Thompson v. Cockerham

1

LESLIE C. THOMPSON, DANETTA C. HAYES, DEVIN FLOWERS AND HENRY BRADLEY Plaintiffs-Appellees v. TINA COCKERHAM Defendant-Appellant

No. 55,513-CA

Court of Appeals of Louisiana, Second Circuit

August 29, 2023

Appealed from the Second Judicial District Court for the Parish of Jackson, Louisiana Trial Court No. 37,250 Honorable William R. Warren, Judge.

JEFFREY M. LANDRY Attorney General, Counsel for Appellant.

CAREY THOMPSON JONES JEFFREY M. WALE Assistant Attorneys General GEORGE W. BRITTON, III, Counsel for Appellees.

Before STONE, COX, and THOMPSON, JJ.

THOMPSON, J.

This appeal arises from a recall petition seeking to remove James Harris, Mayor of the Town of Jonesboro, from office. Tina Cockerham, the Registrar of Voters for Jackson Parish appeals the judgment of the trial court denying her exception of no cause of action and ordering her to return 49 names to the recall petition and to forward the petition of recall to the Governor of Louisiana. For the following reasons, we reverse the judgment of the trial court.

FACTS

On January 3, 2023, a recall petition for the removal of James Harris, Mayor of Jonesboro, was filed with the Louisiana Secretary of State by Leslie C. Thompson, as chairman and Danettia C. Hayes, as vice chairman listed on the recall petition. On a date not otherwise disclosed on this record, the recall petition was presented to Tina Cockerham ("Cockerham"), the Registrar of Voters for Jackson Parish in accordance with La. R.S. 18:1300.1, et seq.^[1] Pursuant to La. R.S. 18:3 and 18:1300.3(A), Cockerham reviewed the recall petition, which contained 811 potential electors' signatures, and ultimately disqualified 134 of those signatures from the recall petition for failing to meet the requirements of La. R.S. 18:3 of being a registered voter or not residing within the election voting area, or not including accurate date of birth information. Of the 134 signatures disqualified, 49 were disqualified on the basis that the actual signature on the recall petition did not match the signature on the electors' voter registration card, as required by La. R.S. 18:3.^[2] The number of verified signatures required to trigger the recall sought by petitioners was 694, or 33¹/₃ percent, of the registered voters of the voting area, as set forth in La. R.S. 18:1300.2(B)(3)(a). With the disqualification of 134 of the signatures, the total number of verified signatures fell to 677, which is insufficient to satisfy the threshold requirement for the recall. The record evidence does not disclose whether Cockerham certified the petition and forwarded it to the governor, although neither party has contested this fact.

On August 15, 2023, a group of voters, including the chairman and vice-chairman ("plaintiffs" herein), who signed the recall petition, filed a "Petition for Writ of Mandamus" in the trial court seeking to compel Cockerham, as the sole named defendant, to "certify" the 49 "non-matching" signatures in accordance with La. R.S. 18:1300.3(D).^[3] Plaintiffs alleged that Cockerham had the ministerial duty to certify all qualified electors who signed the recall petition and "may be compelled" to certify all qualified electors. Thus, plaintiffs prayed that Cockerham be directed to certify the 49 registered voters who signed the petition and resubmit the petition to the Governor's office for proclamation to proceed with the recall of James Harris.

On August 17, 2023, Cockerham filed an "Exception of No Cause of Action on Behalf of the Registrar of Voters," challenging the request for mandamus in this matter. Cockerham alleged that plaintiffs failed to state a cause of action that would entitle them to relief on a writ of mandamus because the duty assigned to the registrar in reviewing signatures on a recall petition under La. R.S. 18:3 contains an "element of discretion that defeats the right to mandamus." Cockerham asserted that her act of verifying signatures was an exercise of her discretion in judging whether the signature on the petition appeared to be that of the voter. Cockerham argued that the exercise of that discretionary function was fatal to the petition for mandamus which is not available to command the performance of any discretionary act or where the evaluation of evidence must be exercised. Citing Pineville City Court v. City of Pineville, 22-00336 (La. 1/27/23), 355 So.3d 600, Cockerham argued that in cases where a mandamus will not lie, the peremptory exception of no cause of action is the proper vehicle to defeat an application for writ of mandamus.^[4]

By orders of the trial court, the hearings on both the petition for writ of mandamus and the exception of no cause of action were set for 9:30 a.m. on August 18, 2023.

At the hearing, counsel for the parties first argued the merits of the exception of no cause of action. Cockerham reasserted her argument that her act of refusing to verify some signatures was an exercise in discretion or a judgment call for which mandamus did not lie. Thus, she asserted that any challenge about her actions should have been made in a petition for declaratory judgment or via an action alleging errors in the registrar's judgment.

The plaintiffs provided the trial court with a copy of this Court's case of Young v. Sanders, 38,412 (La.App. 2 Cir. 4/7/04), 870 So.2d 1126, writ denied, 04-1137 (La. 7/2/04), 877 So.2d 146, to support the argument that the registrar of voters had no discretion to eliminate particular names from the recall petition "based on her arbitrary evaluation of the signature." In Young, this Court upheld the trial court's ruling restoring names to a recall petition. There the registrar struck the names because they did not look like the signatures on the voter registration cards. On appeal, this Court affirmed the trial court's ruling, while setting forth a jurisprudential procedure for the registrar's signature comparison. This Court concluded that the registrar's duty was limited to a comparison of the signatures, but "not a comparison of the hand or writing style" of the voter. Based upon this holding, plaintiffs contended that the registrar's duty to verify signatures was ministerial and that mandamus was proper. In the alternative, plaintiffs also asserted that the trial court was not bound by the caption of the pleading and that under the election law, was also authorized to determine whether the registrar abused her discretion in striking the 49 names at issue. Upon questioning by the trial court, counsel for plaintiffs stated that based upon the holding of Young, supra, he would not agree that the registrar had discretion in striking the names, but again suggested to the trial court that there was an "alternative" the trial court was not "relegated to saying this is a mandamus."

Cockerham argued that Young, supra, was an aberration, but conceded that the case was good law by which the trial court was bound.

Relating to the exception of no cause of action, the trial court initially ruled:

Well Young does appear to be--does appear to be on point and it -it-To me in my reading of Young 18:3 gives the registrar the authority to compare the signatures, but the comparison is to determine if this person is an elector of this district as opposed to whether or not this is actually that person's signature. Because she's not a handwriting expert doesn't give her the authority to determine whether or not the signature is the signature of that particular elector. In other words, that's an issue that can be raised by -in this case the subject the person that's subject to the recall, Mr. Harris. So for those reasons, I will overrule your exception.

Cockerham then argued to the trial court, that "if she doesn't have the authority to strike names on the petition by virtue of the signature review, then there's nothing to try." The trial court stated that the registrar could strike names if she "determines, well, this person is not an elector or a voter." Cockerham agreed that the registrar could strike a name if the individual was not registered, but argued that the "signature issue" was an "entirely separate issue," and that the registrar's duty regarding signatures was "to determine whether or not that signature appeared to belong to the voter whose name was on the petition," or whether the signatures matched.

The parties jointly introduced J-1 into evidence (the only evidence introduced at the hearing), a copy of the extracted portions of the petition where Cockerham rejected the 49 voter signatures with the notation, "Not Voter Signature." Further, in lieu of Cockerham's testimony, the parties stipulated that if:

Ms. Cockerham were to testify that she would testify that these names that they have under "Rejected Reason Not Voter Signature" is because, in her opinion, the signatures did not match.

Solely based on this stipulation and the case of Young, supra, the trial court again denied the exception and summarily ordered the 49 signatures which were rejected to be added back to the petition and be verified." A written judgment memorializing these rulings followed on August 21, 2023. Cockerham appeals.

DISCUSSION

On appeal, Cockerham raises three assignments of error. She first challenges the trial court's denial of her exception of no cause of action on grounds that mandamus does not lie in relation to the discretionary duties at issue. Cockerham also questions whether Young supra, represents a current interpretation of La. R.S. 18:3(C) and challenges the trial court's authority to order her to return the 49 rejected signatures to the recall certification on the record before this Court.

Appellees contend that there was no error in the trial court's ruling, due to the fact that this case is indistinguishable from Young, s...