Louisiana Cases August 25, 2023: Henry v. Bell

Case Description

1

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-08400, DIVISION "N-8" HONORABLE ETHEL SIMMS JULIEN, JUDGE

DEVIN JONES JOHN T. FULLER &ASSOCIATES, L.L.C.COUNSEL FOR PLAINTIFFS/APPELLANTS

2

HOLLIS SHEPHERD ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLEE - RICHARD BELL, SR.

MADRO BANDARIES MADRO BANDARIES, P.L.C. COUNSEL FOR DEFENDANT/APPELLEE - THE HONORABLE DARREN LOMBARD, CHIEF ELECTIONS OFFICER AND CLERK OF CRIMINAL COURT

(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge Rachael D. Johnson, Judge Karen K. Herman, and Judge Nakisha Ervin-Knott)

KAREN K. HERMAN, JUDGE

AT 2:40 PM

3

This is an election contest suit. Plaintiffs, Keisha Henry and Cedric Brumfield, III, ("Plaintiffs") appeal the trial court's August 22, 2023 judgment, which denied their Objection to Candidacy and Petition to Disqualify Candidate, Defendant, Richard Bell, Sr. ("Mr. Bell"), for the State Representative House District 99.

For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On August 8, 2023, Mr. Bell filed a sworn Notice of Candidacy form to qualify as a candidate for State Representative House District 99. Paragraph 9 of the form, included the following certification as required by La. R.S. 18:463(A)(2)(a):

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 August 17, 2023, Plaintiffs filed an Objection to Candidacy and Petition to Disqualify Candidate alleging that Mr. Bell falsely certified on

4

his Notice of Candidacy form that he filed tax returns for the years 2018, 2019, 2020, 2021, or 2022.

The matter proceeded to trial on August 21, 2023. At trial, Plaintiffs introduced a copy of the Louisiana Department of Revenue's response to a public records request, providing that Mr. Bell did not file income taxes from 2018 to 2022, and Mr. Bell's Notice of Candidacy form.

Brad Blanchard ("Mr. Blanchard") of the Louisiana Department of Revenue authenticated the department's response to a public records request. He testified that he received a public records request from Plaintiffs' counsel on August 2, 2023. Mr. Blanchard confirmed that Mr. Bell had not filed state income tax returns for 2018, 2019, 2020, 2021, and 2022.

Plaintiffs both testified that they are registered voters in Orleans Parish. Plaintiff, Cedric Brumfield, also stated that the basis for his objection to Mr. Bell's candidacy was that Mr. Bell certified on his Notice of Candidacy form that he failed to file tax returns for the past five years.

Mr. Bell testified that he signed the Notice of Candidacy form and acknowledged Paragraph 9. Mr. Bell stated that his certification on Paragraph 9 was to that portion which provided that he "was not required to file either a federal or state income tax return." He testified that he was not required to file tax returns because he had "no taxable income." He explained that the Internal Revenue Service ("IRS") website indicated that

5

he did not have to file taxes. Mr. Bell further stated that he was never informed by the IRS that he was required to file an income tax return.

Mr. Bell testified that he receives "Disability Social Security" and retirement checks from the military and Avondale. He estimated that he receives $2,100.00 from Social Security and $1,547.00 in retirement each month. Mr. Bell further stated that his annual income from 2018 to the present is over $40,000.00. In response to the trial court's questioning, Mr. Bell further testified that he had no documentation from the IRS advising him he did not have to pay taxes.

Mr. Bell called Mary Anna Elizabeth Butler ("Ms. Butler") to the stand. She stated that Mr. Bell is a "permanent volunteer and never paid by the organizations he works with." Ms. Butler indicated that Mr. Bell is a reverend or associate reverend at a church and did not believe he is compensated by the church. She conceded she is not a bookkeeper for the church.

At the conclusion of the hearing, the trial court acknowledged that it did not have any evidence regarding Mr. Bell's income level to establish that he did not have to pay taxes. However, the trial court determined that based on the testimony provided, Mr. Bell "had a good-faith belief that he didn't have to file any taxes on the type of income received." The trial court then

6

denied Plaintiffs' Objection to Candidacy and Petition to Disqualify Candidate.

The trial court executed a judgment to this effect on August 22, 2023. The judgment stated, in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Defendant, Richard Bell, Sr. against Plaintiffs, Keisha Henry and Cedric Brumfield, III denying Plaintiffs['] Objection to Candidacy and Petition to Disqualify Candidate, Defendant, Richard Bell Sr. The court finds that Plaintiffs failed to make a prima facie case establishing that Defendant had violated paragraph 9 on his Notice of Candidacy (Qualifying Form).

Plaintiffs' timely appeal followed. Plaintiffs assert in this appeal that the trial court erred in declining to disqualify Mr. Bell when: 1) an LDR representative testified that a diligent search of LDR records cannot locate any 2018, 2019, 2020, 2021, and 2022 state income tax returns from Mr. Bell; and 2) Mr. Bell did not produce any documentary evidence, nor any evidence aside from his own self-serving testimony, that he was not required to file returns for those years. As explained more fully below, we find Plaintiffs' assignments of error have merit.

STANDARD OF REVIEW AND BURDEN OF PROOF

In Smith v. Charbonnet , 2017-0634, p. 5 (La.App. 4 Cir. 8/2/17), 224 So.3d 1055, 1058-59, this Court outlined the standard of review and burden of proof in election suits, as follows:

Appellate courts review a trial court's findings of fact under the manifest error or clearly wrong standard. Nixon v. Hughes , [20]15-1036, p. 2 (La.App. 4 Cir. 9/29/15), 176 So.3d 1135, 1137. "Regarding issues of law, the standard of review of an appellate court is simply whether the court's interpretative decision is legally correct." Id . "[I]f the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court." Id . ....

"The person objecting to the candidacy of a person bears the burden of proof." Nixon , [20]15-1036, p. 3, 176 So.3d at 1137.

7

"Although Louisiana law favors candidacy, once an objector makes a prima facie showing of grounds for disqualification, the burden shifts to the defendant to rebut the showing." Russo [ v. Burns ], [20]14-1963, p. 4 [(La. 9/24/14)] 147 So.3d [1111][,]1114.

DISCUSSION

Based on the record before us, we find that Plaintiffs carried their burden of proof under La. R.S. 18:492(A)(7). Mr. Blanchard testified to and produced documentary evidence that there was no record that Mr. Bell filed a Louisiana tax return from 2018 to 2022. This Court has considered such evidence to be sufficient for a plaintiff to establish a prima facie case in similar election contest cases. See Smith, 2017-0634, pp. 5-6, 224 So.3d at 1059; Irvin v. Brown , 2017-0614, pp. 5-7 (La.App. 4 Cir. 7/28/17), ___So.3d ___,___, 2017 WL 3205858, at *3.

Having found that Plaintiffs presented a prima facie case to disqualify Mr. Bell, the burden of proof shifted to Mr. Bell to rebut the showing and prove that the attestations made on his Notice of Candidacy form, i.e. , he was not required to file a tax return for the prior five years. The trial court record demonstrates that Mr. Bell failed to present any documentary evidence to show that he had no taxable income and was, therefore, not required to file a tax return for the years in question. Moreover, we find that Mr. Bell's testimony regarding his "belief" (based on what he read on the IRS public website and based on the fact that he was never informed by the IRS that he was required to file a tax return) that he was not required to file a return for the years in question, is insufficient to rebut Plaintiffs' prima facie case.

8

This Court addressed a similar issue in Irvin , 2017-0614, p. 2,___ So.3d at___2017 WL 3205858, at *1, where plaintiffs' objected to the candidacy of Mr. Brown, asserting that he falsely certified on his Notice of Candidacy form that he had filed his state and federal income taxes or was not obligated to file taxes, in contravention of La. R.S. 18:463(A)(2)(a)(iv). Mr. Brown acknowledged at trial that he had no evidence to show that he filed state income tax returns for 2015 and 2016, and he had no documentary evidence to establish that he was not required to file a tax return.

The trial court found that plaintiffs did not make a prima facie showing, and ruled in favor of Mr. Brown. On appeal, this Court reversed, stating:

Once Plaintiffs established a prima facie case to disqualify Mr. Brown, the burden of proof shifted to Mr. Brown to prove that the attestations made in his Notice of Candidacy form were true-specifically, that he did not file tax returns because he was not required to do so. Mr. Brown did not dispute these facts; instead, he merely asserted-without any documentary proof-that he was not required to file tax returns for the years 2015 and 2016. Mr. Brown also admitted that [his company] A.J.A. made "some money" and received compensation. We find these admissions, coupled with the fact that he did not present any documentary evidence to show he was not required to file taxes, were insufficient evidence to rebut Plaintiffs' prima facie case.

Irvin, 2017-0614, pp. 6-7,___ So.3d at___, 2017 WL 3205858, at *3.

In Smith , plaintiffs introduced records from the LDR demonstrating that the LDR could not confirm the filing of Mr. Charbonnet's 2015 and 2016 state tax returns. At trial, Mr. Charbonnet presented no evidence that his 2012 and 2016 tax returns had been "filed," as defined by LDR regulation, when he completed the Notice of Candidacy form. The trial court denied plaintiffs' petition, finding that Mr. Charbonnet "had no intent to falsely certify." Smith , 2017-0634, p. 4, 224 So.3d at 1058.

9

On appeal, this Court reversed, finding that based on the LDR records, plaintiffs "presented a prima facie case to disqualify Mr. Charbonnet." Thus, "the burden then shifts to Mr. Charbonnet to prove that the information contained in his Notice of Candidacy was true and correct." Id . at. p. 5, 224 So.3d at 1059. This Court further found that:

Based on Mr. Charbonnet's failure to rebut Plaintiffs' showing that his 2012 and 2016 tax returns were not delivered to LDR and, therefore, were not "filed," Mr. Charbonnet's lack of intent to deceive based on his good faith reliance on assurances from his CPA that his tax returns had, in fact, been filed, is irrelevant. See Nixon , [20]15-1036, p. 5, 176 So.3d at 1138.

Id. at p. 6, 224 So.3d at 1059.Under the circumstances presented in Smith , we concluded that "it was an error of law for the trial court to consider Mr. Charbonnet's state of mind in deciding whether he made a false certification." Id . at pp. 6-7, 224 So.3d at 1059-1060.

Based on our thorough review of the record in the present case, and considering the applicable jurisprudence, we find that the trial court erred in finding that Plaintiffs failed to make a prima facie showing of the grounds for Mr. Bell's disqualification. We also find that Mr. Bell failed to rebut that showing.

DECREE

For the foregoing reasons, we reverse the trial court's judgment, grant Plaintiffs' Petition to Disqualify Candidate, and disqualify Mr. Bell from candidacy for State Representative House District 99.

REVERSED.

KKH

TFL

PAB

RDJ

NEK

10

JCL

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent for the reasons assigned by Judges Ledet, Jenkins, and Belsome and further note that in Irvin v. Brown , 17-0614 (La.App. 4 Cir. 7/28/17), __So.3d__, 2017 WL 3205858, there was no documentary proof presented to the district court. Here, the candidate submitted documentation in support of his claim that he was not required to file returns, which the district court reviewed. Irving does not address the issue as to whether the documentary evidence submitted to the court was sufficient to establish a prima facie case. The majority erred in the broad application of the Irving case as a bright line burden-shifting rule, especially in light of Nocito v. Bussey , 20-0986 (La. 8/15/20), 300 So.3d 862, which provided:

The plaintiff here offered into evidence only [the candidate's] stipulation that he did not file a tax return in 2019 to establish her prima facie case. That evidence, with nothing more, was insufficient to establish a prima facie case that [the candidate] falsely certified on his Notice of Candidacy 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 returns, or both, or was not required to file either a federal or state income tax return, or both."

Id. , 20-0986, p. 3, 300 So.3d at 863.

For these reasons, I cannot conclude the district court was manifestly erroneous, and I respectfully dissent.

11

RML

LEDET, J., DISSENTS WITH REASONS

I would affirm the trial court's judgment denying the objection to candidacy and petition to disqualify candidate-Richard Bell, Sr.-for two reasons. First, in election cases, it is well settled that "[a]ny doubt as to the qualifications of a candidate to run for public office should be resolved in favor of permitting the candidate to run for public office." Nocito v. Bussey , 20-00986, p. 3 (La. 8/15/20), 300 So.3d 862, 863 (internal quotations and citations omitted).

Second, the record is unclear as to what documents presented by Mr. Bell- who appeared pro se -the trial court considered. For this reason, I cannot conclude the trial court was manifestly erroneous.

For these reasons, I respectfully dissent.

12

SCJ

JENKINS, J., DISSENTS WITH REASONS

I respectfully dissent from the majority opinion, and I would affirm the trial court's judgment denying plaintiffs' objection to candidacy and petition to disqualify candidate. I disagree with the majority that plaintiffs presented a prima facie case to disqualify Mr. Bell. From my review of the record, and in light of relevant jurisprudence, I find no manifest error in the trial court's ruling.

In Nocito v. Bussey, 20-0986, p. 2 (La. 8/15/20), 300 So.3d 862, 863, the Louisiana Supreme Court discussed the initial burden of proof and burden shifting in cases involving the objection to a candidacy, stating in pertinent part as follows:

Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to a candidacy bears the burden of proving that the candidate is disqualified. Landiak v. Richmond, 2005-0758, pp. 6-7 (La. 3/24/05), 899 So.2d 535, 541. As this Court explained in Landiak:

Generally, the legal term ‘burden of proof' “denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law.” Black's Law Dictionary (8th ed). Under Louisiana's civil law, the “burden of proof” may shift back and forth between the parties as the trial progresses. Therefore, when the burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on which the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is

13

not required to present any countervailing evidence.... Any doubt as to the qualifications of a candidate to run for public office should be resolved in favor of permitting the candidate to run for public office. Dixon v. Hughes , 587 So.2d 679 (La. 1991). [emphasis in original]

In this case, plaintiffs established that the Louisiana Department of Revenue was unable to locate any tax returns for Mr. Bell for the years of 2018 through 2022. However, plaintiffs did not offer clear evidence that Mr. Bell had taxable income during those years that would legally obligate him to file tax returns. See Brehm v. Shaddinger , 21-59, p. 9 (La.App. 5 Cir. 2/10/21), 315 So.3d 363, 369. Mr. Bell testified that he was not required to file tax returns for those years, because he did not have any taxable income. His testimony established that he is retired and receives a military pension, Social Security benefits, and some retirement from Avondale. Neither his testimony nor any evidence introduced into the record established the exact amount of his income or whether or not it was taxable income.

In consideration of this record, I find there is insufficient evidence to conclude that the trial court manifestly erred in its judgment finding that plaintiffs failed to meet their burden of proof to establish that Mr. Bell made a false certification on his Notice of Candidacy form. Consequently, I would affirm the trial court's judgment.

14

TG

CHASE, J., CONCURS IN THE RESULT WITH REASONS

I respectfully concur in the result. As noted in the majority opinion, Paragraph 9 of the Notice of Candidacy form provides:

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.

Plaintiffs submitted evidence indicating that Mr. Bell failed to file his state income tax returns in the years 2018, 2019, 2020, 2021, and 2022. Mr. Bell then testified that he averaged a gross income of approximately $40,000.00/year during that time period. According to the IRS, a married individual whose gross income is in excess of $27,400.00 must file a tax return whether filing jointly or separately. Although Mr. Bell receives Social Security and military retirement benefits, which may be subject to a tax exemption, Mr. Bell admitted having a gross income of approximately $40,000.00 therefore requiring him to file a federal tax return. Pursuant to La. R.S. 47:101, when a federal tax return is required, a Louisiana tax return is also required. Considering the evidence presented in the trial court, I find that Plaintiffs presented a prima facie showing that Mr. Bell did not file state income taxes despite being required to do so. Therefore, the trial court erred in failing to disqualify Mr. Bell based upon his erroneous certification.

15

DN

ATKINS, J., CONCURS

I agree with the Majority's decision to reverse the trial court's judgment; yet I write separately to address and emphasize one issue, namely, that based on the record evidence before this Court, Mr. Bell failed to rebut Plaintiffs' prima facie case.

That is, as the Majority Opinion correctly explains, Plaintiffs established their prima facie case for disqualification with 1) the response from the Louisiana Department of Revenue ("LDR") to the public records request and with the testimony of Brad Blanchard from the LDR, both of which provided that the LDR had no confirmation of tax filings for Richard Bell, Sr. ("Mr. Bell"), for the years 2018, 2019, 2020, 2021, and 2022; and 2) Mr. Bell's testimony as to the nature and amount of his income, as well as his admissions that he did not file income tax returns for the years 2018, 2019, 2020, 2021, and 2022. See Brehm v. Shaddinger , 2021-0059, pp. 9-10 (La.App. 5 Cir. 2/10/21), 315 So.3d 363, 370. Because Plaintiffs made their prima facie case, the burden of proof then shifted to Mr. Bell to prove that the attestations in his Notice of Candidacy Qualifying Form were true, specifically that he did not file tax returns because he was not required to do so. See Irvin v. Brown , 2017-0614, p. 6 (La.App. 4 Cir. 7/28/17), So.3d,, 2017 WL 3205858, at *3.

16

Mr. Bell acknowledged that he received income in excess of $40,000 for the years 2018, 2019, 2020, 2021, and 2022; and he contended that this income was exempt from taxation. However, there is no documentary evidence in the record before this Court to confirm Mr. Bell's contention. Though I recognize that Mr. Bell was not represented by counsel at the hearing and that the trial court may have considered some of the documents Mr. Bell brought with him to the hearing in reaching its decision, those documents are not in the record before this Court. "[T]his Court is a court of record and can only review what is contained in the record on review." JoAnn Place v. Ricard , 2022-0456, p. 12 (La.App. 4 Cir. 12/27/22), 356 So.3d 518, 527 (quoting NOLA 180 v. Harrah's Operating Co. , 2012-0072, p. 3 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 888).

Considering the foregoing, the record does not demonstrate that Mr. Bell rebutted Plaintiffs' prima facie case. Accordingly, I concur.

17

RLB

BELSOME, J. DISSENTS WITH REASONS.

I agree with the trial judge and would affirm.

The legal basis of this candidacy objection is La. R. S. 18:492. In pertinent part it provides that:

A. 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. [Emphasis added.]

The candidate testified at trial that he believed that he was not required to file federal or state income tax returns. Under rigorous questioning by the trial court, he stated the basis for his belief. Using the online filing system of the Internal Revenue Service (“IRS”) he had attempted to prepare a tax return. Notwithstanding the fact that he made errors in his attempt, the system advised him that no return was due. The candidate also testified that it was his understanding that IRS would notify him within three years if a return was required. The trial court reviewed documents that the candidate brought to court to assist in his

18

testimony. These documents were not introduced into evidence but they did provide the trial judge with insight into the candidate's motivation and the basis for his belief that he was not required to file a return.

The statute in question requires the candidate to certify that he has filed a return or that no return was due. In this case, the candidate certified the latter. The testimony of a representative of the Louisiana Department of Revenue that the candidate had not filed returns does not address the truth or falsity of the candidate's certification.

The court's majority cites Irvin v. Brown , 2017-CA-0614 (July 28, 2017) for the proposition that testimony from the Louisiana Department of Revenue shifts the burden of proof from the objector to the candidate. Irvin is an opinion of this court not released for publication. Moreover, that decision does not take into account the particular posture of this case involving the testimony of a candidate who took the steps he believed were necessary to determine that he was not required to file a return. Unlike the Irvin case in which the candidate gave testimony without documentation, Mr. Bell did bring documents to court. He showed the court an IRS Form 1099 for each of his income sources. He also brought the printout of his attempts to prepare a tax return using IRS software. While these documents are not part of the record of this case the candidate's testimony regarding the documents demonstrate his good faith efforts to determine his legal obligations. The trial court took notice of the documents as demonstrative evidence and they helped the court to judge Mr. Bell's veracity.

In order for the plaintiffs/objectors to meet their burden of proof, they were required to show that the candidate's certification was false. The statute does not define "false", therefore, we must look to the definition of the term in ordinary

19

usage. Black's Law Dictionary recognizes that the term, false, necessarily carries the implication of an intent to deceive.

At trial, the objectors offered no evidence that the candidate had any deceptive intent. For this reason, the trial judge found that the objectors had not met their burden of proof. We cannot say that the trial judge was manifestly erroneous in making that determination. Therefore, I agree with the trial judge and would affirm on that basis.