STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO 2008 CE 2166

ujM BLANCHE BAYLOCK

VERSUS

J rY DARDENNE LOUISIANA SECRETARY OF STATE IN HISFFICIAL CAPACITY AND ANGIE LAPLACE COMMISSIONER

OF ELECTIONS IN HER OFFICIAL CAPACITY

Judgment Rendered OCT 2 2 200B

On Appeal from the

Eighteenth Judicial District Court

in and for the Parish of Iberville

State of Louisiana

Trial Court No 67 069

The Honorable Alvin Batiste Jr Judge Presiding

Blanche BaylockSt Gabriel La

PlaintiffAppellantIn Proper Person

William E Crawford Jr

David Sanders

Bridget B DenicolaBaton Rouge La

Counsel for Defendants AppelleesJay Dardenne Secretary of Statein his official capacity and

Angie LaPlace Commissionerof Elections in her official

capacity

BEFORE CARTER cJ WHIPPLE GUIDRY DOWNING AND

McCLENDON JJ

1 i UU

PER CURIAM

This is an election contest challenging the results of the October 4

2008 primary election for Justice of the Peace Justice of the Peace Ward 2

Precincts 7 8 10 11 and 12 and Constable Justice of the Peace Ward 2

Precincts 7 8 10 11 and 12 in lberville Parish Pursuant to La R S

18 1409 this appeal has been given expedited consideration For the

reasons that follow we affirm

FACTS AND PROCEDURAL HISTORY

Plaintiff Appellant Blanche Baylock was one of four candidates for

Justice of the Peace Justice of the Peace Ward 2 in the October 4 2008

primary election The other candidates in the primary election were Jimmy

Green III Joseph Oliver Jr and Alexander Wright Sr A certified copy of

the tentative results of the election indicated that Ms Baylock received 201

votes Mr Green received 481 votes Mr Oliver received 255 votes and Mr

Wright received 440 votes

Also on the October 4 2008 ballot were three candidates seeking the

office of Constable Justice of the Peace Ward 2 Kevin Brock Keith

Edward Gordon and Lloyd Big Red Snowten Mr Brock received 423

votes Mr Gordon received 387 votes and Mr Snowten received 550 votes

On October 10 2008 Ms Baylock filed suit in the Eighteenth Judicial

District Court challenging the outcome of the election Specifically Ms

Baylock asserts that the ballots used in the early voting held September 20

27 2008 and in the October 4 2008 primary election promoted

ISee La RS 18 574D

2Jay Dardenne Louisiana Secretary of State and Angie LaPlace Commissioner of

Elections were named as defendants in their official capacities in the caption of these

proceedings For ease ofdiscussion we refer to them collectively as the State

2

confusionleaving the impression that the Justice of the Peace and

Constable share the same performance and are the same official office

Ms Baylock sought several forms of relief She asked that all voting

from September 20 2008 through October 4 2008 be thrown out Ms

Baylock asked that the official ballot be corrected ie redrawn in a

manner suggested by her in time for early voting to be held from October

21 2008 through October 28 2008 and for the November 4 2008 election

Ms Baylock requested that the official ballot as corrected be published in

The Morning Advocate and the Post South Newspaper She also asked that

the Louisiana Secretary of State correct any literature whether on paper or

in cyberspace Lastly Ms Baylock sought election campaign financial

relief

The election contest was allotted to Judge Alvin Batiste Jr In

response Ms Baylock filed a motion to recuse Judge Batiste and on the day

of the hearing on the motion to recuse she filed an amended motion

Among other claims Ms Baylock alleged that Mr Gordon a candidate for

Constable Justice of the Peace Ward 2 was a campaign contributor to Judge

Batiste The motion to recuse was heard on October 14 2008 by Judge

William C Dupont and denied that same day The case was then ordered

returned to Judge Batiste s division of court for disposition

In response to Ms Baylock s petition on October 15 2008 the

Louisiana Secretary of State filed a motion to strike the monetary demand

contained in Paragraph 10 of Ms Baylock s petition The motion asserted

that monetary damages are not an available remedy in an election contest

and such reliefmust be sought via an ordinary proceeding

3

Later on October 15 2008 Ms Baylock filed requests for production

directed to the Secretary of State s office and to the lberville Clerk of Court

In accordance with La R S 18 1405 the matter was heard by Judge

Batiste on October 16 2008 Judge Batiste took up several outstanding

matters prior to beginning trial First considered was Ms Baylock s request

for an order of contempt due to the failure of several individuals to appear at

trial Due in part to the lack of evidence of service in the record the motion

was denied The court granted the State s motion to strike the request for

money damages The State s motion to quash Ms Baylock s requests for

production was held in abeyance3

At trial Ms Baylock presented the testimony of eight witnesses She

also offered without objection two documents The first document was a

chart of qualifications for various candidates including JUSTICE OF THE

PEACE and CONSTABLE Justice of the Peace Court The second

document was titled the Louisiana Secretary of State Parish Candidate

Data for the October 4 2008 election During the proceedings Ms

Baylock attempted to offer into evidence an affidavit from Leo Mellieon a

letter from Diane Marie Jones a Vote Tally Report with handwritten

notations and a copy of Cleo Fields Ticket which lists select candidates

for certain offices Each of these items was objected to as hearsay and

excluded from evidence4

The State also offered several items into evidence including certified

copies of the sample ballot and election results from the October 4 2008

election for Justice of the Peace Justice of the Peace Ward 2 Parish of

3We have found no ruling in the record on the State s motion to quash

4 The four items were proffered pursuant to La Code Civ P art 16364

lberville and for Constable Justice of the Peace Ward 2 Parish ofIberville

After Ms Baylock completed the presentation of her evidence the State

moved for an involuntary dismissal

On the same day as trial at 10 21 a m the district court signed two

judgments The first judgment granted the defendants motion to strike the

monetary demand in paragraph 10 of Ms Baylock s petition The second

judgment granted the motion for involuntary dismissal entered judgment in

favor of the defendants dismissed plaintiff s petition with prejudice at her

cost and pursuant to La R S 18 1376 ordered the release of the voting

machines used in the October 4 2008 primary election for Justice of the

Peace Justice of the Peace Ward 2 and Constable Justice of the Peace Ward

2

Ms Baylock appeals Ms Baylock lists sixteen issues for this court s

consideration To facilitate review we have grouped these sixteen issues

into six assignments of error5

Generally Ms Baylock challenges the trial

court s 1 denial of the motion to recuse Judge Batiste 2 grant of the

motion to quash the requests for production 3 refusal to hold certain

individuals in contempt for failing to appear at trial in particular Secretary

of State Jay Dardenne 4 sustaining ofthe objection to the affidavit of Leo

Mellieon as hearsay 5 grant of the motion for involuntary dismissal and

6 assessment of costs

5Ms Baylock s briefconsists of achronological list of events some of which cannot be

verified in the record citations to La Code Civ P arts 151 and 1355 citations to La

R S 13 2583 and 25831 and a list of cases Generally it is insufficient to merely list

authority with no analysis or discussion Assignments oferror that are neither briefed nor

argued are considered abandoned Uniform Rules Courts of Appeal Rule 2 124

However in the interest ofjudicial efficiency and recognizing the strong public policy in

favor of finality of elections this court will examine the issues raised by Ms Baylock5

DISCUSSION

Motion to Quash Request for Production

Ms Baylock alleges the trial court erred in denying her discovery

procedures The law is clear that t he authority for a candidate to conduct

discovery under the provisions of this Section shall cease when an action

contesting such election to office is filed pursuant to RS 18 1405 B

La RS 18 1415E Ms Baylock s election suit was filed on October 10

2008 On October 15 2008 subsequent to her filing the election contest

suit Ms Baylock filed requests for production

Under the clear language of La R S 18 1415E the State was entitled

to relief on its motion to quash This assignment of error has no merit

Motion to Recuse Judze Batiste

Ms Baylock sought to recuse Judge Batiste maintaining that Keith

Gordon a candidate for Constable Justice of the Peace Ward 2 is a friend

of Judge Batiste who assisted Judge Batiste with his campaign Ms Baylock

avers the trial court was biased

Louisiana Code of Civil Procedure article ISlA as amended by 2008

La Acts 663 SI effective August 15 2008 sets forth the mandatory

grounds for recusal of a judge of any court Pertinent to this discussion is

La Code Civ P art 15IA 4 which directs that a judge shall be recused

when he is biased prejudiced or interested in the cause or its outcome or

biased or prejudiced toward or against the parties or the parties attorneys or

any witness to such an extent that he would be unable to conduct fair and

impartial proceedings The bias or prejudice is required to be of a

substantial nature and based on more than conclusory allegations Suazo v

6

Suazo 2007 0795 p 13 La App 1 Cir 9 14 07 970 So 2d 642 651 writ

denied 2007 2291 La 12 14 07 970 So2d 539

The motion to recuse Judge Batiste was referred to Judge Dupont for a

contradictory hearing According to Ms Baylock subpoenas were issued

for several individuals who failed to appear at the hearing including Mr

Gordon however no service returns were filed into evidence6

In response

to Mr Gordon s absence Ms Baylock moved for a continuance Judge

Dupont denied the motion to continue in light of the short time delays

associated with election contest suits

Mr Green one of Ms Baylock s opponents for Justice of the Peace

and Judge Batiste both testified at the hearing Ms Baylock s questioning of

Mr Green offered little assistance to her claim as Mr Green testified he

was unaware of a relationship between Mr Gordon and Judge Batiste

During his testimony Judge Batiste stated that neither he nor his wife

is related to any of the candidates running for Constable Judge Batiste

testified that he and Mr Gordon are good friends According to Judge

Batiste Mr Gordon helped him with his 2002 campaign receiving no more

than 350 00 for assisting in the campaign Judge Batiste did not give a

campaign contribution to Mr Gordon in Mr Gordon s recent campaign and

he is not supporting any of the candidates in the Justice of the Peace or

Constable elections Judge Batiste explained that he did not vote for Mr

Gordon or anyone else in the elections at issue because he is outside ofthe

voting district Judge Batiste explained My function is to be fair and

6 On appeal Ms Baylock asserts the district court erred in allowing Keith Edward

Gordon not to appear There is nothing in the record to indicate the trial court

contributed to Mr Gordon s absence from the hearing Moreover Judge Batiste openlydescribed his friendship with Mr Gordon and Mr Gordon s assistance with his 2002

campaign The allegations regarding the men s friendship appear undisputed7

impartial and that s the only way that I can be That s the reason why I ran

for this seat and I know that s the for me and for people that appear before

me the primary objective is to be fair and impartiaL

At the hearing on the motion to recuse Ms Baylock failed to prove

by a preponderance of the evidence that Judge Batiste was biased in favor of

Mr Gordon and against Ms Baylock to such an extent that Judge Batiste

would be unable to conduct fair and impartial proceedings See La Code

Civ P art 15IA 4 Suazo 2007 0795 at p 14 970 So 2d at 652

Moreover our review of the record establishes that the proceedings

were conducted in a fair and impartial manner Judge Batiste presided over

this expedited summary proceeding in accordance with the laws of this state

showing consideration at trial in light of Ms Baylock s decision to represent

herself

We find no error in the trial court s denial of Ms Baylock s motion to

recuse This assignment of error has no merit

Motion to Strike Reauest for Monev Damazes

In her district court petition Ms Baylock requested election

campaign financial relief In response thereto the defendants filed a

motion to strike Louisiana Revised Statutes 18 1432A sets forth the

remedies available in an action contesting an election If the party

contesting the election is successful the judge may declare the election void

and order a new election for all of the candidates or if appropriate the judge

may order 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

8

vote Money damages are not an available remedy under La RS 18 1432A

for a successful plaintiff

We find no error in the trial court s grant of the defendants motion to

strike This assignment of error has no merit

The Affidavit ofLeo Mellieon

In support of her claim that the ballot was confusing Ms Baylock

attempted to offer into evidence the affidavit of Leo Mellieon The State

objected on the basis that the affidavit was hearsay See La Code Evid arts

801C 802 As inadmissible hearsay Mellieon s affidavit was not competent

legal evidence and was properly excluded from evidence by the trial court in

response to the State s objection7

Failure to Comvlv with Subvoenas

Ms Baylock maintains the trial court erred in denying her the right to

question all parties that were subpoenaed In particular Ms Baylock

maintains the trial court erred in not holding Secretary of State Jay Dardenne

in contempt for failing to appear at the hearing in response to a subpoena

Contempt of court is any act or omission tending to obstruct or

interfere with the orderly administration of justice or to impair the dignity of

the court or respect for its authority La Code Civ P art 221

Contumacious failure to comply with a subpoena or summons proof of

service of which appears of record is a direct contempt La Code Civ P

art 222 Proceedings for contempt must be strictly construed and the law

does not favor extending their scope Davis v Harmony House Nursing

Home 35 080 p 5 La App 2 Cir 1O 31101 800 So 2d 92 96 writ

7 For the same reasons the trial court properly excluded the letter from Diane Marie

Jones the Vote Tally Report with handwritten notations and the copy of Cleo Fields

Ticket9

denied 2001 3162 La 2 22 02 810 So 2d 1143 Moreover contempt

proceedings are designed for the vindication of the dignity of the court rather

than for the benefit of a litigant Davis 35 080 at p 5 800 So 2d at 96

For purposes of evaluating this issue we assume that any individuals

failing to comply with subpoenas issued in connection with this expedited

civil summary proceeding would at most be subject to civil contempt

which requires a lesser burden of proof than criminal contempt See Rogers

2006 0898 at pp 7 8 959 So 2d at 945

The burden of proof for civil contempt is by a preponderance of the

evidence Davis 35 080 at p 6 800 So 2d at 96 A trial court is vested with

great discretion in determining whether a party should be held in contempt

Rogers v Dickens 2006 0898 p 7 La App I Cir 2 9 07 959 So 2d 940

945 Although a trial court s ultimate decision to hold a party in contempt of

court is subject to review under the abuse of discretion standard the trial

court s predicate factual determinations are reviewed on appeal under the

manifest error standard of review Rogers 2006 0898 at p 7 959 So 2d at

945

The record reflects that Zaine Kasem Ms Baylock s daughter was

appointed as a private process server At the hearing the trial court

observed that no service returns were in the record and Ms Kasem was not

present to testify Moreover under La R S 133667 3A a contradictory

hearing must be held before Secretary of State Dardenne as a statewide

elected official is compelled to appear as a witness in a civil case

In light of the noncompliance with La RS 13 36673A and the

absence of any evidence of willful disobedience of a valid subpoena on the

10

part of Secretary of State Dardenne or any of the other individuals named by

Ms Baylock we cannot say the trial court abused its discretion in declining

to issue an order or orders of contempt This assignment of error has no

merit

Grant ofthe Motion for Involuntary Dismissal

Louisiana Code of Civil Procedure article 1672B provides for the

involuntary dismissal of a case after the plaintiff s presentation of evidence

Specifically

In an action tried by the court without a jury after the plaintiffhas completed the presentation of his evidence any partywithout waiving his right to offer evidence in the event themotion is not granted may move for a dismissal of the action as

to him on the ground that upon the facts and law the plaintiffhas shown no right to relief The court may then determine thefacts and render judgment against the plaintiff and in favor ofthe moving party or may decline to render any judgment untilthe close of all the evidence

The trial court s grant of an involuntary dismissal on the grounds that

the plaintiff has shown no right to relief is subject to the well settled

manifest error standard of review Broussard v Voorhies 2006 2306 p 4

La App I Cir 919 07 970 So 2d 1038 1041 1042 writ denied 2007

2052 La 12 14 07 970 So 2d 535 Accordingly in order to reverse the

trial court s grant of involuntary dismissal we must find after reviewing the

record that there is no factual basis for its finding or that the finding is

clearly wrong or manifestly erroneous Broussard 2006 2306 at p 4 970

So 2d at 1042 The issue is not whether the trial court was right or wrong

but whether its conclusion was reasonable Broussard 2006 2306 at p 4

970 So 2d at 1042

II

A party bringing an election contest suit must prove by a

preponderance of the evidence that except for substantial irregularities or

error fraud or other unlawful activities in the conduct of the election the

plaintiff would have qualified for a second party primary election or for a

general election or would have been elected La RS 18 140IB see La

RS 18 1406B Davis v Malveaux 2006 2096 p 9 La App I Cir

1024 06 945 So 2d 70 76 Thus the plaintiffs burden is two fold 1

the plaintiff must first prove either fraud or irregularities are present then

2 the plaintiff must prove that but for the fraud or irregularities the

outcome of the election would have been different Davis 2006 2096 at p

9 945 So 2d at 76

Ms Baylock s challenge to the ballot was based on the repetition of

the phrase Justice of the Peace Ward 2 after both the heading for Justice

of the Peace and the heading for Constableg

Ms Baylock submits these

captions are confusing especially for new voters and the elderly

Ms Baylock presented the testimony of eight witnesses Of these

eight witnesses none personally found the ballot confusing Two witnesses

Jacqueline Jackie Wesley and St Gabriel Chief of Police Kevin Ambeau

Sr testified that the ballot was or could be confusing to others Ms Wesley

testified that in her opinion the ballot should be changed None of the

witnesses testified that ballot confusion interfered with their voting or

prevented them from voting for Ms Baylock or any other candidate

The trial court reasoned

g Louisiana Revised Statutes 13 2583Al provides in pertinent part that there shall be

one constable for the court of each justice of the peace in the several parishes of the

state

12

YJou failed to prove that there were any irregularities or thatthe ballot was so confusing that it caused voters to vote in the

wrong election and vote for the wrong personY ou failed

to prove that except for this confusion that these people wouldhave voted for you and that you would have made it into either

the runoff or that you would have won the election

Our examination of the October 4 2008 ballot indicates that different

font sizes and headings were used to identify and direct the voter to the

portion of the ballot at issue which sets forth the offices as Justice of the

Peace and Constable However as appellant correctly notes a smaller

font size below both headings states Justice of the Peace Ward 2 Even if

the use of the exact language Justice of the Peace Ward 2 under both

Justice of the Peace and Constable headings could arguably constitute

an irregularity on the record before us we are constrained to find that the

appellant did not prove that but for the alleged irregularity the outcome of

the election would have been different The record amply supports the trial

court s conclusion and we find no error in the grant of the motion for

involuntary dismissal and entry of judgment in favor of the defendants

This assignment of error is without merit

Assessment ofCosts

Ms Baylock asks that all fees and court costs be waived regardless of

whether she wins this appeal The trial court granted Ms Baylock pauper

status Pursuant to Louisiana Code of Civil Procedure articles 5181 5188 a

party granted pauper status is allowed to have her suit continue without bond

and without payment of costs as they accrue9 These articles do not bar

assessment of costs None of the Above v Hardy 377 So 2d 385 387 La

App IslCir 1979

9Any procedural matter not specifically provided for in the Election Code shall be

governed by the Code ofCivil Procedure La R S 18 1414

13

We find no error in the trial court s assessment of costs against Ms

Baylock This assignment of error has no merit

CONCLUSION

For the foregoing reasons the judgment appealed from is affirmed

Costs of this appeal are assessed to the plaintiff appellant Blanche Baylock

AFFIRMED

14