
    Jewel J. NEWMAN v. CITY OF BATON ROUGE et al.
    No. 14003.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 1980.
    
      Freddie Pitcher, Jr., Donald R. Avery, Baton Rouge, for plaintiff-appellee Jewel J. Newman.
    A. Foster Sanders, III, Baton Rouge, for defendant intervenor Edgar L. Watts, Jr.
    Walter G. Monsour, Jr., Parish Atty., Larry S. Bankston, Asst. Parish Atty., Baton Rouge, for defendants-appellees, City of Baton Rouge Democratic Executive Committee, Larry Bankston, Chairman Board of Supervisors of Elections, Nathaniel Bank-ston, Chairman Board of Supervisors of Elections, H. M. “Mike” Cannon, Secretary and in his official capacity as E. B. R. Parish Clerk of Court.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, for defendant-appellee, State of Louisiana, James H. “Jim” Brown, Sec. of State.
    Before ELLIS, COVINGTON, LOTTINGER, EDWARDS and PONDER, JJ.
   PER CURIAM.

Plaintiff, Jewel J. Newman, has filed suit seeking judgment declaring the September 13, 1980 primary election for Councilman for Ward One, District One for the Parish of East Baton Rouge violative of his rights under the Constitution of the State of Louisiana, and for injunctive relief enjoining the conducting of the September 13 election for Councilman for Ward One, District One.

Plaintiff, Newman, is the incumbent councilman from Ward Two, District Two, and was a resident thereof on April 23, 1980. On that date the area in which plaintiff lives (a part of Ward Two, District Two) was annexed to the City of Baton Rouge and merged with that of Ward One, District One. The following day April 24, the City submitted the annexation to the United States Department of Justice for their review under the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. The Department of Justice requested additional information on June 12, which information was forwarded by the City on July 2. On August 25, 1980, the City was notified by the Justice Department of no objection to the annexation.

Qualification for the councilmanic offices as fixed by state law, La.R.S. 18:402, was held from July 7 to and including July 11, 1980. The plaintiff qualified for the council seat for Ward Two, District Two in accordance with the residency requirements of the Plan of Government for the Parish of East Baton Rouge as well as the Louisiana Election Code. La.R.S. Title 18.

Subsequent to his qualification of his candidacy and the no objection by the Justice Department on August 25, plaintiff filed this suit on September 2. Named as defendants are: The City of Baton Rouge, The Democratic Executive Committee of the Parish of East Baton Rouge, The Board of Supervisors of Elections for East Baton Rouge Parish, James H. “Jim” Brown in his capacity as Secretary of State of Louisiana, and J. M. “Mike” Cannon, Clerk of Court, East Baton Rouge Parish.

The City of Baton Rouge filed an exception of no cause of action which was overruled, but the City was subsequently dismissed as a party defendant. The Democratic Executive Committee for the Parish of East Baton Rouge was also dismissed as a defendant.

Edgar L. Watts, Jr., the incumbent councilman for Ward One, District One and who qualified for re-election, intervened and filed an exception of res judicata arguing that plaintiff had filed suit in the United States District Court for the Middle District of Louisiana raising the same issues.

The judgment of the trial court in part provides:

“The defendants, The Board of Supervisors of Elections for East Baton Rouge Parish, Louisiana, J. M. Mike Cannon, Clerk of Court for 19th Judicial District Court, East Baton Rouge Parish, Louisiana and James H. ‘Jim’ Brown, Secretary of State, State of Louisiana áre enjoined from promulgating and certifying the election returns of September 13,1980 for the seat of Councilman of Ward One, District One for the City of Baton Rouge, Louisiana. Further, the Court orders that the defendants reopen the qualifying dates of Ward One, District One for any party before this Court. That qualifying date shall be Wednesday, September the 7th through Friday, September the 19th at 5:00 P.M. and Mike Cannon, Clerk of Court for the Parish of East Baton Rouge, is ordered to give notice as required by R.S. 18:469C to the new qualifying time. Further, the ■ Court orders that if a party before the Court qualifies during this limited time that the Court has mentioned, then the primary election shall be conducted and coincide with the general election on November 4, 1980. Thereafter, if a general election for the seat of Ward One, District One is necessary, it should be held on the sixth Saturday after the primary date namely December 13, 1980. It is further ordered that if none of the parties before the Court qualifies during the period of September 17th through September 19th, 1980, then the Board of Supervisors of Elections for East Baton Rouge Parish, State of Louisiana, and Mike Cannon, Clerk of Court for the 19th Judicial District Court, Parish of East Baton Rouge, are ordered to promulgate and certify the votes of September 13, 1980, for councilman of Ward One, District One to the Secretary of State, State of Louisiana. This injunction shall be a permanent injunction inasmuch as the parties have agreed that further hearings would be of no avail and shall issue without Jewel J. Newman’s posting of a bond.
“The intervention of Edgar L. Watts, Jr. is granted but the relief sought is denied.”

Our election code provides for only two instances in which qualifying can be reopened: when a candidate dies after the close of the qualifying period and when no candidate or too few candidates have qualified for a position. R.S. 18:469. Neither of these situations exist in this case.

What plaintiff would have us do is enjoin an election for an office for which he was not qualified during the qualifying dates, because he now wishes to run for that office. He has already qualified to run for a position which he now holds, and for which he remains eligible to run and which he may continue to hold by moving his residence to the new District Two. McCarter v. Broom, 377 So.2d 383. (La.App. 1st Cir. 1979). If we were to grant plaintiff’s prayer, we would not only have to enjoin the election in Ward One, District One and Ward Two, District Two, but would have to open qualifying to all those situated similarly to plaintiff. R.S. 18:469(D).

Plaintiff is unable to point to any specific provision of law which entitles to him to the relief sought, other than vague references to principles of fairness and due process of law.

We therefore find that the dictates of the orderly electoral process must prevail over plaintiff’s desire to run for Councilman for Ward One, District One, absent any specific legal basis for the relief sought.

The judgment appealed from is reversed, and there will be judgment herein dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.

COVINGTON and LOTTINGER, JJ., dissent and assign written reasons.

COVINGTON and LOTTINGER, Judges,

dissenting.

In Rich v. Martin, 259 So.2d 113 (La.App. 1st Cir. 1971), writ refused 261 La. 313, 259 So.2d 336 (1971), and reaffirmed in McCarter v. Broom, 377 So.2d 383 (La.App. 1st Cir. 1979), writ refused October 9, 1979, this Court said:

“The basic policy of our form of government requires that laws governing the conduct of elections be liberally interpreted to promote rather than defeat candidacy.”

Because of the delay of the Justice Department, acting under the authority of the Voting Rights Act of 1965, in promptly giving its approval to the proposed annexation, plaintiff was during the period of qualification in a Catch-22 situation. At the time of qualification he lived in Ward 2, District 2, and therefore properly qualified to seek office therein. Now, following governmental action, his residency has been changed to Ward 1, District 1.

Under the guise of stability of elections, the majority has disqualified plaintiff and others like situated from being candidates for the councilmanic seat for Ward 1, District 1, because they did not qualify for said seat when at the time of qualification they did not meet the requirements of law to qualify.

The proper and equitable solution would be for this Court to enjoin the voting commissioners from counting and reporting the votes cast in favor of the candidates for the councilmanic seats in Ward 1, District 1 and Ward 2, District 2, and that qualification be reopened in both Districts without restriction as to whether a candidate had previously qualified as a candidate or not.

Therefore, for the foregoing reasons, we respectfully dissent.  