The opinion
LESLIE A. ELLISON * NO. 2020-CA-0377
VERSUS *
COURT OF APPEAL
WINSTON MELVIN *
WHITTEN, JR. AND THE FOURTH CIRCUIT
HONORABLE ARTHUR A. *
MORRELL, IN HIS OFFICIAL STATE OF LOUISIANA
CAPACITY AS CLERK OF *******
CRIMINAL COURT FOR THE
PARISH OF ORLEANS
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-06395, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Roland L. Belsome
******
(Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome,
Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Dale N.
Atkins)
Timothy D. Ray
1226 Burdette Street; 2nd Floor
New Orleans, LA 70118
COUNSEL FOR PLAINTIFF/APPELLEE
Madro Bandaries
MADRO BANDARIES, P.L.C.
938 Lafayette Street, Suite 507
Post Office Box 56458
New Orleans, LA 70156
Michelle A. Charles
ATTORNEY AT LAW
1901 Manhattan Blvd., Suite 105
Harvey, LA 70058
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED
August 11, 2020
RLB This is an election suit contesting the candidacy of Defendant, Winston
JFM
JCL
RBW Whitten, Jr., for the Orleans Parish School Board District 4. On appeal,
DNA
Defendant seeks review of the trial court’s judgment granting the petition of
Plaintiff, Leslie Ellison, to disqualify him as a candidate in the election. For the
following reasons, the trial court’s judgment is reversed and the petition
challenging candidacy is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2020, Defendant filed a Notice of Candidacy (Notice) form to
declare his candidacy for the Orleans Parish School Board District 4. The signed
and notarized Notice included the representation that:
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.
1
Shortly thereafter, on July 31, 2020, Plaintiff filed her petition to disqualify
Defendant from candidacy.1 She alleged that Defendant had falsely represented
that he was in compliance with the federal and state income tax filing
requirements, which are grounds for disqualification pursuant to La. R.S.
18:492(A)(7).2 After a summary trial, the trial court granted Plaintiff’s petition
based on Defendant’s failure to meet the domicile and residency requirements. As
a result, the trial court judgment ordered Defendant’s name to be removed from the
ballot. This appeal followed.
DISCUSSION
On appeal, Defendant asserts that the trial court erred in granting Plaintiff’s
petition to disqualify him from candidacy. He argues that the trial court ruled on
domicile and residency issues that were not properly before the court. He further
argues that since he established that he met his tax filing requirements, the trial
court judgment should be reversed. We agree.
At trial, Plaintiff and Defendant both testified. In addition to her testimony
concerning state tax filings, Plaintiff raised issues concerning Defendant’s
domicile and residency. When the domicile and residency issues were raised,
1
Defendant was personally served with the lawsuit at the address listed on his Notice: 4564
Maple Leaf Drive, New Orleans, Louisiana 70131.
2
La. R.S. 18:492(A) states, in pertinent part:
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.
2
Defendant, in proper person, immediately objected to the relevance.3 The trial
court then found that the evidence was relevant because the domicile and residency
issue was raised in the Plaintiff’s petition, which is factually inaccurate.
Defendant testified in rebuttal that he lived at 4564 Maple Leaf Drive, New
Orleans, Louisiana 70131. The record establishes that Defendant was personally
served with the lawsuit at that address listed on his Notice. Defendant explained
that he had a lease, but he did not bring it because he was not prepared to respond
to issues concerning his residency and domicile. At the conclusion of the trial, the
trial court rendered judgment in favor of Plaintiff finding that he did not meet the
domicile and residency requirements.
La. R.S. 18:1406(B)4 states in relevant part: “The petition shall set forth in
specific detail the facts upon which the objection or contest is based. … The trial
judge may allow the filing of amended pleadings for good cause shown and in the
interest of justice.” While the trial court may allow pleadings to be amended, it
may not do so when the expanded pleadings results in the admission of evidence
that would prejudice Defendant in maintaining his defense on the merits. La.
C.C.P. art. 1154.5
While the Plaintiff’s petition to disqualify Defendant asserts that he falsely
represented that he met the tax filing requirements, it does not include a residency
3
Defendant specifically stated: “I object. They are speaking about domicile. My court
documents only speaks of tax information.”
4
This statute was amended by Act 28 of the 2020 Louisiana Regular Legislative Session.
However, the amendment does not change the substance of Section B.
5
La. C.C.P. art. 1154 states, in pertinent part:
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall
do so freely when the presentation of the merits of the action will be subserved
thereby, and the objecting party fails to satisfy the court that the admission of
such evidence would prejudice him in maintaining his action or defense on the
merits. The court may grant a continuance to enable the objecting party to meet
such evidence.
3
and/or domicile challenge.6 Moreover, Plaintiff never requested to amend or
expand the pleadings. Defendant was prejudiced because he was unable to
properly defend against the residency and domicile claims. In particular, he
testified that he had documents to support his residency and domicile; however, he
was not prepared to present these documents because they were not raised in the
petition. Under these circumstances, the trial court erred in rendering judgment on
an issue not properly before the court.
Thus, the only issue properly before this Court is whether Defendant is
disqualified from candidacy for falsely representing his compliance with income
tax return filing requirements within the past five years. In an election contest, the
person objecting to the candidacy bears the burden of proving the candidate is
disqualified. Landiak v. Richmond, 05-0758, pp. 6-7 (La. 3/24/05), 899 So.2d 535,
541 (citation omitted). 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. Id., 05-0758, p. 8, 899 So.2d at 541. Any
doubt as to the qualifications of a candidate should be resolved in favor of
permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679
(La. 1991).
As to the tax issue, Plaintiff introduced a letter from the Louisiana
Department of Revenue. The letter confirms that Defendant filed state income tax
returns in Louisiana for 2018 and 2019; however, state filings for 2015-2017 could
not be confirmed. Plaintiff also admitted Mr. Whitten’s voter registration
statement from the Texas Secretary of State. The voter registration statement,
6
Moreover, Plaintiff’s affidavit and exhibits attached to the petition only relate to tax issues.
4
which became effective on August 27, 2017, reflects that Defendant lived at 3505
West Sam Houston Parkway South 4408, in Houston, Texas.
In response, Defendant admitted to living in Texas from 2015 through
March of 2018, when he moved back to Louisiana to start a new job. He further
explained that Texas did not require its residents to file state income tax returns. As
such, he correctly represented that he filed all required federal and state tax returns.
During the pertinent years, 2015-2018, Article 8 Section 1 of the Texas
Constitution authorized the legislature to impose individual income taxes.
However, the legislature has not mandated an individual income tax. See TX Tax
Code, Title 2 et seq.7
While Plaintiff established a prima facie case that Defendant did not file his
state tax returns from 2015-2017 as represented on his Notice, we find Defendant
sufficiently rebutted this showing by establishing he resided in Texas during the
relevant time periods, thus he was not required to file individual state income tax
returns. Under these circumstances, the trial court clearly erred in granting
Plaintiff’s petition to disqualify Defendant.
CONCLUSION
For these reasons, the trial court’s judgment is reversed and the petition
challenging candidacy is dismissed.
REVERSED
7
Article 8, Section 1 was amended by the electorate on November 5, 2019, to remove the
legislature’s authorization to impose individual income taxes under Section 1. On the same date,
the voters approved a constitutional amendment that specifically prohibits the imposition of
individual income taxes. See TX Const. art. VIII, § 24-a, which states: “the legislature may not
impose a tax on the net incomes of individuals, including an individual’s share of partnership and
unincorporated association income.”
5