Opinion
No. 2014–CA–1008.
09-17-2014
Anthony J. RUSSO v. Lionel BURNS, Jr., and the Honorable Arthur A. Morrell.
Richard Charles Stanley, William M. Ross, W. Raley Alford, III, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellant. Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, Defendant/Appellee/In Proper Person.
Richard Charles Stanley, William M. Ross, W. Raley Alford, III, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, Defendant/Appellee/In Proper Person.
(Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET )
Judge Sandra Cabrina Jenkins is recused.
Opinion
DENNIS R. BAGNERIS, SR., Judge.
This is an election contest suit. Plaintiff/appellant, Anthony J. Russo, appeals the trial court's judgment which overruled its previous decision to disqualify the appellee, Lionel Lon Burns, as a candidate of Orleans Parish District Attorney. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY
See Anthony J. Russo v. Lionel Burns, Jr., et al., CDC # 2014–8590.
On August 29, 2014, Mr. Russo filed a petition objecting to Lionel Lon Burns as a candidate for Orleans Parish District Attorney. The petition alleged that Mr. Burns had falsely certified on his notice of candidacy form that he had filed his federal and state income tax returns for the previous five years.
La. R.S. 18:492(A)(7) allows for an action objecting to the 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 R.S. 18:463(A)(2), or was not required to file either a federal or state income tax return or both.”
At the initial hearing on September 2, 2014, a representative of the Louisiana Department of Revenue testified that the department had no record of state income tax returns from Mr. Burns for the years 2010, 2011, 2012, and 2013. Mr. Burns countered that he had retained a tax preparer, Monica Jackson, to prepare and file his tax returns for the disputed years; and that he believed she had timely filed the returns when he qualified for Orleans Parish District Attorney. Mr. Burns submitted records of his purported tax returns into evidence. He requested that the trial court allow him until the following morning to call Ms. Jackson as a witness to verify that the returns had been filed. The trial court denied the request. Thereafter, it rendered judgment in favor of Mr. Russo and disqualified Mr. Burns as a candidate. Mr. Burns appealed. This Court found that the trial court abused its discretion when it denied Mr. Burns' request to call Ms. Jackson as a witness. Accordingly, we vacated the judgment and remanded the matter to the trial court to allow testimony from Ms. Jackson.
Hereinafter, “tax returns” shall reference returns for the years 2010, 2011, 2012, and 2013.
See Anthony Russo v. Lionel Burns, Jr., et al., 2014–CA–0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 2014 WL 4636409.
Upon remand, Ms. Jackson stated that she owned a tax and accounting business. She testified that Mr. Burns retained her in early August to prepare and file his tax returns. She maintained that she indeed prepared and filed the returns. Ms. Jackson advised that the returns were placed in a single envelope and mailed to the Louisiana Department of Revenue.
Ms. Jackson averred that the returns were mailed from a post office on Louisiana Avenue in New Orleans. Ms. Jackson acknowledged that she may not have been the one who physically went inside the post office to mail the returns; however, she claimed she drove to the post office with the person from her office who would have gone inside and actually mailed the returns. She explained that she has memory lapses because of a diabetic condition. Ms. Jackson went on to identify a United States Postal Service Certificate of Mailing, dated August 15, 2014, that was admitted into evidence. She said she kept this certificate from the post office to document that the tax returns had been mailed and typically retains similar receipts to show to the client. Ms. Jackson also verified that she told Mr. Burns that his returns had been mailed.
In rebuttal, Mr. Russo presented testimony from Helena Shear, a paralegal employed by the law firm for plaintiff's counsel. Ms. Shear said she went to the same post office to mail letters and to obtain certificates of mailing. The certificates of mailing received by Ms. Shear showed postage paid affixed to the certificates, unlike the certificate of mailing introduced into evidence by Mr. Burns.
At the conclusion of the hearing, the trial court determined that the facts presented to the court indicated that Mr. Burns had a good faith belief that he had filed his tax returns when he qualified for office and that he had rebutted the prima facie case for disqualification established by the plaintiff. Accordingly, the court overruled its previous judgment that had granted plaintiff's objection to Mr. Burns' candidacy. The effect of the judgment reinstated Mr. Burns' candidacy.
This appeal followed.
LAW AND DISCUSSION
Mr. Russo argues in his assignment of error that the district court committed legal error by essentially rewriting La. R.S. 18:463(A)(2)(a)(iv) to allow Mr. Burns to avoid disqualification premised on Mr. Burns' belief that “to the best of his knowledge” that he had filed his tax returns. Mr. Russo maintains that the certification requirement of the statute means that a candidate has in fact filed his federal and state tax returns for the previous five years preceding an election. Hence, a candidate's subjective belief or state of mind has no bearing on disqualification if his certification that his taxes have been filed is indeed false.
La. R.S. 18:463(A)(2)(a)(iv) provides in part that the notice of candidacy shall also include a certificate by the candidate that “[e]xcept 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 state income tax return or both, or was not required to file either a federal or state income tax return or both.”
Mr. Russo notes that in its previous judgment, the trial judge found that he had met his prima facie burden of proof to disqualify Mr. Burns as the Louisiana Department of Revenue had no record of Mr. Burns' tax returns and Mr. Burns presented no proof that the returns had been filed. Upon remand, Mr. Russo contends that the testimony of Ms. Jackson and the certificate of mailing introduced into evidence at the remand hearing did not prove that Mr. Burns' tax returns were actually filed with the Louisiana Department of Revenue. Accordingly, he suggests that because the trial court did not expressly find that Mr. Burns had filed his taxes, it erred as a matter of law in considering Mr. Burns' state of mind in deciding that he had not made a false certification. We disagree.
Mr. Russo's argument is flawed because La. R.S. 18:492(A)(7) provides for an action to object to candidacy based on false certifications made by the certifying candidate. Therefore, the basis to maintain an action under R.S. 18:492(A)(7) hinges not on whether the taxes were filed, but rather, whether the candidate falsely certified that the taxes were filed.
La. R.S. 18:492(A)(7) states that an action objecting to candidacy can be based on “[t]he 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 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.”
In order to determine whether a certification was false, courts must consider scienter; that is, knowledge by the representing party that material facts have been knowingly misrepresented with the intent to deceive. Indeed in a related election contest suit, Louisiana Board Of
Ethics v. Wilson , the Third Circuit Court of Appeal, affirmed the judgment of the trial court to not disqualify a candidate for falsely certifying that he had paid an election fine where the candidate believed that the outstanding fine had been paid by an associate. Therefore, we conclude it was not an error of law for the trial court to consider Mr. Burns' state of mind in deciding if he made a false certification.
14–925 (La.App. 3 Cir. 9/9/14), ––– So.3d ––– –; 2014 WL 4413227 ; writ denied, 2014–1908 (La.9/15/14), 148 So.3d 938.
Having determined that the trial court did not make an error of law that requires de novo review, we now decide whether the trial court's decision to overrule the disqualification of Mr. Burns was error.
Our jurisprudence is well-established that for an appellate court to reverse a fact finder's determinations, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and the appellate court must further determine that the record establishes that the finding is clearly wrong. Darnell v. Alcorn, 99–2405, p. 6 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 719. See also Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Here, Mr. Russo questions the credibility of Mr. Burns' witnesses and the evidence he admitted at trial. However, courts of appeal must give deference to the trier of fact's factual findings based on credibility judgments. Scalione v. Juneau, 10–1109, p. 5 (La.App. 4 Cir. 8/4/10), 45 So.3d 191, 195. Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of facts should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
A careful review of the record shows that the trial court had a reasonable basis upon which to find that Mr. Burns truthfully believed that he had in fact filed his taxes when he certified that he had done so. In particular, Ms. Jackson, the tax preparer, testified that she prepared Mr. Burns' returns; that the returns were mailed to the Louisiana Department of Revenue; and that she told Mr. Burns that the returns had been mailed. Accordingly, the trial court made a finding that the facts as presented suggested that Mr. Burns certified to the best of his knowledge that he had in fact filed his taxes when he qualified for office. Therefore, this Court cannot say the trial court's findings were manifestly erroneous or clearly wrong.
We also note the jurisprudential rule that candidacies for public office are favored and the courts should uphold a candidacy if an interpretation of the laws would promote the candidacy. See Landiak v. Richmond, 05–0758 p. 7 (La.3/24/05), 899 So.2d 535, 541 ; Becker v. Dean, 03–2493, p. 7 (La.9/18/03), 854 So.2d 864, 869. The record before us and the interpretation of established case law support that Mr. Burns' candidacy should be upheld.
Wherefore, based on the foregoing reasons, we affirm the judgment of the trial court overruling Mr. Burns' disqualification and reinstating his candidacy.
AFFIRMED.
BELSOME, J., concurs in the result with reasons.
DYSART, J., concurs for the reasons set forth by Judge BELSOME.
LOBRANO, J., concurs in the result.McKAY, C.J., dissents.
TOBIAS, J., dissents and assigns reasons.
LANDRIEU, J., dissents for the reasons assigned by McKAY, C.J.
McKAY, C.J., dissents.
This case was remanded to the district court for the specific purpose of permitting Mr. Burns to call Monica Jackson as a witness, whom he claimed could prove that his state tax returns for 2010–2013 were filed with the Louisiana Department of Revenue prior to the execution of his Notice of Candidacy on August 20, 2014. However, Ms. Jackson produced no evidence and gave no testimony establishing that the tax returns were delivered to the LDR.
Louisiana law is unambiguous that a tax return that is never received by the LDR is not deemed to have been “filed.” The taxpayer's subjective intent to file a return is not enough; the return must actually be delivered. La. Admin. Code tit. 61, pt. I, § 4911(B)(1). Because it is undisputed that Mr. Burns's returns were not delivered to the LDR, they were not filed as a matter of law. Therefore, his certification in the Notice was false, and he should be disqualified as a candidate in the upcoming election.
TOBIAS, J., dissents and assigns reasons.
I respectfully dissent. I find that the trial court erred as a matter of law by incorrectly interpreting La. R.S. 18:463. Therefore, contrary to the majority's argument, the proper standard of review is de novo.
I first note that the appellant, Mr. Russo, did not seek supervisory review from the Supreme Court of this court's 9 September 2014 decision that remanded this case to the trial court for the testimony of Mr. Burns' tax preparer. Whether it was proper to remand this election case for further testimony has not been resolved by the Supreme Court in spite of this court's unique holding that it was proper. I have not been able to locate an election contest case where an appellate court remanded for further evidence, save one case where a remand was granted for the limited purpose to determine whether the appellate court had jurisdiction to even hear the appeal. The statutory procedures were followed to the letter by Mr. Russo and it was totally proper for the court to proceed to trial on 2 September 2014 and require Mr. Burns to present his entire case that day.
Second, the additional evidence produced by Mr. Burns at the remand does not address the ultimate issue in this case, to-wit, did Mr. Burns file his tax returns. This issue is addressed further infra. Mr. Burns has omitted significant evidence in support of his position. See Russo v. Burns, 14–0952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 72–75, 2014 WL 4636409 (Tobias, J. dissenting.1 )At the remanded hearing, Monica Jackson, who prepared Mr. Burns' tax returns, testified that she could not remember who, less than a month earlier, had actually mailed the envelope containing his returns. She testified that she drove to the post office in uptown New Orleans with another person, who she did not recall, to affect mailing. She blamed her lack of memory of various issues on her diabetes and use of insulin to control it. In addition, it strains credibility to accept her testimony that the tax returns were actually mailed uptown, when Mr. Burns went to her home in LaPlace on 14 August 2014 to sign those returns, in light of the necessity to have them filed before 20 August 2014, the date on which Mr. Burns signed his notice of candidacy. The certificate of mailing produced by Ms. Jackson did not contain the amount of postal fee paid for the certificate of mailing despite the place on the certificate where such a notation was to be made. Therefore, in my opinion, little weight, if any, can be given to her testimony.
This discrepancy was made even more apparent when compared to the two certificates of mailing produced by a paralegal, who worked for the plaintiff's counsel, who mailed two separate envelopes at the same uptown post office the day before the hearing. Both of those certificates indicated the amount of postal fee for the certificate of mailing paid on their face. See Mailing Standards of the U.S.P.S., Domestic Mail Manual 503.5.1.1 through 503.5.1.4.
Now, Mr. Burns, as echoed by the majority, argues that the trial court made certain credibility determinations before rendering its decision, thereby creating a manifest error/clearly wrong standard of review. However, nowhere in the opinion does the trial court make any credibility determinations. In fact, the trial court acknowledges “that the testimony [subjective at best] and the exhibits [objective] differ significantly. ” [Emphasis supplied.] In addition, as quoted infra, the trial court never holds the evidence “proves” that Mr. Burns carried his burden of proof; merely that it is “suggested” that he did so.
La. R.S. 18:463 states in pertinent part:
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. The candidate shall list on the notice of candidacy the name of the political party if he is registered as being affiliated with a recognized political party, “other” if he is registered as being affiliated with a political party that is not a recognized political party, or “no party” or an abbreviation thereof if he is registered with no political party affiliation. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he has qualified for the election.
(b) The candidate shall designate in the notice the form in which his name shall
be printed on the ballot. The candidate may designate his given, first, and middle name, the initials of his given, first, and middle name, a nickname, or any combination thereof as the form in which his name shall be printed on the ballot, but he shall not designate a title, designation, or deceptive name, nor shall he designate an occupational or professional description or abbreviation. If the candidate designates a nickname in place of or in combination with his given name or the initials thereof, the nickname shall be set off with quotation marks and shall be placed immediately preceding his surname. A candidate shall include his surname in his designation of the form in which his name shall be printed on the ballot.
* * *
(2)(a) The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
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(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 state income tax return or both, or was not required to file either a federal or state income tax return or both.
* * *
(viii) That all of the statements contained in it are true and correct. [Emphasis supplied.]
In this matter, the trial court held:
Thus, the facts presented to this court suggest that when Mr. Burns qualified for office, he certified to the best of his knowledge, that he had in fact filed his taxes. Mr. Burns has submitted sufficient evidence to rebut the prima facia case established by the plaintiff. [Emphasis supplied.]
This ruling is incorrect for two reasons.
First, although it is true, as a general matter, that the law favors candidacy, those cases clarify that once an objector makes a prima facie showing (as was done here), the burden shifts to the defendant to rebut that showing. Landiak v. Richmond, 05–0758, p. 8 (La.3/24/05), 899 So.2d 535, 542 ; Louisiana State Board of Ethics v. Garrett, 06–0263, p. 8 (La.App. 4 Cir. 3/21/06), 929 So.2d 176, 180–181 034342666;00166;2009203184;RP;; 0000735;1802034342666;00167;2009203184;RP;;0000735;181
In the instant case, the plaintiff proved that as of 2 September 2014, Mr. Burns' tax returns for years 2010–2013 had not been filed with the Louisiana Department of Revenue (“LDR”). The burden then shifted to Mr. Burns to prove, not suggest, that the returns had been received by the LDR.
Pursuant to the La. Admin. Code title 61, pt. I, § 4911(B)(1) :
B. File Date of a Return, Report and Other Document
1. Delivery by the United States Postal Service. A return, report or other document in a properly addressed envelope with sufficient postage delivered by the United States Postal Service is deemed filed on the date postmarked by the United States Postal Service. The postmark must bear a date on or before the last date prescribed for filing the return, report or other document in order to be considered timely filed. If the postmark on the envelope is not legible, the taxpayer has the burden of proving the date that the postmark was made. If the return,
report or other document is sent by United States registered or certified mail, the date of registration is treated as the date of postmark. A postage meter date is considered a valid postmark date provided it does not conflict with a legible United States Postal Service postmark date. If the dates conflict, the United States Postal Service date shall override the meter date.
In this case, Mr. Burns did not objectively prove (as acknowledged by the trial court) that his tax returns had been mailed. In addition, Mr. Burns did not supply, or even proffer, evidence, that his tax returns had been received by the LDR between the initial hearing on 2 September 2014 and the subsequent hearing nine days later; thus, he did not demonstrate that the returns were actually filed under the law. I, therefore, disagree as a matter of law with the trial court that Mr. Burns submitted sufficient evidence to rebut the prima facia case established by the plaintiff.
Second, the notice of candidacy and La. R.S. 18:463 require the candidate to sign the notice certifying “[t]hat all of the statements contained in it are true and correct,” not true and correct to the best of his/her knowledge. This holding creates a subjective standard on the part of the candidate. If, as asserted by Mr. Burns, all the candidate would have to prove is “good faith” or “the best of [one's] knowledge” and belief, election disputes would require lengthy evidentiary processes to prove that the candidate was not in good faith when he/she signed the notice of candidacy. A challenger would have an almost impossible task to disqualify a candidate for office in the limited timeframe for election challenges. This is not what the statute states, contemplates, or requires.
As stated by the Supreme Court in Benjamin v. Zeichner, 12–1763, pp. 5–6 (La.4/5/13), 113 So.3d 197, 202 :
The starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. Further, the legislature is presumed to act with full knowledge of well-settled principles of statutory construction. [Footnote omitted.]
Here, the language of La. R.S. 18:463 is clear and unambiguous. It creates an objective test: were Mr. Burns' tax returns filed, either by objective proof of mailing or actual delivery to the LDR, on 20 August 2014 when he signed the notice of candidacy to run for district attorney. The answer to that question is an unequivocal “No. ”
Therefore, I would reverse the district court and hold that Mr. Burns is disqualified as a candidate for the office of Orleans Parish District Attorney.
BELSOME, J., concurs in the result with reasons.
I concur in the majority's result to affirm the trial court's judgment for the reasons stated in my previous concurrence in this case.
The dissent reads in pertinent part as follows:
I find the majority errs by granting a remand in this case.
* * *
After the trial began, the trial court granted Mr. Burns' request for a recess in order to obtain copies of his 2010–2013 tax returns from his Algiers office. Approximately an hour and forty-five minutes later, Mr. Burns presented tax returns bearing original signatures of himself and his tax preparer dated 14 August 2014. These tax returns appear in the record on appeal. Mr. Burns does not clearly explain how he possessed original tax returns; he seems to say that he signed two copies of each of his tax returns, left one with the tax preparer for mailing, and kept one with the cover letter of transmittal to him dated 11 August 2014 for his records.
I do not find erroneous the trial judge's conclusions that Mr. Burns' candidacy must be stricken and that he is disqualified to run for the office of district attorney. The trial judge implicitly concluded that Mr. Burns did not file his state income tax returns before he qualified for office on 20 August 2014. The finding is not manifestly erroneous or clearly wrong. If, as Mr. Burns contended in the trial court that his tax preparer mailed the returns on 14 August 2014 1, the returns clearly had not been received by the Louisiana Department of Revenue (“LDR”) by 29 August 2014 or during the 2 September 2014 trial, when the LDR witness was testifying I do not find it credible that he relied upon his tax preparer (as he testified) to timely mail the returns given the exigent circumstances.
I would reject the proffers of Mr. Burns and strike them as the appellees have so moved. He did not file the proffers in the trial court and they do not form a part of the record on appeal. No law or rule of court permits proffers to be filed in the first instance in an appellate court. Therefore, unlike the majority, I would not consider anything in the proffers.
If I were to consider the proffers, however, I note the following matters which make them questionable and unreliable.
Mr. Burns' appellate brief was to be filed in this court by 1:00 p.m. on 5 September 2014. On 5 September 2014, he filed a motion requesting an extension of time to file his appellate brief later that day; the extension was granted. He delivered with his motion two proffers: (1) a purported affidavit of his tax return preparer (Monica Jackson, whose tax preparing service, “Error Proof Tax Service,” is apparently located somewhere west of New Orleans, such as LaPlace or Kenner, Louisiana), stating that she mailed his four state tax returns to the LDR on 15 August 2014: and (2) a U.S. Postal Service certificate of mailing with a cancellation stamp/postmark from a branch post office in uptown New Orleans (zip code 70115) bearing the date of 15 August 2014.
This first purported original affidavit dated 5 September 2014 does not bear the signature of the tax preparer, Ms. Jackson; it is signed by two witnesses and the notary public only. Later on 5 September 2014, Mr. Burns filed a motion to supplement the record to replace the first purported affidavit. The second affidavit bears the signature of his tax preparer, Ms. Jackson. A comparison of the first purported affidavit with the second affidavit strongly suggests that the notary public and witnesses signed the document prior to the affiant and were not present when Ms. Jackson signed.1The signatures of the notary public and witnesses are identical in every respect whatsoever, including and even to the extent that the signature of the notary public crosses the handwritten number “5” in the date of the jurat at the precise same place. The handwritten word “September” in both jurats is distinctively identical with an imperfection in the “ep” of the word “September.” I do not place much credence or credibility in the second affidavit presented to this court on 5 September 2014. I would, therefore, reject this proffer.
The certificate of mailing is questionable. The certificate of mailing has no postage affixed as the certificate itself says should be and I wonder why a tax preparer would mail a letter in uptown New Orleans when her office is in Kenner and, as stated by Mr. Burns in oral argument, she resides in LaPlace. I would reject the proffer.
Mr. Burns statements about being unprepared ring hollow. Mr. Burns testified that he was unprepared for the 2 September 2014 trial because he did not know until that morning that a challenge to his candidacy had been filed by Mr. Russo. He asserts various versions of his actions over the preceding Labor Day weekend: that he was in Atlanta, Georgia visiting his minor son over the Labor Day weekend (29 August through 1 September); that he was halfway to Georgia and had to turn back because of this election contest; that he was at his 5740 Eastover Drive home (where service of the petition and citation was attempted three times) several times over the Labor Day weekend, which he later modified to say that he was there only for about five minutes early Saturday morning, 30 August 2014. Mr. Burns' credibility is obviously suspect in these regards.
The trial judge was under statutory item restraints to begin the trial of the case, and refused to recess the trial for yet a second time to permit Mr. Burns to bring his tax preparer into court the following day to testify that she mailed the tax returns prior to 20 August 2014 (the day Mr. Burns qualified for office with the clerk of court). I cannot say that the trial judge abused her discretion in refusing to entertain the second recess; it is apparent from the testimony the judge heard and evidence presented that the judge did not believe Mr. Burns.
Our statutory expedited procedures to challenge candidacy have been adhered to by the trial court. I do not find a remand in order. I would affirm the judgment of the trial court.
Further, Mr. Burns moved and the trial court granted a stay of her 3 September 2014 judgment. No law permits the granting of a stay in an election contest. I would order the stay entered by the trial court vacated.
See Russo v. Burns, 14–952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 2014 WL 4636409 (Belsome, J., concurring).
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