Karen Dickerson Versus Derrick Shepherd and Jon Gegenheimer, in His Official Capacity as Clerk of Court for the Parish of Jefferson, State of Louisiana ( 2023 )

KAREN DICKERSON NO. 23-CA-415
VERSUS FIFTH CIRCUIT
DERRICK SHEPHERD AND JON COURT OF APPEAL
GEGENHEIMER, IN HIS OFFICIAL
CAPACITY AS CLERK OF COURT FOR THE STATE OF LOUISIANA
PARISH OF JEFFERSON, STATE OF
LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 844-760, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
August 28, 2023
8:52 pm
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, Stephen J. Windhorst, John J. Molaison, Jr., and Scott U.
Schlegel
REVERSED
FHW
SMC
JJM
SUS
WINDHORST, J., CONCURS WITH REASONS
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
KAREN DICKERSON
Stephen M. Petit, Jr.
Brittany D. Rogers
COUNSEL FOR DEFENDANT/APPELLANT,
DERRICK SHEPHERD
G. Karl Bernard
WICKER, J.
In this election challenge litigation, defendant, Derrick Shepherd, seeks
review of the trial court’s judgment sustaining plaintiff’s objection to Mr.
Shepherd’s candidacy, and disqualifying Mr. Shepherd as a candidate for the office
of Jefferson Parish Council, District 3. For the following reasons, we reverse the
trial court judgment.
FACTUAL AND PROCEDURAL HISTORY
On August 8, 2023, Mr. Shepherd filed a notarized “Notice of Candidacy”
for the office of Jefferson Parish Council member, District 3. On August 17, 2023,
plaintiff, Karen Dickerson, filed a “Verified Petition Objecting to the Candidacy of
Derrick Shepherd,” contending that Mr. Shepherd was not qualified as a candidate
because he is domiciled and has his primary residence at 14 Villa Cove Drive in
Harrison County, Mississippi. Mrs. Dickerson asserted that Mr. Shepherd failed to
provide his correct domiciliary address in his Notice of Candidacy in violation of
La. Const., Art. III, Sec. 4 and that he was not domiciled and did not reside in the
proper district in violation of Section 2.03(A)(1) of the Jefferson Parish Home Rule
Charter.
The matter proceeded to trial on August 21, 2023. At trial, Mr. Shepherd
testified that he maintains his domicile at #2 Blueberry Court in Marrero,
Louisiana. Mr. Shepherd testified that he does not own the Blueberry Court home
but that he purchased the home for the benefit of his mother. He initially testified
that he gave his mother “cash” to purchase the property in 2007 or 2008. Upon
further questioning, during which he was shown documentation reflecting that his
mother and her late husband purchased the property in 1999, Mr. Shepherd
clarified that after his mother’s husband’s death, he gave his mother the money that
she needed in order to retain the home outright.
23-CA-415 1
Mr. Shepherd testified that, upon his release from federal custody in 2012,
he transferred his domicile from 1113 Garden Road, Marrero, Louisiana to #2
Blueberry Court in Marrero. At trial, Mr. Shepherd introduced a “Declaration of
Change of Domicile,” filed in the Jefferson Parish Conveyance records on August
22, 2013, and reflecting Mr. Shepherd’s intent to change his domicile to #2
Blueberry Ct. in Marrero.
Mr. Shepherd testified that he works as a general contractor and that he is an
elected member of the Jefferson Parish School Board. He testified that he has an
office located at 2009 Ames Blvd. in Jefferson Parish with sleeping quarters, and
that he does sleep at his office on occasion. He testified that, between his August 8,
2023 date of qualification for Jefferson Parish Council and the date of trial, he has
slept in various locations in Marrero, Westwego, Waggaman, and Algiers; he
testified that his sleeping arrangements vary based on whether he gets “lucky” or is
“invited” to sleep elsewhere. He testified, however, that on an “everyday basis” he
resides at either #2 Blueberry Ct., in which he utilizes the master bedroom, or 1037
Comardelle, which was his father’s residence until his father’s death in 2020 from
Covid.
Mr. Shepherd testified that he receives mail at Blueberry Ct., including a
Discover credit card bill1, voter registration documentation, all IRS or tax
documentation, and VA medical documentation. He did not produce any utility
bills from Blueberry Ct., but testified that he receives utility bills at both 1037
Comardelle in Marrero and at 14 Villa Cove in Mississippi.
Mr. Shepherd testified that he has executed multiple “Notices of Candidacy”
forms and that each time he has qualified for public office since 2013, he has
recorded his address as #2 Blueberry Ct. When questioned by plaintiff’s counsel
1
The Discover credit card documentation was not introduced into evidence; however, the transcript
reflects that plaintiff’s counsel was provided a copy of a monthly statement at trial and acknowledged,
“And it does have Blueberry Court on there I appreciate that.”
23-CA-415 2
concerning a Louisiana elected official’s financial disclosure form executed in
2019, Mr. Shepherd acknowledged that he omitted his Mississippi property on the
disclosure. He further admitted that on a 2015 disclosure form, he failed to list
Orleans parish investment property that he owned at that time.
Mr. Shepherd testified that he owns 57 properties located in Louisiana,
Texas, and Mississippi. He further explained that he owns two properties in
Mississippi. He purchased the property at 14 Villa Cove in Harrison County,
Mississippi in 2017 through a VA loan. The VA loan documentation, introduced
into evidence and discussed below, provides that Mr. Shepherd “shall occupy,
establish, and use the [Mississippi] property as [his] principal residence within 60
days…and shall continue to occupy the Property as [his] principal residence for at
least one year after the date of occupancy….” Mrs. Dickerson introduced into
evidence the 2017 VA loan documentation as well as the 2021 loan documentation
related to a refinance of 14 Villa Cove. Mr. Shepherd did not deny refinancing the
property in 2021, but denied that the 2021 documentation he was shown reflected
his signature.
Concerning the Villa Cove property, Mr. Shepherd testified that the property
is an “investment property” and that he visits the property on the weekends or
allows people to stay there to fish and pass the time.2 When questioned whether he
complied with the occupancy requirements for the loan documentation, which
required him to make 14 Villa Cove in Mississippi his “principal residence” for at
least one year, he testified “yes…to my knowledge I did.” However, when
questioned again if he had ever made 14 Villa Cove his primary residence, he
testified “No, I didn’t move to Mississippi to make it my primary residence.”
2
Mr. Shepherd testified that he does not claim a homestead exemption on any property in any state.
23-CA-415 3
On August 21, 2023, the trial court issued a judgment sustaining Mrs.
Dickerson’s objection and disqualifying Mr. Shepherd as a candidate for election
to the Jefferson Parish Council.
DISCUSSION
In an election contest, the person objecting to candidacy bears the burden of
proving at trial that a candidate is disqualified. Russell v. Goldsby, 00-2595 (La.
9/22/00), 780 So. 2d 1048, 1051. The person objecting to candidacy must meet his
or her initial burden by setting out a prima facie case. Trosclair v. Joseph, 14-675
(La. App. 5 Cir. 9/9/14), 150 So.3d 315, 317. 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.The Louisiana Election Code, La. R.S. 18:451 requires a candidate to meet
the qualifications for the office sought at the time of qualification for that office.
Section 2.03(A)(1) of the Jefferson Parish Home Rule Charter sets forth that “a
Council member shall be a qualified elector of the parish and shall have been
legally domiciled and have actually resided in the parish for at least one year
immediately preceding the time of qualifying for office in an area which, at the
time of qualification, is within the district.”
Accordingly, to be eligible to run for Jefferson Parish Council, Mr. Shepherd
must have been a qualified elector of the parish who is legally domiciled in the
Parish and a resident who has actually resided in the district in which he intends to
run for at least one year prior to qualifying. Hammett v. Knight, 99-1048 (La. App.
5 Cir. 9/24/99), 744 So.2d 202, 204, writ denied, 99-2794 (La. 9/28/99), 747 So.2d
1130.
The terms “residence” and “domicile” are legal terms that are not
synonymous. Landiak v. Richmond, 05-0758 (La. 3/24/05), 899 So.2d 535, 542.
Domicile is an issue of fact that must be determined on a case-by-case basis. Id.23-CA-415 4
La. C.C. art. 38 provides generally that “[t]he domicile of a natural person is the
place of his habitual residence.” A change in domicile for purposes of qualifying
for public office occurs when there is a change in actual residence accompanied by
the intention to make the new residence the candidate’s new establishment or
home. Pattan v. Fields, 95–1936 (La. App. 1 Cir. 9/26/95), 669 So.2d 1233.
Absent a declaration to change domicile, proof of this intention depends upon
circumstances; there is a presumption against change of domicile. Hammett v.
Knight, 744 So.2d at 205.
The most oft-cited difference between the two concepts of domicile and
residence is that a person can have several residences, but only one domicile.
Landiak, 899 So.2d at 542; see also La. C.C. art. 39. The Louisiana Supreme
Court has instructed that the term “actually” residing inquires whether plaintiff
established that the alleged residence within the candidate’s district is a fictitious
residence rather than a real residence. Russell v. Goldsby, 780 So.2d at 1052. The
Louisiana Supreme Court has held that, “[c]ourts must be cognizant of the realities
of modern life, in which the demands of a career and other factors often require
people to spend a large amount of time at different locations.” Id.The laws governing the conduct of elections must be liberally interpreted so
as to promote rather than defeat candidacy. Id. Any doubt as to the qualifications
of a candidate should be resolved in favor of permitting the candidate to run for
public office. Dixon v. Hughes, 587 So.2d 679 (La. 1991).
Upon a thorough review of the record on appeal, we find there is a factual
basis upon which the trial judge could have found that Mrs. Dickerson met her
burden to prove a prima facie case to disqualify Mr. Shepherd. We further find,
given the inconsistencies in Mr. Shepherd’s testimony, that a factual basis exists to
support a finding that Mr. Shepherd’s testimony lacked credibility. To support her
petition objecting to Mr. Shepherd’s candidacy, Mrs. Dickerson introduced into
23-CA-415 5
evidence documentation to show that, in two notarized documents, Mr. Shepherd
acknowledged his intent to reside at 14 Villa Cove in Mississippi as his principal
residence as late as 2021.3
The loan documentation introduced into evidence stated that Mr. Shepherd
“shall occupy, establish, and use the [Mississippi] property as [his] principal
residence within 60 days…and shall continue to occupy the Property as [his]
principal residence for at least one year after the date of occupancy….” The loan
documentation further provided that Mr. Shepherd acknowledged that he “shall be
in default if…[he] gave materially false, misleading, or inaccurate information or
statements to Lender (or failed to provide Lender with material information) in
connection with the loan. Material representations include, but are not limited to,
representations concerning Borrower’s occupancy of the Property as Borrower’s
principal residence.” (Emphasis added).
Mrs. Dickerson further presented testimony that Mr. Shepherd has multiple
vehicles registered in Mississippi, pays utility bills in Mississippi, and does, at least
on occasion, sleep at the 14 Villa Cove address in Mississippi. Therefore, we find
Mrs. Dickerson set forth a prima facie case to show that Mr. Shepherd’s primary
residence is in Mississippi and that he does not actually reside in Jefferson Parish
as required under the qualification set forth in the Jefferson Parish Home Rule
Charter.
We now turn to the evidence introduced by Mr. Shepard to rebut the prima
facie case presented by Mrs. Dickerson. Given the inconsistencies presented
throughout Mr. Shepard’s testimony concerning his sleeping arrangements, vehicle
registrations and use, and his questionable testimony concerning the VA loan
documentation executed in connection with 14 Villa Cove in Mississippi, we look
3
Mrs. Dickerson also testified at trial and introduced documents into evidence to prove that she is an
electorate of District 3.
23-CA-415 6
first to the objective documentary evidence introduced at trial. To prove that both
his domicile and actual residence are at #2 Blueberry Ct. in Jefferson Parish, Mr.
Shepherd introduced into evidence documentation to show that, upon his release
from federal custody, he transferred his domicile from 1113 Garden Road,
Marrero, Louisiana, to #2 Blueberry Ct. in Marrero, Louisiana, through the acts of:
(1) changing the address on his driver’s license, which requires proof of residency
through various documentation4; (2) changing his voter registration to vote, when
legally allowed, to reflect his address as #2 Blueberry Ct.; and (3) executing a
notarized act, titled “Declaration of Change of Domicile” filed in the Registrar of
Conveyances Office with Jefferson Parish on August 22, 2013, transferring his
domicile from 1113 Garden Road to #2 Blueberry Ct. He further introduced
documentation into evidence to demonstrate that, thereafter, he remained
domiciled and resided at #2 Blueberry Ct. Mr. Shepherd introduced:
(1) a 2013 Notice of Candidacy form he executed attesting to his domicile address
as #2 Blueberry Ct. in Marrero; (2) a Candidate Inquiry Form reflecting he was a
candidate for Jefferson Parish School Board in 2022 with his address listed at #2
Blueberry Ct.; (3) a copy of his most recent driver’s license issued on May 23,
2022, with an expiration date of May 29, 2028, listing his address as #2 Blueberry
Ct.5; (4) a copy of an expired driver’s license issued on December 8, 2020, with a
May 29, 2022 expiration date, listing his address as #2 Blueberry Ct.; (5) a copy of
an expired driver’s license issued on October 2, 2013, with an expiration date of
May 29, 2016, listing his address as #2 Blueberry Ct.; (6) copies of U.S. Individual
Income Tax Returns for the years 2013, 2016, 2017, 2018, 2020, 2022, reflecting
his address as #2 Blueberry Ct. and further claiming his mother, Marjorie
Richardson, who also resides at that address, as a dependent on his returns; (7) a
4
See La. R.S. 32:409.1(A)(2).
5
Mr. Shepherd’s license also reflects that he holds a chauffer’s license and that he is designated as a
Veteran.
23-CA-415 7
mailed letter from the Louisiana Veterans Health Care System with medical care
appointment information, addressed to Mr. Shepherd at the #2 Blueberry Ct.
address; (8) a mailed letter from the Kenner Police Department addressed to Mr.
Shepherd at the #2 Blueberry Ct. address informing him of a “Night Out Against
Crime” event; and (9) a copy of the notarized 2023 Notice of Candidacy form he
executed for the upcoming election to the Jefferson Parish Council, in which he
provided the #2 Blueberry Ct. address as his “Domicile Address.”
Upon review of the record, and considering the Louisiana Supreme Court’s
instruction that “the law favors candidacy and must be liberally construed so as to
promote rather than defeat candidacy,” we find that Mr. Shepherd, based on the
objective documentary evidence alone, sufficiently rebutted Mrs. Dickerson’s
prima facie case in this election challenge. See Landiak, supra. We find that Mr.
Shepherd met his burden to rebut Mrs. Dickerson’s case and has sufficiently
proved that he meets the requirements to qualify as a candidate for the upcoming
Jefferson Parish Council election.
CONCLUSION
For the reasons provided herein, we reverse the trial court’s August 21, 2023
judgment and dismiss Mrs. Dickerson’s petition objecting to Mr. Shepherd’s
candidacy for the upcoming Jefferson Parish Council election.
REVERSED
23-CA-415 8
KAREN DICKERSON NO. 23-CA-415
VERSUS FIFTH CIRCUIT
DERRICK SHEPHERD AND JON COURT OF APPEAL
GEGENHEIMER, IN HIS OFFICIAL
CAPACITY AS CLERK OF COURT FOR STATE OF LOUISIANA
THE PARISH OF JEFFERSON, STATE
OF LOUISIANA
WINDHORST, J., CONCURS WITH REASONS
I agree with the majority opinion to reverse the trial court’s judgment
disqualifying Mr. Shepherd. I respectfully concur.
The trial judge’s only stated reason for disqualifying Mr. Shepherd was due
to his signing two loan documents in Mississippi “declaring Villa Cove to be his
principal address.” The trial court further stated, “And while that’s not necessarily
a notarial act it’s a notarial act which is equivalent to that. And at no time after
that did he file any subsequent affidavits that would have established domicile or
a principal residence in Louisiana and I am going to grant the petition.”
The form language at issue is paragraph 6 of both documents, and reads as
follows:
6. Occupancy. Borrower shall occupy, establish, and use the Property
as Borrower's principal residence within 60 days after the execution
of this Security Instrument and shall continue to occupy the Property
as Borrower's principal residence for at least one year after the date
of occupancy, unless Lender otherwise agrees in writing, which
consent shall not be unreasonably withheld, or unless extenuating
circumstances exist which are beyond Borrower's control.
Mr. Shepherd disputed that the signature on the second document was his, and
denied knowing or intending to change his domicile or “principal residence.”
We need only read the printed language of paragraph 6 to see that Mr.
Shepherd did not “declar[e] Villa Cove to be his principal address.” Even assuming
he signed and was cognizant of paragraph 6, by signing this he agreed only to make
14 Villa Cove his “principal residence” for a year. Paragraph 6 is not a declaration
23-CA-415 9
of a change in domicile or of actual or principal residence. Nor is paragraph 6
“equivalent to” an affidavit of change of domicile or principal residence. At most it
is an obligation to reside there for a term of one year after commencement of
occupancy.
We also have no way of knowing whether the lender granted a waiver of the
occupancy requirement, as is permitted in paragraph 6.
Because there is no evidence in the record whatsoever as to when Mr.
Shepherd allegedly occupied the property as “principal resident,” if at all; and
because all uncertainties under Louisiana law are necessarily construed to favor
candidacy, even assuming Mr. Shepherd occupied the property for a full year, that
obligation ended on June 9, 2022, in excess of a full year prior to qualifying.
23-CA-415 10
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.
SCOTT U. SCHLEGEL 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 28, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-415
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
BRITTANY D. ROGERS (APPELLEE) STEPHEN M. PETIT, JR. (APPELLEE) G. KARL BERNARD (APPELLANT)
CAREY B. DASTE (APPELLEE)
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