Louisiana Cases August 10, 2020: Crosby v. Cantrelle

Case Description

COUNSEL FOR PLAINTIFF/APPELLANT, MILTON L. CROSBY, SR. AND MICHAEL A. HINYUB, Davidson S. Ehle, III, Gretna

COUNSEL FOR DEFENDANT/APPELLEE, NELSON J. CANTRELLE, III, Stephen M. Gele, New Orleans

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg

CHAISSON, J.

[301 So.3d 1236]

In this election contest suit, Milton L. Crosby, Sr. and Michael A. Hinyub appeal the trial court's August 3, 2020 judgment denying their Petition Objecting to the Candidacy of Nelson J. Cantrelle, III, Candidate for Judge, Second Parish Court, Division A. For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 22, 2020, Mr. Cantrelle qualified with the Jefferson Parish Clerk of Court to run for the position of Judge of Division A, Second Parish Court. In accordance with the manner of qualifying provisions contained in La. R.S. 18:461(A), Mr. Cantrelle paid his qualifying fee and filed with the Clerk a signed and notarized Notice of Candidacy form, which included the following certification required by La. R.S. 18:463(A)(2)(a)(iv) :

If I am a candidate for any office other than United States senator or representative in congress, that for each of the previous five tax years, I have filed my federal and state income tax returns, have filed for an extension of time for filing either my federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.

On July 30, 2020, Mr. Crosby and Mr. Hinyub, both registered voters in the Parish of Jefferson, filed a Verified Petition Objecting to the Candidacy of Mr. Cantrelle. In their petition, plaintiffs alleged that pursuant to a public records request, the Louisiana Department of Revenue ("LDR") responded by letter that Mr. Cantrelle has not filed the required state tax forms for the years 2017 and 2018. They further alleged that upon information and belief, Mr. Cantrelle was required to file the state tax forms for the last five years. They alleged, therefore, that Mr. Cantrelle's certification contained in his Notice of Candidacy is false.

Accordingly, plaintiffs alleged that Mr. Cantrelle is disqualified to run for judge because he both failed to file his state tax returns for 2017 and 2018 and falsely certified on his notice of candidacy that he had filed those returns. Plaintiffs further alleged that Mr. Cantrelle is therefore not qualified to run in the primary election because he has not qualified in the manner prescribed by law, pursuant to La. R.S. 18:492(A)(1), and because he does not meet the qualifications for the office he seeks in the primary election, pursuant to La. R.S. 18:492(A)(3).

At the trial of this matter, held on August 3, 2020, plaintiffs called Vanessa LaFleur,

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Director of Policy Services and a custodian of records at the LDR, to testify regarding the public records request and search for Mr. Cantrelle's tax filings. Ms. LaFleur testified that four different public records requests concerning Mr. Cantrelle's state tax returns were received in July of 2020, that a records search was conducted on July 29, 2020, resulting in a July 30, 2020 letter confirming that the Department could confirm tax filings by Mr. Cantrelle for tax years 2015, 2016, and 2019, but could not confirm filings for tax years 2017 and 2018.

In response to these allegations, Mr. Cantrelle asserted that his 2017 and 2018 tax returns were filed on July 21, 2020, via certified mail, and thus his certifications on his Notice of Candidacy form signed on July 22, 2020, were true and correct. Specifically, Mr. Cantrelle testified that on July 20, 2020, he and his wife, Chelsea Cantrelle, picked up his 2017 and 2018 state tax returns from his accountant, Mr. Robert Logreco, and that Mrs. Cantrelle mailed them on the afternoon of July 21, 2020, to the LDR. Mr. Cantrelle testified that at the moment he qualified to run for judge on July 22, 2020, he "absolutely believed" that his 2017 and 2018 state tax returns had been mailed to the LDR the previous day and that nothing has occurred since that day to change that belief. Lastly, Mr. Cantrelle testified that, based upon these occurrences, he filed his 2017 and 2018 Louisiana state tax returns before he signed the qualifying affidavit.

Mr. Robert Logreco testified that he is a Certified Public Accountant and that he prepared Mr. Cantrelle's 2017 and 2018 Louisiana state tax returns prior to July 20, 2020. He further testified that Mr. Cantrelle and his wife picked up the returns on July 20, 2020.

Mrs. Cantrelle testified that she was with her husband at Mr. Logreco's office on July 20, 2020, when he picked up the 2017 and 2018 tax returns. She further testified that she printed mailing labels and prepared registered return receipt tags, placed the returns in separate envelopes, and took those envelopes to the United States Postal Office in Harvey, Louisiana, where she mailed them via registered return receipt to the LDR. Mrs. Cantrelle confirmed that the documents contained within the envelopes that she mailed were in fact Mr. Cantrelle's 2017 and 2018 Louisiana state tax returns. Lastly, Mrs. Cantrelle testified that she followed the progress of the envelopes by entering the tracking numbers on the receipts into the USPS online web-based tracking system, which showed that the envelopes were "delivered" on July 27, 2020, at 7:04 a.m. The

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plaintiffs did not call any additional witnesses in rebuttal to Mr. Cantrelle's evidence.

At the conclusion of the trial, the trial court found the Mr. Cantrelle properly qualified for the election and accordingly rendered judgment that plaintiffs' petition is denied. On appeal, plaintiffs argue that the trial court erred in denying their petition because defendants failed to present evidence rebutting the testimony of Ms. LaFleur that the 2017 and 2018 tax returns had not been filed and because the trial court legally erred in its application of Louisiana Administrative Code Title 61, Part 1, § 4911.

DISCUSSION

Appellate courts review a trial court's findings of fact under the manifest error or clearly wrong standard of review. Smith v. Charbonnet , 17-0634 (La. App. 4 Cir. 8/2/17), 224 So.3d 1055, 1059, writ denied , 17-1364 (La. 8/7/17), 222 So.3d 722. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Salgado v. Tri-Par. Roofing & Home Improvements , 19-407 (La. App. 5 Cir. 5/27/20), 296 So.3d 1201. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. Buford v. Williams , 11-568 (La. App. 5 Cir. 2/14/12), 88 So.3d 540, 545, writ denied , 12-264 (La. 4/27/12), 86 So.3d 630. If a decision is based on a trial court's erroneous interpretation of the law, rather than an exercise of its discretion, it is not entitled to deference. North v. Doucet , 18-437 (La. App. 5 Cir. 8/1/18), 253 So.3d 815, 818, writ denied , 18-1294 (La. 8/3/18), 249 So.3d 829.

In an election contest, because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to the candidacy bears the burden of proving the candidate should be disqualified. Landiak v. Richmond , 05-758 (La. 3/24/05), 899 So.2d 535, 541. Although Louisiana law favors candidacy, once a plaintiff makes a prima facie showing of grounds for disqualification, the burden shifts to the defendant to rebut the showing. Russo v. Burns , 14-1963 (La. 9/24/14), 147 So.3d 1111, 1114.

La. R.S. 18:492(A) states:

An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:

(7) The defendant falsely certified on his notice of candidacy that for each of the previous five tax years he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both as provided in R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.

Because the ground for disqualification as it pertains to tax returns is the falsity of the candidate's certification in his Notice of Candidacy, and because the Louisiana Administrative Code's "postmark" rule allows for a retroactive "filing" date for tax returns, courts in our state have been faced with election challenge suits, like the

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one before us, where a challenged candidate has filed his Notice of Candidacy with a certification that he has filed his required tax returns, after he has belatedly attempted to file past due tax returns by mailing them, but before actual physical receipt of those returns by the LDR. In these cases, courts are faced with examining the factual circumstances surrounding the mailing of the returns in order to determine whether the candidate's certification of the "filing" of those returns is truthful.

In conducting our review of this matter, before we examine the evidence that was before the trial court regarding the factual circumstances surrounding the mailing of Mr. Cantrelle's returns, we must first dispose of plaintiffs' argument that in determining the date of filing of Mr. Cantrelle's tax returns, he cannot rely upon the Louisiana regulation's "postmark" rule because his 2017 and 2018 state tax returns were already past due at the time that his wife mailed them. In this regard, plaintiffs further argue that if Mr. Cantrelle cannot rely upon the "postmark" rule, then his returns were not "filed" with the LDR at the time of his Notice of Candidacy certification and therefore that certification is necessarily false.

Louisiana Administrative Code Title 61, Part 1, § 4911 states:

1. Delivery by the United States Postal Service. A return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service. The postmark must bear a date on or before the last date prescribed for filing the return, report or other document in order to be considered timely filed. If the postmark on the envelope is not legible, the taxpayer has the burden of proving the date that the postmark was made. If the return, report or other document is sent by United States registered or certified mail, the date of registration is treated as the date of postmark. A postage meter date is considered a valid postmark date provided it does not conflict with a legible United States Postal Service postmark date. If the dates conflict, the United States Postal Service date shall override the meter date.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9. We agree with the Louisiana Supreme Court's conclusion in Russo that the language of Louisiana Administrative Code Title 61, Part 1, § 4911 is unambiguous. Russo , 147 So.3d at 1114.

The first sentence of § 4911 states that "a return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service." Plaintiffs contend, with no apparent supporting legal authority, that the second sentence of the regulation, stating that "[t]he postmark must bear a date on or before the last date prescribed for filing the return, report or other document in order to be considered timely filed " (emphasis added), requires that a return be mailed by its prescribed due date in

[301 So.3d 1240]

order for the "postmark" rule to control the date of filing. Essentially, plaintiffs argue that the second sentence negates the first sentence of the regulation for returns that are already untimely when mailed. We disagree with plaintiffs' interpretation of § 4911.

Pursuant to the clear and unambiguous language of this regulation, a return that is untimely when it is mailed remains untimely for tax purposes regardless of the "postmark" rule; however, under the unambiguous language of the first sentence, the date of the postmark is still considered the date of filing of that return. Therefore, we conclude that the "postmark" rule remains applicable to a return that is mailed after the last date prescribed for its filing, and the trial court did not err as a matter of law in its interpretation of § 4911, finding the "postmark" rule applicable. Mr. Cantrelle was entitled to rely on the "postmark" rule, provided that the circumstances surrounding the mailing of his returns is sufficient to justify that reliance. We now address that issue.

The trial court, citing § 4911, found that because the returns were sent by certified mail in a properly addressed envelope with sufficient postage, Mr. Cantrelle's 2017 and 2018 state tax returns were filed on July 21, 2020, the date of the postmark, and therefore Mr. Cantrelle did not make a false certification on his Notice of Candidacy.

In its decision, the trial court relied on the Supreme Court's ruling in Russo v. Burns , 14-1963 (La. 9/24/14), 147 So.3d 1111. That case also involved an election challenge on the ground that the candidate, Mr. Burns, had purportedly falsely certified on his August 20, 2014 Notice of Candidacy that he had filed his tax returns for the years 2010, 2011, 2012, and 2013. At trial, the plaintiff, Mr. Russo, introduced correspondence to and from the LDR wherein the LDR stated it had no tax returns on file for Mr. Burns for the years 2010 through 2013. A representative for the LDR also testified at trial that she was unable to locate any tax returns filed by Mr. Burns since 2009. Mr. Burns testified that he hired a tax preparer to file his tax returns for him in early August of 2014. The tax preparer testified that the returns were mailed, but not sent via certified mail. A United States Postal Service "Certificate of Mailing" dated August 15, 2014, was admitted into evidence, and the tax preparer testified that she kept the certificate to document the tax returns had been mailed. Mr. Russo then presented

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rebuttal testimony from another individual who provided other certificates of mailing from that same post office which showed postage paid affixed to the certificates unlike the ones placed into evidence by Mr. Burns. The trial court found that Mr. Burns had presented sufficient evidence to rebut the prima facie case established by Mr. Russo. The Fourth Circuit Court of Appeal affirmed the trial court's judgment. The Louisiana Supreme Court reversed this decision, citing the "unambiguous language regarding filing provided by the LDR's regulations," in particular Louisiana Administrative Code Title 61, Part 1, § 4911. In reaching its conclusion to disqualify Mr. Burns, the Supreme Court stated, "Without sending the returns via certified mail or otherwise ensuring their delivery to LDR, [the candidate] could not have known whether or not his tax returns had been filed pursuant to Louisiana regulation when he signed his Notice of Candidacy." Id . at 1114 (emphasis in original; italics added).

The case before us is factually distinguishable from Russo . Like Mr. Russo, plaintiffs here provided evidence of correspondence from the LDR showing that, as of July 30, 2020, tax returns for Mr. Cantrelle could not be found in the LDR's system. Also, a representative from the LDR testified that the tax returns were not found. This evidence is sufficient to establish plaintiffs' prima facie case.

The evidence presented by Mr. Cantrelle to rebut plaintiffs' prima facie case is more substantial than the evidence in Russo . Mrs. Cantrelle testified that she placed the tax returns in the envelopes, drove them to the post office, and mailed them to the LDR in Baton Rouge via certified mail. Copies of both of the U.S. Postal Service's Certified Mail Receipts were introduced into evidence. These receipts show the amount of postage paid as well as a July 21, 2020 registration date.

Having found that Mr. Cantrelle was entitled to rely upon the "postmark" rule, we conclude that this evidence alone was sufficient to prove that his 2017 and 2018 state tax returns were filed as of July 21, 2020, the date that they were mailed by certified mail. Having mailed his returns by certified mail, Mr. Cantrelle could have reasonably known and believed that his returns would be delivered to the LDR and would be considered filed as of July 21, 2020. See Russo , 147 So.3d at 1114 (" without sending the returns via certified mail or otherwise ensuring their delivery to LDR, Burns could not have known whether or not his tax returns had been filed pursuant to Louisiana regulation when he signed his Notice of Candidacy" [emphasis in original; italics added], certainly implying that Mr. Burns could have reasonably known of delivery if he had sent his returns by certified mail). We find that the trial court was not manifestly erroneous in determining that Mr. Cantrelle's returns were filed as of July 21, 2020, and that his certification in his Notice of Candidacy on July 22, 2020, was not false.

Plaintiffs appear to argue in their appellate brief that the reasoning of the Louisiana Supreme Court in Russo , requires a challenged candidate who seeks to rely upon the "postmark" rule to definitively

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prove actual delivery of returns mailed by certified mail to the LDR in order to rely upon the "postmark" rule to establish the filing date. Specifically, they cite to language from Russo , that "returns which have not been delivered to LDR by the United States Postal Service have not been filed pursuant to this clear language [of § 4911]." Russo , 147 So.3d at 1114 (emphasis in original). While we recognize that ultimate delivery of the tax return mailed by certified mail is required for application of the "postmark" rule for tax purposes, we disagree with plaintiffs' assertion that the challenged candidate must definitively prove actual delivery of returns mailed by certified mail to the LDR for the purpose of showing that his certification in his Notice of Candidacy was not false. We reach this conclusion for the following reasons.

The Supreme Court in Russo disqualified Mr. Burns on the ground that he falsely certified that he had filed his tax returns, not on the ground that he did not file his tax returns (which is not a ground for disqualification pursuant to La. R.S. 18:492 ). Therefore, while events occurring subsequent to the date of Mr. Burns' certification (such as later actual delivery of the tax returns or no such evidence of delivery), may serve to confirm or refute the certification of filing, those subsequent events do not change the knowledge that Mr. Burns possessed on the date of his certification. Consequently, it is Mr. Burns' knowledge of events prior to and up until the time of his certification that is relevant to the analysis.

Mr. Burns, who was attempting to rely upon the "postmark" rule, produced no evidence of subsequent actual delivery of his returns to the LDR. If the Supreme Court required such proof, it would have ended its analysis by indicating that Mr. Burns failed to prove actual delivery to the LDR. Instead, the Supreme Court stated that " without sending the returns via certified mail or otherwise ensuring their delivery to LDR, Burns could not have known whether or not his tax returns had been filed pursuant to Louisiana regulation when he signed his Notice of Candidacy." Id . (emphasis in original; italics added). Clearly, the Supreme Court, in disqualifying Mr. Burns for making a false certification, considered what Mr. Burns could have known, or "could not have known," at the time he made his certification, based upon the circumstances surrounding the mailing ( e.g. , whether the returns were mailed by certified mail).

Our interpretation of the Supreme Court's ruling in Russo is that the challenged candidate is not required to prove actual delivery to the LDR, but that the challenged candidate must show reliable circumstances of mailing ( e.g. , by certified mail), that would tend to ensure delivery, in order to maintain a reasonable belief that his returns have been filed as of the date of his certification to that effect in his Notice of Candidacy. Accordingly, for purposes of an election challenge, although proof of subsequent actual delivery of the return to the LDR definitely would have evidentiary value to either corroborate or refute the truth of the candidate's certification, it is not essential to, and its unavailability at the time of trial is not dispositive of, the question of whether the candidate's prior certification was truthful.

In other words, once a plaintiff makes a prima facie case for disqualification and the burden of proof shifts to the challenged candidate, the challenged candidate cannot carry his burden by simply professing a purely subjective, self-serving and unsupported "belief" that his returns have been filed. To the contrary, the challenged candidate must produce objective supporting evidence regarding the circumstances of mailing ( e.g. , proof of mailing by certified mail) to render his belief regarding

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filing a reasonable belief. In this case, Mr. Cantrelle clearly provided such objective evidence supporting his belief regarding the filing of his state tax returns.

Regardless of our interpretation of the Supreme Court's reasoning in Russo , to the extent that proof of actual delivery of the returns to the LDR is required in order to rely upon the "postmark" rule for purposes of this election challenge, we find that Mr. Cantrelle provided sufficient proof of that delivery.

Mrs. Cantrelle testified that she followed the progress of the envelopes by entering the tracking numbers on the receipts into the USPS online web-based tracking system. Printed copies of the tracking information appearing on the USPS online web-based tracking system for both of these certified receipts were introduced into evidence by Mr. Cantrelle. Those copies show that the envelopes were in the possession of the USPS in Harvey on July 21, 2020, and were "delivered" on July 27, 2020, at 7:04 a.m.

In our opinion, this evidence of delivery is also sufficient to rebut plaintiffs' prima facie case and shift the evidentiary burden back to plaintiffs to prove that the returns were not delivered and that Mr. Cantrelle falsely certified his Notice of Candidacy. In response to this evidence, plaintiffs failed to produce any contrary evidence and therefore failed in their burden of proof. We find no manifest error in the trial court's factual findings to this effect.

Plaintiffs also alleged that Mr. Cantrelle is disqualified to run for judge because he has not qualified in the manner prescribed by law, pursuant to La. R.S. 18:492(A)(1), and because he does not meet the qualifications for the office he seeks in the primary election, pursuant to La. R.S. 18:492(A)(3). However, because these alleged grounds of disqualification relate solely to the issue of the filing of Mr. Cantrelle's state tax returns and his certification in his Notice of Candidacy regarding those returns, and having found that Mr. Cantrelle's certification in his Notice of Candidacy regarding those returns was not false, we pretermit any further discussion of disqualification pursuant to La. R.S. 18:492(A)(1) or La. R.S. 18:492(A)(3).

CONCLUSION

Having found no legal or manifest error in the trial court's judgment denying plaintiffs' petition challenging the qualifications of Mr. Cantrelle, we hereby affirm the judgment of the trial court.

AFFIRMED