Summary
In Russo v. Burns, 14-952 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, the fourth circuit found that the defendant, a candidate for Orleans Parish District Attorney, was properly served to give the court personal jurisdiction over the defendant.
Summary of this case from Bellard v. LewisOpinion
No. 2014–CA–0952.
09-09-2014
Anthony J. RUSSO v. Lionel BURNS, Jr., and The Honorable Arthur A. Morrell.
William M. Ross, W. Raley, Alford III, Richard C. Stanley, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellee. Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, for Defendant/Appellant/In Proper Person.
William M. Ross, W. Raley, Alford III, Richard C. Stanley, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
Lionel Lon Burns, Law Offices of Lionel Lon Burns, New Orleans, LA, for Defendant/Appellant/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 appeal results from an election contest suit. The appellant, Lionel Lon Burns, appeals the trial court's judgment that granted the petition of plaintiff, Anthony Russo, to disqualify Mr. Burns as a candidate for the position of Orleans Parish District Attorney. For the reasons that follow, we vacate the judgment and remand the matter to the trial court for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
On August 20, 2014, Mr. Burns filed a Notice of Candidacy (Notice) form to declare his candidacy for the office of Orleans Parish District Attorney. The signed and notarized Notice included the representation that:
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 of both.
Thereafter, on August 29, 2014, Mr. Russo filed his petition to object to Mr. Burns' candidacy. Mr. Russo contended that a public records request to the Louisiana Department of Revenue revealed that the department had no record of a Louisiana individual income tax return for Mr. Burns for tax years 2010, 2011, 2012, and 2013. Consequently, he alleged that Mr. Burns had falsely certified that he had filed his federal and state income tax returns for the previous five years, and sought to have him disqualified, a sanction allowed by La. R.S. 18:494(A).
La. R.S. 18:494 states the effect of sustaining an objection to candidacy as follows:
A. Disqualification.When an objection to candidacy is sustained on the ground that the defendant failed to qualify for the primary election in the manner prescribed by law, that the defendant failed to qualify for the primary election within the time prescribed by law, or that the defendant does not meet the qualifications for the office he seeks, the final judgment shall disqualify the defendant as a candidate in the primary election for the office for which he failed to qualify properly.
Mr. Russo served the petition on Mr. Burns through his statutory agent for service of process, Arthur A. Morrell, the Clerk of Criminal District Court, the official before whom Mr. Burns qualified his candidacy for district attorney. Mr. Russo also served the petition on Dale N. Atkins, the Clerk of Civil District Court. Mr. Russo retained private process servers to attempt personal service on Mr. Burns; however, they were unable to complete service. Mr. Russo also had a copy of the petition posted in a “conspicuous” place at Civil District Court for Orleans Parish.
La. R.S. 18:1407 provides: By filing notice of candidacy a candidate appoints the clerk of court for each parish in which he is to be voted on as his agent for service of process in any action objecting to his candidacy, contesting his qualification as a candidate in a general election, or contesting his election to office.
The matter was fixed for trial on September 2, 2014. Mr. Burns complained that he had not been personally served with the petition and had only been advised that the proceedings were pending when his assistant received a call from the trial court. The trial court gave Mr. Burns about fifteen or twenty minutes to review the petition. At the start of trial, the plaintiff called several witnesses to discuss service of the petition. Major Martin Blossom, an employee of the Orleans Parish Sheriff's Office, testified that he served the petition on the clerks of court for criminal district court and civil district court. Kasie Marie Chauvin, a private process server, testified that she made seven attempts to serve Mr. Burns at the address provided on his qualifying form, another residence, and his law office. Helen Rose Shear, a law firm employee, stated that she was involved in the filing of the petition and that she saw a member of the Clerk's office post the petition on a wall near the entrance of the office.
Mr. Russo then testified. He stated that he was registered to vote in Orleans Parish. He also identified the letter that he sent to the Louisiana Department of Revenue that requested Mr. Burns' tax returns for the years 2008, 2009, 2010, 2011, 2012, and 2013, and the response letter he received. These documents were admitted into evidence.
Testimony and evidence relative to whether Mr. Burns falsely certified that he filed his Louisiana tax returns for the years 2010 through 2013 came from two witnesses. They were Mr. Burns and Bradley S. Blanchard, an attorney and representative from the Louisiana Department of Revenue.
Mr. Burns admitted that he signed the certification notice regarding his tax returns. He maintained that he anticipated that his opponents might make his tax returns an issue; therefore, he instructed his tax preparers to file his returns for the 2010, 2011, 2012, and 2013 tax years. He reiterated that although he did not file the returns himself, at the time of qualifying, he believed that they had been filed by his tax preparers. Mr. Burns thought that the returns had been filed in early August, perhaps, around August 11, 2014.
Hereinafter, the use of “tax returns” will reference the disputed tax years of 2010, 2011, 2012, and 2013.
Mr. Blanchard testified that upon performing a diligent search, the Department of Revenue had no record of receiving individual tax returns from Mr. Burns. He admitted that the public records request was forwarded to him by Mr. Barfield, the Secretary of the Department, and that the initial request sent to Mr. Barfield was made by Graymond Martin, later identified as an assistant district attorney. The trial court limited Mr. Burns' request to inquire further into Mr. Martin's role in the public records request. The trial court indicated that Mr. Martin's involvement was not relevant because there was no evidence to show that Mr. Martin's involvement tainted the research results.
The trial recessed at 11:48 a.m. The trial court instructed Mr. Burns to bring any documents he had to support that the tax returns had been filed when court resumed at 1:30 p.m.
When the trial resumed, Mr. Burns provided the court with his copies of records that purportedly showed the tax returns that had been prepared. Plaintiff's counsel examined Mr. Burns as to the validity and reliability of the returns. He argued in part that the returns should not be admitted into evidence because they were hearsay evidence, citing that they did not contain the signature of the tax preparer; and moreover, did not provide any verification that the tax preparer had actually filed the returns. Mr. Burns again acknowledged that he did not file the returns himself; instead, he relied on his belief that his tax preparers had filed the returns. He eventually identified Monica Jackson as the person who prepared the returns and claimed that he had signed the returns in her office. The returns were admitted into evidence.
The trial court asked Mr. Blanchard to conduct an updated search to see if the Department of Revenue had received Mr. Burns' tax returns. Upon his return to the stand, Mr. Blanchard testified that he directed his department to do an updated search. However, as of the date of the trial, it still had no record that Mr. Burns had filed his tax returns for the disputed years.
Mr. Burns requested that he be allowed to call Ms. Jackson as a witness on the following morning. The trial court judge denied the request, explaining that “according to the statute, I have to complete the hearing.” The trial court judge then advised Mr. Burns that what he might want to do is file an objection and make a notation that he would like to proffer Ms. Jackson's testimony. She surmised that maybe the proffer could go up to the Court of Appeal; however, the trial judge could not consider Ms. Jackson's testimony at that juncture in the proceedings in making her ruling.
The trial court then rendered judgment in favor of Mr. Russo. The judgment found that Mr. Russo had established a prima facie case that had not been rebutted by Mr. Burns and disqualified him as a candidate.
This appeal followed.
DISCUSSION
Upon appeal, Mr. Burns assigns as errors that the trial court erred by not continuing the matter when he had not been served with the petition; by not allowing him adequate time and notice to prepare for the trial; by not giving him adequate time and notice for him to secure counsel, witness(es), and gather documentation to carry his burden of proof; in not allowing him to call the Assistant District Attorney Graymond Martin to discuss Martin's contacts with the Department of Revenue; and in disqualifying Burns when the tax returns he admitted into evidence were sufficient to continue his candidacy in light of case law that supports that doubts as to candidacy should be resolved in favor of candidacy. In support of his appeal, Mr. Burns submitted proffers of an affidavit from Monica Jackson and a certificate of mailing from the United States Postal Office. The appellee filed a motion to strike, contending that these proffers were not properly before this Court because they had not been filed in the trial court record.
Mr. Burns' assignments of error generally question whether he was properly served with the petition and whether the proceedings below afforded him due process. We find that the record shows that Mr. Burns was properly served with the petition in accordance with La. R.S. 18:1407 and that service of process on his agent gave the trial court jurisdiction over Mr. Burns. See La. R.S. 18:1408(D). However, we also find that Mr. Burns' claims that the proceedings below did not afford him due process have merit.
The essence of due process is notice and an opportunity to be heard. Darnell v. Alcorn, 99–2405, p. 12 (La.App. 4 Cir. 9/24/99), 757 So.2d 716, 723. Here, the evidence that Mr. Burns wanted to elicit from Ms. Jackson-whether she filed his tax return-is material as to whether he falsely certified that he had indeed filed the returns at the time he qualified. Therefore, the denial of his request to call Ms. Jackson clearly prejudiced him in meeting his burden of proof.
La. C.C.P. articles 1631 and 1632 give the trial court the power over trial proceedings and the order of witnesses; and in general, a trial court's judgment as to these decisions will not be disturbed in the absence of an abuse of discretion. However, an abuse of discretion occurs when the trial court's discretion is exercised in such a way that deprives a litigant of his day in court. Anderson v. Cunningham, 34,859, p. 2 (La.App. 2 Cir. 5/9/01), 786 So.2d 940, 942. In the present matter, the record suggests that the trial court denied Mr. Burns' request to call Ms. Jackson as a witness on the following morning because of the expedited procedures imposed by the Louisiana Election Code as to when the trial court must hear and resolve election suits. Although this Court acknowledges that the Election Code provides for an expedited process, it poses no time constraints as to the duration of a hearing, such as to deny a litigant due process.
The trial court's denial of Mr. Burns' request to call Ms. Jackson as a witness effectively denied him his day in court. Therefore, the trial court abused its discretion in not allowing Mr. Burns to call Ms. Jackson.
Finding that the trial court abused its discretion, we need not address the issue as to whether the proffers submitted by Mr. Burns are properly before this Court.
Accordingly, based on the foregoing reasons, the decision to disqualify Mr. Burns is vacated and the matter is remanded to the trial court in order to allow Mr. Burns the opportunity to present testimony from Ms. Jackson.
VACATED AND REMANDED.
BELSOME, J., concurs with additional reasons.
BONIN, J., concurs with additional reasons.
McKAY, C.J., dissents.
TOBIAS, J., dissents and assigns reasons.
LANDRIEU, J., dissents with reasons.
LOBRANO, J., dissents for the reasons assigned by Judge TOBIAS and Judge LANDRIEU.
McKAY, C.J., dissents.
I find no violation of the defendant's due process rights and would affirm the judgment of the trial court disqualifying his candidacy.
TOBIAS, J., dissents and assigns reasons.
I respectfully dissent.
I find the majority errs by granting a remand in this case.
I start with 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. 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 ; Russell v. Goldsby, 00–2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051 ; Ogden v. Gray, 12–1314, pp. 3–4 (La.App. 4 Cir. 9/11/12), 99 So.3d 1088, 1091, writ denied, 12–2041 (La.9/17/12), 98 So.3d 315 ; Scaglione v. Juneau, 10–1109, p. 12 (La.App. 4 Cir. 8/4/10), 45 So.3d 191, 199, writ denied, 10–1831 (La.8/9/10), 42 So.3d 380 ; Williams v. Fahrenholtz, 08–0961, p. 7 (La.App. 4 Cir. 7/25/08), 990 So.2d 99, 104, writ denied, 08–1680 (La.7/30/08), 986 So.2d 671, cert. denied, 555 U.S. 1045, 129 S.Ct. 627, 172 L.Ed.2d 609 (2008). Because election laws must be interpreted to give the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. See Landiak, pp. 6–7, 899 So.2d at 541.On appeal, Mr. Burns assigns the following errors: the trial court erred (1) by not granting him a continuance because he was not served with the petition and citation until he appeared in court on 2 September 2014; (2) by not granting him adequate time to prepare for trial because he is a lawyer and thus an officer of the court; (3) by not giving him adequate time to secure counsel, witnesses, and necessary documentation, which are fundamental to his due process rights of notice and an opportunity to be heard; (4) by not allowing him to call Orleans Parish First Assistant District Attorney Graymond Martin regarding Mr. Martin's contacting the Louisiana Department of Revenue on behalf of the plaintiff/appellee; and (5) by disqualifying him, giving him only the lunchtime break to retrieve his personal tax information and to bring his tax return preparer (who was unavailable) to court, although the court did allow him to proffer the information.
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 20141 , 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. The 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.
It appears that the affidavit was notarized and witnessed in blank and then delivered to Ms. Jackson for her signature.
See Eugene and Galle v. Davenport et al., 2014–953 (La.App. 4 Cir. 9/9/14), 150 So.3d 56, 2014 WL 4437624 and Richmond v. Landrieu et al., 2014–957 (La.App. 4 Cir. 9/9/14), 150 So.3d 43, 2014 WL 4437315 (complete cites not available as cases will be handed down within a twenty-four hour period.)
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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.
BELSOME, J., concurs with additional reasons.
I agree with the majority's decision to vacate the trial court's judgment disqualifying the defendant as a candidate for the office of District Attorney for Orleans Parish. Yet again, we are posed with the narrow issue of whether the State legislature may enact additional qualifications for State candidates beyond what is required by the Louisiana Constitution.
The plaintiffs' objection to the defendant's candidacy primarily involves whether he failed to comply with the directives set forth in La. R.S. 18:463. Specifically, the plaintiff alleges that the defendant should be disqualified, under La. R.S. 18:463(A)(2)(a)(iv) because he falsely certified that he had filed his federal and state income tax returns for the previous five years.
Later, if one were to believe the certificate of mailing as discussed infra, the correct date is 15 August 2014.
La. R.S. 18:463(A)(2)(a) provides, in pertinent part, as follows:
The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
(i) That he has read the notice of his candidacy.
(ii) That he meets the qualifications of the office for which he is qualifying.
(iii) That he is not currently under an order of imprisonment for conviction of a felony and that he is not prohibited from qualifying as a candidate for conviction of a felony pursuant to Article I, Section 10 of the Constitution of Louisiana.
(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.
(v) That he acknowledges that he is subject to the provisions of the Campaign Finance Disclosure Act if he is a candidate for any office other than United States senator, representative in congress, or member of a committee of a political party and that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act.
(vi) That, if he is a major or district office candidate as defined in R.S. 18:1483, he has filed each report he has been required to file by the Campaign Finance Disclosure Act, if any were previously due.
(vii) That he does not owe any outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics.
(viii) That all of the statements contained in it are true and correct.
La. Const. Art. V, Sec. 26 sets forth only two qualifications for candidates of the office of District Attorney: “[h]e shall have been admitted to the practice of law in the state for at least five years prior to his election and shall have resided in the district for the two years preceding election.” Although our justice system has always favored candidacy, see Becker v. Dean, 03–2493, p. 7 (La.9/18/03), 854 So.2d 864, 869 ; La. R.S. 18:463 has evolved into a list of qualifications/disqualifications that promotes the exclusion of otherwise constitutionally qualified candidates.
Although this case presents an issue slightly distinguishable from those involving a federal constitutional article:2 the principal remains the same: an act of legislature should not circumvent a constitutional article, whether state or federal. Given that these extensive statutory qualifications are not enumerated in our State Constitution, the plaintiff's challenge to the defendant's candidacy must fail. As a result, this writer would reverse/vacate the trial court judgment, dismiss the plaintiff's action, and reinstate the defendant's candidacy.
BONIN, J., concurs with additional reasons.
I concur and write separately to emphasize that this is a limited remand. On remand, Mr. Burns may only call Monica Jackson as a witness. She will be subject to cross-examination by Mr. Russo. Of course, Mr. Russo may then call witnesses to rebut her testimony.
LANDRIEU, J., dissents with reasons.
I respectfully dissent. The Majority correctly concludes that service on Mr. Burns was timely and proper. It then concludes, however, that Mr. Burns was denied due process because he was afforded insufficient time to present his evidence.
The record supports a finding that Mr. Burns was well aware that his candidacy might be challenged on the basis of his failure to file his tax returns. Anticipating such a challenge, he testified that he recently instructed his “tax preparer” to file his returns for the years 2010, 2011, 2012 and 2013 and believed they were filed shortly before qualifying. The record is also replete with evidence of multiple attempts to notify Mr. Burns of the scheduled hearing and the nature of the challenge against him. In fact, Mr. Burns testified that he neither looked at his e-mail nor checked his voice mail over the course of the four days between the challenge being filed and the hearing.
It is quite reasonable, under these facts, for the trial court to find incredible Mr. Burns' contention that he needed more time than was afforded him to present competent evidence sufficient to rebut the plaintiff's prima facie case. The trial court was within its discretion to deny Mr. Burns' request for more time. This decision by the trial court did violate his right to due process.