
    CITY OF BATON ROUGE and Pete DeWeese v. Ronald DeFRANCES, et al.
    No. 83 CE 0254.
    Court of Appeal of Louisiana, First Circuit.
    March 4, 1983.
    Concurring Opinion March 11, 1983.
    Stacey Moak, Baton Rouge, for plaintiff-appellee Pete DeWeese.
    Richard Sandefer, Lafayette, for defendant-appellant Ronald DeFrances.
    Ronald DeFrances, pro per.
    Lynn Williams and Frank Gremillion, Baton Rouge, for defendant-appellee City of Baton Rouge.
    Steve Marks, Baton Rouge, for defendant-appellee H.M. Cannon, Clerk of Court for East Baton Rouge Parish.
    Cynthia Young, Baton Rouge, for defendant-appellee Jim Brown, Secretary of State, State of La., Jerry Fowler, Commissioner of Elections, State of La.; Nat Bankston, Registrar Voters East Baton Rouge Parish.
    Cyrus Greco, Baton Rouge, for defendant-appellee David C. Treen, Governor of State of La.
    Before COVINGTON, LOTTINGER, EDWARDS, PONDER, COLE, WATKINS, CARTER, SAVOIE, LANIER, CRAIN and ALFORD, JJ.
    
    
      
      . This case was heard en banc, pursuant to LSA-R.S. 18:1409(H); Judge Melvin A. Shor-tess was unable to participate because of a very serious illness in his immediate family.
    
   PER CURIAM:

This is an election contest suit in which the issue is whether the defendant-appellant DeFrances, is qualified to be a candidate in a called election to fill a vacancy in the office of City Judge of the City of Baton Rouge. The election is scheduled for March 26,1983. Mr. DeWeese is a qualified elector of the City.

Although some parties were not named in their proper capacities in the petition, and some were erroneously included or exelud-ed, through admirable cooperation among all counsel, the proper parties are before the court in their proper capacities. Further, various factual stipulations enabled the trial court and this Court to handle the matter with greater facility than would have been possible otherwise.

We have carefully reviewed the entire record. The power of the legislature (as to the issue before us) transcends that of “The Plan of Government” (home rule charter) of the Parish of East Baton Rouge and the City of Baton Rouge. Therefore, the residency requirement of two years, set by the legislative, is applicable. The territorial jurisdiction of the City Court lies within the city limits of the City of Baton Rouge. Mr. DeFrances, having become an elector of the City on February 17, 1983, is not qualified to be a candidate in the subject election.

Further reasons, and expanded treatment of this matter, are more fully reflected in the excellent reasons of Judge Roberts, which we adopt and annex hereto as Appendix A.

The judgment of the trial court is affirmed, at the cost of Mr. DeFrances.

AFFIRMED.

WATKINS, J., concurs.

LANIER, J., concurs and will assign reasons.

APPENDIX A

ORAL REASONS FOR JUDGMENT

THE HONORABLE CHARLES Wm. ROBERTS, JUDGE PRESIDING

TUESDAY, MARCH 1, 1983

This Court would have preferred having the time to give you detailed written reasons but inasmuch as this case was just reallocated to the Court yesterday afternoon, and had to be tried this morning, and that the Court already had matters scheduled for this afternoon and tomorrow, the Court has decided to go ahead and render oral reasons for judgment which will be reduced to writing and made available.

This case questions the qualifications of Mr. Ronald ¡DeFrances as a candidate for the office of Judge of the City Court of the City of Baton Rouge. The City of Baton Rouge does operate under a home rule charter which has been at times called The Plan of Government, originally adopted in 1947 to become effective January 1st of 1949. The Constitution of 1974, of the State of Louisiana, under Article VI, Section 4, provides that any prior home rule charter or plan of government would remain in effect upon the. adoption of the 1974 Constitution.

The Baton Rouge Plan of Government, in Section 11.04, provides that judges of the court, meaning the City Court, must be electors of the City of Baton Rouge and have been admitted to practice for three years or more. There is no question that Mr. DeFrances meets that minimal requirement. However, Section 1873 of Title 13 of the Revised Statutes provides that judges of City Courts elected after the effective date of this section shall be licensed to practice law in the State of Louisiana for at least five years previous to their election and qualified resident electors of the territorial jurisdiction of the court for at least two years prior to their election.

Under the stipulated facts, Mr. DeFranc-es was not and is not a qualified resident elector of the territorial jurisdiction for the Baton Rouge City Court for at least two years prior to the election. Contrary to the situation in the case involving Judge Foil, the City did not annex and, in other words, move out and acquire the residence of Mr. DeFrances where he had resided for more than two years but, to the contrary, Mr. DeFrances in a period of less than two years prior to this election moved from an area outside of the territorial limits of the City Court into an area within such territorial limits.

Mr. DeFrances contends that R.S. 13:1873 is inoperative in the present case as being in violation of the Plan of Government for the City of Baton Rouge and more or less contends that it’s in violation of the provisions of Article VI, Section 6, of the Constitution.

Article VI, Section 6, of the Louisiana Constitution provides that:

“The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter.”

Mr. DeFrances has specifically called the Court’s attention to that portion in' the Constitutional Convention records referring to the terms “powers”, “functions” and “structure” and “organization” as being given the same definitions as given by the court in the case of LaFleur v. City of Baton Rouge, 124 So.2d 374, which is cited with approval by the Supreme Court in Letellier v. Jefferson Parish, 254 La. 1067, and 229 So.2d 101. However, it is this Court’s opinion that the statute in question, Section 1873 of Title 13, which has the residence provisions, does not violate the structure, the organization nor the distribution and redistribution of the powers and functions of the local governmental subdivision. As Justice Dennis stated in his concurring opinion in The City of New Orleans and the Honorable Ernest N. Morial, Mayor of the City of New Orleans v. The State of Louisiana, number 82-CA-2716 [426 So.2d 1318] on the docket of the Supreme Court of the State of Louisiana, with reference to certain laws which the lower court had declared unconstitutional that those statutes “do not interfere with the internal management of local government or with the compensation of its employees. Compare the statutes at issue to those found unconstitutional in LaFleur (and he gives the citation) and Letellier (and he gives that citation). Moreover, the subjects of the statutes at issue here are matters of statewide concern rightfully amenable to regulation by the state within its police power." And he gives further citations of authority.

This Court would also refer you to Article VI, Section 25, of the Constitution, a section following that of Article VI, Section 6, which provides that:

“Notwithstanding any provision of this article (that’s all of Article VI), courts and their officers may be established or affected only, as provided in Article V of this constitution.”

Clearly this section indicates that whatever limitations may be found in Article VI, Section 6, are inapplicable to laws affecting the courts and their officers.

In Article V of the Constitution, you will find Section 15 which retains even trial courts of limited jurisdiction but provides that the legislature by law may abolish or merge trial courts of limited or specialized jurisdiction. In this Court’s mind, the greater has to include the lesser and if .the legislature could abolish a City Court, it surely can establish the qualifications to run for that office.

I would also note that the Louisiana State Supreme Court in the case I just cited, that is the City of New Orleans et al. v. The State of Louisiana, docket number 82-CA-2716 [426 So.2d 1318], held that the legislature pursuant to the police power which is reserved to the legislature in Article VI, Section 9, may impose obligations on local political subdivisions which might otherwise be invalid.

Having concluded, for the reasons I have already stated, that the provisions of Article VI, Section 6, of the Constitution are inapplicable because the statute in question does not affect the structure or. organization nor the distribution and redistribution of the powers and functions of local government, this Court is faced only with the question of whether R.S. 13:1873 may otherwise prevail over the provisions of the charter of the City of Baton Rouge. It is basic and probably could be called bornbook law that the legislature may by general law affect the provisions of a home rule charter of a parish or a municipality unless otherwise specifically restricted by the federal or state constitutions. By its own terms, the provisions of Section 1873 apply to judges of all city courts and it’s therefore general law. It may also be noted that the transitional provisions of the Constitution which are contained in Article XIV, Section 18, provide in pertinent part that:

“Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.”

R.S. 13:1873 was valid when enacted and no impediment exists to its continuing vitality. The Court has not had the time to go farther back and research but the annotated version of the Revised Statutes shows that Section 1873 was part of Act 32 of 1960 but, as .1 recall, that act was one implementing the revision of the Code of Civil Procedure and in all probability the source of Section 1873 goes back even before the adoption of the charter for the City of Baton Rouge; but, even if it doesn’t, it’s this Court’s opinion and ruling that it is a general law which the legislature has the right to adopt, that it does not violate Article VI, Section 6, of the Constitution, and is valid. And, under the facts which have been submitted to this Court, this Court has no alternative but to hold that Mr. DeFrances’ qualifications to be a candidate for City Judge must be adjudicated in light of the provisions of Section 1873, and his qualifications fail to meet those prescribed by law because he has not been a resident of the territorial jurisdiction of the City Court for at least two years prior to the election. Therefore, the relief sought by the plaintiff will be granted and this Court does hereby declare that Mr. DeFrances is disqualified as a candidate for the office of the Judge of the City Court of the City of Baton Rouge, Louisiana, with respect to the election proposed to be held on March 26, 1983.

A formal judgment will be signed accordingly.

WATKINS and LANIER, Judges, specially concurring.

LANIER, Judge.

Article 96 of the Louisiana Constitution of 1898, effective May 12, 1898, authorized the legislature to abolish Justice of the Peace courts in wards containing cities of more than 5,000 inhabitants and create courts of limited jurisdiction in their place. Pursuant to Act 169 of 1898, effective on the second Tuesday of April, 1900, the offices of Justice of the Peace of the first and second wards of the Parish of East Baton Rouge were abolished and the City Court of the City of Baton Rouge was created., This Act designated the City Court as the “Judicial Department” of the City of Baton Rouge.

Pursuant to Act 389 of 1946, adopted by the people on November 5, 1946, the Louisiana Constitution of 1921 was amended to add Article XIV, § 3(a) which created a City-Parish Charter Commission with the power to draft a plan of government for the Parish of East Baton Rouge and the City of Baton Rouge. This constitutional provision provided, in pertinent part, as follows:

(2) Plan of government. Subject to the constitution and laws of this state with respect to the powers and functions of local government, as distinguished from structure, organization and particular distribution and redistribution of such powers and functions among the several units of local government within the Parish, such plan of government may provide, among other things:
(a) For consolidation, or reorganization, of all or part of the local governmental units, agencies and subdivisions in the parish, for the elimination or transfer of powers and functions of such units, agencies and subdivisions, for the creation of one or more new local governmental units, agencies and subdivisions, for the reorganization of one or more local governmental units, agencies or subdivisions, for the extension of municipal limits, and for all matters necessary or appropriate to the effectuation of such provisions, including, without limitation, the assumption by one local governmental unit, agency and subdivision of indebtedness of another or other and transfer of official personnel records, funds and other property and assets; and
(b) For revenue for the support of the one or more local governmental units, agencies or subdivisions proposed by the plan, including, without limitation, allocation of parish revenues to other units, agencies or subdivisions. (Emphasis added).

The plan was adopted on August 12, 1947, and became effective on January 1, 1949. Section 11.04 of the plan provided, in pertinent part, as follows:

City Court and Judge. There shall continue to be a City Court of the City of Baton Rouge, which shall have jurisdiction over the territorial area of the City of Baton Rouge, as extended by this Plan of Government, and the provisions of Title 13, Sections 2071 through 2080 of the Louisiana Revised Statutes of 1950, shall continue in full force and effect except to the extent that they are in conflict with the provisions of this Section.
Judges of the Court must be electors of the City of Baton Rouge, and have been admitted to the practice of law in Louisiana at least three (3) years prior to their selection.

By Act 32 of 1960 (La.R.S. 13:1871 et seq.), the legislature established uniform provisions for City Courts. Chapter 7 of Title 13 of the Revised Statutes of 1950, entitled “City and Municipal Courts”, was repealed effective January 1, 1961, and a new Chapter 7 entitled “City Courts” was placed in its stead. The purpose of this change was stated in the comments by Henry G. McMahon at the beginning of the new Title 13 as follows:

This was done on the recommendation of the Louisiana State Law Institute to: (1) eliminate the numerous, lengthy, and repetitious statutory provisions regulating each of these city courts; (2) make uniform the provisions governing the power, authority, and functions of the judge, clerk, and marshal or constable of all city courts; and (3) implement the uniform rules in LSA-Code of Civil Procedure governing the procedure in civil actions and proceedings in all city courts.

City Courts, such as the City Court of Baton Rouge, which had been previously created and established by special legislative acts were recognized and continued in existence. La.R.S. 13:1952(4). The new Chapter 13 also contained La.R.S. 13:1873 which provided as follows:

Judges of city courts elected after the effective date of this Section shall be licensed to practice law in the State of Louisiana for at least five years previous to their election, and qualified resident electors of the territorial jurisdiction of the court for at least two years prior to their election.

The Louisiana Constitution of 1921 established the Judicial Department of state government in Article VII, and provided for Parochial and Municipal Affairs in Article XIV. The Legislative Department of the State was vested with the power to create city courts and enact laws affecting them. La. Const. of 1921, art. VII, § 51(A); Medlen v. State, 418 So.2d 618 (La.1982); Gautreaux v. City of Baker, 270 So.2d 221 (La.App. 1st Cir.1972), writ denied 272 So.2d 377 (La.1973). Under the Louisiana Constitution of 1921, the office of judge of a City Court was an office of the State of Louisiana and not an office of local government. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952). The employees of a City Court were not employees of local government but were employees of the Court. Cosenza v. Aetna Insurance Company, 341 So.2d 1304 (La.App. 3rd Cir.1977); cf. Hryhorchuk v. Smith, 390 So.2d 497 (La.1980).

The authority granted to the City-Parish Charter Commission for drafting the plan of government only extended to local governmental units, agencies and subdivisions in the Parish. This authority did not extend to or affect the Judicial Branch of state government. Although the Louisiana Constitution of 1921 did not contain a definition of what comprised local government, Article VI, § 44 of the Louisiana Constitution of 1974 does, as follows:

(1) “Local governmental subdivision” means any parish or municipality.
(2) “Political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.

In the Local Government Article (VI) of the Louisiana Constitution of 1974, existing Home Rule Charters and plans of government were maintained in effect. La. Const. of 1974, art. VI, § 4. However, Article VI, § 25 of the new Constitution entitled “Courts Not Affected” specifically provided as follows:

Notwithstanding any provision of this Article, courts and their officers may be established or affected only as provided in Article V of this constitution.

Article V of the Louisiana Constitution of 1974 establishes and provides for the Judicial Branch of state government. Article V, § 15(A) retains City Courts as part of the Judicial Branch of state government, and authorizes the Legislative Branch of state government to abolish and merge them. Under the Louisiana Constitution of 1974, the legislature has the exclusive power and authority to enact laws affecting City Courts. La. Const. of 1974, art. 3, § 1(A). Laws which were in conflict with these constitutional provisions ceased on the Constitution’s effective date. La. Const, of 1974, art. XIV, §§ 18(B) and 35.

For the foregoing reasons, we are of the opinion that the City-Parish Charter Commission did not have power or authority to create or affect a unit of the Judicial Branch of state government in the plan of government for the Parish of East Baton Rouge and City of Baton Rouge under the Constitution of 1921. The only authority that the local government of the Parish of East Baton Rouge and City of Baton Rouge has to affect the City Court of Baton Rouge is that which has been granted to it by the Legislative Branch of state government. See, for example, La.R.S. 13:1952; 13:1872(D); 13:1875(2); 13:1879(C); and 13:2071(A). Accordingly, the residency requirements of La.R.S. 13:1873 must prevail over those in Section 11.04 of the plan of government.

We agree that residency requirements are part of “organization and structure” as those terms are defined in LaFleur v. City of Baton Rouge, 124 So.2d 374 (La.App. 1st Cir.1960). See also Letellier v. Jefferson Parish, 254 La. 1067, 229 So.2d 101 (1969). However, the organization and structure protection provided for in Article VI, § 6 of the Louisiana Constitution of 1974 is not applicable in this case. Article VI, § 6 only protects the organization and structure of local governmental subdivisions which operate under a home rule charter. Article VI, § 6 is not applicable to the Judicial Branch of state government as established in Article V. Since the City Court of Baton Rouge is part of the Judicial Branch of state government provided for in Article V, it is not entitled to the organization and structure protection of Article VI, § 6.

The case of City of New Orleans v. State, 426 So.2d 1318 (La.1983), is not applicable to this case. That decision held that the legislature could require local government to subsidize functions of state government such as administration of justice, law enforcement, assessment of taxes and voter registration. See, for example, La.R.S. 13:1875(2) and 13:2071(A). Such matters are not at issue in the instant case. This case holds that the legislature has the paramount right to establish residency requirements for the City Court of Baton Rouge because it is part of the Judicial Branch of state government.

For the foregoing reasons, we believe the result reached in this case to be correct.

APPENDIX NO. 1

SECTION 11.04. City Court and Judge. There shall continue to be a City Court of the City of Baton Rouge, which shall have jurisdiction over the territorial area of the City of Baton Rouge, as extended by this Plan of Government, and the provisions of Title 13, Sections 2071 through 2080 of the Louisiana Revised Statutes of 1950, shall continue in full force and effect except to the extent that they are in conflict with the provisions of this Section. The City Court shall be a court of record except where the amount in dispute is less than $100.00, exclusive
of interests. The City Court shall exercise such jurisdiction within the territorial limits of the City of Baton Rouge as may be conferred upon it by the Constitution of the State of Louisiana.
The City Court shall have but four Judges, unless the number be increased by a vote of two-thirds (%rds) of the members of the Metropolitan Council. The senior Judge in point of service on the court shall be the chief or presiding judge.
Judges of the Court must be electors of the City of Baton Rouge, and have been admitted to the practice of law in Louisiana at least three (3) years prior to their selection. The Judges of the City Court shall be elected for terms of six (6) years. The Judges of the City Court shall receive such salary as the Council may from time to time determine, but such salary shall not be decreased during their tenure of office and moreover, shall not be less than $39,500.00 per annum effective January 1, 1983. The annual salary of the City Judge or Judges shall be fixed by the Council by ordinance adopted at least one year prior to the commencement of the term of the City Judge or Judges whose compensation is to be affected thereby, and if no such ordinance be adopted, the compensation for the City Judge or Judges shall remain as previously fixed by the Council.
Judges of the Court shall not practice law, nor shall they or any officer or employee of the Court receive any fees.
The Clerk of the City Court shall be appointed by the City Judge at a salary fixed by the Council. The number and compensation of Deputy Clerks and employees, who shall be members of the Classified Service as provided in Chapter 9 of this Plan of Government or any Personnel System for City employees in general applicable to the City of Baton Rouge, shall be fixed by the Council.
All expenses of the Court, including the compensation of the Judge, Clerk and other employees, shall be paid from appropriations made by the Council.

The Court shall have full power to make and promulgate its own rules of Court within the limitations as might otherwise be imposed by the Constitution or Legislature of Louisiana. (As amended July 29, 1952, effective September 5, 1952.) (As amended September 11,1982.) 
      
      . For example, the City of Baton Rouge was erroneously termed a party plaintiff; however, all counsel agreed that it should not have been so designated.
     
      
      . See La. Const, of 1974 art. VI, §§ 4 and 25; art. V, § 15; art. Ill, § 1; art. XIV, § 16.
     
      
      . See Langford v. Foil, 304 So.2d 423 (La.App. 1 Cir.1974), application denied 305 So.2d 123 (La.1974).
     
      
      . Act 169 of 1898 was subsequently amended by Act 60 of 1902, Act 156 of 1906, Act 161 of 1910, Act 243 of 1924, Act 17 of 1930, Act 260 of 1936, and Act 257 of 1944. These provisions were subsequently denominated La.R.S. 13:2071-2080 in the Louisiana Revised Statutes of 1950.
     
      
      . The entirety of Section 11.04 is attached to this opinion as Appendix No. 1.
     
      
      . Other provisions of the new Chapter 13 (Act 32 of 1960) affecting the City Court of Baton Rouge are La.R.S. 13:1872(D); 13:1875(2); 13:1879(C); 13:2002; and 13:2071.
     