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Judgment rendered May 7, 2010 Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 45,328-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA *****

BOBBY DEAN HIGGINBOTHAM versus

Plaintiff-Appellant

CALDWELL A. FLOOD, EDNA J. COOPER, GEORGE TAYLOR, LIONEL TRAVERS, JR., AND THE BOARD OF ALDERMAN OF WATERPROOF, LOUISIANA *****

Defendants-Appellees

Appealed from the Sixth Judicial District Court for the Parish of Tensas, Louisiana Trial Court No. 22,730 Honorable John D. Crigler, Judge ***** BOBBY HIGGINBOTHAM In Proper Person DERRICK DESHANNON CARSON Counsel for Bobby Higginbotham KOCH & MESSER By: Karl J. Koch Counsel for Intervenor, Town of Waterproof JOY R. JACKSON Counsel for Caldwell A. Floyd, Edna Cooper, George Taylor, Lionel Travers, Jr., and the Board of Alderman of Waterproof, LA

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Before CARAWAY, PEATROSS and DREW, JJ.

CARAWAY, J. This suit1 arises from the action of the Town of Waterproof's board of aldermen in declaring the office of its elected mayor vacant due to the mayor's failure to meet the domicile requirement for office. After such action was taken at a regular meeting of the board, the mayor filed suit against the board and four of the five individual aldermen seeking a preliminary injunction and declaratory judgment. The preliminary injunction sought to prohibit the defendants from taking any action to declare the mayor's seat vacant, interfere with his mayoral duties or appoint a new mayor. The mayor appeals the trial court's judgment denying a preliminary injunction. Finding that the board of aldermen was without statutory authority to declare the mayor's position vacant, we reverse the trial court judgment and grant injunctive relief. Facts In 2006, Bobby Higginbotham was elected mayor of the Town of Waterproof. The Board of Aldermen is the governing body of the town which is comprised of five individuals (hereinafter referred to as "the Board"). The facts giving rise to this litigation occurred on the evening of September 14, 2009, at a regularly scheduled Board of Aldermen meeting. At the meeting, the Board amended the announced agenda which had been prepared by the mayor and town clerk to additionally include the matter of Higginbotham's domicile. As a result, the Board declared Higginbotham's position vacant based upon his failure to meet the residency requirement.

The suit is consolidated with a second matter concerning the Town of Waterproof, Toyna Barlow v. Town of Waterproof, et al, 45,211-CA which is also being decided at this time.

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An audio recording of the meeting which was introduced into evidence at the trial of the preliminary injunction reveals that it was first moved to amend the discussion agenda to include the issue of Higginbotham's domicile. The motion was ultimately passed without objection. The issue of the Higginbotham's domicile later came up for discussion. Alderwoman Edna Cooper indicated that state auditors had raised questions regarding Higginbotham's domicile and that the Board wanted to be assured that the mayor met the residency requirements. For a considerable amount of time, the Board questioned Higginbotham about where he lived, slept, ate, and registered to vote. The Board also inquired as to where Higginbotham's vehicles were registered. Higginbotham stated that his domicile was located at 218 A Street in Waterproof. He otherwise generally refused to answer questions about his habits, but admitted that he did not stay in town all week. He indicated that he had property at several addresses but did not claim a homestead exemption on any property. When asked, Higginbotham presented his driver's license to the Board. The license contained the above-noted Waterproof address. Higginbotham indicated that he was registered to vote at the Waterproof address and that every one of his motor vehicles was registered there as well. The mayor moved to the next item on the agenda and refused to answer any further questions about his domicile. After all items on the agenda were discussed, the mayor called for other business. It was during this time that Alderman Caldwell Flood moved to declare the mayor's seat vacant due to Higginbotham's failure to meet the residency requirement.

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Alderwoman Edna Cooper seconded the motion. When Higginbotham refused to consider the motion, Alderman Caldwell Flood, who referred to himself as the mayor pro tempore, called for a voice vote on the motion. The motion to declare the mayor's position vacant carried by a 4-1 vote. Adjournment of the meeting was suspended until Higginbotham returned his keys to the town and left his position. Higginbotham refused to comply. On September 16, 2009, Higginbotham filed this action for injunction and declaratory relief, naming the Board and Aldermen, Caldwell Flood, Edna Cooper, George Taylor and Lionel Travers, Jr., as defendants. In relevant part, Higginbotham sought preliminary injunctions to prohibit the Board (i) from appointing any person as mayor at a September 16, 2009 scheduled meeting, (ii) from interfering with his duties as mayor, maintaining his status quo until domicile was proven, and (iii) from declaring a vacancy in the office of mayor due to the Board's lack of statutory authority.2 The trial judge denied a temporary restraining order and set the hearing on the preliminary injunction for September 25, 2009.3 On September 24, 2009, the Town of Waterproof filed a motion to intervene which the trial court granted.4
Higginbotham sought declaratory judgment voiding the actions of the Board of Aldermen in declaring his seat vacant and establishing him to be a resident and domiciliary of Waterproof. Higginbotham also sought statutory penalties for an Open Meetings Law violation. A continuance was granted to the defendants to October 9, 2009. Higginbotham filed a Motion for Reconsideration of the continuance on the grounds that the trial date was beyond the statutory ten-day period required for a preliminary injunction. The trial court denied his request. Higginbotham sought writs to this court which ordered that the hearing be held no later than October 5, 2009. The hearing was set for and conducted on October 1, 2009. No signed order granting the intervention is found in the record before us. Nevertheless, at the hearing on the preliminary injunction, the trial court stated on the record that the motion had been granted.
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Trial of the issues occurred on October 1, 2009. The court deferred ruling on the defendants' opposition to Waterproof's intervention and heard testimony from the town clerk and the five Town of Waterproof Aldermen who each testified as to their recollection of the removal of Higginbotham as mayor on September 14, 2009. After hearing the testimony and considering the evidence presented, the court determined that the Board had the authority to declare the mayor's seat vacant and denied all requests for preliminary injunction. A signed written judgment followed on October 2, 2009. Thereafter, this appeal by Higginbotham ensued. Discussion Municipalities, being creatures of the legislature, possess only such powers as are granted to them by the legislature in express words, or those that are necessarily or fairly implied in or are incidental to the powers so expressly conferred. Town of Pineville v. Vandersypen, 212 La. 521, 33 So. 2d 56 (1947). See also, Horseshoe Entertainment v. Bossier Parish Police Jury, 30,502, (La. App. 2d Cir. 6/26/98), 714 So. 2d 920, writ denied, 981941 (La. 11/6/98), 728 So. 2d 392. Title 33 of the Louisiana Revised Statutes provides for the governance of municipalities and sets forth the qualifications for Louisiana mayors in La. R.S. 33:384 as follows: The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.

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A mayor is an elected representative (La. R.S. 33:381), and under Chapter 5 of the Louisiana Election Code, (Title 18) La. R.S. 18:581(3), vacancy in public office is defined, as follows: "Vacancy" occurs in an elective office when the office is or will be unoccupied by reason of the death of the official who was elected to the office, or by reason of his retirement or resignation, removal from office by any means, failure to take office for any reason, or when it becomes certain that the person elected to the office will not take the office on the day when the term for which he was elected commences, or when the person elected to or holding the office no longer meets the residence or domicile requirements of that office, any declaration of retention of domicile to the contrary notwithstanding, or when an office is created due to a reclassification of a municipality. See also, La. Const. art. X,

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