Cloud v. Dyess
| Decision Date | 03 March 1965 |
| Docket Number | No. 1402,1402 |
| Citation | 172 So.2d 528 |
| Parties | Robert CLOUD, Plaintiff-Appellee, v. B. G. DYESS, Registrar of Voters (substituted for C. L. Bushnell, predecessor Registrar), Defendant-Appellee, (Henry Farley Cloud, Intervenor-Appellant). |
| Court | Court of Appeal of Louisiana — District of US |
Wm. Ray Bradford, Jr., Alexandria, for intervenor-appellant.
Gravel, Sheffield & D'Angelo, by A. M. D'Angelo, Alexandria, for plaintiff-appellee.
John R. Hunter, Jr., Alexandria, for defendant-appellee.
En Banc.
For oral reasons, the trial court entered a judgment permanently enjoining the Registrar of Voters from transmitting to appropriate state authorities a petition for an election to recall an incumbent police juror (the plaintiff-appellee, Robert Cloud). The intervenor, Henry Farley Cloud, chairman of a recall petition, appeals from this judgment of permanent injunction.
The procedural context of this appeal is as follows: Alleging, inter alia, that the recall proceedings were invalidated by certain irregularities, the incumbent police juror, the recallee, filed this suit against the Registrar to prevent certification and transmission for further processing of the recall petition. To achieve this end, the suit sought an initial restraining order, an interlocutory preliminary injunction, and in due course a permanent injunction affording the desired relief. After an Interlocutory preliminary injunction was issued on July 22nd holding the recall proceedings invalid for certain irregularities, this mater was finally heard on the merits on December 7, 1964 on the question of whether a Permanent injunction should issue. The intervenor appeals from judgment of permanent injunction rendered as a result of this trial on the merits.
On two previous occasions this court has rendered formal opinions in connection with these proceedings.
In Cloud v. Bushnell, La.App., 168 So.2d 274, we denied the present intervenor's application to our supervisory jurisdiction seeking to dissolve a preliminary injunction of July 22, 1964, and seeking to review the trial court's refusal on August 17th of the intervenor's motion to dissolve this preliminary injunction; our denial of supervisory writs was based upon the failure of the intervenor to apply for them until after expiration of the appellate delays allowed for review of such matters. Likewise, in Cloud v. Bushnell, La.App., 168 So.2d 275, a mandamus suit against the Registrar by the present intervenor as plaintiff, we held that the trial court properly denied mandamus because a final unappealed judgment of preliminary injunction prohibited the Registrar from performing the act which the mandamus suit sought to compel him to perform; the reason being that the plaintiff therein (intervenor in the present suit) could not collaterally attack in another proceeding the preliminary injunction which prevented the Registrar from complying with his otherwise-mandatory duty of completing, for transmission, the processing within ten days of the recall petition.
The facts show that the recall petition was filed with the Registrar on June 26, 1964. The question before the trial court on December 7, 1964 (when trial of the plaintiff's demand for a permanent injunction was finally held), was whether the plaintiff was entitled to enjoin the transmission to state authorities for further processing of the recall petition filed with the Registrar some five and one-half months earlier. We are required by this appeal to review whether the trial court erred in entering a permanent injunction, holding in favor of the plaintiff on this question.
We think that the trial court correctly held that the incumbent police juror, the recallee, was entitled to the injunction, because the intervenor and those he represented, the signers of the recall petition, had permitted so long a period to elapse without pursuing the correct procedural remedies to assure that the recall petition was forwarded for further processing as soon as possible after the ten-day period statutorily allowed for certification following presentation of the recall petition to the Registrar. See LSA-R.S. 42:343.
We must remember that the recall remedy is statutorily designed for prompt action following the circulation of a recall petition. The recall statute, LSA-R.S. 42:341--357, provides that a petition for the recall of a public official must be signed by not less than twenty-five per cent of the electors of the voting area, that the Registrar of Voters of the parish must, within ten days after the recall petition is presented to him, certify certain information in the petition, and that the Governor must order a recall election within five days after the date the petition is presented to him (after the Secretary of State certifies that the requisite number of signatures have been signed to the petition), which election must be held on the first Tuesday of the sixtieth day from the date of proclamation.
Because the recall election is a harsh remedy and therefore strictly construed, and because it would be disruptive of orderly processes of government and mischievous and unreasonable to permit those pursuing a recall remedy to permit a petition to lay over unacted upon for future use if and when the recallers so desire, the jurisprudence by which this court is bound holds that a recall petition is deemed abandoned by laches when the recall petitioners do not actively pursue their remedy so as to require substantial compliance with the mandatory statutory requirements that recall elections be held expeditiously within a limited period after the recall petition is first presented for processing to government authorities. Bradford v. Board of Supervisors, La.App., 3 Cir., 128 So.2d 468.
In the present instance, the preliminary injunction enjoining the Registrar from transmitting the recall petition was entered on July 22, 1964. Although the intervenor had the right to appeal both from this preliminary injunction and also from the denial on August 17th of his motion to dissolve same, he did not do so. Nor, so far as the record shows, did the intervenor seek unsuccessfully to obtain an early trial of the suit for the permanent injunction, nor did he object when the fixings of the permanent injunction for trial of September 11th and possibly October 9th (the minute entry is unclear) were set aside or continued, with the case finally being heard on the merits on December 7, 1964, some five months after expiration of the date within the maximum ten days statutorily allowed for the Registrar's processing of the recall petition.
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