The opinion
JAMES RYAN NEWHART * NO. 2020-CA-0374
VERSUS *
COURT OF APPEAL
DIEDRE PIERCE KELLY AND *
ARTHUR MORRELL, IN HIS FOURTH CIRCUIT
OFFICIAL CAPACITY AS *
CLERK OF COURT FOR THE STATE OF LOUISIANA
PARISH OF ORLEANS, STATE *******
OF LOUISIANA
CONSOLIDATED WITH: CONSOLIDATED WITH:
C. GARY WAINWRIGHT NO. 2020-CA-0375
VERSUS
DIEDRE PIERCE KELLY AND
THE HONORABLE ARTHUR A.
MORRELL
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-06387 C\W 2020-06387, DIVISION “B-1”
Honorable Rachael Johnson,
******
Judge Paula A. Brown
******
(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard,
Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Paula A.
Brown, Judge Dale N. Atkins)1
BELSOME, J., CONCURS FOR THE REASONS ASSIGNED BY JUDGE
LEDET.
LOBRANO, J., CONCURS IN PART AND DISSSENTS IN PART FOR THE
REASONS ASSIGNED BY JUDGE JENKINS.
LEDET, J., CONCURRING WITH REASONS
JENKINS, J., CONCURS IN PART AND DISSENTS IN PART WITH
REASONS
ATKINS, J., CONCURS FOR THE REASONS ASSIGNED BY J. LEDET.
Scott L. Sternberg
Marcia Suzanne Montero
1
Judges Terri F. Love, Daniel L. Dysart, and Tiffany G. Chase recused themselves.
STERNBERG NACCARI & WHITE, LLC
935 Gravier Street, Suite 2020
New Orleans, LA 70112
C. Gary Wainwright
LAW OFFICE OF C. GARY WAINWRIGHT PLC
2739 Tulane Avenue
New Orleans, LA 70119
Douglas Hammel
THE HAMMEL LAW FIRM
3129 Bore Street
Metairie, LA 70001
COUNSEL FOR PLAINTIFF/APPELLANT
R. Gray Sexton,
ATTORNEY AT LAW
2415 Quail Drive
3rd Floor
Baton Rouge, LA 70808-0590
Alesia M. Ardoin
LAW OFFICES OF R. GRAY SEXTON
8680 Bluebonnet Blvd.
Suite D
Baton Rouge, LA 70810
Madro Bandaries
MADRO BANDARIES, P.L.C.
938 Lafayette Street, Suite 507
New Orleans, LA 70156
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
August 11, 2020
PAB
JFM
EAL
RBW
This is an election suit. Appellant/Petitioner, James Ryan Newhart (“Mr.
Newhart”), a registered voter who resides on Iberville Street in New Orleans,
Orleans Parish, filed a petition in the Orleans Parish Civil District Court objecting
to the candidacy of Appellee/Defendant, Diedre Pierce Kelly (“Ms. Kelly”), a
candidate running for the position of Orleans Parish Criminal District Court Judge,
Section “K”. In addition, Appellant/Petitioner, C. Gary Wainwright (“Mr.
Wainwright”), who qualified to run for the vacancy in Section “K,” of the
Criminal District Court, and who is a registered voter in Orleans Parish, filed a
petition challenging the candidacy of Ms. Kelly.2 The matters were
consolidated and a trial was held on August 4, 2020. After taking the matter
under advisement, the district court issued a judgment, later that same day at 6:15
p.m., overruling Mr. Newhart’s and Mr. Wainwright’s (“Petitioners”) petitions and
provided written reasons. From this judgment, Petitioners timely sought appellate
review.
For reasons discussed below, we affirm the district court’s judgment.
2
The Honorable Arthur A. Morell, Clerk of Court for Orleans Parish Criminal District Court,
was also named as a defendant in both petitions, pursuant to La. R.S. 18:1402(A)(2).
2
FACTUAL AND PROCEDURAL HISTORY
On July 22, 2020, Ms. Kelly filed a Notice of Candidacy form,
declaring her candidacy for Judge, Criminal District Court, Section “K.”
The notice was sworn before a notary as required by law. Ms. Kelly
certified, “I have read this Notice of Candidacy and I meet the
qualifications of office for which I am qualifying.” 3 The primary election is
set for November 3, 2020, and the general election is set for December 5, 2020.
Petitioners filed petitions objecting to Ms. Kelly’s candidacy on the grounds
that Ms. Kelly did not meet one of the qualifications set forth in Louisiana
Constitution Article 5, § 24, which provides that to qualify for district court judge
one “shall have been admitted to the practice of law in the state” for eight years.
See La. R.S. 18:492.4 Petitioners asserted that due to Ms. Kelly’s suspension from
the practice of law, she would fall short of the eight-year requirement at the time of
the election. In addition, Petitioners complained that Ms. Kelly failed to file a
Form 100, as required by Judicial Code of Conduct, Canon 7 and La. R.S.
18:1491.1 et. seq.
Ms. Kelly was admitted to the Louisiana State Bar on October 20, 2011. On
April 2, 2015, the Louisiana Supreme Court suspended Ms. Kelly from practicing
3
La. R.S. 18:463 sets forth requirements for the notice of candidacy form and includes the
requirement that a certificate shall be signed by the candidate, certifying particularly that the
candidate meets the qualifications of the office for which he is qualifying. If a material error is
made in the notice of candidacy form, disqualification of candidacy may result.
4
La. R.S. 18:492 provides, in part:
A. An action objecting to the candidacy of a person who qualified as a candidate
in a primary election shall be based on one or more of the following grounds:
***
(3) The defendant does not meet the qualifications for the office he seeks in the
primary election.
3
law for one year and one day for violating Rules of Professional Conduct, Rules
8.15 and 8.4.6 In re Kelly, 15-0414, p. 1 (La. 4/2/15), 164 So.3d 815, 815-816.
On June 20, 2016, Ms. Kelly, through her counsel, filed in the Louisiana
Supreme Court, a petition for “reinstatement/readmission” pursuant to Louisiana
Supreme Court Rule 19, § 24. On November 15, 2016, almost five months later,
the Louisiana Supreme Court granted Ms. Kelly’s petition writing in part:
Upon review of the recommendation of the disciplinary board’s
adjudicative committee chair, and considering the record, it is ordered
that Diedre Pierce Kelly, Louisiana Bar Roll number 34031, be
immediately reinstated to the practice of law in Louisiana, subject to
the conditions set forth in this opinion. . . . (emphasis added).
In re Kelly, 16-1810, pp. 1-3 (La. 11/15/16), 206 So.3d 176, 176-77.
During the time of her suspension, 2015 and 2016, Ms. Kelly paid her bar
dues and complied with her mandatory continuing legal education requirements.
Ms. Kelly testified at trial that she filed a Statement of Organization, Form
200, with the Louisiana Board of Ethics to form a campaign committee. She
acknowledged that she had not filed a Form 100 and explained that she was not
required to do so.
After taking the matter under advisement, the district court overruled the
petition and issued written reasons, which concluded that Ms. Kelly met the
eight-year candidacy requirement of La. Const. art. 5, § 24 and that the
Campaign Finance Disclosure Act did not require candidates to file Form 100.
This appeal follows.
5
Rule 8.1(a) provides that an applicant for admission to the bar shall not “[k]nowingly make a
false statement of material fact.”
6
Rule 8.4(a) provides that it is professional misconduct to knowingly violate the Rules of
Professional Conduct.
4
DISCUSSION
In challenging the district court’s judgment, Petitioners assert that the district
court erred in failing to disqualify Ms. Kelly as a candidate for the office of Judge,
Criminal District Court, Division “K,” as she does not meet the eight-year
qualification period of being “admitted to the practice of law,” as required by La.
Const. art. 5, § 24. Petitioners contend that Ms. Kelly fails to meet the
qualification of “shall have been admitted to the practice of law in the state” for
eight years as a result of her suspension from the practice of law which should not
count toward the accrual of the eight-year requirement. In opposition, Ms. Kelly
responds that her suspension did not affect the number of years she had been
admitted to the practice of law, as her bar license was never revoked. Thus, she
has the requisite number of years to qualify as judge.
In addition, Mr. Newhart complains that the district court erred in failing to
disqualify Ms. Kelly for the office of Judge, Criminal District Court, Division “K,”
pursuant to La. R.S. 18:492(A)(1), which states a candidate may be disqualified for
failing to “qualify for the primary election in the manner prescribed by law,” as
Ms. Kelly failed to file her Form 100, and therefore made a false statement on her
Notice of Candidacy. In response, Ms. Kelly argues that she was not required to
file a Form 100.
Judges qualifications;
Louisiana Constitutional Article 5, § 24, sets forth the qualifications for
judge7:
7
Article 5, § 24, was amended pursuant to 2006 La. Acts 860 (Act 860) and became effective
January 1, 2008; previously, Article 5, § 24 provided there was a five-year requirement (“A
judge . . . shall have been admitted to the practice of law in this state for at least five years prior
to his election. . . .”) which was amended to an eight-year requirement.
5
(A) A judge of the supreme court, a court of appeal, district court . . .
shall have been domiciled in the respective district, circuit, or parish
for one year preceding election and shall have been admitted to the
practice of law in the state for at least the number of years specified as
follows:
***
(2) For a district court . . . --eight years.
(emphasis added). Louisiana courts have held that the qualifications set forth for
judicial candidates in La. Const. art. 5, § 24 are exclusive and neither the courts nor
the legislature can add additional qualifications. See Cook v. Campbell, 360 So.2d
1193, 1196 (La. App. 1st Cir. 1978); Knobloch v. 17th Judicial Dist. Democratic
Exec. Com., 73 So.2d 433, 437 (La. App. 1st Cir. 1954); Williams v. Ragland, 567
So.2d 63, 68 (La.1990)(concurring opinion, J., Dennis); and Elie v. Karst, 594
So.2d 929, 932 (La. App. 4th Cir. 1992)(dissenting opinion, J., Jones).
There are no factual issues in dispute. The issue to be resolved involves a
question of law; specifically, the interpretation of “shall have been admitted to the
practice of law in the state” for eight years. (emphasis added)
“[Q]uestions of law, such as the proper interpretation of a statute, are
reviewed by appellate courts under the de novo standard of review, and the
appellate court is not required to give deference to the lower court in interpreting a
statute.” Jarquin v. Pontchartrain Partners, L.L.C., 19-0737, p. 7 (La. App. 4 Cir.
1/22/20), 289 So.3d 1129, 1134.
The Louisiana Constitution is the supreme law of this state, to which all
legislative acts must yield. City of New Orleans v. Louisiana Assessors’ Ret. &
Relief Fund, 05-2548, p. 13 (La. 10/1/07), 986 So.2d 1, 13. “As a general rule,
articles of the constitution are to be construed and interpreted using the same
canons of interpretation applicable to statutes and written instruments. Id., 05-
2548, p. 17, 986 So.2d at 15. In interpreting a statute, or in this case a
constitutional article, it is well settled that “‘[w]hen a law is clear and
6
unambiguous and its application does not lead to absurd consequences, it shall be
applied as written and no further interpretation may be made in search of
legislative intent.’” New Orleans Fire Fighters Pension & Relief Fund v. City of
New Orleans, 17-0320, p. 9 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 691 (citing
in re Succession of Boyter, 99-0761, p. 9 (La. 1/7/00), 756 So.2d 1122, 1128-29).
However, if a statute is ambiguous or susceptible of more than one reasonable
interpretation, statutory construction is necessary. Id., 17-0320, pp. 9-10, 242
So.3d at 691 (citing Burnette v. Stalder, 00-2167, p. 6 (La. 6/29/01), 789 So.2d at
577). See also, Johnson v. Harrison, 14-0932 (La. App. 4 Cir. 9/3/14), 150 So.3d
30.
In this case, the parties differ on the interpretation of “shall have been
admitted to the practice of law in the state” set forth in La. Const. art. 5, § 24. As
this provision is susceptible to more than one reasonable interpretation, as pointed
out by the parties, statutory construction is necessary.8
8
In New Orleans Fire Fighters Pension & Relief Fund, 17-0320, pp. 11-12, 242 So.3d at 691-92,
this Court set forth the rules of statutory construction:
First, “[t]he rule that legislation is the solemn expression of the legislative
will and, therefore, the interpretation of a law primarily involves the search for the
legislature’s intent (citations omitted).” City of New Orleans v. Louisiana
Assessors’ Ret. & Relief Fund, 05-2548, p. 20 (La. 10/1/07), 986 So.2d 1, 16.
“When the language of the law is susceptible of different meanings, it must be
interpreted as having the meaning that best conforms to the purpose of the law.”
La. C.C. art. 10; Fontenot v. Reddell Vidrine Water Dist., 02-439, p. 7 (La.
1/14/03), 836 So.2d 14, 20. Moreover, when the words of a law are ambiguous,
their meaning must be sought by examining the context in which they occur and
the text of the law as a whole, and laws on the same subject matter must be
interpreted in reference to each other. La. C.C. arts. 12 and 13; Conerly v. State,
97-0871, p. 4 (La. 7/8/98), 714 So.2d 709, 711. “The words of a law must be
given their generally prevailing meaning. Words of art and technical terms must
be given their technical meaning when the law involves a technical matter.” La.
C.C. art. 11. Every word, sentence, or provision in a law is presumed to be
intended to serve some useful purpose, that some effect is given to each such
provision, and that no unnecessary words or provisions were used. Colvin v.
Louisiana Patient's Compensation Fund Oversight Bd., 06-1104, p. 6 (La.
1/17/07), 947 So.2d 15, 19 (citing Sultana Corp. v. Jewelers Mut. Ins. Co., 03-
0360, p. 9 (La. 12/3/03), 860 So.2d 1112, 1119). Consequently, courts are bound,
if possible, to give effect to all parts of a statute and to construe no sentence,
clause, or word as meaningless and surplusage “if a construction giving force to
and preserving all words can legitimately be found.” Id., 06-1104, p. 6, 947 So.2d
at 19-20.
7
In addition to the precepts on statutory construction, Louisiana courts have
held that the laws governing the conduct of elections must be liberally construed to
promote, rather than defeat candidacy, and any doubt as to the qualifications of a
candidate should be resolved in favor of allowing the candidate to run for public
office. Eugene v. Davenport, 14-0953, p. 4 (La. App. 4 Cir. 9/9/14), 150 So.3d 56,
59. See also, Slocum v. DeWitt, 374 So.2d 755, 758 (La. App. 3rd Cir.
1979)(citations omitted)(wherein the appellate court opined that that laws
governing the conduct of elections should be liberally interpreted so as to promote
rather than defeat candidacy, and noted that “[a]fter all, [the candidate] still has to
face the voters who will, and should, exercise the final judgment on his
candidacy.”)
There are no reported cases interpreting “shall be admitted to the practice of
law” in the context of the issue presented in this case. Thus, we reviewed cases by
this Court, as well as the Second Circuit, interpreting other issues that have arisen
under judges’ qualifications as provided for Article 5, § 24, for guidance.
In Johnson v. Harrison, 14-0932 (La. App. 4 Cir. 9/3/14), 150 So.3d 30, the
petitioner sought appellate review of the district court’s denial of petitioner’s
motion to disqualify Taetrece Harrison, a candidate for district court judge.
Petitioner asserted that at the time Ms. Harrison qualified as a candidate, she had
not been practicing law for eight years. This Court found that La. Const. art. 5, §
24, “shall have been domiciled . . . for one year proceeding the election and shall
have been admitted to the practice of law in the state,” as written, was ambiguous.
Specifically, this Court noted that “the language is susceptible to two meanings: 1)
both the domicile and the admission requirements must be met “preceding
election,” or 2) only the domicile requirement must be met “preceding election.”
8
Id., 14-0932, p. 5, 150 So.3d at 34. Next, this Court looked to the legislative intent
for guidance:
An additional provision in Act 860 provided that the proposed
amendment to the constitutional article [La. Const. art. 5, § 24] would
be submitted to Louisiana voters during a statewide election. See 2006
La. Acts 860, Section 2. It further set forth the language on the official
ballot, in relevant part, as follows:
To provide that a person shall have been admitted to the
practice of law for ten years preceding election to the
supreme court or a court of appeals and for eight
years preceding election to a district court, family court,
parish court, or court having solely juvenile jurisdiction .
..
2006 La. Acts 860, Section 3 (emphasis supplied). After reviewing
Act 860 in its entirety, it is clear that the legislature intended that both
the domicile and the admission requirements be met before the
election. Further, where there are two viable interpretations of the
constitutional article, we must lean towards the interpretation that
favors candidacy.
Since the defendant will have been admitted to practice law in
this State for more than eight years prior to both the date of the
primary and the general election established for the office of district
judge, she meets the qualifications established by the Constitution for
the office she seeks. Therefore, the petition objecting to her candidacy
was properly denied.
Johnson, 14-0932, p. 5, 150 So.3d at 34. In a concurrence, Judge Landrieu,
expounded on the purpose of the 2006 constitutional amendment which increased
the qualification for the number of years from five to eight for district court judges:
The law providing the qualifications for running for judicial
office is not the picture of clarity. However, it is reasonable to
conclude that the 2006 constitutional amendment to Article V, Section
24 was designed to do two things: (1) reduce the domicile requirement
of a candidate for judicial office from two years to one year; and (2)
increase the number of years a candidate is required to have been
admitted to the practice of law from five years to eight years. Nothing
more. The joint resolution placing this issue before the voters is clear
on these points.
Id., 14-0932, p. 6, 150 So.3d at 38.
In Elie v. Karst, 594 So.2d 929 (La. App. 4 Cir. 1992), which is cited by the
parties and referenced by the district court judge, the judicial candidate was
9
suspended from the practice of law by the Louisiana Supreme Court, at the time he
was qualifying and the suspension would continue through election day.9 At that
time, La. Const. art. 5, § 24, provided that “a judge of . . . a court of appeal . . .
shall have been admitted to the practice of law in this state for at least five years
prior to his election. . .” Previously, La. Const. art. 7 § 22 (1921) provided that to
qualify for judge one had to be “. . . licensed to practice law in the state for at least
six years immediately preceding their election. . . .” This Court rejected the
defendant’s argument that although he was not “licensed” as a result of his
suspension, he retained his admission to the bar despite the suspension. In
addition, this Court interpreted “admitted” in Article 5, § 24 to mean eligible to
practice explaining that “[t]his interpretation is supported by the Supreme Court’s
use of the term ‘readmission’ in its decree of suspension, and [i]f defendant were
presently ‘admitted’ to the practice ‘readmission’ would be unnecessary.” Id. at
930. The Elie court concluded that “[w]e subscribe to this view that a lawyer who
is suspended from the practice of law is not qualified under the constitution to run
for judge.” (emphasis added). Id.
The Elie court relied on Gamble v. White, 566 So.2d 171 (La. App. 2d
Cir.1990), where an identical issue was resolved. In Gamble, the trial court
disqualified a candidate running for district court judge; the candidate, like in Elie,
was suspended from the practice of law at the time of qualifying and at the time of
election. In addition, the candidate retained his bar admission and was admitted to
the bar for more than the five years at the time of qualifying. The Second Circuit
affirmed the trial court’s judgment concluding that the qualification in Article 5, §
24 that a candidate for district judge “shall have been admitted to the practice of
law in this state for at least five years prior to his election” mandated that the
9
In its Order suspending the defendant, the Louisiana Supreme Court provided that “Respondent
Karst is suspended from the practice of law for one year, his readmission to be predicated upon
proof of rehabilitation.” Louisiana State Bar Ass’n v. Karst, 428 So.2d 406, 412 (La. 1983).
10
candidate be admitted to practice in this state at the time immediately prior to his
election and for a total preceding period of at least five years.
Unlike the candidates in Elie and Gamble, Ms. Kelly was no longer on
suspension at the time she qualified. Furthermore, the Elie Court’s interpretation
of “admitted to the practice of law” in Article 5, § 24 to mean eligible to practice
does not resolve the issue in this case particularly in light of commentary of the
Supreme Court accompanying the order dated July 19, 2001 which amended
Louisiana Supreme Court Rule XIX (RULES FOR LAWYER DISCIPLINARY
ENFORCEMENT). The commentary stated:
In adopting these amendments to Rule XIX, the Court has carefully
considered the differences between the sanctions of disbarment and
suspension, which differences are both substantive and significant. A
suspended lawyer remains a lawyer during the period of suspension,
retains a license to practice, but cannot practice law during the term of
the suspension. However, one who has been disbarred loses his
license to practice law. . . .
Moreover, Black’s Law Dictionary defines “admission to practice law” as an
“[a]cceptance of a lawyer by the established licensing authority, such as a state bar
association, as a member of the practicing bar.” BLACK’S LAW DICTIONARY (11th
ed. 2019). Whereas, the practice of law is defined as:
“[t]he professional work of a duly licensed lawyer, encompassing a
broad range of services such as conducting cases in court, preparing
papers necessary to bring about various transactions from conveying
land to effecting corporate mergers, preparing legal opinions on
various points of law, drafting wills and other estate planning
documents, and advising clients on legal questions”
BLACK’S LAW DICTIONARY (11th ed. 2019). See also La. R.S. 37:212. We
conclude that the commentary, as well as the plain meaning of the definitions of
admission to practice law and the practice of law, lend support that Ms. Kelly met
the eight-year qualification of “shall have been admitted to the practice of law in
the state” because she retained her admission and license to the bar.
11
Despite Petitioners’ persuasive arguments, we conclude that this ambiguous
portion of La. Const. art. 5, § 24, “shall have been admitted to the practice of law
of the state” for eight years, must be interpreted in favor of candidacy. See
Committee to Re-elect Judge Chip Moore, 20-0091 (La. 7/24/20), __ So.3d __
2020 WL 4437418 (citing Landiak v. Richmond, 05-0758 (La 3/24/05), 899 So.2d.
535, 541 (“election laws must be interpreted to give the electorate the widest
possible choice of candidates.”).
Designation of Principal/Subsidiary Campaign Committees (“Form 100”)
Petitioners complain the district court erred by failing to disqualify Ms.
Kelly for the office of Judge, Criminal District Court, Division “K,” pursuant to
La. R.S. 18:492(A)(1), which states a candidate may be disqualified for failing to
“qualify for the primary election in the manner prescribed by law.” Petitioners
explain that since Ms. Kelly failed to file her Designation of Principal/Subsidiary
Campaign Committees (“Form 100”), she made a false statement on her Notice of
Candidacy. Mr. Newhart maintains that Ms. Kelly’s failure to file Form 100 was a
violation of the Campaign Finance Disclosure Act pursuant to La. R.S. § 18491.1
et seq. and the Judicial Code of Conduct, Canon 7(A)(6).10
We pretermit discussion of this assigned error as any alleged violations do
not fall under this court’s jurisdiction.11
CONCLUSION
10
Judicial Code of Conduct, Canon 7(A)(6) provides that a judicial candidate shall not
personally solicit or personally accept campaign contributions.
11
The Campaign Finance Disclosure Act provides that “[t]he Board of Ethics, as established . . .
shall function as the supervisory committee to administer and enforce the provisions of this
Chapter and the rules, regulations, and orders issued hereunder.” See La. R.S. § 18:1511.1.
Louisiana Supreme Court Rule XXXV § 3 provides that “complaints concerning judicial
campaign conduct shall be forwarded in writing” to the Judicial Campaign Oversight Committee.
12
Considering the forgoing discussion, the district court’s judgment is
affirmed.
AFFIRMED
13