
    Edward L. BOESCH v. DEMOCRATIC STATE CENTRAL COMMITTEE et al.
    No. 4967.
    Court of Appeal of Louisiana, Fourth Circuit.
    Decree Oct. 4, 1971.
    Rehearing Denied Oct. 6, 1971.
    Opinion Filed Oct. 7, 1971.
    Writ Refused Oct. 7, 1971.
    
      Gilbert V. Andry, III, for the 103rd Representative District Democratic Committee.
    I. G. Kiefer, New Orleans, for Edward L. Boesch.
    McBride & Tonry, Arabi, and George J. Dowd, Chalmette, amicus curiae, for the 103rd Representative District Democratic Committee.
    Before SAMUEL, CHASEZ, RED-MANN, LEMMON, GULOTTA, STOU-LIG, BOUTALL and GUIDRY, JJ.
   DECREE

Based primarily on our conclusion that the ruling of the District Committee has become final because no timely appeal therefrom has been taken and the Civil District Court therefore lacked jurisdiction, for the written reasons to be handed down in due course:

The writs herein granted are made peremptory and each of the following: (1) the judgment rendered and signed by the Honorable Judge Richard Garvey on September 17, 1971, ordering the immediate certification of the candidacy of Edward Boesch to the Honorable Wade Martin; (2) the judgment rendered and signed by the Honorable Judge Richard Garvey on September 28, 1971 (or September 29, 1971, as the record before us is not completely clear on which of these two dates the same was signed), insofar as the same issues a restraining order directed to the Honorable Wade O. Martin enjoining and prohibiting the latter from printing a ballot for the November 6, 1971 primary election without including the name of Edward L. Boesch thereon as a candidate for the office of Representative from the 103rd Representative District and directing that the said name of Edward L. Boesch be placed on the ballot for the November 6, 1971 primary election as a candidate for the office of Representative from the 103rd Representative District; and (3) the judgment rendered and signed by the Honorable Judge Clarence Dowling on September 29, 1971, issuing a preliminary injunction restraining, enjoining and prohibiting the Honorable Wade O. Martin, Jr., “his agents or employees or all other persons acting or claiming to act in his behalf from printing a ballot for the November 6, 1971 primary election, without the name of Edward L. Boesch listed as a candidate for the House of Representatives of the State of Louisiana from the 103rd House District; and further directing the said Wade O. Martin, Jr. to place the name of Edward L. Boesch on the ballot as a candidate for the House of Representatives from the 103rd Representatives District of the State of Louisiana for the primary election to be held on November 6, 1971.” are vacated, annulled, set aside and reversed and it is now ordered that the suit of the Respondent, the Honorable Edward L. Boesch, he and the same is now dismissed. The costs of these proceedings are to be paid by the said Respondent, the Honorable Edward L. Boesch.

Reversed and rendered.

BOUTALL, Judge.

This matter comes before us on writs of certiorari and mandamus issued herein on the application of the 103rd Representative District Democratic Committee, the defendants in case No. 527-814 of the Civil District Court for the Parish of Orleans. We granted these writs in order to ascertain the validity of the proceedings complained of by relator in that case.

The chronological sequence of events in this matter may be summarized as follows:

1. On August 31, 1971, Loyd J. Rock-hold, claiming to appear for himself and all others similarly situated, filed a proceeding termed a class action against John J. McKeithen, Governor of the State of Louisiana, and other public officials, including the Democratic and Republican State Central Committees, in the 19th Judicial District Court for the Parish of East Baton Rouge, docket No. 151397, in which the petitioner sought a declaratory judgment, the effect of which would be to abolish the two year residence requirement of Article 3, Section 9 of the Constitution of Louisiana insofar as it might apply to voting districts created by the reapportionment judgment of the United States District Court for the Eastern District of Louisiana, Baton Rouge Division, rendered on August 24, 1971, until such districts would have been in existence for two years.

2. On September 13, 1971, after hearing, the court handed down its reasons for judgment, in which it concluded the relief prayed for would be granted, stating:

“Accordingly, for the above reasons, judgment is rendered herein decreeing that Article 3, Section 9 of the Louisiana Constitution does not render ineligible any person who satisfied the residentiary requirements of Louisiana law prior to August 24, 1971 from qualifying as a candidate for the Louisiana House of Representatives or the Louisiana Senate so long as that person actually resided in the newly created district as of the date of its creation on August 24, 1971.”

However, the judgment effectuating the reasons for judgment was not signed until September 17, 1971.

3. On September 17, 1971 at 6:50 A.M., pursuant to the procedures outlined in LSA-R.S. 18:307, Edward P. Boesch was served with a challenge to his qualifications as a candidate for Representative from the 103rd Representative District by Henry F. Hirschey, Jr., Ferdinand P. Meyers, Jr., and George J. Schiro, electors of the district, based on his lack of the required two-years’ residency in the district as provided in Article 3, Section 9 of the Louisiana Constitution.

4. The challenge was handed to Paul M. Trebucq, chairman of the committee, at noon of September 17, 1971.

5. On September 17, 1971, Edward L. Boesch filed his original petition in the instant proceeding, in which he represented to the court that he was a member of the class for whom Rockhold had appeared in the Baton Rouge proceedings; that a final and executory judgment had been rendered in that proceeding, from which he claimed' the benefits; and that he was entitled to a judgment of the Civil District Court for the Parish of Orleans, to be rendered ex parte, which would make the judgment of the 19th Judicial District Court for the Parish of East Baton Rouge executory and which would order and direct the State Central Committee through its duly designated members, namely, Arthur J. Bow, Paul M. Trebucq and Henry Schindler to immediately certify the candidacy for House District 103 of the plaintiff, Edward L. Boesch, to the Secretary of State.

6. An ex parte judgment, as prayed, was signed on September 17, 1971 by Honorable Richard J. Garvey, Judge of the Civil District Court for the Parish of Orleans.

7. Attached to the petition, and represented to be a judgment of the 19th Judicial District Court, were reasons for judgment which had been handed down by the Baton Rouge Court on September 13, 1971.

8. On September 19, 1971, the 103rd Representative District Committee issued its order fixing the hearing on the challenge for September 20, 1971, at 4:30 P. M. and this order was served on Boesch on September 19, 1971.

9. The committee convened a hearing at the appointed date and hour; present— all members of the committee, the three challengers, the candidate Boesch and his attorney, Ignatz G. Kiefer, and Gilbert V. Andry, III, attorney for the committee.

10. No answer had been filed by the candidate and he refused to participate in the hearing. After the hearing, the committee made its finding that the candidate was not qualified, with the members Tre-bucq and Schindler voting and with the member Boe abstaining.

11. A copy of the committee’s findings was served on the candidate on September 20, 1971, was dispatched by mail to the Secretary of State on September 21, 1971, and was served by hand on the Secretary of State on September 22, 1971.

12. On September 23, 1971, Edward L. Boesch filed a petiton with the Civil District Court for the Parish of Orleans in proceeding No. 530-071, a new suit, naming as defendants the 103rd Representative District Democratic Committee and others, seeking substantially the same relief as in proceeding No. 529-814 and additionally seeking to annul the committee’s decision of September 20, 1971. A rule nisi issued returnable September 29, 1971, but was continued without further action and all counsel concede that suit is not before us.

13. On September 20, 1971, Judge Shortess of the 19th Judicial District Court in the suit in which he had rendered the declaratory judgment on September 17, 1971, signed an order for a rule nisi to issue against the plaintiff to show cause why a new trial should not be granted in that proceeding made returnable September 27, 1971. On that date, September 27, the motion for a new trial was denied, a motion for a suspensive appeal was filed, and a suspensive appeal was granted and perfected.

14. On September 28, 1971, Boesch filed a petition in this proceeding No. 529-814 in which he sought and obtained a temporary restraining order couched in the following language:

“IT IS ORDERED that a temporary restraining order issue herein, subject to the posting of a cash bond in the amount of $50.00, directed to the Honorable Wadé O. Martin, Jr., Secretary of State, State of Louisiana, restraining, enjoining, and prohibiting him, his agents, employees and all other persons acting or claiming to act in his behalf or in concert with him from printing a ballot for the November 6, 1971 primary election without the name of Edward L. Boesch listed on the aforementioned ballot as a candidate for the office of Representative from the 103rd Representative District for the State of Louisiana and further the said Wade O. Martin, Jr., Secretary of State, State of Louisiana is directed to place the name of Edward L. Boesch on the ballot for the November 6, 1971 primary election as a candidate for the office of Representative from the 103rd Representative District of the State of Louisiana.”

The restraining order was accompanied by a rule nisi against the Secretary of State to show cause why the preliminary injunction should not be granted in the form and substance of the restraining order, made returnable the next day, September 29, 1971, at 10 A.M.

15. On the morning of September 29, 1971, the 103rd Representative District Democratic Committee, relators, here, filed with the district court and served on the plaintiff the notice of its intention to apply to this court for remedial writs with a stay order. The court refused to accept the notice of intention to apply for writs and proceeded to trial of the rule nisi for preliminary injunction. The court made the rule nisi for a preliminary injunction absolute, enjoining Wade O. Martin, Jr.:

“ * * * from printing a ballot for the November 6, 1971, primary election, without the name of Edward L. Boesch listed as a candidate for the House of Representatives of the State of Louisiana from the 103rd House District; and further directing the said Wade O. Martin, Jr. to place the name of Edward L. Boesch on the ballot as a candidate for the House of Representatives from the 103rd Representative District of the State of Louisiana for the primary election to be held on November 6, 1971.”

16. Relators presented a petition of sus-pensive appeal from the judgment making the rule absolute, which was denied. Rela-tors then served upon the court and opposing counsel their second notice of intention to apply for writs to this court.

The present proceedings were instituted when Mr. Boesch filed a petition seeking to make the judgment of another Louisiana court executory and to obtain an order compelling certification of his candidacy by the District Committee, both ex parte. That petition recited: Boesch has been a resident of the 9th Ward of Orleans Parish for 60 years and for a long number of years he resided at 4419 St. Claude Avenue, New Orleans, Louisiana, which is within Precinct 10 of Ward 9. He has been for a number of years the duly elected representative to the Státe Legislature from that district. On March 1, 1970, he was required to move his residence to 1312 France Street, New Orleans, Louisiana, which is within Precinct 17 of Ward 9. Both of these residences are within Ward 9 and hence within the representative district in which Boesch is presently elected, and both are within the representative district under the reapportionment plan approved by the Louisiana Legislature, designated as District 26. On August 24, 1971, the United States District Court adopted a plan of realignment for legislative districts, and under this plan the plaintiff’s present residence is located within Representative District 103. His former residence is located within Representative District 102.

The petition further alleges that there was a class action entitled “Loyd J. Rockhold v. John J. McKeithen, Governor, et al.,” No. 151-397 on the docket of the 19th Judicial District Court, Parish of East Baton Rouge, seeking a declaratory judgment to ascertain the qualifications of candidates in similar situations in which the election officials of the State of Louisiana and the Democratic and Republican State Central Committees were made parties, which had the effect of deciding his qualifications as candidate for the newly created district.

Based upon the judgment of the district court in that case, together with the facts as outlined above, the petition prays that the judgment of the 19th Judicial District Court be made executory in the Civil District Court for the Parish of Orleans and for an order compelling his certification as a candidate for Representative District 103.

The judge of the Civil District Court thereupon signed an ex parte judgment making the judgment of the 19th Judicial District Court executory and further ordering “that the State Central Commission through its duly designated members, namely, Arthur J. Boe, Paul M. Treburg [sic], Henry Schendler [sic] are hereby ordered and directed by this Honorable Court to immediately certify the candidacy of Edward Boesch to the Honorable Wade Martin, Secretary of State for House District 103 * * This order was served upon Arthur J. Boe, secretary of the committee, and not served upon the chairman, Paul M. Trebucq.

Referring to the calender of events, it may be noted that the opposition to the candidacy of Boesch had been given to the committee prior to the signing of this order.

The 103rd Representative District Democratic Committee convened a hearing September 20, 1971, to hear the opposition to Boesch’s candidacy, and rendered a decision that Boesch was not a qualified candidate “for the reason that he does not meet the requirements provided by the Louisiana Constitution Article 3 Section 9.”

Even though we do not consider it to be germane to the precise issue before us, it has been argued to us that the proceedings in the 19th Judicial District Court was not a valid class action seeking a declaratory judgment, and that the judgment was signed on September 17, 1971. We make no comment as to the validity of those proceedings and simply accept the representations of counsel and the documents filed in the record before us. However, we do find that at the time the trial court issued its ex parte order on September 17 the judgment of the 19th Judicial District Court upon which it was based could have been suspensively appealed and, in fact, such an appeal was later granted. That suit, on its face, is not an election contest but an ordinary proceeding brought under the provisions of LSA-C.C.P. art. 591 et seq., and LSA-C.C.P. art. 1871 et seq., relative to class actions and declaratory judgments.

Under the explicit provisions of LSA-C.C.P. art. 2781 the judgment of the 19th Judicial District Court was not susceptible of being made executory in the Civil District Court for the Parish of Orleans because its execution could have been, and was, in fact, suspended by appeal. Clearly, the ex parte judgment of September 17, 1971, making the judgment in the Baton Rouge proceedings executory and directing the district committee members to certify Mr. Boesch’s candidacy to the Secretary of State, was improvidently issued.

The same reasons relative to prematurity also are applicable to the temporary restraining order and directive to the Secretary of State signed on September 28, 1971 (it is remotely possible that the same was signed on September 29, 1971; the date written on the original signed by the district judge is unclear and could be either 28th or 29th), because that order and directive was signed ex parte and is based solely on the judgment in the Baton Rouge proceedings.

Again, as will be noted from the calendar of events, the decision of the Committee was rendered on September 20, 1971, on the same date Mr. Boesch was served with a copy of the Committee’s decision, and on September 28, 1971 he filed in his original proceeding a petition seeking a temporary restraining order, a rule nisi and preliminary injunction. The only other proceeding filed by Boesch after the decision of the Committee was suit No. 530-071 which, as we have said, all parties concede is not before us, and accordingly we have no comment in respect to it.

The case before us, i. e., the two ex parte orders of September 17 and 28 (or 29) and the judgment of September 29, is not an election contest suit within the purview of LSA-R.S. 18:307 and 18:364. We concede the suit does present a political question in that it does involve an election and, specifically, the candidacy in an election. However, it is not brought within the provisions of the above referred-to statutes, and we consider that under the present situation as related to us, the provisions of those statutes must govern.

The basic reason for our ultimate conclusion in this case is applicable both to the order and directive of September 28 or 29 and to the judgment of September 29 which latter restrains the Secretary of State from printing the ballot without including the name of Mr. Boesch as a candidate. That reason is that under our law a con-testee’s remedy, his right to court review, of a district committee’s ruling arises only out of the provisions of LSA-R.S. 18:307 and 18:364. Under LSA-R.S. 18:364, subd. H no court has the authority to entertain a contest unless the same is brought within two days after the official promulgation of the ruling made by the committee. Strict compliance with this section is sacramental in order to vest jurisdiction in the courts. The respondent in this case having failed to avail himself of the right to appeal the committee’s rejection of his candidacy within the time provided by the statute, the courts did not obtain jurisdiction to hear his complaint.

However strong may be the equities and the facts in favor of Mr. Boesch, and we readily concede they are, equity cannot prevail over the positive declarations of law regulating the conduct of primary elections, which must be strictly adhered to. We cannot pass on those equities or facts because we cannot reach the merits. We have no jurisdiction to do so.

Our decree was handed down, prior to this opinion, on October 4, 1971.

Reversed and rendered.

LEMMON, Judge

(concurring).

The Committee is vested with the sole authority to decide on the qualifications of a candidate, a decision which is then reviewable by the courts. When no suit was brought to review the Committee decision, that decision became binding on the candidate, and the courts then (if not before) lacked jurisdiction over the matter.

Therefore, when Judge Dowling rendered his judgment granting an injunction on September 29, 1971, he was completely without jurisdiction to do so, and the judgment must be annulled.

This is the extent to which this court can properly inquire. I do not believe we should determine, or even inquire into, any phase of the validity of the declaratory judgment rendered by Judge Shortess or of the September 17 order rendered by Judge Garvey.

Boesch’s right to rely on the declaratory judgment or the September 17 order should properly have been asserted on an appeal from the Committee decision. Not having appealed, Boesch cannot now indirectly raise objections to the Committee decision.

REDMANN, Judge

(dissenting).

This case presented two principal alternatives to us:

(1) Should Representative Boesch’s failure to timely appeal a ruling of the Democratic Executive Committee for the 103rd Representative District (as constituted by United States District Court decree, presumably if untraditionally in the exercise of the “judicial Power” of the United States) deprive him of a right definitively adjudicated to be his in a Baton Rouge action against the members of that Committee (as part of the State Central Committee) ; or

(2) Should the failure of the members of the 103rd Representative District Committee (or any other party) to timely appeal the decision of the 19th Judicial District Court prevent the Committee from further contesting the right which was there adjudicated and under traditional notions has become res judicata?

It could hardly be plainer that under the Louisiana Constitution of 1921 (however violative of the United States Constitution in some respects), Representative Boesch could not have been disqualified by his move within an Orleans ward, since Representatives, in Orleans, were to come from wards; • see La.Const, art. 3 § 2. The word “district” in art. 3 § 9, in the context of Louisiana’s constitution’s words, means “senatorial district”. This question affected, to our knowledge, three would-be candidates in three different sections of the state, and presumably affected others in yet other areas. Although unquestionably the ordinary election processes require a first determination of eligibility for primaries by political party committees, this question was one related not to party qualifications, but to constitutional qualification to hold the office ultimately sought: and it was one that ought to be decided identically throughout the state. The class action brought against the State Central Committee (s), from which committee all district committees are composed, appears (in the unusual circumstances of traditional, Louisiana-constitutional geographical boundaries disappearing) to have been a proper invocation of Louisiana’s judicial branch’s power. The 19th Judicial District Court judgment, rendered September 13 and read and signed September 17, was not appealed from until September 27, although R.S. 18:364 requires such a matter be filed in the court of appeal within five days of rendition. That judgment is now final and was final September 18 (or, at the latest, 20). An Orleans court on September 17 ordered the committee to heed the Baton Rouge judgment and not disqualify Boesch on the ground already decided in Boesch’s favor.

Rather than tell Representative Boesch he cannot be a candidate because he failed to appeal the committee’s ruling, we should tell the committee (the only party before us) it cannot disqualify Representative Boesch because its members failed to appeal the Baton Rouge Court’s decision and are therefore bound by it. We should affirm the Orleans judgment complained of.

To allow Boesch to remain on the ballot would not defeat the electors’ right to elect or reject the man who presently is the Representative of about half of them. To strike Boesch from the ballot does defeat that right. In the absence of clear statutory or constitutional disqualification we should not allow the electors’ right to be defeated.

GULOTTA, J., joins in the dissent of REDMANN, J., and assigns further written reasons.

GUIDRY, J., joins in the dissent of RED-MANN, J.

GULOTTA, Judge

(dissenting).

I respectfully dissent from the majority opinion which results in decreeing Representative Boesch ineligible as a candidate in the Democratic Primary Election to the House of Representatives from the 103rd Representative District because of his failure to meet the two-year residency requirement by reason of the reapportionment decree of the U. S. District Court.

This court granted writs of certiorari and mandamus to review the failure by the trial judge to grant a devolutive appeal while denying a suspensive appeal from the decision enjoining the Secretary of State from printing a ballot without placing the name of Edward Boesch on said ballot. The granting of the writs by this court and the hearing by the entire court placed this matter before us in the posture of a hearing on a timely devolutive appeal in an election suit. Applicable to this situation before us is R.S. 18:364(E), which requires that such an appeal be filed in the Court of Appeal within five days from the date of rendition of the judgment. The trial court decree was rendered on September 29, 1971, and the application for writs was dated September 30, 1971.

The question before us is whether the trial judge committed manifest error. I am of the opinion that he did not.

Relators suggest that because Boesch failed to take a timely appeal to a court of proper jurisdiction from the adverse decision of the District Committee that he is therefore precluded from obtaining judicial relief at this time. It is their contention that upon the expiration of the two-day period for filing appeals to the District Court, the decision of the committee becomes final and binding. Relators suggest that upon Boesch’s failure to perfect a timely appeal to the District Court his rights prescribed. Other issues raised by relators are without merit and the only serious issue is the possible waiver of Boesch’s right of appeal to the District Court from the decision of the committee.

In any ordinary situation relators’ contention might bear merit; however, though no written reasons were assigned, the decision of the trial court dated September 29, must have been predicated on the validity of the judgment of the trial judge in the 19th Judicial - District Court, the effect of which is to allow the name of Boesch to be placed on the ballot, or upon the validity of the order signed by Judge Garvey of the Civil District Court dated September 17, directing the committee to certify Boesch as a candidate and to so notify the Secretary of State.

I fail to understand how the majority concludes that Boesch relinquishes his right to judicial review of the decision of the District Committee by not filing a timely appeal and yet fails to recognize that a timely appeal (i. e., within five days from rendition of judgment for a devolutive appeal in an election contest) was not taken from the decree of the 19th Judicial District Court in Baton Rouge.

The matter before us is purely and simply an election contest. The court in Baton Rouge rendered a judgment on September 13 and assigned written reasons. The judgment was signed on September 17. No appeal was taken from that judgment until September 27, although R.S. 18:364 requires that an appeal in such a contest be filed in the Court of Appeal within five days of rendition. That judgment is now final irrespective of the fact that erroneously a suspensive appeal was granted ten days after judgment by order of the court on the 27th of September.-

In view of the finality of the judgment in Baton Rouge involving a class action affecting all persons in similar situations as the plaintiff Boesch in this suit, the decision of the trial court in the Civil District Court is proper and should not be reversed. Boesch should be certified as a candidate in District 103.

The majority erroneously concludes that the action in Baton Rouge is something other than an election suit and concludes that the order of suspensive appeal was timely filed. I feel that it is inconsistent and manifestly erroneous to conclude that the contest in Baton Rouge is not an election suit while treating the matter before us as an election suit. Our court clearly recognized this proceeding was an election suit when it granted the writs converting this hearing before us to a devolutive appeal as set out in the election law. Accordingly, I respectfully dissent from the decree and opinion of the majority.

REDMANN and GULOTTA, Judges

(concurring in refusal of rehearing).

We refuse rehearing on the ground that this is in substance a candidacy or election contest governed by R.S. 18:364 subd. G’s rule that “No application for rehearing shall be entertained by any court * *

Even if that provision were considered not applicable, rehearing application in this type of case is unnecessary to the exercise of the Supreme Court’s supervisory jurisdiction. See State ex rel. Pearce v. Democratic State Central Comm., 229 La. 556, 86 So.2d 192 (1956), where the Supreme Court under not dissimilar circumstances called up a case from the trial court “without first requiring the complainant to make his defense in the other courts and there exhausting his remedies.” Notice of intention to apply for the exercise of the Supreme Court’s supervisory power has already been served on this court.

We remain of the opinion that the class action candidacy qualification suit in the 19th Judicial District Court (whether correctly decided or not) was also governed by R.S. 18:364 and the class judgment there was definitive and res judicata against the members of the 103rd Representative District Committee. We add that the circumstance that Boesch brought that Committee before the Civil District Court for the parish of Orleans (“the parish in which the contestee resides”, R.S. 18:364 subd. B) on the day the protest was filed with the Committee, in a proceeding which was still alive during the two days allowed for appeal from the Committee ruling, ought itself to defeat the technical conclusion that Boesch did not, within those two days, bring an “appeal” from the ruling which he had in anticipation already brought before the proper court. 
      
      . LSA-C.C.P. art. 1877 reads:
      “All orders, judgments, and decrees under Articles 1871 through 1883 [relative to declaratory judgments] may be reviewed as other orders, judgments, and decrees.”
      LSA-C.C.P. art. 2781 reads:
      “A judgment rendered in a Louisiana court may be made executory in any other Louisiana court of competent jurisdiction, if its execution has not been and may not be suspended by appeal.”
     
      
      . Edward L. Boesch v. Democratic State Central Committee Case No. 529-814.
     
      
      . Edward L. Boesch v. Democratic State Central Committee et al. Case No. 529-814.
     
      
      . R.S. 18:364(H) reads: “No contest shall be entertained unless brought within two days after the official promulgation of the result of the election, made by the secretary of state, or by respective committees as provided in this Part.” See also: Janssen v. Second Congressional Dist. Dem. Ex. Com., 235 La. 353, 103 So.2d 472 (Orl.App.1958).
     
      
      . Case No. 529-814.
     
      
      . Loyd J. Rockhold et al. v. John J. McKeithen et al., Case No. 151-397.
     
      
      . Case No. 529-814.
     
      
      . Rockhold et al. v. John J. McKeithen et al., Case No. 151-397.
     