Dixie Ramirez Versus Kerry Watkins and Eliana Defrancesch, in Her Capacity as Clerk of Court ( 2023 )

DIXIE RAMIREZ NO. 23-CA-411
VERSUS FIFTH CIRCUIT
KERRY WATKINS AND COURT OF APPEAL
ELIANA DEFRANCESCH,
IN HER CAPACITY AS CLERK OF COURT STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 80,318, DIVISION "B"
HONORABLE NGHANA LEWIS, JUDGE PRESIDING
August 23, 2023
2:31 pm
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
JUDGMENT REVERSED
CANDIDATE DISQUALIFIED
SMC
FHW
JGG
MEJ
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
DIXIE RAMIREZ
Ike Spears
Devin C. Jones
IN PROPER PERSON, DEFENDANT/APPELLEE, KERRY WATKINS
Kerry Watkins
CHEHARDY, C.J.
In this election challenge case, plaintiff, Dixie Ramirez, appeals the trial
court’s judgment dismissing with prejudice her petition objecting to the
qualifications of defendant, Kerry Watkins, for the District 7 council seat in St.
John the Baptist Parish. For the reasons that follow, we reverse the trial court’s
judgment, sustain plaintiff’s election challenge, and hold that Mr. Watkins is
disqualified as a candidate for parish council in the upcoming St. John the Baptist
Parish election.
BACKGROUND AND PROCEDURAL HISTORY
On August 10, 2023, Mr. Watkins filed his Notice of Candidacy for the
October 16, 2023 election. Ms. Ramirez, a resident of and registered voter in St.
John the Baptist Parish, subsequently propounded a public records request to the
Louisiana Department of Revenue to obtain the information related to state income
tax filings for Mr. Watkins for the years 2018 through 2022. The response that
LDR provided indicated that it had no record of Mr. Watkins filing a state income
tax return for 2018.
On August 17, 2023, Ms. Ramirez filed a timely Objection to Candidacy and
Petition to Disqualify Candidate alleging that Mr. Watkins had falsely represented
on his Notice of Candidacy that he had filed his federal and state tax returns for the
past five years. See La. R.S. 18:492(A)(7).1
Mr. Watkins was served with the petition on the evening of August 17. The
trial court heard the matter the next day. At trial, Ms. Ramirez called a
representative of LDR as a witness, who testified that LDR had no record of Mr.
1
La. R.S. 18:492(A) states that an action objecting to the candidacy of a person who qualified as
a candidate in the primary election may be based on: “(7) The 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 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.”
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Watkins filing his state income tax return for 2018. Ms. Ramirez also introduced
LDR’s written response into the record as evidence. Ms. Ramirez then called a
representative from the human resources department for St. John the Baptist
Parish, Mr. Watkins’ employer, who certified that Mr. Watkins had earned taxable
income in 2018, and subsequently introduced Mr. Watkins’ 2018 W-2 into the
record as evidence. Ms. Ramirez then called Mr. Watkins to the stand. He
confirmed that he had earned taxable income for 2018 and testified that his tax
preparer had filed his income tax returns for the 2018 tax year, that she had not had
time to locate his records before trial, but that she could testify via telephone. He
further stated that he had used the same preparer for filing his income tax returns
since 2015. Mr. Watkins did not offer, file, or introduce any exhibits or other
objective evidence to support his testimony, however.
After trial, the court dismissed Ms. Ramirez’s objection to Mr. Watkins’
candidacy with prejudice. The trial court’s Judgment with Reasons stated that La.
R.S. 18:4632 does not require a candidate to certify that he has filed his state and
federal tax returns for the past five years and also confirm receipt of his returns by
the respective agencies. The trial court based its ruling on the general duty of
Louisiana courts to adopt a construction of the statute that liberally construes
election laws “to give the electorate the widest possible choice of candidates” and
2
La. R.S. 18:463(A) provides, in relevant part:
(2)(a) The Notice of Candidacy … shall include a certificate, signed by the
candidate, certifying all of the following:
(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 returns or both, or was not required to file either
a federal or state income tax return or both.
***
(ix) That all of the statements contained in it are true and correct.
23-CA-411 2
“to promote rather than to defeat candidacy.” Ms. Ramirez now appeals that
judgment.
DISCUSSION
In an election contest, the person objecting to the candidacy bears the burden
of proving at trial that a candidate is disqualified by setting out a prima facie case.
Trosclair v. Joseph, 14-675 (La. App. 5 Cir. 9/9/14), 150 So.3d 315, 317; Lumar v.
Lawson, 20-251 (La. App. 5 Cir. 8/10/20), 301 So.3d 1243, 1249, writ denied, 20-
994 (La. 8/13/20), 300 So.3d 868. Once the objector makes a prima facie showing
that the grounds for disqualification exist, the burden shifts to the candidate to
rebut that evidence. Id.In this case, the trial court ruled that the plaintiff failed to carry the burden of
proof necessary to establish a prima facie case. We review a trial court’s findings
of fact under the manifest error or clearly wrong standard. North v. Doucet, 18-437
(La. App. 5 Cir. 8/1/18), 253 So.3d 815, 818, writ denied, 18-1294 (La. 8/3/18),
249 So.3d 829. We review issues of law de novo. National Credit Union Admin.
Bd. v. Heard, McElroy & Vestal, L.L.C., 22-150 (La. App. 5 Cir. 12/7/22), 356
So.3d 473, 477, writ denied, 23-0021 (La. 3/7/23), 357 So.3d 350. When the trial
court’s decision is based on an erroneous application of law rather than on a valid
exercise of discretion, the decision is not entitled to deference by the reviewing
court. Lumar, 301 So.3d at 1249. The ruling in this case presents this Court with a
legal error, and we therefore review this matter under the de novo standard of
review.
In Crosby v. Cantrelle, 20-252 (La. App. 5 Cir. 8/10/20), 301 So.3d 1234,
1241, writ denied, 20-996 (La. 8/14/20), 300 So.3d 876, the plaintiff presented
evidence from the LDR Director of Policy Services that four different public
records requests concerning Mr. Cantrelle’s state tax returns were received as of
July 2020, and that the records search confirmed that candidate Cantrelle’s tax
23-CA-411 3
returns for 2017 and 2018 could not been found. This Court held that this
information was sufficient to establish plaintiff’s prima facie case.3
Similar to the plaintiff in Crosby, Ms. Ramirez called an LDR representative
to testify that no record of Mr. Watkins’ 2018 return could be found. Ms. Ramirez
further offered evidence from his employer that Mr. Watkins had received taxable
income for the 2018 tax year, thus foreclosing the argument that no taxes for that
year were due. The burden then shifted to Mr. Watkins to rebut the evidence that
plaintiff had produced. Lumar, 301 So.3d at 1249.
Mr. Watkins presented no objective evidence at the hearing, notwithstanding
his testimony at trial that his tax return for 2018 was filed, and that his tax preparer
could testify via telephone that she had prepared and filed the return. While we are
not required to question Mr. Watkins’ veracity, his self-serving testimony alone is
insufficient to rebut plaintiff’s objective evidence, namely, proof that he earned
taxable income in 2018, and the testimony from an LDR representative and a copy
of LDR’s written response to the public records request, stating that LDR has no
record of his 2018 income tax return.
In Cranch v. Wicker, 20-716 (La. App. 1 Cir. 8/13/20), 311 So.3d 384, 388-
89, writ denied, 20-1015 (La. 8/21/20), 301 So.3d 31, the First Circuit agreed with
the trial court that the plaintiffs had set forth a prima facie case that the candidate
had falsely certified her notice of candidacy because she had not filed her tax
returns for 2016 and 2018, but the court of appeal found that the trial court
manifestly erred in determining that the candidate had successfully rebutted
3
Unlike the facts of the case before us, however, in Crosby the challenged candidate offered
evidence in the form of United States Post Office certified mail receipts, as well as testimony
from his wife stating that she physically mailed the returns and tracked their delivery after they
entered the postal system, to prove that he had mailed his returns before signing the Notice of
Candidacy. This Court confirmed that Cantrelle was entitled to rely upon the “postmark” rule
found in La. Admin. Code tit. 61, pt. 1, § 4911, and held that Cantrelle had proved that his 2017
and 2018 tax returns were filed on the date that they were mailed by certified mail. Id. As such,
he did not falsely certify his Notice of Candidacy.
23-CA-411 4
plaintiffs’ prima facie showing, given the lack of any objective evidence or
testimony as to when the candidate’s 2018 tax return was delivered to LDR.
“Without knowing whether her tax preparer had in fact delivered her 2018 tax
return to the LDR by July 22, 2020, or otherwise ensuring its delivery, Wicker
‘could not have known’ whether or not all of her tax returns for the previous five
years had been filed at the time she signed her Notice of Candidacy.” Id. at 388-89.
As such, plaintiffs’ challenge was sustained and the candidate disqualified.
Similarly, in Lumar, supra, this Court determined that the challenged
candidate must show “reliable circumstances of mailing that would tend to ensure
delivery” (e.g., by certified mail) to maintain a justifiable belief that the
candidate’s returns were filed as of the date of her certification in the Notice of
Candidacy. Lumar, 301 So.3d at 1256. See also Russo v. Burns, 14-1963 (La.
9/24/14), 147 So.3d 1111, 1114 (“Without sending the returns via certified mail or
otherwise ensuring their delivery to LDR, Burns could not have known whether or
not his tax returns had been filed pursuant to Louisiana regulation when he signed
his Notice of Candidacy. We find Russo presented a prima facie case, which has
not been rebutted by Burns”).
Here, the trial court committed legal error in finding that plaintiff had not
met her prima facie burden of proof, as it is clear from the jurisprudence that the
evidence presented at the hearing satisfies that legal standard. “[O]nce a plaintiff
makes a prima facie case for disqualification and the burden of proof shifts to the
challenged candidate, the challenged candidate cannot carry his burden by simply
professing a purely subjective, self-serving and unsupported ‘belief’ that his
returns have been filed.” Crosby, 301 So.3d at 1243. The candidate “must produce
objective supporting evidence regarding the circumstances of mailing (e.g. proof of
mailing by certified mail) to render his belief regarding filing a reasonable belief.”
Id. (emphasis in original).
23-CA-411 5
Mr. Watkins failed to produce any tangible, objective evidence to defeat the
presumption established by Ms. Ramirez, and his self-serving testimony alone, in
light of the holdings in Crosby and Russo, is insufficient to rebut that presumption.
As such, we are constrained to hold that Mr. Watkins falsely certified that he filed
his tax returns for each of the last five years when he signed his Notice of
Candidacy, a result that necessitates his disqualification as a candidate.
CONCLUSION
The trial court’s judgment, which dismissed with prejudice Ms. Ramirez’s
election challenge, is reversed. The objection to Mr. Watkins’ candidacy is
sustained, and Mr. Watkins is disqualified as a candidate in the District 7 Council
race in St. John the Baptist Parish.
JUDGMENT REVERSED
CANDIDATE DISQUALIFIED
23-CA-411 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 23, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-411
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE NGHANA LEWIS (DISTRICT JUDGE)
DEVIN C. JONES (APPELLANT) IKE SPEARS (APPELLANT)
MAILED
KERRY WATKINS (APPELLEE) LEANDRE M. MILLET (APPELLEE)
137 OXBOW DRIVE ASSISTANT DISTRICT ATTORNEY
LAPLACE, LA 70068 FORTIETH JUDICIAL DISTRIST
PARISH OF ST. JOHN THE BAPTIST
POST OFFICE BOX 399
1342 HIGHWAY 44 RIVER ROAD
RESERVE, LA 70084