#### Nat G. KIEFER v. Judge Ernest N. MORIAL et al.

No. 9194.

Court of Appeal of Louisiana, Fourth Circuit.

Decree Nov. 8, 1977.

Opinion Nov. 9, 1977.

Rehearings Denied Nov. 9, 1977.

Writ Refused Nov. 9,1977.

Martzell *&*Montero, John R. Martzell, Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant Nat G. Kiefer.

Jefferson, Bryan & Gray, Trevor G. Bryan, Sidney M. Bach, David Marcello, Donald A. Meyer, Stephen I. Dwyer, New Orleans, for defendant-appellee Ernest N. Morial.

Tucker, Schonekas & Garrison, Gibson Tucker, Jr., Montelepre & Montelepre, Philip Montelepre, and Louis A. DiRosa, New Orleans, for defendant-appellee Joseph V. DiRosa, Jr., New Orleans.

Robert L. Danner, Jr., Joseph W. Thomas, New Orleans, for defendants-appellees Governor Edwin Edwards, and Paul Hardy, Secretary of State.

Floyd J. Reed, Metairie, for defendant-appellee Board of Supervisors of Elections.

*1217Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, BEER and BAILES, JJ.

PER CURIAM.

The first primary election for Mayor of the City of New Orleans was held on October 1, 1977. Ernest N. Morial, defendant, and Joseph V. DiRosa finished in first and second place and were certified as candidates in the general election scheduled for November 12.

Plaintiff Nat G. Kiefer, who finished third, brought this suit on November 4, 1977, to contest Morial’s qualifications as a candidate and to have himself certified as a candidate in the general election in place of Morial against DiRosa. Made defendants along with Morial were DiRosa, the Board of Supervisors of Elections for the Parish of Orleans, the Governor and the Secretary of State.

DiRosa intervened, claiming that Morial became disqualified after the primary election and seeking to have himself declared elected Mayor as the only remaining qualified candidate in the general election.

Defendants filed various exceptions which were referred to the merits. The trial court overruled all exceptions after trial and dismissed the petition and the intervention. From this judgment Kiefer and DiRosa have appealed.

The following facts are pertinent to the case:

1. When Morial qualified for Mayor he was a judge of this Court.

2. LSA-R.S. 42:39 provides as follows:

> “A. After July 31, 1968, no person serving in or elected or appointed to the office of judge of any court, justices of the peace excepted, shall be eligible to hold or become a candidate for any national, state or local elective office of any kind whatsoever, including any national, state or local office in any political party organization, other than a candidate for the office of judge for the same or any other court.

> “B. The provisions of Subsection (A) of this section shall not be construed as prohibiting any person from resigning from his office as judge of any court for the purpose of becoming a candidate for nomination or election to any national, state or local elective office for which he is qualified and eligible; provided, however, that the resignation of any such person shall be and is made not less than twenty-four hours prior to the date on which he qualifies as a candidate for nomination or election to the office to which he seeks nomination or election. “C. If any judge elected or appointed, justice of the peace excepted, qualifies for any other elective position, other than those allowed by the provisions of this section, without complying with the provisions of Subsection (B) set forth above, his qualification as a candidate for the other office shall ipso facto be null and void.”

3. R.S. 18:396 provides that any objection to one’s candidacy must be filed within five days after the last date for qualifying, in this case August 11, 1977.

4. During this five day period there was a valid and subsisting order of the United States District Court granting declaratory relief to Morial and declaring R.S. 42:39 Unconstitutional. This order had been signed on February 7, 1977.

5. On November 3,1977, the United States Court of Appeals for the Fifth Circuit ordered the previous order of the United States District Court stayed.

6. On November 4, 1977, Morial resigned as a judge of this Court.

Kiefer was not required to bring his election contest suit within five days after the last date for qualifying because at that time the disqualifying statute was without effect. Therefore, his suit, brought on November 4, was timely under the circumstances.

However, until November 3 Morial was not disqualified because the effect of the disqualifying statute was suspended. Morial’s resignation as a judge on the day *1218after the statute regained its viability as a result of the order of the United States Court of Appeals was timely under the circumstances. Thus, there was never any effective impediment to his qualifications as a candidate.

Accordingly, we have affirmed the judgment of the trial court.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs.

The positions of both plaintiff and inter-venor depend upon the effect of the February, 1977 declaratory judgment of the United States District Court, declaring R.S. 42:39 unconstitutional and enjoining its enforcement.1

Plaintiff contends, in effect, that defendant’s failure to resign before qualifying was a calculated risk that depended entirely upon final victory in his effort to strike R.S. 42:39 as unconstitutional and that when the declaratory judgment and injunction were stayed on November 3, 1977, allowing enforcement of the prohibitory law, defendant’s failure to resign before qualifying rendered his qualification null and void *ab initio.*

The very purpose of an action for a declaratory judgment is to allow a person to ascertain his legal rights without having to breach a contract or violate a *civil*statute. If a person timely obtains a declaration of his legal rights and takes action in reliance on such a declaration, and the declaratory judgment is subsequently reversed (or stayed), it would be manifestly unjust (at least in the absence of damage to another person) to hold that such action was at his own risk and the judicial protection from the consequences of his action was of no significance.

In the present case defendant, far in advance of the August qualifying date, sought a declaratory judgment in order to remove an impediment to his qualification by orderly legal process. When R.S. 42:39 was judicially struck with nullity, he qualified for the office, complying with all other laws then in effect. And when R.S. 42:39 again became effective on November 3, he immediately resigned in order to remove the impediment presented by the prohibitory law.

Thus, defendant has at no time violated a prohibitory law which was in effect, and the impediment of R.S. 42:39 was never applicable as an impediment to his qualification. Of equal importance, no other person was harmed by defendant’s action in qualifying without resigning, which was done in reliance on the declaratory judgment.

Defendant’s November 4 resignation constituted reasonable compliance when R.S. 42:39 again became effective. To hold that defendant’s qualification was initially null and void under the circumstances of this case would deprive him of due process and would constitute an unconstitutional application of R.S. 42:39.

1

. Neither the original petition nor the intervention in this suit are preempted. If defendant’s qualification for office was null because of a prohibitory law, then the suit to declare the nullity is not governed by any specific time limits of the election law. This suit, which was brought immediately after the staying of the injunction that had prevented enforcement of the prohibitory law since the date of defendant’s qualification, was therefore timely.