Judge, Regina Bartholomew-Woods.

This appeal arises out of the disqualification of Allen Helwick Borne, Jr., from candidacy for the Louisiana State Senate District 5. The trial court disqualified Mr. Borne because it found that he failed to sign the notice of candidacy form as required by La. R.S. 18:463(A)(2)(a) and (A)(3). We find that the trial court did not err when it disqualified Mr. Borne. Accordingly, we affirm.

FACTUAL BACKGROUND

Mr. Borne states that on July 26, 2019, he appointed Paul A. Bello as his agent to file his Notice of Candidacy for Louisiana State Senate District 5. According to Mr. Borne, at this same time, Mr. Borne executed, and Mr. Bello notarized, a notice of candidacy, as well as an agent affidavit authorization to file notice of candidacy form, both of which were signed by Mr. Borne.2

Mr. Borne further states that on August 8, 2019, at approximately 3:00 p.m., Mr. Bello reported to the Clerk of Court for Orleans Parish Criminal District Court and Chief Election Officer, Arthur M. Morrell3 to file Mr. Borne's notice of candidacy. According to the testimony of Mr. Bello, he brought the following documents with him to the Clerk's Office: a "personal" affidavit, an affidavit authorizing him to act on behalf of Mr. Borne, and a notarized notice of candidacy signed by Mr. Borne.

According to the testimony elicited, Mr. Bello submitted Mr. Borne's documents and paid the $600.00 filing fee. Next, and arguably the crux of the matter, rather than accept the notice of candidacy signed by Mr. Borne, Mr. Bello alleges that an employee with Mr. Morrell's office generated a "new" notice of candidacy form, because the one he had brought with him did not match the name that was contained in the registrar of voters' database.4 Mr. Morrell could not confirm or deny that the form was or was not accepted, but stated that he remembered seeing two documents, one allegedly signed by Mr. Borne, but he could not confirm that it was, in fact, signed by Mr. Borne. He further asserted that his office is authorized to receive any documents that are brought in by anyone for any candidate.

Mr. Bello further testified that he proceeded to the notary who was employed in the Clerk's office, on this day, whereupon he executed a notice of candidacy form on behalf of Mr. Borne, as his agent. He alleges that Mr. Morrell looked at the form and indicated to him that his candidate would be challenged. Contrary to this assertion, Mr. Morrell testified that he made a statement that "all candidacy applications can be challenged," in response to a question that was posed to him, and not to Mr. Bello, in particular.

It is based upon the notice of candidacy form executed by Mr. Bello, that Plaintiff-Appellee, Karen Carter Peterson ("Appellee") challenges Mr. Borne's candidacy.

PROCEDURAL HISTORY

On August 14, 2019, Appellee, a resident and registered voter in Louisiana State Senate District 5 and the incumbent, filed, in Civil District Court for the Parish of Orleans, an Objection to Candidacy and Petition to Disqualify Candidate against Mr. Borne. Appellee alleged that Mr. Borne "failed to qualify for the primary election in the manner prescribed by law" because Mr. Bello, Mr. Borne's agent, and not Mr. Borne, signed the certificate included in the notice of candidacy pursuant to La. R.S. 18:492(A)(1)5, La. R.S. 18:463(A)(2)(a)6 and (A)(3)7.

DISCUSSION

In his appellate brief, Mr. Borne raises a number of assignments of error. In summary, Mr. Borne argues that the trial court erred in disqualifying his candidacy.

STANDARD OF REVIEW

This Court has explained that

Nixon v. Hughes, 2015-1036, p.2 (La. App. 4 Cir. 9/29/15), 176 So.3d 1135, 1137

DISQUALIFICATION

"In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified." Russell v. Goldsby, 2000-2595, p. 4 (La. 9/22/00), 780 So.2d 1048, 1051. "The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy." Id.

It is undisputed that the only notice of candidacy form filed with Mr. Morrell's office, on the last day of qualifying for the Louisiana State Senate District 5, was executed not by the candidate, Mr. Borne, but rather, by his agent, Mr. Bello. Louisiana Revised Statute 18:463 sets forth the requirements for filing a notice of candidacy.8 In particular, subsections (A)(2)(a) and (A)(3) both state that "the notice of candidacy also shall include a certificate, signed by the candidate..." [Emphasis supplied].

We are asked to decide whether the trial court correctly disqualified Mr. Borne as a candidate because of his lack of signature on the notice of candidacy form. We recognize that this issue is res nova in this State. While there have been numerous election cases based on a myriad of challenges, this is the first election challenge case that turns on the candidate's failure to sign the notice of candidacy form. Thus, the focus of our decision shall lie solely with the statute governing the notice of candidacy form. While we recognize that the law favors liberal construction with regard to election laws, we are bound by the clear and unambiguous mandates set forth in the applicable statute. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9.

Louisiana Revised Statute 18:463(A)(2)(a) and (A)(3) specifically state that the candidate "shall" sign the notice of candidacy certifying an enumerated list of qualifiers. The use of the word "shall" establishes a mandatory duty. La. R.S. 1:3; Hamilton v. Royal Int'l Petroleum Corp., 2005-846, p. 11 (La. 2/22/06), 934 So.2d 25, 33. Likewise, "statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done." Id. (citing Sanders v. Dep't of Health & Human Resources, 388 So.2d 768, 770 (La. 1980)) Nowhere in the statute does it allow for an agent to sign the notice of candidacy in the candidate's stead. Thus, in accordance with the plain language of the statute and the jurisprudence interpreting the mandatory language, we find the trial court correctly found that Appellee made her prima facie case of showing that Mr. Borne was not qualified as a candidate for the seat he was seeking, due to his lack of signing the notice of candidacy. He was mandated by the statute to sign, which he did not do; accordingly, his disqualification is the result of his failure to sign in accordance the mandatory language of the statute.

Further, once Appellee proved her prima facie case, the burden shifted to Mr. Borne to prove why he should not be disqualified. We find that Mr. Borne failed to overcome the Appellee's prima facie case.

CONCLUSION

For the aforementioned reasons, we affirm the trial court's judgment disqualifying Mr. Borne as a candidate in the Louisiana State Senate District 5 race.

Moreover, because we conclude that the notice of candidacy form was not properly executed, we pretermit discussion of the remaining assignments of error as moot.

AFFIRMED

MCKAY, C.J., DISSENTS FOR THE REASONS ASSIGNED BY J. BELSOME

BELSOME, J., DISSENTS WITH REASONS

LOBRANO, J., DISSENTS WITH ADDITIONAL REASONS TO FOLLOW

JENKINS, J., DISSENTS WITH REASONS

CHASE, J., CONCURS IN THE RESULT

MCKAY, C.J., DISSENTS FOR THE REASONS ASSIGNED BY J. BELSOME

I dissent for the reasons assigned by Judge Belsome.

BELSOME, J., DISSENTS WITH REASONS

I respectfully agree with the majority opinion's finding that the Notice of Candidacy form in the record is invalid, but dissent from the affirmation of the trial court's disqualification of Mr. Borne. In dissenting, I write separately to discuss Mr. Borne's argument that he was not afforded due process in this proceeding.

Mr. Borne was served at 3:30 p.m. notifying him of the 9:00 a.m. hearing set for the following day. Once in court, Mr. Borne sought a continuance in order to determine the name of the clerk that processed his filing. Given the brief turnaround, he claimed that he was unable to discover the information in time for trial, and the clerk was an essential witness to his case. That request was denied by the trial court. Mr. Borne proceeded.

During Chief Election Officer, Arthur Morrell's testimony, Mr. Borne was informed that approximately six employees were assigned to process election filings. He was also provided the name of the supervisor on duty during that time. When Mr. Borne requested that Mr. Morrell have the supervisor come to the courthouse for questioning, Mr. Morrell declined that request. Next, Mr. Borne asked that the trial court aid him in securing the supervisor's appearance. That request was also denied.

The issue of due process in a challenge to candidacy was discussed by this Court, in Russo v. Burns, 2014-0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67. There, the plaintiff challenged Lionel Burns Jr.'s candidacy for Orleans Parish District Attorney. Id. That challenge was focused on the filing of tax returns. Mr. Burns had certified that he had filed his Louisiana tax returns for the years 2010-2013. Based on the Louisiana Department of Revenue's records, those tax returns had not been filed. At the hearing to determine whether Mr. Burns should be disqualified as a candidate for the Orleans Parish District Attorney's race, he requested additional time in which to present his tax preparer, Monica Jackson, to testify regarding the filing of the returns. The trial court denied that request. On appeal, this Court found that the trial court's decision, reviewed under an abuse of discretion standard, denied Mr. Burns his due process rights. The matter was remanded to allow for Ms. Jackson's testimony. Id.

The challenge to Mr. Borne's candidacy is founded on an invalid Notice of Candidacy form. However, he has suggested that the filing of the invalid form was a result of improper procedures by the clerk's office. He maintains that the testimony of the clerk who allegedly rejected the valid form would prove that the clerk's office erred in receiving his filing and that he should be found to be a valid candidate. Mr. Borne asserts that his inability to call the supervisor and/or the clerk prejudiced his ability to meet his burden of proof that he should be qualified a valid candidate.

In Burns, this Court recognized that "[t]he essence of due process is notice and an opportunity to be heard." Burns, 2014-0952, p.7, 150 So.3d at 71 (citing Darnell v. Alcorn, 99-2405, p. 12 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 723). The testimony that Mr. Borne seeks from the employee of the clerk's office is paramount to proving that he had his valid Notice of Candidacy form rejected.1 I find Mr. Borne's request for additional time even more compelling than Mr. Burns' request given the fact that Mr. Borne did not know the identity of the person he sought to call as a witness. Like in Burns, I would find that denying Mr. Borne the right to call that witness denied him his day in court. For these reasons, I would reverse the trial court's disqualification and remand for further proceedings to commence within 24 hours from the release of this opinion.

LOBRANO, J., DISSENTS AND ASSIGNS ADDITIONAL REASONS.

I respectfully dissent. I would reverse the district court's decision and find that petitioner, Karen Carter Peterson ("Petitioner"), did not meet her burden to prove that the defendant, Allen Helwick Borne, Jr. ("Defendant"), "failed to qualify for the primary election in the manner prescribed by law." La. R.S. 18:492(A)(1). I find that the original candidacy documents including the Notice of Candidacy signed by Defendant1, Defendant's mandate affidavit,2 the affidavit of Defendant's agent, Paul A. Bello ("Agent")3, and the qualifying fee4 (original candidacy documents collectively referred to as "First Notice") deposited by Agent and received by a deputy clerk at the office of the Clerk of Court for Orleans Parish Civil District Court ("Clerk of Court")5 effectuated a timely filing of a notice of candidacy by Defendant.

I agree with the majority that the Notice of Candidacy signed by Agent and received by a deputy clerk at the office of the Clerk of Court at 3:26 p.m. on August 8, 2019 ("Second Notice"), did not properly qualify Defendant as a candidate for State Senate District 5. In fact, I opine that the Second Notice was invalid on its face and, when filed by the deputy clerk, a misdemeanor under La. R.S.18:463(A)(4) was arguably committed.6 A proper review by the deputy clerk of the First Notice when it was deposited and received by the deputy clerk clearly indicated that Defendant authorized Agent to file the First Notice, not the Second Notice. The district court and the majority erred in using a patently unauthorized, illegal notice as grounds for a disqualification. La. R.S. 18:492(B) provides: "A violation of R.S. 18:463(A)(1)(c) by an agent shall not constitute ground for objecting to a candidacy..." La. R.S. 18:463(A)(1)(c) provides that "[w]hen an agent files a notice of candidacy on behalf of a candidate, the agent shall file with the qualifying official an affidavit attesting that the agent has the authorization and consent of the candidate to file the notice." It is undisputed that Agent did not have the authority to file the Second Notice on behalf of Defendant. The record shows that Defendant's mandate affidavit, the affidavit of Agent, and the qualifying fee that were attached to the First Notice were improperly removed and attached to the Second Notice by the deputy clerk. Thus, I find that the Second Notice is of no great evidentiary value in Petitioner's suit to disqualify a candidate.

However, I find that the First Notice documents7 deposited by Agent and received by the deputy clerk effectuated a timely filing. It is unrefuted that Agent possessed only the authority to file the Original Notice of Candidacy signed by Defendant along with the Defendant's mandate affidavit and Agent affidavit, as well as the qualifying fee. It is undisputed that Agent delivered and deposited the First Notice to a deputy clerk in the Clerk's office. When Agent delivered the First Notice to the deputy clerk, the Clerk of Court was in receipt of it, and it was timely filed in accordance with La. R.S.18:466, which reads:

See, e.g., Lambert v. Kelley, 270 So.2d 532, 535 (La. 1972)("The act of depositing the document or pleading is the filing," not the marking of the "document or pleading `filed' and designating the date;" these are "evidence of the act of filing, it is not the act of filing itself."); Hayes v. Woodworth Trucking Co., 353 So.2d 478, 479 (La. App. 3d Cir. 1977)(citing Lambert, 270 So.2d 532)("a suit is filed when it is timely placed in the hands of the clerk of court of competent jurisdiction for filing"); Ellzey v. Employers Mut. Liab. Ins. Co., 388 So.2d 843, 848 (La. App. 2d Cir. 1980), writ denied, 394 So.2d 617 (La. 1980) ("plaintiff's delivery of the letters requesting a trial date to the clerk of court constituted a filing of them ... failure of the clerk to comply with his responsibility cannot detract from the actions of the plaintiff establishing that he had not abandoned the prosecution of his case. The plaintiff was entitled to establish his action before the court by extrinsic evidence..."); Borning v. Bush, 517 So.2d 183, 184 (La. App. 1st Cir. 1987); Acosta v. Hepplewhite Home, Inc., 450 So.2d 770, 773 (La. App. 5th Cir. 1984). Thus, I find that Defendant qualified for the election in the manner prescribed by law upon deposit and delivery of the First Notice by Agent and receipt by the deputy clerk of the First Notice.

The testimony from Agent demonstrates that he arrived at the Clerk of Court's office during the qualifying period in question. He arrived with the First Notice. The deputy clerk took the First Notice, and was in receipt of it. The deputy clerk then used the information contained in the First Notice to generate the Second Notice. Agent was instructed to fill it out and sign it as Agent. Agent's signature on the Second Notice was then notarized by a notary in the Clerk of Court's office. Agent testified that the clerk's office kept the Notice of Candidacy signed by Defendant contained in the First Notice until Agent was finished with the notary, requiring him to carry the Second Notice throughout the qualification filing process. Agent testified that the original Notice of Candidacy was returned to him, and he was lead to believe that this was standard practice of the Clerk's Office and that he had fulfilled his agency obligations.

Petitioner failed to present any evidence to refute Defendant's evidence proving that Agent deposited the First Notice with a deputy clerk and the deputy clerk received the First Notice. Mr. Morrell did not refute this in his testimony. Additionally, no deputy clerks from his office were called to refute the receipt of the First Notice.

Petitioner failed to submit evidence regarding the circumstances surrounding the return by the deputy clerk of the Notice of Candidacy signed by Defendant. She presented no evidence that upon deposit and receipt of the First Notice that it was returned pursuant to the policy of the clerk's office. She failed to elicit testimony regarding the Clerk of Court's policy for the return of documents deposited by filers and received by deputy clerks. Although inapplicable, La. R.S. 18:470(3)(b) requires in election suits that "[i]f a notice of candidacy, together with the qualifying fee or a nominating petition, is not filed timely or is filed with the wrong official, the official receiving the papers shall endorse the date and time of receipt upon them and shall return them forthwith, either personally or by registered or certified mail, to the candidate filing them." No such testimony was presented by Petitioner further failing to meet her burden of proof as to circumstances of the filing of the First Notice.

It is irrelevant in a petition to disqualify a candidate as to the actions or inactions of the Clerk of Court upon proof of the deposit by Agent and receipt by the deputy clerk of the First Notice effectuating qualification. The undisputed receipt of the First Notice within the qualifying period qualified Defendant as a candidate. Thereafter, the Clerk of Court has a duty to endorse on the notice the date and time of filing and amount of qualifying fee pursuant to La. R.S.18:470 which reads:

It is noted that the Clerk of Court, pursuant to La. R.S. 18:470 (A)(3)(a), transmitted to the secretary of state a certified list of candidates for the senate office who have qualified with his office including Defendant. However, the information on the Second Notice was improperly transmitted to the secretary of state. La. R.S. 18:463(E)(2) allows the Clerk of Court to correct information contained in a notice of candidacy after the close of qualifying period "to correct an error made by the qualifying official who entered the information contained in the notice of candidacy into the database of the Department of State." I would instruct the Clerk of Court to correct its error and enter into the Secretary of State's database the information contained in the First Notice.

The laws governing the conduct of elections must be liberally construed "so as to promote rather than defeat candidacy." Landiak v. Richmond, 2005-0758, p. 7 (La. 3/24/05), 899 So.2d 535, 541. "Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office." Id. Accordingly, I would reverse the district court's decision to disqualify Defendant.

JENKINS, J., DISSENTS WITH REASONS.

I respectfully dissent from the majority's decision to affirm the district court's disqualification of Mr. Borne. Upon review of the record, and in consideration of the unusual facts of this case, I find the district court abused its discretion in denying Mr. Borne time to subpoena witnesses from the Clerk's Office for Criminal District Court, who could testify regarding the alleged rejection of his signed Notice of Candidacy form.

La. C.C.P. arts. 1631 and 1632 give the district court authority over trial proceedings and the order of witnesses requiring the court to conduct the proceeding with dignity and to control the proceedings "so that justice is done." In general, a district court's judgment as to these decisions will not be disturbed in the absence of an abuse of discretion. "However, an abuse of discretion occurs when the district court's discretion is exercised in such a way that deprives a litigant of his day in court." Russo v. Burns, 14-0952, p. 7 (La. App. 4 Cir. 9/9/14), 150 So.3d 67, 72. Furthermore, the laws governing the conduct of elections must be liberally construed "so as to promote rather than defeat candidacy." Landiak v. Richmond, 05-0758, p. 7 (La. 3/24/05), 899 So.2d 535, 541. "Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office." Id. In this case, I find that the record reflects the district court conducted the proceedings and exercised its discretion in such a way that Mr. Borne was not afforded due process and was deprived of his day in court.

Consequently, I would vacate the trial court's judgment and remand the matter with instructions that the district court reopen the hearing within 24 hours from the decision of this Court and afford the appellant the opportunity to subpoena and call witnesses.