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
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