The opinion
LESLIE A. ELLISON * NO. 2020-CA-0376
VERSUS *
COURT OF APPEAL
JANCARLO JOSE ROMERO *
AND THE HONORABLE FOURTH CIRCUIT
ARTHUR A. MORRELL, IN *
HIS OFFICIAL CAPACITY AS STATE OF LOUISIANA
CLERK OF CRIMINAL *******
COURT FOR THE PARISH OF
ORLEANS
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-06394, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge
Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Tiffany G. Chase)
LOMBARD, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE
CHASE
CHASE, J., DISSENTS
Timothy David Ray
1226 Burdette Street, 2nd Floor
New Orleans, LA 70118
COUNSEL FOR PLAINTIFF/APPELLANT
Thomas A. Robichaux
THOMAS A. ROBICHAUX, ATTORNEY AT LAW
1317 Milan St
New Orleans, LA 70115
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
AUGUST 11, 2020
DLD On July 31, 2020, Leslie A. Ellison, a New Orleans resident and registered
RML
SCJ
voter, filed an Objection to Candidacy and Petition to Disqualify Candidate
(“Petition”), challenging the qualifications of Jancarlo Jose Romero for candidacy
for the Orleans Parish School Board, District 4. The Petition names Mr. Romero
as a defendant, as well as Arthur Morell, the Clerk of Court for the Criminal Court
of Orleans Parish, solely in his capacity as Chief Election Officer for the Parish of
Orleans, as is required by La. R.S. 18:1402 A(2).
The Petition asserts two bases upon which Mr. Romero is not qualified to
run for the office of School Board Member. First, the Petition alleges that, during
the past five years, Mr. Romero did not file federal and state tax returns, or
extensions of time for filing these returns, as required by La. R.S. 18:463
A(2)(a)(iv). As such, the Petition alleges, the Notice Mr. Romero filed contains a
false certification that his tax returns were filed timely.
Second, the Petition alleges that Mr. Romero does not meet the residency
requirements for the position of School Board Member. La. R.S. 17:52 E(1)
1
requires candidates seeking membership to a school board to have “resided in the
state for the preceding two years, and [to have] been actually domiciled for the
preceding year in the parish, ward, or district from which he seeks election.”
According to the Petition, Mr. Romero’s certification on his Notice that he meets
these criteria is false.
In response to the Petition, Mr. Romero filed a Peremptory Exception of No
Cause of Action and a Motion for Sanctions against Ms. Ellison and/or her
attorney. In the exception, Mr. Romero maintained that the Petition made
conclusory allegations without any facts supporting those allegations and that Ms.
Ellison’s affidavit, attached to the Petition, does not contain personal knowledge as
to the information contained therein.
A trial on the merits was held on August 4, 2020, at which time the trial
court also heard argument on the exception and Motion for Sanctions. At the
conclusion of the proceedings, the trial court orally denied the exception and
motion for sanctions, and likewise denied Ms. Ellison’s challenge to Mr. Romero’s
candidacy. A written judgment memorializing the trial court’s ruling was rendered
on August 5, 2020, dismissing Ms. Ellison’s Petition.
Ms. Ellison timely appealed the district court’s ruling.1 While Mr. Romero
did not answer the appeal, in his appellate brief, he has asked this Court to award
sanctions for a “frivolous” appeal.
1
Under La. R.S. 18:1409 D, in an action objecting to candidacy, “a party aggrieved by the
judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the
court to secure the payment of costs” within 24 hours after the rendition of the judgment. Here,
the Motion for Appeal was filed on August 5, 2020, the same date as the trial court’s judgment.
2
For the reasons that follow, we affirm the district court’s judgment;
however, we decline to award sanctions.
DISCUSSION
In Eugene v. Davenport, 14-0953, p. 4 (La. App. 4 Cir. 9/9/14), 150 So.3d
56, 59, citing Becker v. Dean, 03-2493, p. 7 (La.9/18/03), 854 So.2d 864, 869, this
Court reiterated the well-settled rule that “[i]n an election contest, the person
opposing the candidacy bears the burden of proving the candidate is disqualified.”
Accordingly, we liberally construe “the laws governing the conduct of elections . .
. so as to promote rather than defeat candidacy” and “[a]ny doubt as to the
qualifications of a candidate should be resolved in favor of allowing the candidate
to run for public office.” Id. See also, Scaglione v. Juneau, 10-1109, p. 12 (La.
App. 4 Cir. 8/4/10), 45 So.3d 191, 199; Williams v. Fahrenholtz, 08-0961, p. 7 (La.
App. 4 Cir. 7/25/08), 990 So.2d 99, 104. This is in furtherance of the principle that
“election laws must be interpreted to give the electorate the widest possible choice
of candidates.” Landiak v. Richmond, 05-0758, pp. 6-7 (La. 3/24/05), 899 So.2d
535, 541.
As in other civil appeals, we review this matter under the manifest-error
standard. See Smith v. Charbonnet, 17-0634, p. 5 (La. App. 4 Cir. 8/2/17), 224
So.3d 1055, 1059 (“[a]ppellate courts review a trial court’s findings of fact under
the manifest error or clearly wrong standard”); Eugene v. Davenport, 14-0953, p. 4
(La. App. 4 Cir. 9/9/14), 150 So.3d 56, 59. As we noted in Nixon v. Hughes, 15-
1036, p. 2 (La. App. 4 Cir. 9/29/15), 176 So.3d 1135, 1137, “[r]egarding issues of
3
law, the standard of review of an appellate court is simply whether the court’s
interpretive decision is legally correct[;] [a]ccordingly, if 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.”
(internal citations omitted).
Filing of tax returns
Louisiana Revised Statute 18:461A(1), provides that “[a] person who desires
to become a candidate in a primary election shall qualify as a candidate by timely
filing notice of his candidacy, which shall be accompanied ... by the qualifying fee
and any additional fee imposed.” The requirements for a notice of candidacy are
set forth in La. R.S. 18:463, which provides, as pertains to this appeal, as follows:
A. (1)(a) A notice of candidacy shall be in writing and
shall state the candidate's name, the office he seeks, the
address of his domicile, and the parish, ward, and
precinct where he is registered to vote. . . .
***
(2)(a) The notice of candidacy also shall include a
certificate, signed by the candidate, certifying all of the
following:
(i) That he has read the notice of his candidacy.
(ii) That he meets the qualifications of the office
for which he is qualifying.
***
(iv) Except for a candidate for United States
senator or representative in congress, 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
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state income tax return or both, or was not required
to file either a federal or state income tax return or
both.
In this matter, the Notice of Candidacy form, signed by Mr. Romero on July
24, 2020, includes a certification tracking the language of La. R.S. 18:463
A(2)(a)(iv). There is no dispute that Mr. Romero did not file a tax return with the
state of Louisiana in 2017. While Ms. Ellison maintains that the trial court “erred
in finding that Mr. Romero’s taxes were exempt from being filed in 2017 due to
his employment abroad for several months of the tax year 2017,” she can point to
no evidence in the record that Mr. Romero earned any income in the state of
Louisiana, thereby triggering the requirement of filing a tax return in this state, or
even resided in Louisiana during the year 2017.
Ms. Ellison points to the following evidence at trial in support of her
argument that Mr. Romero was required to file a tax return for 2017. First, she
notes that the evidence “[shows that] Mr. Romero was working in 2017 both in the
United States and abroad as a U.S. citizen.” She next notes that Mr. Romero
initially testified that, for the year 2017, he lived in Thailand, and later admitted
that, in January, 2017, he was living in St. Louis, Missouri. She then points to Mr.
Romero’s Voter Election History Report, introduced at trial by Ms. Ellison as part
of exhibit 4, which reflects that he voted early for an election on November 18,
2017. For the other three elections of 2017, the report indicates that Mr. Romero
did not vote. Finally, she argues that, while Mr. Romero testified that he was
advised by his tax preparer that he did not have to file a tax return for 2017, “[his]
belief was that if a citizen lives abroad for more than a year they are not required to
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file state taxes was proven to be false by his own admission, as Ms. Ellison’s
witness, that he did not even live abroad for the full year in question.”
The question in this case does not turn on whether Mr. Romero lived abroad
for a full year, but whether, under the evidence adduced at the trial of this case, Mr.
Romero was required to file a tax return in Louisiana for 2017, such that his
certification under La. R.S. 18:463 A(2)(a)(iv) was false. After our review of the
record, we find no evidence to support the contention that Mr. Romero falsely
certified that he had met the tax-filing requirement of the statute.
A state tax return is required in Louisiana only when income is derived
within this state by a resident or nonresident, from whatever source. La. R.S.
47:31 provides, in pertinent part, as follows:
There shall be levied, collected, and paid for each taxable
year a tax upon the net income of residents and
nonresidents, estates, trusts and corporations, as
hereinafter provided.
(1) Resident individuals. Every person residing
within the state, . . . , shall pay a tax on net income
from whatever source derived, except as
hereinafter exempted.
Although Mr. Romero lived in Missouri in January, 2017 (where, he
testified, he was completing a requirement for his doctoral degree), there is no
evidence in the record that he resided in Louisiana in 2017 or earned any income in
Louisiana for which a tax return was required. Nor are we convinced that, because
Mr. Romero voted early for the November, 2017 election, he was required to file a
2017 tax return. While this may confirm that Mr. Romero was physically present
6
in Louisiana in November, 2017, it in no way suggests that he earned any income
or resided Louisiana at that time.2
We, therefore, find no manifest error in the trial court’s finding that Mr.
Romero satisfied the requirements of La. R.S. 18:463 A(2)(a)(iv) or that he was
not required to file a tax return for 2017. Thus, Mr. Romero’s certification does
not falsely certify that he filed the required tax returns.
Mr. Romero’s domicile
To qualify for election to membership in a parish school board, La. R.S.
17:52 E(1) states as follows:
Any person who at the time of qualification as a
candidate for the school board has attained the age of
eighteen, resided in the state for the preceding two years,
and has been actually domiciled for the preceding year in
the parish, ward, or district from which he seeks election
is eligible for membership on the school board. . . .
As the Louisiana Supreme Court indicated in Landiak,
The terms “residence” and “domicile” are legal terms
that are not synonymous. The most oft-cited difference
between the two concepts is that a person can have
several residences, but only one domicile. Domicile is an
issue of fact that must be determined on a case-by-case
basis.
Landiak, p. 8, 899 So.2d at 542. (internal citations omitted). The Landiak Court
further explained:
Every person has a domicile of origin that he retains until
he acquires another.
***
2
We note too that the record contains an application, signed by Mr. Romero on August 12, 2017
to vote by absentee ballot on the basis that he was an “overseas citizen.”
7
Louisiana case law has traditionally held that domicile
consists of two elements, residence and intent to remain.
***
The case law regarding domicile reveals that Louisiana
courts commonly consider a number of different factors
when trying to determine domicile in fact. Since domicile
is generally defined as residence plus intent to remain, a
party’s uncontroverted testimony regarding his intent
may be sufficient to establish domicile, in the absence of
any documentary or other objective evidence to the
contrary. The same might be said when a person
specifically declares his intent pursuant to La. Civ.Code
art. 42. However, in the absence of a formal declaration,
when documentary or other objective evidence casts
doubt on a person’s statements regarding intent, it is
incumbent on courts to weigh the evidence presented in
order to determine domicile in fact. Otherwise, the legal
concept of domicile is meaningless and every person
would be considered legally domiciled wherever he says
he is domiciled. Some of the types of documentary
evidence commonly considered by courts to determine
domicile in fact include such things as voter registration,
homestead exemptions, vehicle registration records,
driver’s license address, statements in notarial acts, and
evidence that most of the person’s property is housed at
that location. Obviously, the more of these items
presented by a party opposing candidacy in a given case
to show lack of domicile in the district, the more difficult
it will be for the candidate to overcome the plaintiff’s
evidence.
Id., pp. 9-11, 899 So.2d at 543-44. (internal citations and footnotes omitted).
“[W]hen a particular domicile is required for candidacy, the burden of showing
lack of domicile rests on the party objecting to the candidacy.” Id., p. 7, 899 So.2d
at 541.
Ms. Ellison does not dispute that Mr. Romero meets the requirement that he
live in the state of Louisiana for the two years preceding the November 3, 2020
election. She challenges, however, Mr. Romero’s certification that he has been
8
domiciled “in the parish, ward or district from which he seeks election” for the
preceding year. Mr. Romero listed his residence on the Notice as 3419 Somerset
Dr., New Orleans, Louisiana, 70131, which is located within the district of the
school board election. Ms. Ellison contends that this address is not his “domicile”
and introduced several documents at trial which allegedly support her contention.
Those documents include the following:
- a July 6, 2012 Louisiana voter’s registration application listing Mr.
Romero’s address as 220 S. Lopez St., New Orleans, Louisiana;
- an October 9, 2012 Louisiana voter’s registration application
listing Mr. Romero’s address as 812 Gravier St., New Orleans,
Louisiana;
- an October 25, 2014 voter identification affidavit, listing Mr.
Romero’s Gravier St. address;
- the August 12, 2017 application for absentee voting, listing Mr.
Romero’s Gravier St. address;
- an August 5, 2018 Louisiana voter’s registration form updating
Mr. Romero’s address to 929 Dublin St., New Orleans, Louisiana;
- an October 14, 2019 voter’s registration application form updating
Mr. Romero’s address to the Somerset address;
- a candidate report of Brendan Csaposs (who was then running for
the Council of East Baton Rouge Parish) listing Mr. Romero as
making a donation on January 28, 2019, with the Dublin St.
address;
- a print-out from the Secretary of State’s website reflecting the
April 19, 2017 registration of a non-profit corporation, Living
School, Inc., with a March 27, 2020 filing of its last report, which
lists Mr. Romero as an officer, listing the Dublin St. address;
- the voter election history report showing Mr. Romero’s voting
history and reflecting that, for two elections within the year
preceding Mr. Romero’s Notice filing (October 12, 2019 and
November 16, 2019, the latter of which Mr. Romero voted early),
he voted in a ward outside the district for this election.
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Mr. Romero introduced documents at trial to establish that his address
at the time he filed his Notice was, indeed, the Somerset address. Those
documents include the following:
- a lease dated June 29, 2019 and signed on July 2, 2019, leasing a
room at the Somerset address to Mr. Romero and his husband;
- Mr. Romero’s tax returns for 2019 listing the Somerset address;
- other tax documents (including W-2 forms, an Employer-Provided
Health Insurance Offer and Coverage form and a 2019 a tuition
statement from the University of Missouri listing the Somerset
address) listing the Somerset address;
- a March 5, 2020 vehicle registration form listing the Somerset
address.
Additionally, at trial, Mr. Romero testified that the Somerset address is listed
on his driver’s license. When questioned about his voting history and his having
voted in the two elections in 2019 in a district other than the one for which he
seeks office, Mr. Romero testified as follows:
Q. And, can you explain to me why your voter registration was not
changed until October of 2019:
A. So, I believe there was an election in October of 2019, and that’s
when I realized that I hadn’t changed my voter registration, and so I did it
right away. I think I did it two days later when I’d realized that I hadn’t
changed my voter registration.
Q. Okay. And so you moved and forgot to change it --
A. -- Correct.
Q. -- and when you realized it, you changed it?
A. -- correct.3
Mr. Romero also explained, with respect to his address being listed as
Dublin Street for Living School, Inc., that he simply had not updated that
3
Notably, in January, 2020, Mr. Romero voted in the district of this school board election.
10
information in two years. He then confirmed that, while he previously lived on
Dublin Street, he has lived at the Somerset address since the commencement of his
lease, that he has “no other residences, apartments or living spaces,” that it was his
“intent when [he] moved from Dublin Street to Somerset to make this [his]
domicile,” and that he has lived for more than a year in the proper district for the
school board election.
After hearing the testimony and considering the evidence presented at the
trial, the trial court concluded that Ms. Ellison’s challenge to Mr. Romero’s
candidacy had no merit, finding:
There is a lease that shows the date living in Algiers,
which is the area is [sic], which is where the school board
race is, and the only indication that maybe he wasn’t
living there was the vote that happened in October and
November, but in October, he applied to change, and I
don’t believe that’s enough to disqualify somebody, so
I’m going to deny the motion to disqualify.
Ms. Ellison notes that the lease of the Somerset property only leased a
“room” to Mr. Romero,4 that the lease was a month-to-month lease,5 and that Mr.
Romero testified that, pursuant to the lease, he intended to live at the Somerset
address “while [he buys] in Algiers.” While she makes no specific argument about
these facts, it is clear she is suggesting that the Somerset address is not Mr.
Romero’s domicile. She likewise notes that, when questioned about whether he
“kept the Dublin Street for any purpose” he answered, “I’m not sure,”6 again
implying that Mr. Romero’s domicile was not at the Somerset address.
4
Under the terms of the lease, the “Landlord agree[d] to rent to [Mr. Romero] the room [at the
Somerset address] for use a residential premises only.”
5
The lease provides that “[t]he term of the Lease is a periodic tenancy commencing at 12:00
noon on July 1, 2019 and continuing on a month-to-month basis until the Landlord or the Tenant
terminates the tenancy.”
6
The testimony on this issue was as follows:
Q. Did you keep the Dublin Street to any purpose?
11
Our review of the record on this issue reflects that Mr. Romero clearly
testified that he was only living at the Somerset address once the lease went into
effect. He answered in the affirmative when asked “[w]hen you signed this lease,
did you move from Dublin Street to this address.” Similarly, when asked if he still
rented the Dublin Street address, he responded, “oh, no, not at all.” Moreover, Ms.
Ellison admitted that she has no “evidence that Mr. Romero -- does not make his
domicile at the Somerset Drive address.”
While Mr. Romero testified that he intended to purchase a home in Algiers
(also the district for this election), this does not signify that he had not changed his
domicile from the Dublin address to the Somerset address, both of which were
properties Mr. Romero leased. It is clear from the evidence at trial that Mr.
Romero was no longer domiciled at the Dublin Street property. For this Court to
also conclude that Mr. Romero was not domiciled at the Somerset address would
amount to a finding Mr. Romero had no domicile, a conclusion we cannot reach.
We note that “[d]omicile is an issue of fact that must be determined on a case-by-
case basis.” Landiak, p. 8, 899 So.2d at 542. And, we are guided by the standard
of review that a trial judge’s conclusion regarding a person’s domicile (or change
of domicile) is “clearly a factual finding subject to the manifest error standard of
review.” Steinhardt v. Batt, 00-0328, p. 2 (La. App. 4 Cir. 2/11/00), 753 So.2d 928,
930.
Based on the record before us, we do not find that Ms. Ellison “overcame
the legal presumption that [Mr. Romero’s domicile] has not been changed by
A. I may have --
Q. For how long --
A. -- I’m not sure.
Q. -- a week, a month, a year --
A. -- in terms of -- . . . .
12
positive and satisfactory proof of establishment of a domicile as a matter of fact
with the intention of remaining in the new place and of abandoning the former
domicile.” Russell v. Goldsby, 00-2595, p. 5 (La. 9/22/00), 780 So.2d 1048, 1051.
See also, Becker v. Dean, 03-2493, p. 10 (La. 9/18/03), 854 So. 2d 864, 871 (“[t]he
question of domicile is one of intention as well as fact, and where it appears
domicile has been assumed in another location, the party seeking to show it has
been changed must overcome the legal presumption that it has not been
changed.”). We, therefore, find no manifest error in the trial court’s judgment
denying Ms. Ellison’s challenge to Mr. Romero’s candidacy.
Sanctions
Mr. Romero takes the position that Ms. Ellison’s appeal is frivolous and asks
this Court to award sanctions against her “to include the taxing of costs and
attorney fees.”
Our jurisprudence reflects that damages for a frivolous appeal may be
awarded “if the appellant is trying to ‘delay the action’ or ‘if the appealing counsel
does not seriously believe the law he or she advocates.’” Hunter v. Maximum Grp.
Behavioral Servs., Inc., 10-0930, p. 6 (La. App. 4 Cir. 3/16/11), 61 So.3d 735, 739,
quoting Hester v. Hester, 97-2009, p. 5 (La. App. 4 Cir. 6/3/98), 715 So.2d 43, 46.
The Hunter Court also noted that an appellate court may deem an appeal frivolous
“if it does not present a ‘substantial legal question.’” Id. (Citation omitted).
Our jurisprudence also reflects that “[a]ppeals are always favored and,
unless the appeal is unquestionably frivolous, damages will not be granted’ due in
part to the possible chilling effect on the appellate process.” Johnson v. Johnson,
08-0060, pp. 5-6 (La. App. 4 Cir. 5/28/08), 986 So.2d 797, 801, quoting Tillmon v.
Thrasher Waterproofing, 00-0395, p. 8 (La. App. 4 Cir. 3/28/01), 786 So.2d 131,
13
137. Likewise, because the statute allowing the imposition of damages for
frivolous appeal is penal in nature, it “must be strictly construed in favor of the
appellant.” Hunter, 10-0930, p. 6, 61 So.3d at 739.
In the instant matter, we do not find that the appeal was filed in bad faith or
for purposes of delay. Nor does the record reflect that Ms. Ellison does not
seriously believe the law or the position she advocates. Having considered the
argument made by Mr. Romero, we do not find that this matter meets the
requirements of a frivolous appeal.
CONCLUSION
For the reasons set forth above, and finding no manifest error in the trial
court’s ruling, we affirm the trial court’s judgment, dismissing the Objection to
Candidacy and Petition to Disqualify Candidate. Because we do not find Ms.
Ellison’s appeal to be frivolous, however, we decline to award sanctions.
AFFIRMED
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