Karen Carter Peterson v. Allen Helwick Borne, Jr., Kyle Ardoin, in His Official Capacity as the Secretary of State, and C. Arthur Morrell, in His Official Capacity as the Chief Election Officer for Orleans Parish

KAREN CARTER PETERSON * NO. 2019-CA-0703

VERSUS * COURT OF APPEAL

ALLEN HELWICK BORNE, * FOURTH CIRCUIT

JR., KYLE ARDOIN, IN HIS

OFFICIAL CAPACITY AS THE * STATE OF LOUISIANA

SECRETARY OF STATE, AND

C. ARTHUR MORRELL, IN *

HIS OFFICIAL CAPACITY AS

THE CHIEF ELECTION *

OFFICER FOR ORLEANS *******

PARISH

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

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Upon deposit by Agent and receipt by the deputy clerk, the deputy clerk did not record into the

public record the notice of candidacy signed by Defendant. Despite testimony from Mr. Morrell,

Defendant, and Agent of the deposit and receipt of the Notice of Candidacy signed by Defendant

at the clerk’s office, the district court refused to enter this notice into evidence, but allowed

Defendant to proffer the document. Defendant argues that the district court’s “evidentiary

impediments unnecessarily and detrimentally hindered” his ability to present a meaningful

defense to “a case seeking to deny his substantial right in participating in local governance and

democracy through candidacy for State Senate in Louisiana’s 5th District and denied the voters of

the 5th District a choice in a meaningful election.” I agree. The district court erred in not

allowing the Notice of Candidacy form sign by Defendant to be admitted into evidence. See La.

C.E. art 402 (“All relevant evidence is admissible, except as otherwise provided by the

Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other

legislation...”); see also La. C.E. art 401 (“‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.”).

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The deputy clerk recorded into the public record the Defendant’s mandate affidavit. The

district court allowed Defendant’s mandate affidavit into evidence.

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The deputy clerk recorded into the public record the Agent affidavit. The district court allowed

the Agent affidavit into evidence.

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It is undisputed that a qualifying fee was paid. The payment of the $600 qualifying fee is noted

by the Clerk of Court on recorded documents.

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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

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La. R.S. 18:422 and 471 provide the clerk of court’s function and responsibilities. La. R.S.

18:422 states:

The clerk of court is the chief election officer of the parish. Except as otherwise

provided by law, a deputy clerk of court shall possess all of the powers and

authority granted by law to the clerk, and may perform any of the duties and

exercise any of the functions of the clerk. Deputy clerks and other employees of a

clerk of court are subject to his direction and supervision, and shall perform the

duties assigned to them by law, the court, and the clerk. The clerk of court is

responsible for the performance or nonperformance of their official duties by his

deputies and other employees.

La. R.S. 18:471 states:

Wherever in this Code any act is required to be performed with or by the clerk of

court, such act shall be performed in the office of the clerk and may be performed

by or with the clerk of court or any deputy clerk employed by him designated by

him for the purpose.

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La. R.S. 18:463(A)(4) states:

(4) An agent who files a notice of candidacy without the

authorization or consent of the candidate to file such notice of

candidacy shall be guilty of a misdemeanor and shall be fined not

in excess of five hundred dollars or imprisoned for not more than

thirty days, or both.

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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:

A notice of candidacy, accompanied by the qualifying fee

…… is timely filed only if received by the …clerk of

court, for local or municipal candidates, during the

qualifying period for candidates in the primary election.

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

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The First Notice includes the Notice of Candidacy signed by Defendant, which was deposited

by Agent but not recorded by the deputy clerk upon receipt, and the other documents, which

were recorded by the deputy clerk, i.e., Defendant’s mandate affidavit, the agent affidavit, and

the qualifying fee.

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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.

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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:

A. Notices of candidacy. (1) Upon receipt of a notice of candidacy,

the secretary of state or the clerk of court, as the case may be, shall

endorse upon it the date and time of filing and either the amount of the

qualifying fee paid by the candidate or a statement that a nominating

petition was filed by the candidate. If a candidate qualifies in person, a

certified copy of the original notice of candidacy shall be furnished to

the candidate at the time he qualifies with the qualifying official but

after the date and time have been endorsed thereon. If a candidate

qualifies by submitting his notice of candidacy by certified mail,

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commercial carrier, or agent, the qualifying official shall mail a

certified copy of the original notice of candidacy after the date and

time have been endorsed thereon to the candidate at the address of his

domicile as set forth in the notice of candidacy within forty-eight

hours after receipt of the notice of candidacy.

(2) At the time a candidate files his notice of candidacy with the clerk

of court it shall become a public record and shall be recorded by the

clerk of court in the same manner as sales of immovables and the

recordation of mortgages and miscellaneous acts are recorded with

him. The clerk of court shall place all notices of candidacy for each

election in a separate book which he shall keep in his office, and each

such notice of candidacy shall be the official document and the

official public record. The clerk of court shall daily post a list of all

the candidates, and the offices for which they qualify, whose notices

of candidacy have been filed with his office.

(3)(a) After the close of the qualifying period, the secretary of state

shall transmit a list of the candidates who have qualified with him to

the clerk of court in each parish in which the office is to be voted on.

After the close of the qualifying period for candidates in a primary

election, the clerk of court shall immediately transmit to the secretary

of state a certified list of the candidates for each office who have

qualified with him. This list shall include the name of each candidate

as said candidate designated his name to appear on the ballot on his

notice of candidacy form. The clerk shall also immediately forward

qualifying fees for candidates to the secretary of state.

(b) If 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.

B. Qualifying fees. The secretary of state shall deliver all qualifying

fees to the state treasurer, who shall remit all funds to the state

treasury in accordance with law.

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

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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.

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