
    Vernon J. WILTY, Jr. v. JEFFERSON PARISH DEMOCRATIC EXECUTIVE COMMITTEE and Mrs. Laura Verret Wilty (Qualification in the name of Mrs. Vernon J. Wilty, Jr.).
    No. 1360.
    Court of Appeal of Louisiana. Fourth Circuit.
    Oct. 18, 1963.
    Rehearing Denied Oct. 21, 1963.
    Nathan Greenberg, Gilbert P. Cohen, Gretna, for plaintiff-appellee.
    James E. Courtin, New Orleans, for Mrs. Vernon J. Wilty, Jr., defendant-appellant.
    Dean A. Andrews, Jr., New Orleans, for Jefferson Parish Democratic Executive Committee, defendant-appellant.
    Before REGAN, YARRUT, SAMUEL, HALL and JANVIER, JJ.
   YARRUT, Judge.

This is an appeal by both Defendants from a judgment of the District Court overruling the unanimous decision of Defendant, Jefferson Parish Democratic Executive Committee, in certifying Defendant, Mrs. Vernon J. Wilty, Jr., by that name as a candidate against Plaintiff for Assessor of Jefferson Parish in the Democratic Primary Election to be held December 7, 1963, and not by the name of Laura Verret Wilty as prayed for by him. The facts are these:

Plaintiff is the incumbent Assessor of Jefferson Parish and a candidate for reelection at the Democratic Primary Election to be held December 7, 1963. Defendant, Mrs. Vernon J. Wilty, Jr. (nee Laura Ver-ret), is opposing Plaintiff at the same Election. Plaintiff contends his wife has no legal right to use his name as a candidate against him because the voters will be misled and confused, which he charges is her purpose in opposing him.

Mr. and Mrs. Wilty (Plaintiff and Defendant) were married on January 6, 1951. On May 7, 1963, Mrs. Wilty obtained a judgment of separation from bed and board from her husband. Hence, they are still legally married.

Since her marriage in 1951 to Plaintiff Mrs. Wilty has been a registered voter under the name of “Mrs. Vernon J. Wilty, Jr.” Plaintiff has been registered under the name of “Vernon John Wilty, Jr.,” both having qualified for election under their respective voter-registered names.

Reduced to its simplest form, the question is: Can a married woman, judicially separated, but not divorced, from her husband, become a candidate for public office, using her complete married name under which she is a registered voter? If she can use such name in opposition to a third person, why not in opposition to her husband?

The District Judge in his written reasons properly states that there is no definite law or decision in Louisiana as to what is the legal name of a married woman; and then concludes that a wife who qualifies against her husband under his full name with the prefix “Mrs.” is guilty of deception which should not be permitted. In addition to the prefix “Mrs.” the wife is given a different number on the ballot as required by LSA-R.S. 18:316, as amended by Act 336 of 1952, and Act 67 of 1954.

The only legal requirement for a registered voter to identify his or her sex or marital status is the provision that he or she state whether he or she is “Mr.”, “Miss”, or “Mrs.” LSA-Const. Art. 8, § 1(c); LSA-R.S. 18:32.

We find no statute or decision in Louisiana requiring that a married woman, when qualifying for public office, must qualify in her maiden plus her husband’s family name. In Louisiana, the wife generally assumes and is known by the name of her husband, in this case as “Mrs. Vernon J. Wilty, Jr.” and so registered. Under the separation and divorce laws of Louisiana, a judgment of separation carries with it only a dissolution of the community and a separation from bed and board. The wife is not compelled to change her name because she is still married and, non constat, may be reconciled within a year as the law allows. However, the situation is different in case of divorce. LSA-C.C. Art. 159, provides:

“The effects of a divorce shall not only be the same as are determined in the case of a separation from bed and board, but it shall also dissolve forever the bonds of matrimony, between the parties, and place them in the same situation with respect to each other as if no marriage had ever been contracted betvueen them.”

Therefore, with only a judgment of separation between them, Mrs. Wilty had a perfect right to continue her registration as “Mrs. Vernon J. Wilty, Jr.” and to seek public office, even against her husband, under his name, especially since she was registered as a voter under that name.

We must consider next whether Mrs. Wilty’s candidacy against her husband under her full married name was designed to or might deceive the voters. That Mrs. Wilty as a matter of reprisal decided to oppose her husband as a result of her marital difficulties, is of no concern of the courts. There is no law that prevents a wife opposing her husband for public office. That is strictly a matter of conscience or motive. It may be bad practice and destructive oDthe conjugal relations. However, it is a legislative matter to be decided by the Legislature, not the Courts. The Courts are concerned only with legal rights, not the motives or conscience of one who seeks public office. What may be permitted by law may be reprobated by conscience and good morals. The Courts are not the conscience of political candidates.

The decisive question is whether the name “Mrs. Vernon J. Wilty, Jr.,” with an identifying number different from that of her husband, is sufficient to avoid confusing the voters of Jefferson Parish as to the identity of the two candidates.

As heretofore stated, there is no Louisiana statute or jurisprudence on the point. The custom followed in Louisiana is similar to that generally found in the common law states regarding a wife’s correct name. A married woman’s name consists of her own Christian name and her husband’s surname. 65 C.J.S. Names § 3, p. 4, 35 A.L.R. 417. Immemorial custom in Louisiana allows a wife to use her husband’s Christian name as well as his surname, plus the prefix “Mrs.” Thus many women in Louisiana transact business, open bank accounts, and are registered to vote under their husband’s first and last names with the prefix “Mrs.” added. Mrs. Wilty therefore has the right to use the name, “Mrs. Vernon J. Wilty, Jr.,” as long as she is not divorced from him. The prefix “Mrs.” to a wife’s name is comparable to the suffix “Jr.” that would be attached to a son opposing his father.

Louisiana election laws have certain requirements for a candidate, but none regarding the exact name he or she must use. An Oklahoma case in point, is that of Mrs. I. L. Huff v. State Election Board, 168 Okl. 39, 32 P.2d 920, 93 A.L.R. 906. There, Mrs. Huff qualified under the name of “Mrs. I. L. Huff.” The State Election Board refused to certify her under that name, insisting she use her full Christian first name with her husband’s surname, not merely his initials. The court outlined the criteria to be followed in such cases, inter alia, viz.:

“ * * * There are frequently many candidates for the several elective offices and the voters are only acquainted with them or many of them by the names by which they are commonly known and called. That fact was known to the Legislature when it enacted the primary election law and it is clearly the legislative intent that the candidate shall be so identified on the primary and run-off primary ballot that the voters may know for whom they cast their ballot and not be deceived or misled to vote for some candidate for whom they did not intend to vote, so it is not so much a question as to the true legal name of the candidate as it is that the voter may be informed as to the candidates by the names by which they are commonly known and called and transact their important private or official business. Under the facts in the case at bar it was clearly proved that the plaintiff is and has been for about twenty years commonly known and identified as ‘Mrs. I. L. Huff.’ See also, Badger Lumber Co. v. Collinson, 97 Kan. 791, 156 P. 724.”

The court there held Mrs. Huff could qualify under the name of “Mrs. I. L. Huff,” since she was generally known by that name to the public.

It was urged in argument by Plaintiff that as the abbreviation “Mrs.” will appear on the ballot in small letters, many voters will not notice it. The preparation of the ballot is not the responsibility of the candidate, but the public official charged therewith.

Since we have no Louisiana case in point, we adopt the conclusions and ruling of the Oklahoma court and hold that Mrs. Wilty, being generally known as “Mrs. Vernon J. Wilty, Jr.” and registered under that name as a voter, should be allowed to seek office under that name, as long as she is not finally divorced from her husband.

Accordingly, we must disagree with the District Court and agree with the Jefferson Parish Democratic Executive Committee, and hold Defendant, Mrs. Vernon J. Wilty, Jr., has a perfect right to be certified as a candidate for Assessor of Jefferson Parish in the Democratic Primary of December 7, 1963 under the name of “Mrs. Vernon J. Wilty, Jr.”

For the reasons herein assigned, the judgment of the District Court is reversed, annulled and set aside, and the Jefferson Parish Democratic Executive Committee is ordered to reinstate and to certify Defendant, Mrs. Vernon J. Wilty, Jr., as a candidate for the office of Assessor under the name of “Mrs. Vernon J. Wilty, Jr.,” and no other; Plaintiff to pay all costs in both courts.

Reversed and rendered.

REGAN and SAMUEL, JJ., dissent with reasons to follow.

REGAN, Judge

(dissenting).

I respectfully dissent. I am of the opinion that the majority fell into error when they applied a general rule to very exceptional facts. I do not entertain the slightest doubt that under ordinary circumstances Mrs. Vernon J. Wilty, Jr., could use that name to seek public office or to consummate any other legitimate objective that she was desirous of attaining. However, under the. special facts and exigencies of this particular case, I am of the opinion that the use of that name in an election contest, in opposition to her husband, Vernon J. Wilty, Jr., constitutes the practice of deception which is calculated intentionally to confuse the electorate, and this vindictive intent is exemplified and made more manifest herein by virtue of the marital discord which is disclosed on the face of the record.

The issues posed for our consideration are, to some extent, nicely balanced — on the one hand there exists the wife’s unqualified right, under ordinary circumstances, to tlie use of her husband’s name, prior to divorce. On the other hand there exists the paramount right of the voter, in the course of an election, to exercise a choice of candidates without deception or confusion. In other words, an individual right, when in conflict with a paramount public right, must recede in favor thereof; otherwise, in this instance, the democratic primary process is rendered useless. The purpose of a primary election is to enable the affiliated voters of a political party to choose the nominee of their party for each office. Any play on names having a tendency to confuse the voters and mislead them as to the identity of the person seeking party nomination should be discouraged by the legislature and frowned upon by the courts.

The majority opinion emphasized the fact that our jurisprudence failed to reveal a guide leading to the solution of this problem and it, therefore, adopted the rationale of Huff v. State Election Board, a case emanating from the State of Oklahoma, and concluded by analogy therefrom that Mrs. Vernon J. Wilty, Jr., should be allowed to seek office under that name as long as she was merely judicially separated but not finally divorced from her husband.

A cursory reading of the Huff case will disclose such differentiating characteristics so as to convince the author hereof that the ratio decidendi thereof supports the dissent rather than the majority opinion. For instance, in the Huff case the organ of the court was very careful to point out that no other candidate had challenged the right of the plaintiff to become a candidate under the name desired to be used by her, and it was conceded that the name was adopted by her in good faith and without any intent to deceive or defraud the public or any third party.

In the Will Rogers case, supra, which is also a decision emanating from the State of Oklahoma, there existed a confusion of names to be balloted upon by the electorate and the Court ordered a clarification thereof so that neither candidate who had qualified under the name of Will Rogers could capitalize on the popularity of the celebrated humorist.

The author hereof would have to be completely unrealistic and naive in order to believe that it was not Mrs. Wilty’s intention, by use of the name Mrs. Vernon J. Wilty, Jr., in qualifying as a candidate against her husband, to both deceive and confuse the electorate, and thereby, in effect, baffle the democratic process. If the majority opinion is permitted to stand, she will have consummated this objective.

When two -candidates desire to run for public office and their names are similar or identical, their designation on the ballot should appear thereon without confusion and without any unwarranted encroachment on an established public name, created by a long and successful record of public service.

I am of the opinion that the trial court was correct in ordering Mrs. Wilty to qualify as a candidate for the office of assessor under the name of Mrs. Laura Verret Wilty and, thereby, minimize the deception and the electorate’s confusion.

In the last analysis, the final cause of law, in cases of this nature, is the welfare of the general public, and any pronouncement of the courts which misses this aim cannot permanently justify its existence.

SAMUEL, Judge

(dissenting).

I must dissent from the opinion and decree of the majority.

There is no question, of course, but that Mrs. Wilty has the same right to run for public office against anyone, including her husband, as has any other person possessing the necessary qualification for the particular office involved. Nor do I feel that a court has the right to inquire into her motives for running. But I feel that Mrs. Wilty should not be permitted to run against her husband using his full name. .

In Louisiana a married woman retains her maiden name and bears the name of her husband as a matter of custom (see Succession of Kneipp, 172 La. 411, 415, 134 So. 376, 378). And I feel that the rule in Louisiana is the same as the majority common law rule to the effect that a married woman’s name consists of her own given name or names, including perhaps her maiden surname, and her husband’s surname (see 65 C.J.S. Names § 3; 38 American Jurisprudence Name § 10; 35 A.L.R. 417).

If this is our law then certainly Mrs. Wilty does not have the right to run under the full name, that is the surname and given names, of her husband, for then she would be running under a name which is not hers against another candidate under that other candidate’s name. Even if this is not the law in Louisiana, if a woman acquires by marriage the surname and given name or names of her husband, I am still of the same opinion. The sole reason a candidate’s name is placed on the ballot is to identify that candidate to the voters and the rights of the electorate as a whole are paramount over any rights possessed by any of the candidates. Every effort should be made to identify each candidate so that the voters will have the fullest possible opportunity of knowing exactly for or against whom they are voting. It should be remembered that the wife has two or more names; the husband has only one.

The majority opinion refers to “Mrs.” as a prefix. Actually “Mrs.”, a title, will appear on the' ballot in the instant case not as a prefix but in very small print following Mrs. Wilty’s name. To many voters, especially considering the extremely long ballot which will be used in the election involved, it will serve very little, if any, means of identification. Certainly it is in the public interest to avoid or lessen, as much as is reasonably possible, any confusion as to the identity of the candidates in tlie minds of the voters.

I agree with the judgment of the trial court which simply requires the proper democratic executive committee, one of the defendants herein, to certify Mrs. Wilty as a candidate for the office she seeks under the name of Laura Frieda Wilty or Laura Verret Wilty.

I respectfully dissent.

Rehearing denied.

REGAN, J. and SAMUEL, J. are of the opinion that a rehearing should be granted. 
      
      .The names will appear on the ballot thusly:
      WILTY, Yernon J. Jr., (Mrs.)
      WILTY, Yernon John Jr.
     
      
      . State ex rel. Rogers v. State Election Board; 168 Okl. 441, 33 P.2d 806.
     
      
      . 168 Old. 39, 32 P.2d 920 (1934).
     