Heather Miley Cloud v. Tom Schedler in His Official Capacity as Secretary of State, State of La.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-1261

HEATHER MILEY CLOUD
VERSUS
TOM SCHEDLER IN HIS OFFICIAL
CAPACITY AS SECRETARY OF STATE
FOR THE STATE OF LOUISIANA, AND
BERT KEITH CAMPBELL

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 75137-A
HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R.Cooks, Billy H. Ezell, Phyllis M. Keaty, Judges.

REVERSED AND RENDERED.

Joffre Wendel Fusilier
Attorney at Law
Post Office Box 528
Ville Platte, LA 70586
(337) 363-6661
COUNSEL FOR DEFENDANT/APPELLEE:
Bert Keith Campbell

Kenneth Ray Rush
Attorney at Law
Post Office Box 704
Oakdale, LA 71463
(318) 335-2759
COUNSEL FOR DEFENDANT/APPELLEE:
Bert Keith Campbell

Anne Elizabeth Watson
Dupre & Watson
232 N. Liberty St.
Opelousas, LA 70570
(337) 942-9790
COUNSEL FOR PLAINTIFF/APPELLANT:
Heather Miley Cloud

Elbert Lee Guillory
Attorney at Law
633 E. Landry St.
Opelousas, LA 70570
(337) 942-6328
COUNSEL FOR PLAINTIFF/APPELLANT:
Heather Miley Cloud

Stephen D. Hawkland
Attorney at Law
Post Office Box 94125
Baton Rouge, LA 70804
(225) 287-7475
COUNSEL FOR DEFENDANT/APPELLEE:
Secretary of State, State of Louisiana

COOKS, Judge.

The plaintiff, Heather Miley Cloud, appeals the trial court’s judgment

dismissing her petition to contest the election of the defendant, Bert Keith

Campbell. Finding that the trial court erred as a matter of law, we reverse the

dismissal of the petition and render judgment striking the illegal votes, declaring a

tie between the candidates, and instructing the trial court to order a new election.

I.

ISSUES

We must decide whether the trial court erred in dismissing the petition

contesting the election based upon its interpretation of Savage v. Edwards, 728

So.2d 428, affirmed, 98-2929 (La. 12/18/98), 722 So.2d 1004, and its predecessor,

Davis v. McGlothin, 524 So.2d 1320 (La.App. 3 Cir.), writ denied, 525 So.2d 1046

(La.1988).

II.

FACTS AND PROCEDURAL HISTORY

This matter first came to this court on the trial court’s granting of an

exception of no cause of action, which we reversed and remanded for further

proceedings. See Heather Miley Cloud v. Tom Schedler In His Capacity as

Secretary of State, and Bert Keith Campbell, 14-1223 (La.App. 3 Cir. 11/21/14),

__ So.3d __. It is before us again due to the trial court’s dismissal of the suit

following a trial on the merits.

Ms. Cloud, the incumbent mayor at the time of the November, 2014

election, filed a petition to contest the election of Mr. Campbell in the mayoral race

in the Village of Turkey Creek. The named defendants are Mr. Campbell and

Secretary of State, Tom Schedler. In the election, won by a margin of four votes,

Ms. Cloud received 106 votes (49%), and Mr. Campbell received 110 votes (51%).

The petition alleges that four individuals, whose affidavits were

attached, were given money to vote for Mr. Campbell, which would constitute

bribery under the Election Code, La.R.S. 18:1461. In her petition, Ms. Cloud

asked the trial court to find the four votes illegal and fraudulent and, pursuant to

La.R.S. 18:1431, these votes be subtracted from Mr. Campbell’s total votes and

added to Ms. Cloud’s total votes. However, in her first appellant brief, Ms. Cloud

asked that the four votes be stricken from Mr. Campbell’s total number of votes,

the court declare a tie, and order a new election.

At the beginning of the November 17, 2014 hearing on the petition to

contest the election, Mr. Campbell orally moved for a peremptory exception of no

cause of action, which the trial court granted. Ms. Cloud appealed. Finding that

Ms. Cloud stated a cause of action under La.R.S. 18:1431, we reversed,

distinguishing the two cases relied upon by the trial court. See Heather Miley

Cloud v. Tom Schedler In His Capacity as Secretary of State, and Bert Keith

Campbell, 14-1223 (La.App. 3 Cir. 11/21/14), __ So.3d __.

At the end of the November 24, 2014 trial on the merits, the trial court

announced its findings of facts:

All right well considering the testimony of the witnesses and
the Court’s assessment of the credibility of the witnesses, the
evidence, the record and the applicable jurisprudence, the Court
makes the following relevant findings of fact.

Grace Ann Carpenter[, Rickey] Haviland, Michelle Haviland
and Todd Tomerlin were registered and qualified to vote and did vote
in the subject election.

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The said four voters were each directly given $15.00 to vote in
the said election with the intent to influence each of the voters in
casting his or her ballot.

Further, the four said voters individually willfully accepted the
$15.00 for their casting of their votes. Both the giving of the money
and the accepting of the money each constitute a violation of
Louisiana Revised Statute 18:1461.

The trial court then dismissed the petition contesting the election,

finding that the bribed votes were not eligible for disqualification based upon the

two cases previously distinguished by this court. Ms. Cloud appeals. For the

reasons that follow, we reverse the dismissal, strike the four bribed votes, declare a

tie between Cloud and Campbell, and instruct the trial court to order a new

election.

III.

STANDARD OF REVIEW

The Louisiana Constitution provides that the
appellate jurisdiction of a court of appeal in a civil matter
extends to both law and facts. La. Const. 1974, art. 5, §
10(B). Questions of law are reviewed de novo, with the
judgment rendered “on the record, without deference to
the legal conclusions of the tribunals below.” Holly &
Smith Architects, Inc. v. St. Helena Congregate Facility,
Inc., 2006-0582[,] p. 9 (La.11/29/06), 943 So.2d 1037,
1045; citing Louisiana Municipal Association v. State,
2004-0227[,] p. 35 (La. 1/19/05), 893 So.2d 809, 836.
This constitutional provision has also “been interpreted
as giving an appellate court the power to decide factual
issues de novo.” Ferrell v. Fireman’s Fund Ins. Co.,
1994-1252[,] p. 3 (La. 2/20/95), 650 So.2d 742, 745.
However, while a court of appeal may have the
constitutional authority to make a de novo review of a
factual finding, the exercise of this power has been
limited by the jurisprudential rule that a trial court's
factual findings will not be upset unless they are
manifestly erroneous or clearly wrong. Brewer v. J.B.
Hunt Transport, Inc., 2009-1408[,] p. 9 (La. 3/16/10), 35
So.3d 230, 237.

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Wooley v. Lucksinger, 09-0571, p. 49 (La. 4/1/11), 61 So.3d 507, 554 (footnotes

omitted) (emphasis in original).

V.

LAW AND DISCUSSION

We are not going to disturb the trial court’s findings of fact. It is well-

settled that the trial court is in a better position to determine the credibility of

witnesses and should not be overturned in the absence of clear wrongness. Rosell

v. ESCO, 549 So.2d 840, 844-45 (La.1989). We find in this case that the trial court

made an error of law in improperly applying the holdings in Savage v. Edwards,

728 So.2d 428, affirmed, 98-2929 (La. 12/18/98), 722 So.2d 1004, and its

predecessor, Davis v. McGlothin, 524 So.2d 1320 (La.App. 3 Cir.), writ denied,

525 So.2d 1046 (La.1988).

As indicated in our opinion a few weeks ago, the Election Code at

La.R.S. 18:1461 defines bribery and provides the penalties and terms of

imprisonment applicable to violators. It also provides the circumstances for

immunity from prosecution. The statute provides in pertinent part:

Bribery of voters is the giving or offering to give,
directly or indirectly, any money, or anything of apparent
present or prospective value to any voter at any general,
primary, or special election, or at any convention of a
recognized political party, with the intent to influence the
voter in the casting of his ballot. The acceptance of, or
the offer to accept, directly or indirectly, any money, or
anything of apparent present or prospective value, by any
such voters under such circumstances shall also
constitute bribery of voters.

La.R.S. 18:1461(A)(1).

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As we stated, bribery of voters is illegal under the codal provisions

governing elections in Louisiana. Louisiana Revised Statutes 18:1431, entitled

“Fraudulent or illegal votes; uncounted votes; determination of election result,”

provides authority for the trial court to subtract illegal votes from the recipient’s

total votes cast, and thereafter determine the result of the election. Under the facts

of this case, the applicable language appears in the first and last sentences of the

statute:

When the court finds that one or more of the
votes cast in a contested election are illegal or
fraudulent, the judge shall subtract such vote or votes
from the total votes cast for the candidate who received
them if the contest involves election to office, from the
total vote for or against a proposition if the contest is of
an election upon a proposition, or from the total vote for
or against the recall of a public officer if the contest
involves an election for the recall of a public officer. If
the court determines that legal votes cast in the election
were excluded in the total votes cast on a candidate,
proposition, or recall, then these excluded legal votes
shall be added to the total votes on the candidate,
proposition, or recall to which they are attributable.
Thereafter, and after considering all the evidence, the
court shall determine the result of the election.
La.R.S. 18:1431 (emphasis added).

The trial court and the defendants’ reliance upon Savage, 728 So.2d

428, and Davis, 524 So.2d 1320, is misplaced. In this court’s prior treatment of

this matter, we held that Savage and Davis are distinguishable on the facts.1 Both

1
In Davis, which did not address La.R.S. 18:1431 in any manner, the trial court found no
authority to challenge votes on the ground that “four voters received or were promised
compensation for their vote and two persons were intimidated by individuals other than election
officials.” Davis, 524 So.2d at 1323. This court affirmed, finding, somewhat broadly, that while
La.R.S. 18:1461 and R.S. 14:119 made such behavior a crime, thereby lumping compensated
votes, promised compensation, and intimidation all together within six challenges, it found no
authority to disqualify the votes from the election.

In Savage, the trial court found it impossible to determine the true election results under
La.R.S. 18:1432 because of pervasive irregularities and declared the election null and void. This

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cases focused upon La.R.S. 18:1432 and whether “the number of viable challenges

of votes in the petition was [sufficient] to vary the outcome of the election.”

Davis, 524 So.2d at 1324. See also Savage, 728 So.2d at 432.

In both cases, the court stripped away the invalid challenges and

considered how many valid challenges remained, and in both cases the court found

insufficient viable challenges to change the result of the election under La.R.S.

18:1432. Such is not the case here. The four contested votes in this case are

exactly the number of votes that changed the outcome of the election. In both

Savage and Davis, the court considered the alternative of disqualifying the bought

votes and found that it would make no difference under 18:1432. In Davis, 524

So.2d at 1324, the court stated, “even if we were to find that the trial court erred in

striking these six [challenges], this would not have affected the outcome of the

election. Pursuant to LSA-R.S. 18:1432….” In Savage, 728 So.2d at 432, the

court stated, “Even assuming that these voters were not qualified to vote in the

election, this would result in only nine individuals being struck from the number of

voters who participated in the election.”

Moreover, Savage, in discussing 40 particular votes, states that the

trial court could have stricken bought votes under 18:1431, and it discussed them

as illegal activities:

court reversed, finding that the result was determinable and that the plaintiff failed to satisfy the
second prong of the two-prong test under La.R.S. 18:1432; after first proving irregularities or
fraud, the plaintiff must prove that the fraud or irregularities were sufficient in number to change
the outcome of the election. There, the defendant won by 74 votes. Ultimately this court found
that the plaintiff had only proved that 28 votes should be stricken from the defendant’s total, and
one vote should be added to the plaintiff’s total, which was insufficient to change the outcome of
the election. Therefore, the election should not have been declared null and void. Savage applied
18:1431 in part but adopted language from Davis which did not comport with 18:1431.

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The trial court did find that 23 voters, due to
residency qualification requirements, should not have
been allowed to vote in the election. The court also
found that two absentee ballots which were counted in
the election contained forgeries . . . . The trial court also
determined that 12 individuals engaged in selling their
votes on election day and that three individuals
participated in vote buying and other illegal activities in
this particular election. . . . [T]he trial court specifically
found that there were 40 votes that should not have been
counted in the total of the election votes. Instead of
simply striking these as provided in La.R.S. 18:1431, the
trial court concluded that there w[ere] widespread illegal
activities in the election such as vote buying and fraud
making it impossible to determine the results of the
election. We find that the trial court erred in finding it
was impossible to determine the outcome of the election.

Savage, 728 So.2d at 431 (emphasis added).

In the final analysis, however, the Savage court adopted language

from Davis stating that there was no authority to strike the bought votes.

It is important to note that La.R.S. 18:1432, on which Davis was

based, provides a remedy for votes that were improperly denied or improperly

allowed by election officials. Louisiana Revised Statutes 18:1431 has no such

language. The fact that there was no authority under 18:1432 does not mean there

is no authority under 18:1431. More specifically, La.R.S. 18:1432, entitled

“Remedies,” provides in pertinent part (emphasis added):

A. (1) If the trial judge in an action contesting an
election determines that: it is impossible to determine the
result of election, or the number of qualified voters who
were denied the right to vote by the election officials was
sufficient to change the result in the election, if they had
been allowed to vote, or the number of unqualified voters
who were allowed to vote by the election officials was
sufficient to change the result of the election if they had
not been allowed to vote, or a combination of these
factors would have been sufficient to change the result
had they not occurred, the judge may render a final
judgment declaring the election void and ordering a new
primary or general election for all the candidates, or, if

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the judge determines that the appropriate remedy is the
calling of a restricted election, the judge may render a
final judgment ordering a restricted election, specifying
the date of the election, the appropriate candidates for the
election, the office or other position for which the
election shall be held, and indicating which voters will be
eligible to vote.

Davis did not address La.R.S. 18:1431; and Savage, which attempted bravely ten

years later to reconcile the precedent available to it, adopted a hybrid rationale that

worked until faced with the present set of facts. At this juncture, clarification is

needed. Bought votes should never be allowed to determine the outcome of an

election. See the instructive dissents and concurrences in Savage, both in this

court, 728 So.2d 428, and in the Louisiana Supreme Court, 722 So.2d 1004. In

Louisiana we look first to codified law. Powel v. DeHyCo., Inc., 01-1029 (La.App.

3 Cir. 2/13/02), 815 So.2d 1032.2 The statutory law applicable herein provides the

appropriate remedy.

We disagree with Nugent v. Phelps, 36,366, p. 13 (La.App. 2 Cir.

4/23/02), 816 So.2d 349, 357, in so far as it suggests in dicta “that a vote should

not be cast out simply because a voter was offered a bribe, or even because a voter

accepted something of value for the vote, provided that voter still voted the way he

originally intended.” Vote buying is illegal in Louisiana, and we declare it so.

Based upon the foregoing, we find that Savage and Davis are factually

distinguishable from the present case, and, to the extent that Savage implies that

bought votes cannot be stricken under La.R.S. 18:1431, it is overruled in that

regard. We do not suggest that the burden of the plaintiff is light in a case
2
“Because of Louisiana’s civilian tradition, Louisiana Courts must begin every legal
analysis by examining primary sources of law, consisting of constitution, codes, and statutes;
jurisprudence, even when it arises to the level of jurisprudence constante, is a secondary law
source.” Powel, 815 So.2d at 1034 (citing Prytania Park Hotel, Ltd. v. General Star Indem. Co.,
97-30635 (5th Cir. 6/17/99), 179 F.3d 169).

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involving the bribery of voters. It is first the province of the trial court to weed out

and penalize the frivolous claims, as illustrated in La.R.S. 18:1432(B). And as

always, the trial court has the heavy burden of assessing credibility, which the trial

court has done in this case.

V.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s judgment

dismissing the petition contesting the election; we strike the four illegal votes; we

declare a tie between the candidates; and we remand this matter and instruct the

trial court to order that a new election be held. Costs of this appeal are assessed to

the defendant, Bert Keith Campbell.

REVERSED AND RENDERED.

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