Opinion

James R. Lestage, in His Official Capacity as District Attorney for the 36th Judicial District, Beauregard Parish v. Michael Dwayne Harris

Court: Louisiana Court of Appeal
Filed: Nov 8, 2018
Cited by: 0 cases
Authority: More cited than 39.8%

The opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

18-842

JAMES R. LESTAGE

IN HIS OFFICIAL CAPACITY

AS DISTRICT ATTORNEY OF

THE 36TH JUDICIAL DISTRICT,

BEAUREGARD PARISH

VERSUS

MICHAEL DWAYNE HARRIS

**********

APPEAL FROM THE

THIRTY-SIXTH JUDICIAL DISTRICT COURT

PARISH OF BEAUREGARD PARISH, NO. C-2018-0771

HONORABLE ERIC R. HARRINGTON

DISTRICT JUDGE AD HOC

**********

D. KENT SAVOIE

JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy H. Ezell, and D. Kent Savoie,

Judges.

AFFIRMED.

R. Michael McHale

McHale Law Firm

631 Kirby Street

Lake Charles, Louisiana 70601

(337) 990-0093

COUNSEL FOR DEFENDANT/APPELLANT:

Michael Dwayne Harris

James R. Lestage

District Attorney, Thirty-Sixth Judicial District Court

Post Office Box 99

DeRidder, Louisiana 70634

(337) 463-5578

COUNSEL FOR PLAINTIFF/APPELLEE:

James R. Lestage

SAVOIE, Judge.

The defendant, Michael Dwayne Harris, appeals the trial court’s

judgment in favor of the plaintiff, James R. LeStage in His Official Capacity as

District Attorney (DA) of the Thirty-Sixth Judicial District, Beauregard Parish,

regarding Mr. Harris’s failure to meet the domicile and residency requirements of

his office of councilman at large for the city of DeRidder, Louisiana. Finding no

error or manifest error in the trial court’s judgment, we affirm the judgment to

vacate Mr. Harris’s seat on the DeRidder City Council.

ISSUES

We must decide:

1) whether the trial court erred in applying La. R.S. 18:671—675 instead

of treating the suit as a collateral attack on Mr. Harris’s candidacy

which was perempted under La.R.S. 18:492 and 18:1405;

2) whether the trial court erred by failing to consider the presumptions

regarding domicile and in failing to apply the law of domicile to this

case.

3) whether the trial court erred in considering evidence preceding July 2,

2018, the date Mr. Harris was sworn into office; and

4) whether the trial court manifestly erred in declaring Mr. Harris’s

office vacant due to a failure to maintain his primary residence in the

designated domicile which he listed on his qualification for candidacy

application

II.

FACTS AND PROCEDURAL HISTORY

On April 28, 2018, Defendant Michael Harris was elected as an at-

large member to the DeRidder City Council. He qualified for that position on

January 3, 2018, and he was sworn in on July 2, 2018. A registered voter, Ron

Roberts, filed a complaint on August 8, 2018, with the District Attorney, Mr.

LeStage, indicating that Michael Dwayne Harris did not reside in the city of

DeRidder prior to qualifying for councilman at large and does not currently reside

in the city of DeRidder, in violation of the city’s charter, Section 2-04(1) and 2-

04(2). Mr. Roberts further alleged that he thought Mr. Harris filed a false public

record in filing to run for office; and Mr. Roberts asked the District Attorney to

investigate and prosecute the matter. Mr. LeStage investigated and filed suit in the

district court for a judgment declaring Mr. Harris’s seat vacant pursuant to La.R.S.

18:671-675.i All of the parties, the complainant, the trial court, and this court of

appeal complied with the procedural rules in those statutes.

The relevant portions of The City of DeRidder Charter, specifically

referred to by the complainant, Ron Roberts, state as follows (emphasis added):

Sec. 2-04. Qualifications.

The council members shall have the following

qualifications:

(1) A council member elected at large shall have been

legally domiciled and shall have actually resided for at

least one (1) year immediately preceding the time

established by law for qualifying for office in an area

which, at the time of qualification, is within the city. A

council member elected from a district shall have been

legally domiciled and shall have actually resided for at

least six (6) consecutive months immediately preceding

the time established by law for qualifying for office in an

area which, at the time of qualification, is within the

district from which elected.

(2) A council member shall continue to be legally

domiciled and to actually reside within the city and, if

elected from a district, shall continue to be legally

domiciled and to actually reside within the district from

which elected, during the term of office. Should the legal

domicile and/or actual residence of a council member

change from the city or, where applicable, from the

district from which elected, the office shall automatically

become vacant, which vacancy shall be filled as set out

hereinafter.

Council members ceasing to possess these

qualifications or being convicted of a felony shall be

disqualified creating a vacancy on the council.

After an investigation, the DA issued an opinion stating that the public

records indicated that Mr. Harris was not eligible to hold public office based upon

Section 2-04(1) and 2-04(2) of the city’s charter. However, believing that Section

2-04(1) addressed a person’s qualifications for candidacy preceding the election,

and no timely objection to candidacy had been filed within seven days of the

qualifying period, pursuant to La.R.S. 18:1405, the DA focused on the alleged

violation under Section 2-04(2). That section requires that the elected official

“shall continue to be legally domiciled and to actually reside within the district

from which elected.” In spite of the DA’s efforts to limit his discussion, he had

gathered documentation going back eleven to twelve years before the 2018

election, as well as post-election information, and he presented twenty-five

exhibits to the trial court in support of his position that Mr. Harris did not meet the

domicile and residency requirements of councilman-at-large in the city of

DeRidder. In his opinion, under the heading of “DOMICILE” the DA stated:

Mr. Harris appeared to have been domiciled at 806

Lake Court Drive, DeRidder, Louisiana, from at least

2007 until July of 2015. The public record indicates that

Mr. Harris built and moved into a home at 386 Harmony

Trail, DeRidder, Louisiana, in 2015. The Harmony Trail

address is not within the city limits of DeRidder. He

signed a homestead exemption Application and filed the

same on July 9, 2015, regarding that Harmony Trial

property. On January 18, 2017, Mr. Harris filed an

application to change his homestead exemption from the

Harmony Trial address back to the 806 Lake Court

address (which was less than one year as required by the

City Charter of DeRidder to be eligible for a council

member position). As stated in La.C.C. Art. 44, a person

changes his domicile when he moves his residence to

another location with the intent to make that location his

habitual residence.

Neighbors of Mr. Harris have been interviewed

regarding Mr. Harris and his family and their use of the

property at 386 Harmony Trial. Every neighbor

interviewed stated that Michael Harris and his family use

the property as their family home and habitual residence.

Even though the Homestead Exemption Application was

filed to indicate a change of habitual residence [to 806

Lake Court Drive] in January of 2017, neighbors insist

that there has been no such change.

The DA’s opinion went on to state under the heading of “RESIDENCY” the

following:

The City Charter of the City of DeRidder requires

that a council member at large has a continuing

obligation to “actually reside” within the city limits of

DeRidder. Several Louisiana cases have discussed the

legal implications of “actually” or “actual” as it describes

residency or domicile. These courts point out that

“actually” is used to require a higher standard of

residence — or a more regular presence — to limit

political office to citizens who actually live in the district

that they represent. The courts point out that the apparent

intent of legislation requiring “actually”, in terms of

residence or domicile, was to eliminate a system under

which candidates would establish a “political domicile”

from which to seek office even though they choose to

live and maintain their families in another area and were

not truly representative of the district in which they

sought election. Davis v. English, 660 So.2d 576 [,] 579.

It appears to be true that Michael Harris and his

family did move from Lake Court Drive within the city

limits of DeRidder to Harmony Trial, which is outside

the city limits of DeRidder, and properly filed for

Homestead Exemption at Harmony Trail. Lake Court

became a property for Mr. Harris’ relative(s). According

to Mr. Harris, his daughter and son-in-law currently

reside in the house. Mr. Harris further stayed at the

house overnight from time to time as his parents are

elderly and live nearby. My investigation reveals that

Mr. Harris resides primarily (and almost solely) at

Harmony Trial, and has done so since 2015. Although

the Homestead Application was changed to Lake Court,

Mr. Harris’ residence and domicile on Harmony Trial

never changed.

In conclusion, the published opinion of the DA stated as follows:

My investigation reveals that Michael D. Harris

obviously has a strong desire to represent the citizens of

DeRidder. Further, Mr. Harris has a great many

connections and ties to the City of DeRidder, including,

but not limited to his property at 806 Lake Court.

Unfortunately, the property at Lake Court does not

appear to legally qualify as Mr. Harris’ domicile nor does

it appear to qualify as Mr. Harris’ actual residence.

The City Charter of the City of DeRidder clearly

establishes a continuing obligation on a council member

at-large to maintain his domicile in, and actually reside

in, the City of DeRidder. Although Mr. Harris has

expressed, and no doubt has, a real desire to serve the

citizens of DeRidder, he does not meet, and has not met

the continuing dual obligations to be domiciled and

actually reside within the city. Therefore, it is my

opinion, that Michael D. Harris is not qualified to hold

the office of DeRidder City Council Member At-Large.

It is my duty, in accordance with La.R.S. 18:674, to file

suit in the 36th Judicial District Court within ten (10) days

of this report to declare Mr. Harris’ office “vacant.”

The suit was timely filed, and a hearing timely held on October 8,

2018. At the hearing, the DA entered twenty-five documents supporting the

complainant’s letter, and the DA’s opinion and petition. These included city maps,

photographs, tax assessments, and utility records from both residences;

homeowners insurance policies, renters insurance, returned mail certifications,

mortgage documents, homestead exemption applications, driver’s licenses and

voter registration records of both Mr. and Mrs. Harris; and the school records and

medical emergency designations of the minor child. At the hearing, the trial court

heard testimony from six neighbors of the Harmony Trail property and three

neighbors of the Lake Court property, as well as the testimony of Mr. and Mrs.

Harris. The court also received and reviewed the stipulated testimony of the

Harris’s eleven-year-old son, stating that he lived with his parents at Harmony

Trail; they cooked, ate their meals, and slept at Harmony Trail; his parents took

him to school from Harmony Trail; his possessions and pet dog were at Harmony

Trail; and he had his own room at Harmony Trial.

Following the hearing, the trial court timely issued a judgment and

reasons for judgment declaring that Mr. Harris’s seat on the City Council of

DeRidder was vacant pursuant to the city’s charter and La.R.S. 18:671-675. Mr.

Harris timely filed a motion for appeal, citing La.R.S. 18:674. For the following

reasons, we affirm the judgment of the trial court.

III.

STANDARD OF REVIEW

The trial court’s factual findings regarding domicile are subject to a

manifest error standard of review. Herpin v. Boudreaux, 98-306 (La.App. 3 Cir.

3/5/98), 709 So.2d 269, writ denied, 98-0578 (La. 3/11/98), 712 So.2d 859. This is

particularly true where determinations regarding the credibility of witnesses are

involved, as “only the fact-finder can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s understanding and belief in what

is said.” Id. at 270. However, questions of law are reviewed de novo. Land v.

Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36.

IV.

LAW AND DISCUSSION

This case involves the interpretation of the city’s charter and La.R.S.

18:671-675. To that extent, we will conduct a de novo review. See Land v.

Vidrine, 62 So.3d 36. Mr. Harris contends that it was error for the trial court to

consider any residency events that occurred before he was sworn into office on

July 2, 2018. We disagree. Both sections of the city’s charter address an “elected”

official’s dual requirements of being domiciled and actually residing in the city of

DeRidder. Section 2-04(1) (emphasis added) reaches back to a year before the

qualifying papers were filed, stating that the “council member elected at large[,]”

not the candidate, “shall have been legally domiciled and shall have actually

resided for at least one (1) year immediately preceding the time . . . for qualifying

for office in an area which, at the time of qualification, is within the city.” While

the DA’s petition addresses Section 2-04(2), the continuing obligation of the

council member to be legally domiciled and to actually reside in the city, the

pleading has been expanded by the evidence, without objection, to include the

violation of Section 2-04(1), as originally alleged by the complainant, Mr. Roberts.

See La.Code Civ.P. art. 1154.

The evidence includes all relevant events needed to determine

whether Mr. Harris met the legal domicile requirements and “actually resided” in

the city a year before he filed his qualifying papers, pursuant to city charter Section

2-04(1), and whether he currently continues to meet the legal domicile requirement

and the requirement to actually reside in the city of DeRidder, pursuant to Section

2-04(2) of the city’s charter.

Evidence

Based upon the testimony and evidence presented in the trial court at

the hearing on October 8, 2018, the Harrises purchased and moved into the house

at 806 Lake Court Drive in DeRidder in 2006. The house is 1900 square feet, has

four bedrooms and two baths, and is assessed at $48,000. The Harrises say it is

their family home because it is down the street from Mr. Harris’s parents. The

Harrises built a two-story house outside the city of DeRidder at 386 Harmony Trial

and moved into it in 2015. They also moved their homestead exemption to the

Harmony Trail home at that time. Mr. Harris testified that it was built to be their

family home, and he called it their primary residence. Later he testified that it was

built for large gatherings. The Harrises live there with their minor son and Mr.

Harris’s sister, Deborah Thurston. The assessed value of the Harmony Trail house

is $169,840.

After the Harrises moved out of the Lake Court property in 2015, they

rented it to the Dorsey family and took out rental insurance on the property. The

Dorseys had seven young children and did a lot of damage that had to be repaired.

The electrical power had been in the Dorsey name for eight months during 2016

and then was turned off for five weeks. It was later restored in the name of the

Harris’s business, Peace and Faith Accessories. From February to September

2017, the Harrises’ daughter-in-law Jamie Gates lived in the house, and the power

was in her name. From September to November 1, 2017, the power was off and

then restored in the name of Peace and Faith Accessories again. In July 2018, after

Mr. Harris was sworn in on July 2, 2018, the Harrises’ daughter, her husband, and

her child moved into the Lake Court house and currently live there. On August 4,

2018, the rental insurance on the house was renewed for another year. We have

reviewed the evidence and find that the trial court accurately described the

evidence in its reasons for ruling, stating as follows:

The City of DeRidder records showed water usage

at the [Lake Court] house of around 900 gallons from

October, 2017 through June, 2018. In some months there

was no water usage at all. A city employee testified that

it was as if no one was living there at all much of the

time. The Harrises explained this by saying that repairs

were going on, and that he sometimes showered at his

parents’ house. In July [2018] the Harrises let their

daughter and her husband and child move in the house,

and the water usage picked up again, with 3680 gallons

used in the month of August. That family still lives in the

house, rent free.

After the instant suit was filed, the District

Attorney requested copies of insurance policies on 806

Lake court Drive from Mr. Harris. Mr. Harris provided a

renter’s policy on the property that had been renewed on

August 4, 2018. He also provided a new homeowner’s

policy, dated October 5, which was after he received the

DA’s request to produce the policy. When questioned

about this, Mr. Harris said that he had forgotten that the

policy was a renters when he renewed it, and he should

have changed it back to a homeowners at that time. Mr.

Harris testified that after his daughter and family had

moved in, she gave him $250 as rent. He said he refused

to accept it as rent, and spent it on his son instead.

Mr. Harris said that in January, 2017 he had begun

thinking about running for public office, and went to seek

the advice of a former mayor of DeRidder, Ray Roberts.

He said that Mr. Roberts advised him that he should

move the homestead exemption back to 806 Lake Court

Drive. The tax assessor’s records show that he did so on

January 16, 2017. He said that he did it mainly for the

purpose of running for office. Then later, upon direct

examination by his attorney, he said he also did it

because it was his family home.

When initially asked his name and address, Mr.

Harris stated that 806 Lake Court Drive is his home

address. When first asked about the Harmony Trail

house, Mr. Harris described it as his “other home”, his

“second residence.” Upon further questioning, Mr. Harris

said that he stays on Harmony Trail more than at Lake

Court Drive, and that he spends the majority of his nights

at Harmony Trail with his family. He testified that he eats

most meals at Harmony Trail, that he showers and shaves

mostly there, and that he “primarily resides” at that

address with his family. He also described 386 Harmony

Trail as his family home and that he built it as his family

home. Then, on direct examination, he said that Lake

Court Drive is his home. He lives down the street from

his parents, and he checks on them regularly. He said he

goes to the Lake Court Drive neighborhood nearly every

day. He and his wife walk for exercise most days in the

neighborhood, but sometimes in a city park, and he

spends 1-2 nights a week in the house there. Mr. Harris

said that he has stayed at the Lake Court Drive house

consistently, habitually for the last 2 years. He said that

he considers his domicile to be 806 Lake Court Drive,

but acknowledged that he primarily resides at Harmony

Trail. On direct, he concluded that he considers his

domicile to be 806 Lake Court Drive, but acknowledged

again on cross that he primarily resides at Harmony Trail.

The Harrises placed a Veterans Administration

backed mortgage on the Harmony Trail property on May

31, 2017. When questioned by the DA about a provision

in the mortgage that requires [him] and Mrs. Harris to

remain at [386] as his principal residence, he said that he

had complied with that.

Mr. Harris said that he keeps clothing and toiletries

at Lake Court Drive, and that his wife sometimes stays

there as well, as does his son. Living in the house full

time now are his daughter, son-in-law and their child.

When Mr. and Mrs. Harris spend the night, they stay in a

spare bedroom. The daughter and her husband occupy the

master bedroom. The daughter, Rickita Weeks, testified

that her father sleeps there 1-2 times a week, but he is at

the house nearly every day. Her 11 year[-old] brother

comes mostly on weekends, and her mother spends the

night about once a week to help her with Ms. Weeks’s

daughter.

When called on cross examination by the District

Attorney, Mr. Harris’[s] wife, Elizabeth, testified that the

family lives at both addresses and that the family has

possessions at both houses, although most are at

Harmony Trail. She said that the majority of her, her

husband’s and son’s nights are spent at Harmony [Trail],

and that the family spends the majority of its time there.

She also acknowledged that they eat and cook most of

their meals at Harmony Trail.

Mrs. Harris was later called on direct examination

by her husband’s attorney. She told him that they built

the Harmony Trail house because they needed a “safe

haven”, but that the Lake Court Drive house would never

be sold because it is their family home. She described she

and her husband as being very active in the Twin Lakes

community, where Lake Court Drive is located.

She also said that she stays at Lake Court Drive 1-

2 nights a week, sometimes just to watch her favorite

television show that she can’t get at Harmony Trail

because they don’t have cable there. Her driver’s license

has the Lake Court address, and has never had the

Harmony Trail one. She has always been registered to

vote with the Lake Court Drive address, as has her

husband.

A written stipulation was entered to the testimony

of the Harris’[s] 11 year old son, subpoenaed as a witness

by the District Attorney. His stipulated testimony was

that he lives primarily and habitually at 386 Harmony

Trail with his parents, and that he considers it his home.

He primarily eats his meals and spends his nights there,

that his parents normally take him to school from there,

that he keeps his trophies and awards there, that he has a

pet dog that lives there, and that he has his own room

with his clothing and possessions at 386 Harmony Trail.

A stipulation was also entered to the testimony of

Beauregard Parish Chief Civil Deputy Sharon Sammons,

to the effect that the sheriff’s department sent 2017

property tax notices for the Lake Court Drive property to

Mr. and Mrs. Harris at 806 Lake Court Drive, and that

they were returned by the post office by notice dated

November 18, 2017, stamped “Return to Sender Vacant

Unable to Forward”.

The District Attorney offered the testimony of 6

neighbors of the Harrises on Harmony Trail. They all

said that they knew the Harrises lived there, with various

witnesses saying that they saw the son being taken to

school from there, seeing their vehicles parked at the

house, and visiting with Mr. Harris outside their homes.

One witness said that Mr. Harris welcomed him to the

neighborhood. Another said that he saw Mr. Harris in

town and they discussed the fact that they were both

building houses around the same time, and how nice it

would be to live out in the country. The witnesses said

that they see Mr. Harris in the Harmony Trail

neighborhood several times a week, with one witness

saying 3 to 5 times a week.

Mr. Harris offered testimony from 3 persons who

live on Lake Court Drive, besides his daughter. One

witness said that he sees defendant every day, early in the

morning and late at night. He said that Mr. Harris is his

neighbor, but he didn’t know if he stays there, or lays his

head there at night or not. Another witness said that he

met Mr. Harris when he moved in 12-14 years ago. He

said that he doesn’t physically know if defendant sleeps

in the house but sees him there early in the morning and

late at night. He said that 806 Lake Court Drive has been

vacant several times over the last couple of years.

Another witness who lives on Lake Court Drive says that

she sees the defendant 2 to 3 times a month, mostly at his

mother’s, but sometimes out walking and in the yard. She

said that she saw his wife about the same. The witness

said that she doesn’t know if the defendant lives in the

house or whether he sleeps there on a regular basis.

Numerous documents were introduced into

evidence, many for the purpose of showing the addresses

listed on them. Of 5 vehicles recently or currently owned

by the Harrises, one was registered at Lake Court Drive,

and the rest at Harmony Trail. Both Mr. and Mrs. Harris

have drivers’ license addresses of Lake Court Drive. The

school records of Jatari Harris show a mailing and

physical address of 386 Harmony Trial.

After briefly quoting excerpts from two cases, the court opined as

follows:

The court carefully observed and listened to the

testimony of Mr. and Mrs. Harris. It is clear from their

testimony that they have an emotional attachment to and

affection for the Twin Lakes neighborhood and the house

at 806 Lake Court Drive. It was their first home, and his

parents live on the street. The court also accepts that Mr.

Harris, and to a lesser extent Mrs. Harris, are in the

neighborhood regularly. They kept their voting

registration and driver’s license addresses there, even

after moving to Harmony Trail. As to the voter

registration, it would certainly have to be kept in the city

so that Mr. Harris could be eligible, on the face of the

documents, to vote for himself, and hold office.

Beyond that, the court finds their testimony to be

inconsistent and contradictory. Mr. Harris said that they

built the house on Harmony Trail as their family home,

then he later testified that [806] Lake Court Drive was his

family home. Mrs. Harris said they built [386] Harmony

Trail because they needed a “safe haven”. Their 11 year

old son said he considers Harmony Trail his home. He

primarily and habitually lives there, eats his meals and

spends the nights there, goes to school from there, keeps

his trophies and awards there, keeps his pet dog there,

and his own room and with his clothing and possessions

there. He did not say that he considers Lake Court Drive

to be his home. Mr. Harris said they rented the property

to the Dorseys. Mrs. Harris said they did not. Upon

further questioning, Mr. Harris said he also moved the

homestead exemption back to Lake Court Drive because

it was his family home. Yet he originally moved it from

that address to save money on taxes. Mr. Harris changed

the insurance coverage on Lake Court Drive from renters

to homeowners only after the District Attorney filed a

request for him to produce the policy.

Both Mr. and Mrs. Harris acknowledge that while

they keep clothing at Lake Court Drive, occasionally

bring groceries there, and he occasionally cooks meals

there, they spend the majority of their time at 386

Harmony Trail, prepare and eat most of their meals there,

shower, shave, bathe and sleep there the majority of the

time. They have hosted after church get togethers there.

Mr. Harris says that he has stayed at 806 Lake

Court Drive 1-2 times a week for the last two years.

However, the utility usage records, indicate that there

were lengthy periods of time when no one could have

been staying in the house. If they had done so, it would

have been without electricity or water.

In none of the Harrises’ testimony did they say that

after moving to Harmony Trail, when they went back to

[806] Lake Court Drive it was to live. In almost every

instance they gave as examples of staying in the house, it

was always for a purpose. For example, he stayed at the

house to visit his parents, she went to the house to watch

her favorite television program, which was not available

at Harmony Trail. Their daughter said that her mother

came and stayed the night on occasion to help her with

her child. The daughter and her family occupy the house

on a daily basis, and she and her husband occupy the

master bedroom and bath.

The court is of the opinion that the family, once

moving to Harmony Trail, changed their relationship

with the house at 806 Lake Court Drive. It became a

place to visit rather than their habitual residence and

domicile. They may have continued to be a part of the

Twin Lakes community through their visits and walking

for exercise, but they were no longer domiciled there.

Mrs. Harris even believed that they had moved

their domicile to Harmony Trail. Upon questioning by

her attorney, she said[,] “Because I know we had moved

our domicile back to Lake Court Drive and our

homestead exemption is Lake Court Drive.” That means

that she believed that they had originally moved their

domicile to Harmony Trail.

When Mr. Harris transferred the homestead

exemption back to Lake Court Drive based on political

advice, their life in relation to the house did not change.

They continued spending the same amount of time and

doing the same things at Harmony Trail. They did not

move any furnishings or possessions from Harmony Trail

to Lake Court Drive. They did not increase the time they

spent at [806] Lake Court Drive. In fact, if the utility

records are any indication, they may have spent less time

there for some months. But nothing changed. They

evidenced no “... intention to make a new principal

establishment or home.” Herpin v. Boudreaux, id. The

habitual residence and domicile of Michael Harris and

his family are at 386 Harmony Trail, outside the city of

DeRidder.

In conclusion, the trial court found that the DA, who had the burden

of proving his allegations, had met his burden. The court stated:

The court does not find this to be a close case, and any

presumptions have been easily overcome by the evidence

presented. Accordingly, the court finds that Michael

Dwayne Harris does not meet the residence or domicile

requirements of his office as set forth in the City Charter

of DeRidder, and the office is declared vacant.

Other Applicable Law

As indicated, the evidence extends beyond the City of DeRidder

Charter Section 2-04(2) and reaches back to prove that Section 2-04(1) was also

violated because Mr. Harris has not actually resided at 806 Lake Court Drive in

DeRidder, Louisiana, since 2015. One of the procedures for removing a sitting

council member is found in La.R.S. 18:671-675. While the statutes are largely

procedural, the most substantive parts of the statutes under which the current suit

was brought are as follows:

Louisiana Revised Statutes 18:672 provides:

When any voter lawfully registered in the district

or geographical area from which an officeholder has been

elected . . . has reason to believe that the officeholder no

longer meets the residence or domicile requirements of

that office, the voter may make a written complaint of

that fact to the proper official.

Louisiana Revised Statutes 18:673 provides:

Within twenty days of the receipt of such written

complaint, the proper official shall investigate and

provide a written opinion, with reasons, as to whether

the officeholder meets the residence or domicile

requirements of the office he holds to the complainant

and to the legislative or executive agency, board,

commission, governing authority, or other body or entity

of the state or of any political subdivision, to which

the officeholder has been elected or appointed. The

opinion shall also be published in the official journal of

the parish of the officeholder’s designated domicile.

Louisiana Revised Statutes 18:674 provides, in pertinent part:

A. The proper official shall institute suit in the

district court of the officeholder’s designated domicile to

obtain a judgment declaring the office vacant within ten

days after the issuance of his opinion, if his opinion is

that the officeholder no longer meets the residence

or domicile requirements of his office. The matter shall

be tried by preference over all other matters and, if the

court shall find that the officeholder no longer meets the

residence or domicile requirements of his office, a

judgment shall be rendered declaring the office vacant,

and the vacancy may be filled as provided by law.

B. A hearing on the petition for declaration

of vacancy shall be held not more than twenty days after

service upon the officeholder whose removal is sought.

Judgment shall be rendered in the matter within ten days

after trial.

While there are no annotated cases under La.R.S. 18:671-675, three

cases have cited the statutes with the following results.

In Fontenot v. Lartigue, 14-1327 (La.App. 3 Cir. 12/30/14), 153 So.3d

1287, the procedure was mentioned favorably by this court in dicta, but was not

applied as the plaintiffs relied, unsuccessfully, on La.R.S. 18:1405(B). There,

Fontenot and Leleux ran for police chief of Ville Platte. They lost to Lartigue.

Fontenot and Leleux filed a “Petition to Contest Election” on the ninth day after

the run-off election asserting that Lartigue resided and continued to reside outside

the city limits, not at the address stated on his qualification for candidacy papers.

They wanted the court to invalidate the election and direct the clerk of court to

remove Lartigue from office.

Lartigue filed peremptory exceptions of prescription, peremption, and

no cause of action. Tom Schedler, as Secretary of State, intervened and also filed

exceptions of peremption and no cause of action. The trial court found that the

petition was actually objecting to candidacy under La.R.S. 18:493, which allowed

only seven days to object after the qualifying period ended; it would not allow the

plaintiffs to try to fit their domicile argument into the irregularities or fraud

provision of La.R.S. 18:1405(B) as a basis for an election contest, which can be

brought within nine days after the election. Accordingly, the trial court granted all

of the defendant’s exceptions. On appeal, we affirmed, stating in dicta as follows:

While Mr. Schedler points out that Fontenot and

Leleux can pursue having the district attorney take the

appropriate steps to have the position of police chief

declared vacant due to Mr. Lartigue’s purported failure to

meet the necessary domiciliary qualifications to hold that

position pursuant to La.R.S. 18:671, et seq., Fontenot and

Leleux have deliberately denied that their claim is

seeking such relief.

Id. at 1289.

In Higginbotham v. Flood, 45,328 (La.App. 2 Cir. 5/7/10), 36 So.3d

444, the Board of Aldermen declared the mayoral office vacant three years after

the election based upon the mayor’s purported failure to meet the domicile

requirements of his office in the Town of Waterproof. The mayor sued for

injunctive relief and a declaratory judgment, which was denied in the trial court.

The court of appeal reversed, finding that the Board did not have the power to do

that which was granted only to the courts under La.R.S. 18:671-675. The opinion

stated:

A mayor is an elected representative (La. R.S.

33:381), and under Chapter 5 of the Louisiana Election

Code, (Title 18) La. R.S. 18:581(3), vacancy in public

office is defined, as follows:

“Vacancy” occurs in an elective office

when the office is or will be unoccupied by

reason of the death of the official who was

elected to the office, or by reason of his

retirement or resignation, removal from

office by any means, failure to take office

for any reason, or when it becomes certain

that the person elected to the office will not

take the office on the day when the term for

which he was elected commences, or when

the person elected to or holding the office no

longer meets the residence or domicile

requirements of that office, any declaration

of retention of domicile to the contrary

notwithstanding, or when an office is

created due to a reclassification of a

municipality.