TOMLINSON v. FRAZIER

[5] REDMANN, Judge.

Plaintiffs appeal from the dismissal of their suit contesting defendant's candidacy for the Louisiana House of Representatives. We affirm the judgment appealed from, and we adopt the reasons of the trial judge, although we add to them because of the argument made in this court. Judge Plotkin's reasons are quoted:

"Plaintiffs, Lynn J. Tomlinson, Evelyn Booker and John Geiser, III, bring this action against defendant Lee Frazier challenging his eligibility as a candidate for State Representative from the 92nd Legislative District. This attack is based on their contention that defendant failed to comply with the requirements for residence and domicile set forth in Art. 3 Section 4(A) of the Louisiana Constitution of 1974, which provides:

(A) Age; Residence; Domicile. An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for membership in the legislature.

They allege that at the time defendant filed his qualifying papers he had neither resided in the State for the preceding two years nor been actually domiciled in the 92nd Legislative District for the previous year.

"Plaintiffs have the burden of proving by positive and satisfactory proof that the defendant failed to meet the requisites for candidacy outlined in Art. 3 Section 4(A). Mix v. Blanchard, 318 So.2d 125, 129 (La.App. 4th Cir. 1975). Plaintiffs, however, have failed to carry the burden of proof required to disqualify the defendant as a candidate.

"On August 26, 1969, defendant and his wife purchased the property located at 329 Diana Street in the Algiers Section of New Orleans, Louisiana, where they resided until 1974 when defendant was appointed executive director of Charity Hospital. As director of Charity Hospital, defendant was entitled to, and did occupy, rent-free, 266 Walnut Street, New Orleans, Louisiana until that employment was terminated in June 1977. Defendant then assumed the directorship of Harlem General Hospital in New York City, where he relocated and resided from January 1, 1977 until May 1980 when he was offered the position as director, New Orleans General Hospital, which he accepted.

"During the summer of 1980, defendant periodically returned to New Orleans to prepare for the opening of the hospital and to arrange housing for his family. On October 30, 1980, he executed an agreement to purchase 1004 Philip Street, New Orleans, Louisiana, scheduling the act of sale and the date of occupancy for December 3, 1980. However, due to the seller's inability to vacate the premises on the scheduled date, the act of sale was extended until December 14, 1980. The act of sale ultimately passed on December 19, 1980 and defendant and his family have continuously resided there.

"Plaintiffs contend that defendant changed his domicile when he moved to New York City. Thus since he did not physically occupy 1004 Philip Street until December 16, 1980, a period less than one year from the date he actually qualified for office, defendant was not domiciled in the 92nd Judicial District one full year prior to qualifying.

"The Fourth Circuit Court of Appeal in construing the intent and purpose of the redactors in drafting Art. 3, Section 4(A) stated that:

The framers of our present constitution intended to ensure that a candidate seeking to represent the people of a district does truly live amongst those people and does not simply establish a domicile by declaration of intentions accompanied by some minimum acts of residence. As we see it, the constitution requires adherence to the factual concept of habitual residence and principal establishment, and, where a person resides alternately in several places, he is only qualified for election purposes in that place where he maintains bona fide living quarters in which he actually lives a substantial part of the time. It emphasizes the facts of living in a place, rather than simply maintaining a bedroom elsewhere which one may occasionally retire to. The determination of actual domicile is dependent on the facts in each particular case. The burden of proof is upon the contestant. Charbonnet v. Hayes, 318 So.2d 917, 920 (La.App. 4th Cir. 1975).

"The Court had the opportunity to comment further on the intent and purpose of the redactors in drafting this Article in Mix v. Blanchard, supra., where it stated:

It is apparent the delegates intended to limit candidacy for political office to citizens who actually live in the district they aspire to represent. The newly drafted constitutional article was designed to eliminate a system under which candidates would establish a "political domicile" from which to seek office even though they chose to live and maintain their families in another area, and were not truly representative of the district from which they sought election. Id. at 127-28.

"The evidence clearly establishes that defendant was actually domiciled within the 92nd Legislative District for the entire year preceding his qualifying as a candidate. The facts show that the definition of domicile as articulated by the delegates to the Constitutional Convention who drafted Art. 3, Section 4 has been met.

"Defendant became a fulltime employee of New Orleans General Hospital in September 1980, and was responsible for its public opening on December 15, 1980. Although he had to return periodically to New York to conclude his business affairs and to arrange for his family to move to New Orleans, defendant spent his nights at the hospital or the Pontchartrain Hotel until he was able to secure a permanent home. On these occasions he actually lived in the district.

"Defendant's family and physical possessions arrived in New Orleans on or about December 13, 1980. He paid the vendor a $250.00 rental fee for the use of 1004 Philip Street for the period December 14, 1980 to December 19, 1980, giving him exclusive and constructive control over the property until the act of sale. As of December 14, 1980, defendant was actually domiciled within the 92nd Legislative District.

"Plaintiffs also argue that defendant did not reside in the state for the two years preceding his qualifying as a candidate.

"It is well settled under Louisiana law that while a person may have only one domicile he may maintain two or more residences at the same time. Charbonnet v. Hayes, supra; La Fleur v. Seaboard Fire and Marine Insurance Co., 296 So.2d 860, 863 (La.App. 3rd Cir. 1974). Although the two terms are closely related they are not synonymous. La Fleur at 863.

"From the date defendant moved to New York until the date he established his domicile in the 92nd Legislative District he had two places of residence, one in New Orleans at 329 Diana Street and the other in New York City.

"As the Court stated in Stavis v. Engler, 202 So.2d 672 (La.App. 4th Cir. 1967), the issue of residence depends on the resident's intent.

* * * One does not, however, lose his status, as an actual, bona fide, resident of a place, either because he finds it necessary to establish his family elsewhere, or because, in the absence of his family, he does not maintain a domestic establishment at such place. The question is one largely of intention, and the intention of a person, in that respect, is determined by his expressions thereof, at times not suspicious, and his testimony, when called on, considered in connection with his conduct and the circumstances of his life.

Id. at 677, quoting Caufield v. Cravens, 138 La. 283, 70 So. 226, 227 (1915).

"The facts indicate that defendant always intended to maintain his residence at 329 Diana Street while he resided in New York City. During this period, he periodically returned to New Orleans and stayed at the Diana Street address. Over this period of time he maintained the property and paid the monthly mortgage, taxes, water bill and insurance premiums. This evidence unequivocally shows that defendant intended to reside in New York temporarily solely because of the job opportunity at Harlem General Hospital. It was the defendant's intention to return to New Orleans within a definite period of time after completing his employment contract.

"It is a well established principle in our jurisprudence 'that laws governing the conduct of elections should be liberally interpreted so as to promote rather than defeat candidacy.' Slocum v. DeWitt, 374 So.2d 755, 758 (La.App. 3rd Cir. 1979). Moreover, 'any doubt should be resolved in favor of permitting a candidate to run for public office. After all, he still has to face the voters who will, and should, exercise the final judgment on his candidacy.' Id."

We add to those reasons in respect to both the two-year "resided" requirement and the one-year "actually domiciled" requirement of La.Const. art. 3 § 4(A).

We first repeat, for emphasis, the difference in that constitutional language in stating the eligibility requirements: one need only have "resided" in the state for two years but must have been "actually domiciled" in the legislative district for one year preceding "the time of qualification." The constitutional convention delegates heard the chairman of the committee which presented the draft of Section 4 explain "It is our appreciation that the word `domicile' is in fact a more restrictive word than is the word `residence.' By that I mean that you can have but one domicile but you can have more than one residence." Records, La. Constitutional Convention 1973, V, 328. He later declared "I don't think anything inhibits an individual from having three, four, six, eight, ten or fifteen residences." Id., 330.

We next observe that defendant has lived in Louisiana since he was three months old and is thus virtually a life-long resident of Louisiana. He at no time had any other residence except during the period of about two and a half years that he worked in New York. The determinative question, however, is not whether he had a residence in New York, but whether he abandoned or somehow forfeited his life-long residence in Louisiana.

Most of the relevant circumstances are set forth in the trial judge's reasons, although we would add that defendant continued to contribute to his church near his Diana Street house in New Orleans at all times, and appellants stress that, in addition to moving into New York City proper (he first rented nearby) because an ordinance required him to do so to keep his city employment, defendant (and his wife) also registered to vote in New York, and we find no express testimony that the ordinance required defendant to do that. But when plaintiffs' counsel later asked about changing voter registration, the trial judge halted the inquiry with "Let's not go through that. He's claiming it was a job opportunity such as a student going off to school or a soldier going into the army." It is not clear to us, from our reading of the transcript, that the New York ordinance required voter registration as a qualification for the New York city hospital employment, but the trial judge may have made that inference and plaintiffs may have acceded to that inference, for they offered no further evidence on the registration, not even by proffer under C.C.P. 1636. Furthermore, defendant evidently did not attach to voter registration the significance that plaintiffs would, for he had even changed his registration in New Orleans when he moved from the Diana Street house he owned into the Walnut Street house provided for him as director of Charity Hospital. He cannot have supposed that that directorship was anything but a temporary job (and he so testified), and therefore he cannot have expected to live in that house indefinitely, yet he changed voter registration to that house's location. Thus a change in voter registration for him seems to be not a momentous matter, and certainly not a matter that precluded defendant's continuing to be a resident of Louisiana.

Plaintiffs also stress defendant's wife's "No" response to "You didn't intend to be living on Diana street or Walnut street at the same time you were living in New York City, did you?" But the wife's testimony cannot be misunderstood in context: she was only denying any intent to be in two places at once and that is all plaintiffs' counsel was talking about. "Q. You didn't have any intention to live on Diana street while you were living on Walnut street? A. You mean live in two places? Q. Right. A. I don't think that's possible, no."

From the record as a whole, we cannot say that the trial judge was clearly wrong in his conclusion that defendant neither abandoned nor lost his life-long Louisiana residence by his stay in New York, when, as he testified, he always intended to return to Louisiana. Accordingly the requirement of two years' residence in the state was correctly held met.

The one year "actually domiciled" requirement was also correctly held met from the facts that defendant since October 30 had a contract to buy the house at 1004 Philip street, paid rent for it for December 14-19, had the keys to it and had at least set foot in it, all elements concurring as of December 14, 1980 (although he probably did not sleep there that night), one year before the day he qualified.

But we also observe that the constitutional wording in art. 3 § 4(A) is "at the time of qualification," not at the time of his qualification. The committee draft had read "at the time of the general election," and the first amendment was to "time of qualification for the office." The amendment's proponent explained "it's going to require the legislature, of course, to set a specific date for qualifying so that all will be treated equally — that is you won't have an independent able to come in and register at a later date than the democratic primary or the republican primary . . . ." Records, V, 328. The convention thus intended to treat all persons equally in respect to their eligibility by measuring age, residence and domicile by the same standard for all candidates, as of "the time of qualification for the office." Because periods of residence and domicile were made requirements for eligibility to office, it would have made no sense to require a democrat or a republican to meet those requirements at the time of his qualification when his qualification had to occur before his party's two partisan primaries, months before an independent would have had to qualify by nomination papers, and thus months before "his" (the latter's) qualification. The result would have been that a democrat or republican would have a months-longer residence requirement for eligibility to office, which simply cannot have been the intent of a constitutional convention composed almost entirely of democrats and republicans. Similarly, if two candidates had each become domiciled in a district on December 16, 1980, and the "time of qualification as a candidate" set by the legislature was December 14 through 18, 1981; and the purpose of requiring one year's "actual domicile" in the district for eligibility is to assure that the candidate has that much familiarity with the district's problems; then it would make little sense to accept one candidate because he filed his qualifying papers on December 18, yet disqualify the other because he filed his on December 14. That would be an absurd result, and therefore must be avoided in constitutional interpretation. Blessing v. Levy, 214 La. 856, 39 So.2d 84 (1949); State v. Joseph, 143 La. 428, 78 So. 663 (1918).

Plaintiffs did not bear the burden of proving either that defendant did not reside in Louisiana for the two years or that he was not domiciled in the district for one year preceding the time of qualification.

GULOTTA, CHEHARDY and KLIEBERT, JJ., concur.

SAMUEL, C.J., and WILLIAMS, J., dissent.