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Lestage v. Harris

Court of Appeals of Louisiana, Third Circuit

November 8, 2018

JAMES R. LESTAGE IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF THE 36TH JUDICIAL DISTRICT, BEAUREGARD PARISH
v.
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

          R. Michael McHale McHale Law Firm COUNSEL FOR DEFENDANT/APPELLANT: Michael Dwayne Harris

          James R. Lestage District Attorney, Thirty-Sixth Judicial District Court COUNSEL FOR PLAINTIFF/APPELLEE: James R. Lestage

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

          D. KENT 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.

         I.

         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.[*] 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');">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 ...


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