Patrick Sandel v. the Village of Florien

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

CA 17-248

PATRICK SANDEL, ET AL.

VERSUS

THE VILLAGE OF FLORIEN

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 67,941
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

**********

VAN H. KYZAR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty and
Van H. Kyzar, Judges.

AMENDED AND AFFIRMED AS AMENDED.

Paul Boudreaux, Jr.
Vilar & Green, LLC
P. O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFFS APPELLEES:
Patrick Sandel
Donovan Wade Lagrange

Anna Louise Garcie
Attorney at Law
P. O. Box 575
Many, LA 71449
(318) 729-9104
COUNSEL FOR DEFENDANT APPELLANT:
The Village of Florien

Mark Felipe Vilar
Vilar & Green, LLC
P. O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFFS APPELLEES:
Patrick Sandel
Donovan Wade Lagrange

Aaron L. Green
Vilar & Green, LLC
P. O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFFS APPELLEES:
Patrick Sandel
Donovan Wade Lagrange

Lani B. Durio
Attorney at Law
8585 Archives Ave.
Baton Rouge, LA 70809
(225) 922-1180
COUNSEL FOR OTHER:
Tom Schedler, La. Sec. of State

KYZAR, Judge.

The defendant/appellant, the Village of Florien (Florien), appeals the

judgment of the trial court finding in favor of the plaintiffs/appellees, Patrick

Sandel and Donovan Wade Lagrange. The plaintiffs filed suit against the

governing authority of Florien to invalidate an election held allegedly in violation

of several statutes governing local option elections to permit or prohibit the sale of

alcohol. The trial court found the election and resulting ordinances to be null,

void, and unenforceable. Florien filed this appeal. Finding no manifest error and

no reversible error of law in the trial court’s judgment, we affirm the judgment

after amending it to address a legal question pretermitted by the trial court.

I.

ISSUE

We must decide whether the trial court legally erred or manifestly

erred in finding the election null and void.

II.

FACTS AND PROCEDURAL HISTORY

The governing authority of Florien, the Board of Aldermen (Board),

was presented with a petition to call an election to determine whether the sale of

alcoholic beverages would continue to be permitted in Florien. The results of the

election, by a very narrow margin of two to six votes on each of five propositions,

were to discontinue the sale of alcohol in Florien. Alleging numerous violations in

the petition to call the election and in the election process, the plaintiffs brought

suit against Florien to void the election and the resulting resolution and ordinance

passed to enforce the results. Finding too many irregularities in the election

process to satisfy the criteria of substantial compliance with the governing statutes,

the trial court invalidated the election, decreeing in its judgment that the election

was null, void, and unenforceable. Florien appealed the judgment.

III.

STANDARDS OF REVIEW

Upon review, an appellate court may not set aside a trial court’s

finding of fact in the absence of manifest error or unless it is clearly wrong.

Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549

So.2d 840 (La.1989). Questions of law involving the correct interpretation of

legislation are reviewed de novo, without deference to the legal conclusions of the

trial court. Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d

1159.

IV.

LAW AND DISCUSSION

Florien asserts that the trial court erred in granting the plaintiffs’

petition to void the election. It argues that its own petition to call the local option

election was valid under La.R.S. 26:584, and that the election process was in

substantial compliance with Title 26.

Applicable Statutes

The election suit on appeal comes under Title 26, Chapter 3, of

Louisiana Revised Statutes, which provides the procedure for calling local option

elections to either allow or prohibit the sale of liquors and alcoholic beverages in a

particular area. The applicable statutes governing the issues on appeal are La.R.S.

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26:582–595, and La.R.S. 18:402(F). These statutes provide the following

procedures for calling and conducting elections to permit or prohibit the sale of

alcohol. They also mandate the post-election procedures for promulgating

resolutions and ordinances based upon the election results.

At least twenty-five percent of qualified electors must sign the petition

in order for the governing authority to order a referendum election to be held on

whether or not the business of selling alcoholic beverages will be conducted and

licensed in the ward, district, or municipality. La.R.S. 26:582. The petition is

submitted to the registrar of voters who determines the number of qualified voters

in the area on the date of the first signature. Id.

The form for the petition to call the election is set forth in detail in

La.R.S. 26:584. Substantial compliance with the statutes is required. The petition

must be typed or printed; it must list five specific propositions; 1 it must contain the

signature of the voter, the date signed, the signer’s ward or election district and

1
The five statutory propositions are:

“(1) Shall the sale of beverages of alcoholic content containing not more than six
percent alcohol by volume be permitted by package only and not for consumption
on the premises?

“(2) Shall the sale of beverages of alcoholic content containing not more than six
percent alcohol by volume for consumption on the premises be permitted?

“(3) Shall the sale of beverage alcohol containing one-half of one percent alcohol
by volume and above for consumption on the premises be permitted?

“(4) Shall the sale of beverages of alcoholic content containing one-half of one
percent alcohol by volume and above be permitted by package only and not for
consumption on the premises?

“(5) Shall the sale of beverages of high and low alcoholic content be permitted
only on the premises of restaurant establishments which have been issued an “R”
permit as defined by law? ”

La.R.S. 26:584(B).

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precinct, and the signer’s residential address, all handwritten by the signer and all

typed or printed. The petition must also contain the name of the witness to the

signatures and the date witnessed. Id.

The petition must be filed with the registrar of voters within sixty days

of the date of the first signature on the petition. La.R.S. 26:585. The registrar of

voters must publish the notice of the filing of the petition in the official journal of

the parish or municipality within fifteen days of its filing. Id. Pursuant to La.R.S.

26:586(A), the registrar of voters checks the petition and within thirty days files it

with the governing authority, attaching his sworn verification showing: (1) the date

the petition was filed; (2) a copy of the publication of notice; (3) the date of the

first signature; (4) the number of qualified electors on the registration rolls on date

of first signature; (5) that he has compared each signature with that on the

registration rolls; (6) the total number of genuine signatures; and (7) the number of

signatures not signed or written as required in La.R.S. 26:584 above. La.R.S.

26:586(A).

The governing authority attaches a sworn statement to the registrar’s

verification showing the date, month, and year, the verification was filed. La.R.S.

26:587(A). If the petition conforms with all of the provisions of Chapter 3, the

governing authority “shall” adopt a resolution or ordinance ordering the election

“at the next meeting held after the verification was filed” by the registrar. La.R.S.

26:587(B). The date of the election “shall” be fixed for “the next date on which an

election may be held, as provided for in R.S. 18:402(F), which falls more than

forty-five days after the date” that the registrar files its verification with the

governing authority. La.R.S. 26:587(C).

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Pursuant to La.R.S. 26:588, the five propositions from La.R.S.

26:584(B) must appear on the ballot with a YES and NO box next to each one.

La.R.S. 26:588. The voter chooses which box to mark, and the majority vote cast

on each proposition separately determines that issue for the subject area. Id. The

election must be by secret ballot and “as nearly as possible in accordance with the

election laws of the state.” La.R.S. 26:589(A). If machines are used, the

propositions stipulated in La.R.S. 26:588 must be shown on the machine. La.R.S.

26:589(B).

If the petition fails to substantially comply with the requirements, or

the procedures for calling or conducting the election are not substantially complied

with, “the election is illegal and ineffective and may be declared null and void” by

a court upon suit by “any elector who was qualified to vote in the election.”

La.R.S. 26:590. Suit must be brought “within thirty days of the promulgation of

the results of the election.” Id. “The governing authority calling the election shall

promulgate the result by resolution or ordinance adopted at its first regular meeting

after the election and shall publish it in the official journal of the parish.” La.R.S.

26:594.

When the majority of qualified electors voting in
an election held under the provisions of this Chapter
determine that any or all of the businesses described shall
not be licensed, the governing authority calling the
election may provide for the prohibition by ordinance,
and may provide penalties for the violation of the
ordinances. The penalties shall not, however, exceed a
fine of one hundred dollars or imprisonment for not more
than thirty days, or both.

La.R.S. 26:595.

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Trial Court’s Findings

The trial court found that the election itself and the pre-election and

post-election procedures resulted in at least five statutory violations. The trial

court found a violation of La.R.S. 26:587(B) because the Board did not adopt an

ordinance and order the election at their March 7, 2016 meeting as required by that

statute, but rather waited 190 days to adopt the ordinance at their September 12,

2016 meeting, and then ordered the election for December 10, 2016. Louisiana

Revised Statutes 26:587 (emphasis added) provides as follows:

A. The governing authority with whom the true
copy of the verification is filed by the registrar of voters
shall attach to it a sworn statement showing the date,
month, and year the verification was filed with the
governing authority.
B. If the petition conforms to all the provisions of
this Chapter, the governing authority shall order the
election. The ordinance or resolution of the governing
authority ordering the election shall be adopted at the
next meeting held after the verification was filed with
the governing authority by the registrar of voters.
C. The date fixed for the election shall be the next
date on which such an election may be held, as provided
for in R.S. 18:402(F), which falls more than forty-five
days after the date verification was filed with the
governing authority by the registrar of voters.

Here, the registrar filed its verification of the petition on February 25,

2016. The Board’s next meeting was on March 7, 2016. The Board’s failure to

adopt the resolution on March 7, 2016 violates La.R.S. 26:587(B). Its failure to

order the election for November 2016 violates La.R.S. 26:587(C), because the only

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applicable date under La.R.S. 18:402(F)2 that was forty-five days after February 25

was one of the November dates in La.R.S. 18:402(F)(2)(a). The March dates in

subpart (F)(3) were not forty-five days after the registrar filed the verification on

February 25, 2016, and the remaining subparts address odd-numbered years or are

otherwise inapplicable. Accordingly, we find no manifest error in the trial court’s

finding of a violation of the pre-election procedure in La.R.S. 26:587.

The trial court also found a violation of La.R.S. 26:594, which states

that the governing authority “shall promulgate” the election results “by resolution

or ordinance adopted at its first regular meeting after the election and shall

2
Bond, tax, or other elections. Every bond, tax, or other election at which a
proposition or question is to be submitted to the voters shall be held only on one
of the following dates:

(1) The third to last Saturday in October or the fifth Saturday after the
third to last Saturday in October of 1983 and every fourth year thereafter.

(2)(a) The first Tuesday after the first Monday in November or the fifth
Saturday after the first Tuesday after the first Monday in November of even-
numbered years.

(b) Notwithstanding the provisions of Subparagraph (a) of this Paragraph,
the fifth Saturday after the first Tuesday after the first Monday in November shall
not be applicable in a parish containing a municipality with a population of three
hundred thousand or more for an election relative to a parcel fee . . . .

(3) The last Saturday in March or the fifth Saturday after the last Saturday
in March of any year or on the first Saturday in March or the fifth Saturday after
the first Saturday in March during the presidential election year.

(4) The second Saturday in October or the fifth Saturday after the second
Saturday in October of 1985 and every fourth year thereafter.

(5) Repealed by Acts 2008, No. 134, § 1.

(6) For a parish containing a municipality with a population of three
hundred thousand or more, the second Saturday in October or the fifth Saturday
after the second Saturday in October in 2017 and every fourth year thereafter.

(7). Repealed by Acts 2015, No. 307, § 3, eff. June 29, 2015.

La.R.S. 18:402(F) (emphasis added).

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publish it in the official journal of the parish.” Here, the first regular meeting of

the Board following the election on December 10, 2016, was on January 9, 2017.

At that meeting, a motion was made to promulgate the election results, but the

motion was not seconded, even though the mayor called for a second to the motion

three times. Thus, no resolution or ordinance was adopted as mandated by La.R.S.

26:594. The record supports the factual findings of the trial court.

The trial court further found that the resolutions and publications

required under the statutes contained numerous errors. We agree. In our review of

the record, we found that most of these errors involved dates and that the errors

and discrepancies are significant.

The untimely Resolution 2016-6, which ordered the election, was

adopted on September 12, 2016, and then published. The Resolution that was

published in the Sabine Index stated under “Section 3. Canvass” that the Board

“shall” meet “on Monday, January 2, 2017” and “shall then and there in open and

public session proceed to examine and canvass the returns and declare the results”

of the election. The copy of Resolution 2016-6 that was sent to the Secretary of

State on October 20, 2016, stated the same language under “Section 3. Canvass”

but the date of the meeting was stated as “Monday, January 9, 2017.” Thus, the

public was given an incorrect date for a public meeting that eventually gave rise to

Resolution 2017-1 and introduced Ordinance #182 which contained a violative

penalty, as discussed below. The meeting itself did not occur on either of those

dates. Rather, the Board held a special meeting on Thursday, January 19, 2017.

While not noted by the trial court, the record indicates that the mayor “posted”

notice of the January 19 meeting on January 11 and that the Sabine Index

published the notice on January 18, 2017.
8

At the January 19, 2017 meeting, the election results were canvassed

and Resolution 2017-1 and Ordinance #182 were adopted. Both stated as follows:

SECTION 4. As required by La.R.S. 18:1292, this
Governing Authority met at its regular meeting place, the
Town Hall, 237 West Port Arthur, Florien, Louisiana, on
Monday, January 9, 2017 at Five O’clock(5:00) P.M.,
and then and there in open and public session proceeded
to examine and canvass the returns and declared the
results of the said special election approved.

The publications contained the same language, incorrectly

representing the date upon which the public meeting accomplished the above.

While we do not find that the language used for the five propositions was out of

compliance with the language of La.R.S. 26:584(B), we find no manifest error in

the trial court’s factual findings that the Board violated La.R.S. 26:587 and 594.

The trial court further found a violation of La.R.S. 26:595 because the

penalty imposed by the Board to enforce the prohibition of alcohol sales exceeded

the statutory limits. This statute limits the fine to $100 and imprisonment for not

more than thirty days. However, Resolution 2017-1 and Ordinance #182 adopted

by the Board on January 19, 2017, both state as follows:

Section 8. Whosoever shall violate the provisions of this
resolution shall, upon conviction before any court of
competent jurisdiction, be fined a sum not exceeding five
hundred dollars ($500.00) and court costs or
imprisonment for a period not exceeding sixty (60) days
or both.
Accordingly, the trial court correctly found a violation of La.R.S.

26:595 as well. We find no manifest error in the trial court’s factual findings and

affirm the trial court’s judgment that the errors in the pre-election and post-

election procedures resulted in an election process that was not in substantial

compliance with the governing statutes.

9

In addition to the above violations, the trial court briefly discussed at

least eighty-seven potentially invalid signatures on the petition to call the election

but ultimately pretermitted ruling on the issue because the court found a conflict

between La.R.S. 26:584(C) and (D). We find no conflict between these two

subsections, and we will conduct a de novo review of this significant issue of

invalid signatures.

Invalid Signatures under La.R.S. 26:584 and Their Effects

Louisiana Revised Statutes 26:584(C) states as follows:

C. The petition submitted to a registrar of voters
for certification shall be typed, machine printed, or hand
printed and shall contain the following information:
(1) The signature of the voter who is signing the
petition; however, if a person is unable to write, the
incapacitated person shall affix his mark to the petition
and the person circulating the petition shall affix the
name of the incapacitated person, provided he does so in
the presence of two witnesses who shall also sign their
names as witnesses to the mark.
(2) The date the voter signed the petition.
(3) The signer’s ward or election district and
precinct, typed, machine printed, or hand printed.
(4) The residence address of the signer, including
municipal number, apartment number, rural route, and
box number, typed, machine printed, or hand printed.
(5) The name of the signer, typed, machine
printed, or hand printed.
(6) The name of the person who witnessed or
obtained the signature.
(7) The date witnessed by the person who
witnessed or obtained the signature.

Louisiana Revised Statutes 26:584(D) provides:

D. Where signatures are made on more than one
sheet, each sheet of the petition shall reproduce above the

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signatures the same matter as is on the first sheet. Each
petitioner shall sign his name in his own handwriting
and shall write his address, his ward and precinct, and
the date on which he signed; otherwise his signature
shall be null and void. Every signature on a petition shall
be witnessed at the time of signing, either by the person
obtaining the signature or by a registered voter of the
state of Louisiana. All information required to be on a
petition shall be typed or machine printed or hand printed
prior to the time the petition is offered to prospective
signees, except for the information in Paragraph C(6) and
(7) herein.

Prior to the statute’s 1988 amendment, the second sentence of La.R.S.

26:584(D) stated: “Each petitioner shall sign his name in his own handwriting and

shall write his address and the date on which he signed, otherwise his signature

shall be null and void.” La.R.S. 26:584–Historical and Statutory Notes. It is clear

that in rewriting subsection (D) in 1988, the legislature intended that each person

signing the petition must handwrite not only his or her signature, but also his or her

address, ward and precinct, and the date upon which he or she signed the petition,

or the signature would be null and void. This did not occur. The parties stipulated

at trial as follows:

MR. VILAR [for plaintiffs]: And we have one of those
persons is Ms. Tonia McNamara Turner, and we have
agreed to stipulate that if Ms. Turner was called to the
stand, she would state that in 68 occurrences in which she
was involved in obtaining signatures on the petition, the
petitioner did not write their address in their own – in his
or her handwriting, and that in 20 instances, the petitioner
did not write the date in which he signed the petition in
his or her own handwriting. And we’ve also agreed to
stipulate that none of the persons who signed the petition
wrote their ward or precinct in their own handwriting. It
is – and, Your Honor, the documents will show – the
actual certification from the clerk shows that there was
126 signatures on the petition. So, it’s our position that
none of the 126 wrote the ward and precinct in their own
handwriting and we’ve stipulated to that.
11

THE COURT: Is that correct?
MS. GARCIE [for defendant]: Yes, Your Honor.

Louisiana Revised Statutes 26:582 requires that in order to call a

referendum election to determine whether the sale of alcohol could be licensed, or

in this case, continue to be licensed, the petition must contain signatures of “not

less than twenty-five percent of the qualified electors.” The registrar of voters

certified that there were 406 qualified electors on the registration rolls as of the

date of the first signature on the petition. Therefore, the petition had to contain 102

valid signatures, which it clearly did not. Accordingly, the petition did not

substantially comply with La.R.S. 26:584(D) or La.R.S. 26:582. It was an invalid

petition, and the election should never have been called.

The Secretary of State filed an Amicus brief arguing that it was error

to void the election without determining that invalid votes changed the outcome of

the election––asserting that this was the plaintiffs’ burden of proof––and without

ordering a new election pursuant to La.R.S. 18:1432. We disagree for numerous

reasons. The outcome of the election is not the issue where the election should

never have been called in the first place due to an invalid petition. In his Amicus

brief, the Secretary of State admits that “without a valid petition, there is no basis

for holding the local option election.” For the same reason, there is no requirement

to call a new election. The invalid petition notwithstanding, La.R.S. 18:1432 is

permissive, not mandatory, and it does not establish the plaintiff’s burden of proof

in this case. Under the current version of La.R.S. 18:1432, the trial judge “may”

declare the election void and order a new election “for all of the candidates.”

Thus, this statute is not applicable in this case.

12

Florien and the Secretary of State mistakenly rely upon Kelly v.

Village of Greenwood, 363 So.2d 887 (La.1978) to support their position as to the

plaintiffs’ burden of proof. The 1978 supreme court decision in Kelly was based

upon the newly enacted Title 18, under which the plaintiff brought his case, and a

mandatory version of La.R.S. 18:1432 that did not limit its language to

“candidates” as it does now in the permissive version. Further, Kelly, was based

upon La.R.S. 18:1401(C), which was and still is permissive, stating then and now

that “[a] person in interest may bring an action contesting any election in which

any proposition is submitted to the voters if he alleges that except for irregularities

or fraud in the conduct of an election the result would have been different.”

La.R.S. 18:1401(C) (emphasis added). Unlike the plaintiff in Kelly, the plaintiffs

in this case brought a factually and legally detailed petition under the very specific

alcoholic beverage local option laws of Title 26, applying the facts of the subject

election to each of the statutes, under which the burden of proof is substantial

compliance. The facts in Kelly reveal other significant distinctions.

In Kelly the only irregularity alleged was the date on which the

election was held. Kelly brought suit under the new Title 18 election code that

became effective on January 1, 1978, the month of the local option election in that

case. He alleged that but for the failure to hold the election on January 21, as

authorized by La.R.S. 18:402(F), instead of January 3, the date it was held, the

outcome would have been different. Finding that the plaintiff did not present

evidence of a different outcome, the trial court dismissed the case. The defendants

argued that the new election code did not apply, because the election was called

prior to its effective date, and that La.R.S. 26:581, et seq., governed, with which

there was substantial compliance. The court of appeal reversed the trial court,
13

finding that the new election code repealed only those sections of the local option

law where it was in conflict, that the election should have been called for January

21 in compliance with the then current versions of La.R.S. 26:586 and La.R.S.

18:402(F), and that the election was void for this reason. The supreme court

reversed the court of appeal and reinstated the trial court. It agreed with the court

of appeal that Title 18 only repealed the local option law where it was in conflict,

and that the defendants erred in not fixing the date for the election for January 21,

as authorized by La.R.S. 18:402(F). However, the court found that the “mere

failure” to hold the election on the authorized date was not sufficient to void the

election. Kelly, 363 So.2d at 889. It therefore held the plaintiff to his own

assertions and to the statutes under which he filed suit.

Conversely, in the present case, there were numerous untenable errors

and violations, and the governing statutes of Title 26 have numerous mandatory

provisions that did not exist in 1978. One has to but read the language in the

statutes to readily comprehend the vast number of distinctions between the Kelly

case and this case. Factually as well, there were no delays in Kelly, and the

election was held earlier in the same month it should have been held. Here there

was an inexplicable 190-day delay in calling the election, and it was called for the

wrong date, both in direct violation of the governing statute.

The Secretary of State further argued that the time for challenging the

validity of the votes was at the polls on election day pursuant to La.R.S. 18:1434.

Again, we disagree. The specific statutes governing this particular kind of option

election provide the time for challenging the petition and the election.

More specifically, La.R.S. 26:590, entitled “Violation of standards for

petition or election; nullity of election,” provides as follows (emphasis added):
14

If the petition fails to substantially comply with
the requirements provided in this Chapter or if the other
requirements specified in this Chapter for the calling or
conduct of the election are not substantially complied
with, the election is illegal and ineffective and may be
declared null and void by any court of competent
jurisdiction at the suit of any elector who was qualified to
vote in the election. This suit shall be brought within
thirty days of the promulgation of the results of the
election.

Here, the results of the election were not promulgated until January

19, 2017, and suit was filed on February 16, 2017, within the thirty-day

requirement of La.R.S. 26:590. The statute indicates that the time for challenging

the petition and the election are the same, that is, “within thirty days of the

promulgation of the results of the election.” Id. Thus the challenge to the petition

was timely raised.

V.

CONCLUSION

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

voiding the election, Resolution 2017-1, and Ordinance #182 for failure to

substantially comply with the governing statutes. Further, finding that the petition

itself did not substantially comply with the governing statutes, we amend the trial

court’s judgment to state that the election was illegally called, ineffective, and

therefore null and void, for this additional reason, as was Resolution 2016-6

ordering the election. Court costs of $2,852.14 are assessed to the

defendant/appellant, the Village of Florien.

AMENDED AND AFFIRMED AS AMENDED.

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