Opinion

Keisha Henry and Cedric Brumfield, III v. Richard Bell, Sr. and Darren Lombard in His Capacity as Clerk of Criminal Court

Court
Louisiana Court of Appeal
Filed
Aug 25, 2023
Status
Published
Author
Judge Karen K. Herman
On the bench
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
Cited by
0 cases
Authority
More cited than 36.7%

The opinion

KEISHA HENRY AND CEDRIC * NO. 2023-CA-0543

BRUMFIELD, III

*

VERSUS COURT OF APPEAL

*

RICHARD BELL, SR. AND FOURTH CIRCUIT

DARREN LOMBARD IN HIS *

CAPACITY AS CLERK OF STATE OF LOUISIANA

CRIMINAL COURT *******

APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2023-08400, DIVISION “N-8”

Honorable Ethel Simms Julien, Judge

******

Judge Karen K. Herman

******

(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)1

BELSOME, J., DISSENTS WITH REASONS

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LEDET, J., DISSENTS WITH REASONS

JENKINS, J., DISSENTS WITH REASONS

CHASE, J., CONCURS IN THE RESULT WITH REASONS

ATKINS, J., CONCURS

Devin Jones

JOHN T. FULLER & ASSOCIATES, L.L.C.

909 Poydras Street, Suite 2270

New Orleans, Louisiana 70112

COUNSEL FOR PLAINTIFFS/APPELLANTS

1 Judge Dysart recused himself in this matter.

Hollis Shepherd

ATTORNEY AT LAW

2221 St. Claude Avenue

New Orleans, Louisiana 70117

COUNSEL FOR DEFENDANT/APPELLEE - RICHARD BELL, SR.

Madro Bandaries

MADRO BANDARIES, P.L.C.

Post Office Box 56458

New Orleans, Louisiana 70156

COUNSEL FOR DEFENDANT/APPELLEE - THE HONORABLE

DARREN LOMBARD, CHIEF ELECTIONS OFFICER AND CLERK OF

CRIMINAL COURT

REVERSED

AUGUST 25, 2023

AT 2:40 PM2

2 La. R.S. 18:1409 (F) provides that “[j]udgment 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.

The clerk of the court of appeal shall immediately notify all parties or their counsel of record by

telephone and/or facsimile transmission of the judgment.”

KKH

TFL

PAB

RDJ

NEK

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

1

his Notice of Candidacy form that he filed tax returns for the years 2018,

2019, 2020, 2021, or 2022.3

The matter proceeded to trial on August 21, 2023.4 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.5 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

3 La. R.S. 18:492(A)(7) permits an action objecting to candidacy of a person who

qualified as a candidate in a primary election where “[t]he defendant falsely certified on

his notice of candidacy that for each of the previous five 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 La. R.S. 18:463(A)(2), or was not required

to file either a federal or state income tax return or both.”

4 Mr. Bell was not represented by counsel at trial.

5 Plaintiff, Keisha Henry, testified that she resides in Ward 9, Precinct 7. Plaintiff, Cedric

Brumfield, stated he resides in Ward 9, Precinct 5.

2

he did not have to file taxes.6 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”7 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.8 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 Mr. Bell had a print-out from the IRS website’s frequently asked questions, which

allegedly stated he did not have to file income taxes. The trial court advised that the

document was not admissible.

7 Mr. Bell later explained that “after age 65, it turned from Social Security Disability to

regular Social Security.” At the time of the hearing, Mr. Bell was 68 years old.

8 Ms. Butler attempted to testify as to a “tax situation that happened to [her] last year.”

She stated she only receives Social Security. Thus, her tax return was rejected because

she lacked taxable income. However, the trial court sustained Plaintiffs’ counsel’s

objection to this testimony and was advised that she could only testify as to her

knowledge of Mr. Bell’s income taxes.

3

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

4

1137. “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 *3.9

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.

9 The Louisiana Supreme Court denied writs. See Irvin v. Brown, 2017-1327 (La.

8/2/17), 222 So.3d 720.

5

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.

6

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

7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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