray resided in the home at 6051 Winchester Park Drive prior to Hurricane Katrina and it may be argued that in some sense he continues to "reside" there now by having some of his personal effects there and staying there overnight in a trailer when he cuts the grass. This is the address listed on his driver's license as well as the address at which he is registered to vote. He also attempted to claim a homestead exemption on this home. Based on Mr. Gray's actions it is clear that he always intended to maintain his domicile at 6051 Winchester Park Drive. Therefore, he has the intention to remain there required under Landiak v. Richmond, 2005-0758 (La.3/24/05), 899 So.2d 535. He has also done nothing to acquire a new domicile with the intent to make that location his habitual residence. See La. C.C. art. 44.
The 2010 amendment to La. R.S. 18:451.3 is ambiguous and it is not clear that it applies to an individual such as Mr. Gray, who never abandoned his home and whose actions have always indicated his intent to maintain his domicile at 6051 Winchester Park Drive. Accordingly, any doubts concerning the qualifications of his candidacy should be resolved in favor of allowing him to run for this office. See Landiak v. Richmond, 2005-0758 (La.3/24/05), 899 So.2d 535; Russell v. Goldsby, 2000-2595 (La.9/18/00), 780 So.2d 1048.
LANDRIEU, J., concurs with reasons.
I agree with the result reached by the majority but write separately because I respectfully disagree that La. R.S. 18:451.3 does not apply. The amendment became effective on August 15, 2010 prior to the qualifying dates for this election and has been in effect for the entire two-year period of domicile required for candidacy in this case. I also disagree with the majority's position that this amendment was intended to apply solely to displacement from declared emergencies that occur subsequent to its effective date. Had the legislature intended such a specific statutory purpose, it would have so stated.
The appellants seek to have us interpret this statute to mean that a person who has been involuntarily displaced as a result of a declaration of emergency automatically loses his domicile if he does not reoccupy that domicile within one year of the emergency. The appellees suggest, as the majority explains, that this one year time period is a "safe-harbor." That is, the domiciliary status of one qualifying for an election is not subject to challenge if the person seeking to qualify is "back home" within one year. As explained by the majority, both interpretations, on the plain reading of the statute, are reasonable.
Thus, we must look to rules of statutory interpretation and other public policy concerns to determine which interpretation is the most reasonable. Here, there is a legal presumption favoring candidacy rather than precluding it; there is a presumption, recognized in years of jurisprudence, against a change of domicile; the burden is on the one challenging domicile to prove the candidate's lack of it; and the trial
In this case, the trial court's result is consistent with a reasonable interpretation of the statute. Moreover, this interpretation is consistent with years of jurisprudence holding that "domicile" is a factual question and that one's domicile does not change absent an intent to change it coupled with the establishment of a new domicile. Landiak v. Richmond, 2005-0758, pp. 9-10 (La.3/24/05), 899 So.2d 535, 543. The appellants here are unable to prove the establishment of a new domicile by Mr. Gray.
Mr. Gray and his family lived on Winchester Park Drive beginning in 1988 and were displaced by Hurricane Katrina. While displaced, Mr. Gray continued to have this address on his driver's license, continued to vote from this address, and but for 2012, continued to benefit from a homestead exemption on this residence. Further, and perhaps most importantly, the record is void of any evidence showing that Mr. Gray ever expressed an intent to be domiciled elsewhere. Facts such as these have long been considered by the courts of this state to weigh in favor of domiciliary status. Adopting the statutory interpretation offered by the appellants would be tantamount to reversing years of jurisprudence on this issue, most specifically, Landiak, despite the absence of any indication in the statute or legislative history suggesting this intent by the legislature. This court wisely declines to do so.
Finally, where, as here, there are two reasonable interpretations of a statute, public policy considerations ably discussed by the majority compel us to adopt the interpretation permitting as opposed to precluding candidacy, in order to provide voters with the widest possible array of choices.
Accordingly, for these reasons I respectfully concur in the majority's affirmation of the trial court's judgment.
