The opinion
CORRECTED COPY
KAREN SCHINDLER * NO. 2022-CA-0533
VERSUS *
COURT OF APPEAL
DEREK T. RUSS AND THE *
HONORABLE DARREN FOURTH CIRCUIT
LOMBARD *
STATE OF LOUISIANA
*******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-06751, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Paula A. Brown, Judge Tiffany Gautier Chase, Judge Dale N. Atkins)
DYSART, J., DISSENTS (WITH REASONS TO FOLLOW)
CHASE, J., CONCURS AND ASSIGNS REASONS
Kenneth C. Bordes
ATTORNEY AT LAW
4224 Canal Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT, Karen Schindler
Ernest L. Jones
ATTORNEY AT LAW
2317 Canal Street
New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLEE, Derek T. Russ
AFFIRMED
AUGUST 8, 2022, AT 11:00 AM1
1 Louisiana Revised Statutes 18:1409(F) provides that “[j]udgment [by the
court of appeal in an action objecting to candidacy] shall be rendered within
twenty-four hours after the case is argued. The court of appeal shall indicate the
date and time rendered on the judgment.” Louisiana Revised Statutes 18:1413
states that “[c]omputation of all time intervals in this Chapter shall include
Sundays and other legal holidays. However, if the time interval ends on a Sunday
This is an election candidacy challenge regarding domicile. Appellant,
DNA
Karen Schindler (hereinafter “Ms. Schindler”), appeals the trial court’s August 3,
RLB
PAB 2022 judgment, which denied her objection to the candidacy of Appellee, Derek T.
Russ (hereinafter “Mr. Russ”), for the position of Judge, Municipal and Traffic
Court, Division D, in Orleans Parish. For the following reasons, we affirm the trial
court’s judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mr. Russ’ July 20, 2022 Notice of Candidacy
On July 20, 2022, Mr. Russ signed a “State of Louisiana - Notice of
Candidacy (Qualifying Form)” (hereinafter “Qualifying Form”) for the office of
Judge, Municipal and Traffic Court, Division D, in Orleans Parish. On the
Qualifying Form, Mr. Russ listed his domicile address as 2531 Pauger Street, New
Orleans, LA, 70116 (hereinafter “Pauger Address”). He listed his mailing address
as 700 Camp Street, New Orleans, LA, 70130. Further, he attested that he is a
“duly qualified elector” for the Parish of Orleans.
or other legal holiday, then noon of the next legal day shall be deemed to be the
end of the time interval.”
1
Ms. Schindler’s July 29, 2022 Petition Objecting to Candidacy of Derek T. Russ
On July 29, 2022, Ms. Schindler filed a “Petition Objecting to Candidacy of
Derek T. Russ” (hereinafter “Petition”) for judge.2 In the Petition, Ms. Schindler
sought to disqualify Mr. Russ from the primary election scheduled for November
8, 2022. Ms. Schindler alleged that “[s]ince about 2006, over 16 years, [Mr.] Russ
has been domiciled at 2439 Oxford Pl, Terrytown, LA 70056 [(hereinafter “Oxford
Address”)], where he remains currently domiciled with his wife and children at
present.” The Petition further provided that Mr. Russ is domiciled in Jefferson
Parish, not Orleans Parish. “Because [Mr.] Russ [] is not domiciled in the Parish of
Orleans, and/or has not been domiciled in the Parish of Orleans for the time
required to qualify for the office sought, [Ms. Schindler sought] a [j]udgment . . .
disqualifying [Mr.] Russ as a candidate for the primary election.”
Mr. Russ’ August 3, 2022 Motion to Dismiss Petition Objecting to Candidacy
On August 3, 2022, Mr. Russ filed a “Motion to Dismiss Petition Objecting
to Candidacy” (hereinafter “Motion to Dismiss”). Therein, Mr. Russ contended
that because Ms. Schindler’s Petition did not contain a proposed order to set the
matter for a hearing, it “was, therefore, defective, incomplete, misleading and
made it impossible for the [trial court] to comply with the mandate of [La.
R.S.]18:1409[3] that the trial should be commenced before 10[:00] a.m. on the
2 In the Petition, Ms. Schindler also named The Honorable Darren P.
Lombard, Clerk of Criminal District Court, Orleans Parish, as a defendant.
Louisiana Revised Statutes 18:1402 is titled “[p]roper parties” and provides, in
pertinent part, that “[t]he clerk of court, in his official capacity, if the candidate
qualified with the clerk of court” is a “proper part[y] against whom actions
objecting to candidacy shall be instituted[.]” La. R.S. 18:1402(A)(2).
3 Louisiana Revised Statutes 18:1409(A)(1) provides that “[t]he trial [of an
action objecting to candidacy] shall begin no later than 10:00 a.m. on the fourth
day after suit was filed.”
2
fourth day after suit was filed.” The trial court considered Mr. Russ’ Motion to
Dismiss and Ms. Schindler’s Petition at an August 3, 2022 hearing.
August 3, 2022 Hearing
On August 3, 2022, the trial court held a hearing on Ms. Schindler’s Petition
and Mr. Russ’ Motion to Dismiss. The trial court denied the Motion to Dismiss and
proceeded to take testimony regarding the issue of Mr. Russ’ domicile.
Exhibits Filed by Ms. Schindler
In support of her Petition, Ms. Schindler filed five exhibits, which were
admitted into evidence. One of the exhibits is a Collateral Mortgage document,
which is dated November 8, 2007, and the “Mortgager” section listed Mr. Russ and
the Oxford Address. Additionally, the Collateral Mortgage document stated that
“[p]ersonally came and appeared . . . [Mr.] Russ, a person of the full age of
majority, domiciled and residing in the Parish of JEFFERSON, State of Louisiana,
whose mailing address is [the Oxford Address].” Mr. Russ signed the Collateral
Mortgage document. Another exhibit was a Federal Housing Administration Loan
Modification Agreement (hereinafter “FHA Loan Modification Agreement”). It
listed the effective date as February 1, 2021, and it was signed by Mr. Russ on July
8, 2021. The FHA Loan Modification Agreement provided that it “amends and
supplements” a September 16, 2006 mortgage and note for the Oxford Address. It
did not contain the recitation from the Collateral Mortgage document that Mr. Russ
was “domiciled and residing” in Jefferson Parish at the Oxford Address. Ms.
Schindler also filed a December 23, 2020 Registration Certificate for a 2020
Chevrolet vehicle.4 In the “Owner’s Name” section of the certificate is Mr. Russ’
4 Though the “Make” section of the December 23, 2020 Registration
Certificate stated that the vehicle is a Chevrolet, the “Model” section is blank.
3
name and the Oxford Address; however, the address to which the December 23,
2020 Registration Certificate was mailed was the Pauger Address. Ms. Schindler’s
filed a Vehicle Registration Document regarding a 2020 Chevrolet, and the “Title
Holder[]” section of the document listed Mr. Russ and the Pauger Address. The
registration was dated from April 7, 2021, to October 31, 2022. Additionally, Ms.
Schindler filed Mr. Russ’ Qualifying Form.
Exhibits Filed by Mr. Russ
At the August 3, 2022 hearing, Mr. Russ filed six exhibits, which were
admitted into evidence. He filed a “Voter Information Report” from the Louisiana
Secretary of State with his name on it and a voter registration date of October 28,
1996. The Voter Information Report listed Mr. Russ’ residence address as the
Pauger Address. Additionally, Mr. Russ filed his Driver’s License, which listed the
Pauger Address and had an issuance date of April 10, 2022. He also filed an April
19, 2022 Registration Certificate for a 2022 Chevrolet Tahoe. In the “Owner’s
Name” section of the April 19, 2022 Registration Certificate was Mr. Russ’ name
and the Pauger Address; and, the address to which the April 19, 2022 Registration
Certificate was mailed is the Pauger Address. Mr. Russ filed a “Verification of
Insurance” form from Progressive Direct Auto pertaining to a 2022 Chevrolet
Tahoe for a policy period of July 10, 2022, through January 10, 2023, with an
effective date of July 10, 2022. The Verification of Insurance listed Mr. Russ as an
insured driver and his address as the Pauger Address. Finally, Mr. Russ filed a
document dated July 25, 2022, from the Jefferson Parish Assessor’s Office. It
listed Mr. Russ as the owner of the Oxford Address, but it stated that Mr. Russ
does not have Homestead Exemption Status for the Oxford Address. Last, Mr.
Russ filed a “Louisiana Voter Registration Application,” which is dated December
4
23, 2020. It listed Mr. Russ as the applicant and his residence as the Pauger
Address; but it was not signed by Mr. Russ. In addition to admitting the
aforementioned exhibits into evidence, the trial court heard the following
testimony.
Testimony
At the August 3, 2022 hearing, Mr. Russ provided the Pauger Address to the
court reporter. He testified that “[he has] always been domiciled at [the Pauger]
[A]ddress,” though “[he has/had] a number of residences.” Mr. Russ answered
affirmatively when asked whether he understood the difference between domicile
and residency. He described the Pauger Address as a “family property” and a
“family home that has always been available.” Mr. Russ stated that he “grew up” at
the Pauger Address and has “lived there all [his] life off and on,” including during
elementary, high school, and his vacation breaks during law school.5 Mr. Russ
testified that he purchased the Oxford Address in 2006 and that his mother moved
into the house “around 2017[ or] 2018.” Counsel for Ms. Schindler asked Mr. Russ
if he changed his domicile to the Oxford Address in 2017; and Mr. Russ responded
“maybe in 2017 before my mom moved in that is possible” but also stated that
“[his] testimony is that [the] Pauger [Address] has always been [his] domicile.”
According to Mr. Russ, in 2020, he began having conversations with his
family about his desire to eventually run for a judgeship in Orleans Parish. When
counsel for Ms. Schindler asked Mr. Russ how long he has been domiciled at the
Pauger Address, Mr. Russ responded, “[p]rior to my back surgery,” and he stated
that he had back surgery in “August [] 2020.” He testified that “some time before
5 Mr. Russ testified that he attended law school at Southern University Law
Center in Baton Rouge, Louisiana.
5
[his] back surgery is when [he] changed [his] domicile back to [the] Pauger
[Address,]” and he reiterated that “it has always been a family home.”
Counsel for Ms. Schindler asked Mr. Russ about his domicile location in
2019, and the following colloquy occurred regarding his vehicle registration:
Q. Were you domiciled in Orleans in 2019?
A. 2019.
Q. 2019?
A. 2020.
Q. What did you do to change that domicile status from 2019 to
2020?
A. Well, I had a conversation with my family. That was around the
time when I purchased the 2020 suburban so all of my
registration and license [were] reflective of the [Pauger
A]ddress.
Q. That [was not] until 2021, correct?
A. No. That was actually in 2020. . . .
A. I registered my vehicle in 2020 and when we went to the
[Department of Motor Vehicles] . . . what I did was I changed
my official domicile in terms of the paperwork. As I indicated .
. . when I had the surgery in August I was living on Pauger
Street prior to that.
....
A. 2020 is when I had my vehicle registered.
Q. At [the] Oxford [Address] in Jefferson [Parish]?
A. On Pauger.
....
Q. . . . When you purchased the vehicle they did not ask you what
address [] you wanted to register your vehicle at?
A. Yes. It was New Orleans.
6
Q. Where did they get the Oxford Street address from?
A. From the address -- probably from -- I [do not] know the
previous vehicle.
....
A. . . . [W]hen I went to get [a] brake tag in Orleans Parish that is
when I found out there was an issue with the registration.
Counsel for Ms. Schindler also showed Mr. Russ the FHA Loan
Modification Agreement. Mr. Russ testified as follows:
Q. Do you recall in 2006 applying for a loan for the Oxford Street
house?
A. Absolutely.
Q. You swore that would be your domicile at that time?
A. Correct.
Q. Again in 2021 you did a modification under the FHA -- under
that same attestation that Oxford Street was going to be your
domicile?
A. No. The domicile for my address is actually on Pauger Street.
....
Q. I just handed you a document from the public records of
Jefferson Parish. Do you recognize that document? Take a
second to look through it.
....
[A.] I did a modification agreement. That is correct[].
Q. This was an FHA modification to the loan on the Oxford Street
house?
A. Yes.
Q. At no time do you recall ever swearing that the Oxford Street
address was your principal place of residence?
A. My principal place of residence is on Pauger Street. My mom
resided at the location on Oxford Place.
7
Mr. Russ also testified that though he still owned the Oxford house, it was vacant
as of March.
Showing the Qualifying Form to Mr. Russ, counsel for Ms. Schindler asked
Mr. Russ about the mailing address listed on it, and this colloquy occurred.
Q. Is there any reason why you do not get your mail at [the Pauger
Address]?
A. What mail are you talking about?
Q. When you filled out this form you said your mailing address is
different, 700 Camp Street. Is there any reason for that?
A. Yes. That is my office address.
Q. You do not get mail at your house?
A. I get mail at my house.
Counsel for Ms. Schindler called to Mr. Russ’ attention his bankruptcy
proceedings in 2018 and 2019, which were held in the United States District Court,
Eastern District of Louisiana. Mr. Russ stated that the proceedings were “probably
around 2017” and admitted that he listed the Oxford Address as his domicile at that
time. However, Mr. Russ stated that he has never filed a document indicating any
intention to change his domicile from the Pauger Address. He testified that his
domicile as of the date of the hearing was the Pauger Address and that it had been
his domicile for at least two years prior.
Regarding his possessions, Mr. Russ testified that his clothes were at the
Pauger Address “with the exception of some shoes that are at other houses where
[his] wife and [children] reside.”6 He stated that he has “other personal affects” and
6 Mr. Russ testified that his wife and children do not reside at the Pauger
Address but do live in Orleans Parish.
8
“documents,” including tax, financial, and work documents, at the Pauger Address
as well.
Looking at his Voter Information Report while testifying, Mr. Russ stated
that he has been a registered voter in Orleans Parish “since probably [19]96.” He
also noted that the Voter Information Report listed the Pauger Address.
Mr. Russ also testified about his April 10, 2022 Driver’s License. Counsel
for Ms. Schindler asked Mr. Russ if he transferred his license from the Oxford
Address to the Pauger Address in April 2021 when he transferred registration of
his vehicle from Jefferson Parish to Orleans Parish, and Mr. Russ answered that he
had transferred his license to the Pauger Address prior to that.
During his testimony, Mr. Russ stated that his cousin, Brandy Flemming
(hereinafter “Ms. Flemming”), is one of the family members with whom he lived at
the Pauger Address. Ms. Flemming also testified at the hearing, stating that she has
lived at the Pauger Address since 2021 and lived in the neighborhood of the Pauger
Address prior to that. When Counsel for Ms. Schindler asked Ms. Flemming if Mr.
Russ had a bedroom at the Pauger Address, she answered affirmatively and
explained that she could answer in the affirmative because she had seen him and
his belongings there. Further, she testified that she knew Mr. Russ was at the
Pauger Address after his surgery because she saw him at the Pauger Address
during the period of his recovery from his back surgery in August 2020. In light of
her testimony that she did not move into the Pauger Address until 2021, Ms.
Flemming explained that she nonetheless knew that Mr. Russ was there prior to
that time “because it is a family home [where her] mom lives” and that she “was
there every other day.” She also testified that his belongings were at the Pauger
9
Address at that time. Regarding the Oxford Address, Ms. Flemming testified that
she knew Mr. Russ’ mom lived there.
Mr. Russ’ wife, Zsatia Willis Russ (hereinafter “Mrs. Russ”), also testified at
the August 3, 2022 hearing, and she likewise stated that Mr. Russ’ mother lived at
the Oxford Address and that she visited the house to help care for Mr. Russ’
mother. Mrs. Russ testified that she and her children live at a house on Crestmont
Road, which is in Orleans Parish.
The Trial Court’s Judgment
At the close of the August 3, 2022 hearing, the trial court orally ruled on Ms.
Schindler’s Petition. Thereafter the trial court signed a judgment at 11:30 a.m. on
August 3, 2022, in accordance with the oral ruling.7 In its written judgment, which
denied Ms. Schindler’s Petition, the trial court stated, in pertinent part:
In election law, the laws governing the conduct of elections
must be liberally interpreted so as to promote rather than defeat
candidacy. Here, the petitioner is alleging that Mr. Russ has not been
domiciled in Orleans parish for the required amount of time prior to
his qualification for election. A person’s domicile is his principal
establishment wherein he makes his habitual residence and essentially
consists of two elements: residence and intent to remain. The
petitioner[, Ms. Schindler,] has the burden of proving here that Mr.
Russ both resided in the Jefferson Parish address ([the Oxford
Address]) and intended to remain there. The Court finds that based on
the testimony and evidence presented at the hearing, [Ms. Schindler]
has failed to prove that Mr. Russ intended to remain at the Jefferson
Parish address ([the Oxford Address)]. As such, [Ms. Schindler] has
not satisfied [her] burden of proof and the objection to the candidacy
of Derek Russ must be denied.
Ms. Schindler’s timely appeal of the August 3, 2022 judgment followed.
7 Louisiana Revised Statutes 18:1409(C) provides relative to election
lawsuits that “the trial judge shall render judgment within twenty-four hours after
the case is submitted . . . and shall indicate the date and time rendered on the
judgment.”
10
ARGUMENTS ON APPEAL
On appeal, Ms. Schindler presents two arguments.8 First, she contends that
“the evidence, including [Mr. Russ’] own testimony, proves that [Mr. Russ] was
domiciled in Jefferson Parish.” Second, Ms. Schindler asserts that “once she
established [Mr. Russ’] domicile in Jefferson Parish, Mr. Russ failed to carry his
burden that he established domicile in Orleans Parish.” In response, Mr. Russ
contends that the trial court erred by failing to denying his Motion to Dismiss. Mr.
Russ also asserts that the Pauger Address is his domicile of origin; that he never
changed his domicile; and that the evidence offered by Ms. Schindler is
insufficient to overcome the legal presumption that he retained the Pauger address
as his domicile. Prior to addressing the merits of the parties’ arguments, we
consider the standard of review.
STANDARD OF REVIEW
The trial court’s conclusion that Ms. Schindler failed to meet her burden of
proof regarding Mr. Russ’ domicile is a finding of fact. As in other civil matters,
an appellate court reviews a trial court’s factual findings in an election challenge
under the manifest error or clearly wrong standard of review. Suarez v. King, 2021-
0458, p. 4 (La. App. 4 Cir. 8/3/21), ___ So.3d ___, ___, 2021 WL 3361780, at *2
(citing Ellison v. Romero, 2020-0376, pp. 3-4 (La. App. 4 Cir. 8/11/20), ___ So.3d
___, ___, 2020 WL 4592805, at *2, writ denied, 2020-01000 (La. 8/17/20), 300
So.3d 875); Duhon v. Briley, 2012-1137, p. 3 (La. App. 4 Cir. 5/23/13), 117 So.3d
253, 257 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). In discussing the
deference owed to the trial court’s factual findings, this Court has explained that
8 Rather than a traditional “Assignment(s) of Error,” Ms. Schindler’s brief to
this Court contains an “Issues Presented for Review” section and an “Argument”
section, both of which are summarized herein.
11
“when findings of fact are based on determinations regarding the credibility of
witnesses, the manifest error-clearly wrong standard demands great deference to
the trier of fact’s findings; for only the factfinder can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s understanding and
belief in what is said.” Duhon, 2012-1137, p. 3, 117 So.3d at 257 (citing Rossell,
549 So.2d at 844; Pelleteri v. Caspian Grp. Inc., 2002-2141, 2002-2142, pp. 6-7
(La. App. 4 Cir. 7/2/03), 851 So.2d 1230, 1235). Additionally, this Court has
explained that “[d]eterminations of domicile made in the district courts are subject
to the manifest error rule. Thus, it is of no consequence how the appellate court
might have ruled had it been sitting as the trier of fact, but rather whether a
reasonable trier of fact could have reached the result that [the trial court] did.”
Suarez, 2021-0458, p. 4, ___ So.3d ___, ___, 2021 WL 3361780, at *2 (quoting
Imbraguglio v. Bernadas, 2007-1220, pp. 2-3 (La. App. 4 Cir. 9/21/07), 968 So.2d
745, 747). See also Augillard v. Barney, 2005-0466, pp. 5-6 (La. App. 5 Cir.
5/4/05), 904 So.2d 751, 753. With this standard of review in mind, we turn to the
principles applicable in all elections cases and the particular laws regarding
domicile.
DISCUSSION
We begin our discussion with the specific domicile laws applicable in the
matter sub judice. Louisiana Revised Statutes 18:492(A)(3) states that “[a]n 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” and lists one of
the grounds as “[t]he defendant does not meet the qualifications for the office he
seeks in the primary election.” Louisiana Revised Statutes 18:451 provides that
“[i]n the event that the qualifications for an office include a residency or domicile
12
requirement, a candidate shall meet the established length of residency or domicile
as of the date of qualifying, notwithstanding any other provision of law to the
contrary.” However, La. R.S. 13:2492(A)(2) provides that “[e]ach judge [on the
Municipal and Traffic Court of New Orleans] . . . shall be domiciled in the parish
of Orleans for at least two years prior to [the] election.” As this Court has
explained, “[t]he general rule of statutory construction is that a specific statute
controls over a broader, more general statute.” Robin v. Creighton-Smith, 2021-
0737, p. 5 (La. App. 4 Cir. 5/11/22), 340 So.3d 174, 179 n.9 (citing Burge v. State,
2010-2229, p. 5 (La. 2/11/11), 54 So.3d 1110, 1113). In the matter sub judice, La.
R.S. 13:2492 is the statute specific to municipal and traffic court judges in New
Orleans, while La. R.S. 18:451 is a general statute regarding candidates for office.
Accordingly, as the more specific of the two, we find that La. R.S. 13:2492 is the
controlling statute; and it requires a candidate for the position of municipal and
traffic court judge to be domiciled in Orleans Parish for at least two years prior to
the election, which is scheduled for November 8, 2022, this year.
On appeal, the sole issue before this Court is whether the trial court erred in
denying Ms. Schindler’s Petition to disqualify Mr. Russ.
“There is nothing more fundamental to our society than the ability of our
electorate to choose its leaders.” Becker v. Dean, 2003-2493, p. 6 (La. 9/18/03),
854 So.2d 864, 869. Moreover, “the purpose of the election process is to provide
the electorate with a wide choice of candidates.” Id. (citing Williams v. Ragland,
567 So.2d 63 (La.1990); Roe v. Picou, 361 So.2d 874 (La.1978); Jumonville v.
Jewell, 317 So.2d 616 (La.1975); Langridge v. Dauenhauer, 120 La. 450, 45 So.
387 (1908)). “The interests of the state and its citizens are best served when
election laws are interpreted so as to give the electorate the widest possible choice
13
of candidates.” Ellsworth-Fletcher v. Boyd-Robertson, 2021-0455, p. 5 (La. App. 4
Cir. 8/2/21), ___ So.3d ___, ___, 2021 WL 3284904, at *2 (citing Becker, 2003-
2493, p. 7, 854 So.2d at 869).
In an election contest, the party challenging the 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 (citing Becker, 2003-2493, p. 7, 854 So.2d at
869; Russell v. Goldsby, 2000-2595, p. 4 (La. 9/22/00), 780 So.2d 1048, 1051;
Dixon v. Hughes, 587 So.2d 679, 680 (La. 1991); Messer v. London, 438 So.2d
546 (La. 1983)). “Thus, where a particular domicile is required for candidacy, the
burden of proof rests upon the party objecting to the candidacy to show a lack of
domicile.” Becker, 2003-2493, p. 7 854 So.2d 864 at 869 (citing Pattan v. Fields,
1995-2375 (La. 9/28/95), 661 So.2d 1320). “A court determining whether the
person objecting to candidacy has carried the burden of proof must liberally
construe the laws governing the conduct of elections ‘so as to promote rather than
defeat candidacy.’” Ellsworth-Fletcher, 2021-0455, p. 4, ___ So.3d ___, ___, 2021
WL 3284904, at *2 (quoting Becker, 2003-2493, p. 7, 854 So.2d at 869). “Any
doubt as to the qualifications of a candidate should be resolved in favor of allowing
the candidate to run for public office.” Becker, 2003-2493, p. 7, 854 So.2d at 869
(citing Russell, 2000-2595, p. 4, 780 So.2d at 1051; Dixon, 587 So.2d at 680).
In her Petition and in her briefs to this Court, Ms. Schindler challenges the
trial court’s factual finding regarding domicile. According to La. R.S.
18:492(A)(3), one of the grounds which an objection to candidacy shall be based is
that the candidate does not meet the qualifications for the office he seeks in the
primary election. The office Mr. Russ seeks is Judge, Municipal and Traffic Court,
Division D, in Orleans Parish. Louisiana Revised Statutes 13:2492(A)(2) provides
14
that “[e]ach judge [on the Municipal and Traffic Court of New Orleans] . . . shall
be domiciled in the parish of Orleans for at least two years prior to [the] election.”
“Louisiana case law has traditionally held that domicile consists of two
elements, residence and intent to remain.” Landiak, 2005-0758, p. 9, 899 So.2d at
542 (citing Becker, 2003-2493, p. 10, 854 So.2d at 871; Russell, 2000-2595, p. 5,
780 So.2d at 1051). Regarding the first element, “[t]he domicile of a natural person
is the place of his habitual residence.” La. C.C. art. 38. Though “[a] natural person
may reside in several places[,]” one “may not have more than one domicile.” La.
C.C. art. 39. “In the absence of habitual residence, any place of residence may be
considered one’s domicile at the option of persons whose interests are affected.”
Id.
Concerning the intent element of domicile, La. C.C. art. 44 provides that
“[d]omicile is maintained until acquisition of a new domicile” and that “[a] natural
person changes domicile when he moves his residence to another location with the
intent to make that location his habitual residence.” According to La. C.C. art. 45,
“[p]roof of one’s intent to establish or change domicile depends on the
circumstances. A sworn declaration of intent recorded in the parishes from which
and to which he intends to move may be considered as evidence of intent.”
However, absent such a declaration, Louisiana courts have held that “[t]here is a
presumption that a person’s domicile remains the same unless there is sufficient
evidence to show [one’s] intent to change it.” Aguillard, 2005-0466, p. 6, 904
So.2d at 753 (citing Landiak, 2005-0758, pp. 9-10, 899 So.2d at 543). Thus, “a
party seeking to show that domicile has been changed must overcome that
presumption by presenting positive and satisfactory proof of establishment of
domicile as a matter of fact with the intention of remaining in the new place and of
15
abandoning the former domicile.” Suarez, 2021-0458, p. 5, ___ So.3d ___, ___,
2021 WL 3361780, at *3 (quoting Landiak, 2005-0758, pp. 9-10, 899 So.2d at
543). Only if the party opposing the candidacy establishes a prima facie case that
the candidate does not meet the domicile requirements for the office sought does
the burden shift to the candidate to prove that he or she meets the domicile
requirements. See Graham v. Prevost, 2015-1033, p. 4 (La. App. 4 Cir. 9/29/15),
176 So.3d 1142, 1145.
The documentary evidence that some Louisiana courts have considered in
determining domicile are voter registration, driver’s license, mail, location of
possessions, and the presence or absence of a homestead exemption. Suarez, 2021-
0248, pp. 11-13, ___ So.3d ___, ___, 2021 WL 3361780, at *6. See also Sellar v.
Nance, 54, 617, p. 15 (La. App. 2 Cir. 3/1/22), 336 So.3d 103, 111 (citing Sealy v.
Brown, 53,541, pp. 9-10 (La. App. 2 Cir. 2/4/20), 291 So.3d 290, 298); Ogden v.
Gray, 2012-1314, p. 6 (La. App. 4 Cir. 9/11/12), 99 So.3d 1088, 1092-93 (citing
Landiak, pp. 10-11, 899 So.2d at 543-44). For the intent element of domicile,
Louisiana courts may also consider a party’s testimony. Ogden, 2012-1314, p. 6,
99 So.3d at 1092. Additionally, this Court has explained “that a candidate can
retain his childhood address as his domicile even if the candidate resides
elsewhere.” Suarez, 2021-0458, p. 10, ___ So.3d ___, ___, 2021 WL 3361780, at
*5 (citing Aguillard, 2005-0466, pp. 5-6, 904 So.2d at 753). With these precepts in
mind, we consider the trial court’s August 3, 2022 judgment.
The narrow issue presented in this appeal is whether the trial court
committed manifest error or was clearly wrong in its factual finding that Ms.
Schindler failed to meet her burden of proof that Mr. Russ was not domiciled in
Orleans Parish. Specifically, the Voter Information Report, which listed the Pauger
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Address, had a voter registration date of October 28, 1996. See Suarez, 2021-0458,
p. 6, ___ So.3d ___, ___, 2021 WL 3361780, at *3 (quoting Landiak, 2005-0758,
p. 10, 899 So.2d at 543). Though the record also contains a subsequent December
23, 2020 Louisiana Voter Registration Application, which also lists the Pauger
Address, we note that Mr. Russ did not sign this document and that it fails to
demonstrate that Mr. Russ’ voter registration ever switched from Orleans Parish
after he initially registered to vote in 1996. Mr. Russ testified that he received mail
at the Pauger Address. See Suarez, 2021-0248, p. 11, ___ So.3d ___, ___, 2021
WL 3361780, at *6 (citing Aguillard, 2005-0466, p. 2, 904 So.2d at 752).
Additionally, Mr. Russ’ driver’s license lists the Pauger Address. See Suarez,
2021-0458, p. 6, ___ So.3d ___, ___, 2021 WL 3361780, at *3 (quoting Landiak,
2005-0758, p. 11, 899 So.2d at 543). While the issuance date is only April 10,
2022, we note that Ms. Schindler did not produce any evidence showing that Mr.
Russ’ previous driver’s license showed a different address.
Also of import is the fact that the FHA Loan Modification Agreement
provided that it “amends and supplements” a September 16, 2006 mortgage and
note for the Oxford Address but did not contain the recitation from the Collateral
Mortgage document that Mr. Russ was “domiciled and residing” in Jefferson
Parish at the Oxford Address.
Further, the document from the Jefferson Parish Assessor’s Office showed
that Mr. Russ did not claim a homestead exemption on the Oxford Address. See
Landiak, 2005-0758, p. 10, 899 So.2d at 543 n.5 (citing Becker, 2003-2493, 854
So.2d 864; McClendon v. Bel, 2000-2011 (La. App. 1 Cir. 9/7/00), 797 So.2d 700)
(holding that “a decision to decline to take a homestead exemption in a . . . parish .
. . other than the one the persons claims as his domicile has been considered as
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evidence that the person did intend for his domicile to be in the other location.”)
Cf. Russell, 2000-2595, p. 6, 780 So.2d at 1052 (holding that the candidate was
domiciled and resided at an address where he claimed a homestead exemption).
Moreover, Mr. Russ testified that the Pauger Address was his childhood
home and that it was his domicile. Ms. Flemming also testified that Mr. Russ was
routinely present at the Pauger Address. Both Mr. Russ and Ms. Flemming
corroborated that he resided there and that his possessions were there. See Suarez,
2021-0458, p. 6, ___ So.3d ___, ___, 2021 WL 3361780, at *3 (quoting Landiak,
2005-0758, p. 11, 899 So.2d at 544). Additionally, contrary to the allegation in Ms.
Schindler’s Petition that Mr. Russ “remains currently domiciled with his wife and
children” at the Oxford Address in Jefferson Parish, Mrs. Russ testified that she
and her children lived on Crestmont Road, which is in Orleans Parish.
Considering that any doubt as to the qualifications of a candidate should be
in favor of allowing the candidate to run, and reviewing the foregoing evidence
and testimony in light of the deference owed to the trial court’s findings of fact, we
conclude that the trial court was not manifestly erroneous or clearly wrong in its
factual finding that Ms. Schindler failed to meet her burden of establishing that Mr.
Russ was not domiciled in Orleans Parish.
DECREE
For the foregoing reasons, we affirm the trial court’s August 3, 2022
judgment, which denied Ms. Schindler’s “Petition Objecting to Candidacy of
Derek T. Russ” for Judge, Municipal and Traffic Court, Division D, in Orleans
Parish.
AFFIRMED
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