JAMES R. LESTAGE IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF THE 36TH JUDICIAL DISTRICT, BEAUREGARD PARISH
MICHAEL DWAYNE HARRIS
FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF
BEAUREGARD PARISH, NO. C-2018-0771 HONORABLE ERIC R.
HARRINGTON DISTRICT JUDGE AD HOC
Michael McHale McHale Law Firm COUNSEL FOR
DEFENDANT/APPELLANT: Michael Dwayne Harris
R. Lestage District Attorney, Thirty-Sixth Judicial District
Court COUNSEL FOR PLAINTIFF/APPELLEE: James R. Lestage
composed of Elizabeth A. Pickett, Billy H. Ezell, and D. Kent
KENT SAVOIE JUDGE.
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
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
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
AND PROCEDURAL HISTORY
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.[*] All of the parties, the
complainant, the trial court, and this court of appeal
complied with the procedural rules in those statutes.
relevant portions of The City of DeRidder Charter,
specifically referred to by the complainant, Ron Roberts,
state as follows (emphasis added):
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.
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
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.
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');">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
conclusion, the published opinion of the DA stated as
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
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
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.
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.
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.
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 ...