Charles A. Gibson, Sr. Versus Byron L. Lee and Hon. Jon A. Gegenehimer, Jefferson Parish Clerk of Court ( 2023 )

CHARLES A. GIBSON, SR. NO. 23-CA-414
VERSUS FIFTH CIRCUIT
BYRON L. LEE AND HON. JON A. COURT OF APPEAL
GEGENEHIMER, JEFFERSON PARISH
CLERK OF COURT STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 844-822, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
August 28, 2023
5:06 pm
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
AFFIRMED
SJW
SMC
JGG
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
CHARLES A. GIBSON, SR.
Stephen M. Gele
Andre M. Stolier
COUNSEL FOR DEFENDANT/APPELLEE,
BYRON L. LEE
William P. Gibbens
Gwyneth A. O'Neill
WINDHORST, J.
Appellant/plaintiff, Charles A. Gibson, Sr., seeks review of the trial court’s
August 21, 2023 judgment denying his petition objecting to the candidacy of
appellee, Byron L. Lee, candidate for office of Jefferson Parish Council, District 3.
For the reasons that follow, we affirm.
PROCEDURAL HISTORY and EVIDENCE
On August 8, 2023, Byron Lee filed a Notice of Candidacy (“the Notice”)
seeking to qualify for the office of Jefferson Parish Council, District 3.
On August 17, 2023, plaintiff filed a petition objecting to the candidacy of
Mr. Lee. He asserted that section 2.03 A(1) of the Jefferson Parish Charter provides
that all candidates for Parish Council shall have been legally domiciled and have
actually resided, for at least the preceding year in the council district from which the
candidate seeks election. Plaintiff averred that pursuant to La. R.S. 18:492 A(3),
Mr. Lee did not meet the qualifications for the office he seeks in the primary election.
Plaintiff contended that on the Notice, Mr. Lee listed his domicile as 40 Gainswood
Drive East, Marrero, LA 70072. Upon information and belief, Plaintiff asserted that
Mr. Lee is domiciled and actually resides at 2125 Hyde Park, Harvey, LA 70058,
which is not in District 3.
Plaintiff averred that Mr. Lee is currently married to Karen Thompson Lee.
Mr. Lee filed a Petition for Divorce on December 29, 2022, which is pending in the
Twenty-Fourth Judicial District Court, docket number 836-303, Division H. In his
petition for divorce, Mr. Lee alleged that his last matrimonial domicile with Mrs.
Lee was at 40 Gainswood Drive East, Marrero, LA 70072. He asserted that they
separated on or before June 1, 2022, and have lived separate and apart continuously
since that date which is more than 180 days. Plaintiff contended in his objection that
Mr. Lee judicially confessed that he did not actually reside at the address at which
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he was qualified and the Hyde Park address is not within the boundaries of Jefferson
Parish Council, District 3.
Plaintiff contended that at the time he filed his Notice, Mr. Lee did not meet
the following qualifications: (1) Mr. Lee certified that his domicile was 40
Gainswood Drive East, Marrero, LA 70072, when he has not been domiciled at the
same address since at least June 2022; (2) Mr. Lee has not been domiciled in District
3 for a period of one year prior to qualifying for office as required by law; (3) Mr.
Lee has not actually resided in District 3 for a period of one year prior to qualifying;
and (4) Mr. Lee currently lives, resides, and is domiciled at 2125 Hyde Park, Harvey,
LA 70058. Accordingly, plaintiff requested that Mr. Lee be disqualified and
removed from the October 14, 2023 ballot.1
The matter came for an evidentiary hearing on August 21, 2023, wherein
plaintiff and Mr. Lee were called to testify. Plaintiff testified that he is a qualified
registered voter in Jefferson Parish, District 3, and he filed the petition objecting to
Mr. Lee as a candidate for Jefferson Parish Council, District 3.
Mr. Lee testified that his residence and domicile is at the Gainswood Drive
address. He testified that he has another residence at the Hyde Park address which
he rents month-to-month.2 Mr. Lee testified that he has an upstairs suite at the
Gainswood Drive address where he sleeps on multiple occasions, and has always
slept in the past. He stated numerous times that he could not quantify how many
times he has slept at the Gainswood Drive address versus the Hyde Park address.
He asserted that he has personal belongings and clothes at both residences and
provides routine maintenance at the Gainswood Drive address. He also stated that
he receives his personal mail at the Gainswood Drive address and election or
1 In response, Mr. Lee filed an exception of no cause of action and plaintiff filed an opposition. Prior to the
hearing on plaintiff’s petition, the trial court heard argument on the exception of no cause of action, which
was denied. The parties did not appeal this ruling.
2 He testified that he does not have a written lease at the Hyde Park address.
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business mail at a P.O. Box. He does not receive mail at the Hyde Park address. He
further testified that he entertains at the Gainswood Drive and Hyde Park addresses,
as well as at his office.
When questioned about his petition for divorce, Mr. Lee testified that prior to
filing, he stayed overnight at the Gainswood Drive address on multiple occasions for
various reasons because it was his home (i.e., Karen was out of town, family events,
guests were in town, or for a multitude of other reasons). When he filed the divorce
petition, he had no intent to abandon the residence at Gainswood Drive as his
domicile. He further testified that no further proceedings have occurred since filing.
The trial court stated that service was not requested or served on Karen, and defense
counsel herein for Mr. Lee stated that the action is no longer pending.
In support of his testimony that he resides and is domiciled at the Gainswood
Drive address, Mr. Lee testified, and submitted evidence without objection, that he
claims a homestead exemption on this property, he pays the property taxes on the
Gainswood property, he receives mail at the Gainswood Drive address, he pays
homeowners insurance on the Gainswood Drive property and actively engages in
general maintenance of the property. Mr. Lee also submitted evidence which
showed that he uses the Gainswood Drive address on his driver’s license, vehicle
registrations, and car insurance policies.
At the conclusion of the hearing, the trial court found that Mr. Lee is domiciled
and actually resides at the Gainswood Drive address. The trial court denied
plaintiff’s petition and found that Mr. Lee met the qualifications as a candidate for
Jefferson Parish Council, District 3. This appeal followed.
LAW and ANALYSIS
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 the office:
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A person who meets the qualifications for the office he seeks may
become a candidate and be voted on in a primary or general election
if he qualifies as a candidate in the election. Except as otherwise
provided by law, a candidate shall possess the qualifications for the
office he seeks at the time he qualifies for that office. In the event
that the qualifications for an office include a residency or domicile
requirement, a candidate shall meet the established length of
residency or domicile as of the date of qualifying, notwithstanding
any other provision of law to the contrary….
In addition, Section 2.03 A(1) of the Jefferson Parish Home Rule Charter sets
forth requirements regarding the qualifications necessary to become a member of
the Council:
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.
Thus, in order to be eligible to run for councilman, Mr. Lee must have been a
qualified elector of the parish, and legally domiciled in and actually resided in the
district in which he intends to run. On appeal, plaintiff challenges the trial court’s
conclusion that Mr. Lee actually resided in District 3 for at least one year prior to
qualifying for this office as required by law.
The Louisiana Supreme Court has long held that the purpose of the election
process is to provide the electorate with a wide choice of candidates. Becker v. Dean,
03-2493 (La. 9/18/03), 854 So.2d 864, 869; Williams v. Ragland, 567 So.2d 63 (La.
1990). Because encouraging qualification is an integral component of the process,
laws regulating the process must be interpreted with this purpose in mind. Becker,
854 So.2d at 869. Therefore, the interests of the state and its citizens are best served
when election laws are interpreted so as to give the electorate the widest possible
choice of candidates. Rich v. Martin, 259 So.2d 113, 116 (La. App. 1 Cir. 1971).
To further this policy, a person challenging candidacy has the burden of
proving that the candidate is disqualified. 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
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868. In addition, the laws governing the conduct of elections must be liberally
interpreted so as to promote rather than defeat candidacy. Dixon v. Hughes, 587
So.2d 679, 680 (La. 1991). Any doubt as to the qualifications of a candidate should
be resolved in favor of permitting the candidate to run for public office. Id.Appellate courts review 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. Issues of law are reviewed simply for legal correctness. Id.An individual’s domicile is defined as his or her habitual residence. La. C.C.
art. 38. In the absence of an habitual residence, any place of residence may be
considered one's domicile at the option of persons whose interests are affected. La.
C.C. art. 39. While it is possible to have several residences, an individual only has
one domicile. La. C.C. art. 39; Becker, 854 So.2d at 871.
The Louisiana Supreme Court has applied the interpretation of the term
“actually domiciled” to the phrase “actually resided” in La. R.S. 33:384, and
determined that the inquiry of whether someone “actually resides” in a particular
place should focus on whether plaintiff established that the residence at issue is a
fictitious residence rather than a real residence. Becker v. Dean, 854 So.2d at 872;
Russell v. Goldsby, 00-2595 (La. 9/22/00), 780 So.2d 1048, 1052.
Because the Jefferson Parish Home Rule Charter uses the phrase “actually
resided” in a context virtually identical to that in La. R.S. 33:384, and as interpreted
in the Becker and Russell cases, we apply the same standard to the facts of this case.
Accordingly, the pertinent inquiry in the instant case is whether plaintiff established
that Mr. Lee’s home at 40 Gainswood Drive East, in Marrero is a fictitious residence
rather than a real residence.
In determining domicile, Louisiana courts have held that a party’s
uncontroverted testimony regarding his or her intent “may be sufficient to establish
domicile, in the absence of any documentary or other objective evidence to the
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contrary.” Landiak v. Richmond, 05-0758 (La. 3/24/05), 899 So.2d 535, 543;
Lumar, 301 So.3d at 1257-58. In addition, some types of documentary evidence
commonly considered by courts to determine domicile include voter registration,
homestead exemptions, vehicle registration records, driver's license address,
statements in notarial acts, and evidence that most of the person’s property is housed
at that location. The more of these items presented by a party opposing candidacy
in a given case to show a lack of domicile in the district, the more difficult it will be
for the candidate to overcome the plaintiff's evidence. Landiak, 899 So.2d at 543-
44; Lumar, 301 So.3d at1258; Graham v. Prevost, 15-1033 (La. App. 4 Cir. 9/29/15),
176 So.3d 1142, 1145. Conversely, a candidate who presents documentary evidence
of this type to support his claimed domicile, the more difficult it will be for a party
seeking to disprove the candidate’s domicile. We believe this type of evidence and
testimony is also relevant to determine whether Mr. Lee’s home at 40 Gainswood
Drive East, in Marrero is a fictitious residence rather than a real residence.
In the instant case, the evidence indicates Mr. Lee’s domicile is 40 Gainswood
Drive East, Marrero, Louisiana. The record establishes that Mr. Lee has lived much
of his life at the Gainswood Drive address, and that he has always considered it to
be his domicile. While it is true Mr. Lee has recently also resided at 2125 Hyde
Park, Harvey, Louisiana, plaintiff produced no evidence indicating Mr. Lee intended
to abandon his domicile at the Gainswood Drive address. In fact, the evidence
indicates and Mr. Lee explicitly testified that he did not intend to change his domicile
from the Gainswood Drive address.
The record establishes that Mr. Lee eats, sleeps overnight, and entertains at
the Gainswood Drive house on occasion. He keeps approximately half of his
clothing, personal belongings, and furniture at the Gainswood Drive house, he
claims a homestead exemption on this property, and he receives mail at the
Gainswood Drive address. Mr. Lee also pays homeowners insurance on the
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Gainswood Drive house and actively engages in general maintenance of the house.
Furthermore, Mr. Lee uses the Gainswood Drive address on his driver’s license,
vehicle registrations, and car insurance policies. All this evidence shows that Mr.
Lee has significant connections to the Gainswood Drive address, and that his
residency at this address is real rather than fictitious.
We recognize that Mr. Lee does not spend the majority of his nights at the
Gainswood Drive address recently. However, there is no evidence that Mr. Lee
intended to abandon Gainswood Drive as his actual residence merely because he has
spent less time there. As pointed out by the trial court, the Louisiana Supreme Court
acknowledged that courts 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. Becker, 854 So.2d at 872; Russell, 780 So.2d
at 1052. A candidate is not prohibited from having more than one actual residence;
instead, the law requires that the candidate’s residence within the district is in fact
an actual residence — i.e., a real residence, not a fictitious residence simply designed
to circumvent the residency requirements. Based on the facts of this case, we find
the record demonstrates that plaintiff has failed to show that Mr. Lee’s Gainswood
Drive residence is merely a fictitious residence.
Plaintiff also argues that Mr. Lee’s petition for divorce constitutes a judicial
admission that supports a finding that he has not actually resided at the Gainswood
Drive house as required by law because the petition states that he and his wife had
separated on or before June 1, 2022, and that he and his wife had lived separate and
apart continuously since that date.
La. C.C. art. 1853 provides:
A judicial confession is a declaration made by a party in a judicial
proceeding. That confession constitutes full proof against the party
who made it.
A judicial confession is indivisible and it may be revoked only on
the ground of error of fact.
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Louisiana courts have held that a factual allegation made in another
proceeding does not constitute a judicial confession, but instead is an “extra-judicial”
confession, which does not bind the plaintiff in subsequent litigation. Alexis v.
Metropolitan Life Ins. Co., 604 So.2d 581 (La. 1992); Taylor v. Sider, 665 So.2d
1283 (La. App. 4 Cir. 12/14/95). Mr. Lee’s factual allegation of living separate and
apart from his wife was not made in the instant proceeding, but in the divorce
proceeding. Therefore, we find that this allegation is not a judicial confession.
A party who has made such an admission in a previous suit is not barred from
denying the facts contained therein in a subsequent suit unless the adverse party has
been prejudiced by its reliance on that admission. Alexis, 604 So.2d at 582; Taylor,
665 So.2d at 1286. There is no evidence that plaintiff relied on the alleged admission
to his prejudice. Therefore, the alleged admission is simply to be given the probative
value it deserves as an admission of the party who made it. Id. See also, La. C.E.
art. 801 D(3). Mr. Lee testified that his divorce has not been finalized and that no
action has been taken on the divorce proceeding since the petition was filed. In this
regard, the trial court correctly noted that the time period for requesting service of
the petition for divorce has expired without any such request.
Evidence of intent is also a component in determining an individual’s
domicile, which is defined by La. C.C. art. 38 as his or her “habitual residence.” A
person's domicile is the principal domestic establishment wherein he makes his
habitual residence and essentially consists of two elements, namely residence and
intent to remain in place. Martin v. Robinson, 20-687 (La. App. 1 Cir. 8/6/20), 311
So.3d 378, 381; McClendon v. Bel, 00-2011 (La. App. 1 Cir. 9/7/00), 797 So.2d 700,
704. If a candidate has more than one residence, intention is the determinative factor
in ascertaining the location of his domicile. Martin, 311 So.3d at 381; Johnson v.
Augustine, 06-1690 (La. App. 1 Cir. 8/29/06), 943 So.2d 466, 470; writ denied, 06-
2189 (La. 9/1/06), 936 So.2d 820.
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Intent plays a larger role in determining whether a party has changed his
domicile, and therefore his “habitual residence,” as alleged in the petition, and
creates a more difficult standard of proof. La. C.C. art. 44 provides:
Change of domicile
Domicile is maintained until acquisition of a new domicile. A
natural person changes domicile when he moves his residence to
another location with the intent to make that location his habitual
residence. [Emphasis added.]
Once domicile is established, there is a presumption against change of domicile.
Martin, 311 So.3d at 381; Johnson, 943 So.2d at 470. Further, a person's domicile
of origin continues until another is acquired. Herpin v. Boudreaux, 98-306 (La. App.
3 Cir. 3/5/98), 709 So.2d 269, 271; writ denied, 98-0578 (La. 3/11/98), 712 So.2d
859; Blackwell v. Blackwell, 606 So.2d 1355, 1358 (La. App. 2 Cir.1992). A change
in domicile requires the physical presence of the individual in the new domicile
coupled with a present intent to permanently reside in the new domicile. Herpin,
709 So.2d at 271; Blackwell, 606 So.2d at 1358. If a candidate has more than one
residence, intention is the determinative factor in ascertaining the location of his
domicile. Williams v. Harrison, 54,891 (La. App. 2 Cir. 8/5/22), 346 So.3d 370,
376, writ denied, 22-1207 (La. 8/9/22), 343 So.3d 703; Martin, 311 So. 3d at 381;
Johnson, 943 So.2d at 470.
There is a legal presumption against a change of domicile such that a party
seeking to show that domicile has been changed must present “positive and
satisfactory proof of establishment of domicile as a matter of fact with the intention
of remaining in the new place and of abandoning the former domicile.” Lumar, 301
So.3d at 1258; Becker, 854 So.2d at 871; Russell, 780 So.2d at 1051. The party
seeking to establish a change in domicile bears the burden of proving that change.
So long as a reasonable doubt remains, the presumption is that the domicile has not
been changed. Lumar, 301 So.3d at 1258; Succession of Thompson v. Harrington,
502 So.2d 229 (La. App. 3 Cir.1987); Succession of Barger, 217 So.2d 779 (La.
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App. 4 Cir. 1969); writ refused, 220 So.2d 459 (La. 1969); Succession of Lauricella,
571 So.2d 885 (La. App. 5 Cir. 1990).
Further, service in public office and candidacy for re-election strongly negate
any intention to change domicile. McClendon v. Bel, 797 So.2d at 704; Messer v.
London, 438 So.2d 546, 547 (La.1983).
It is clear that for many years, 40 Gainswood Drive was Mr. Lee’s domicile,
and that he made it his “habitual residence.” We find that the evidence does not
show that Mr. Lee intended to permanently change his domicile, and that the
presumption that his domicile remained unchanged was not rebutted. This further
evidences the lack of any support to find that 40 Gainswood Drive in Marrero was a
fictitious residence.
Considering the above, we find no error in the trial court’s conclusion that
plaintiff failed to prove Mr. Lee did not meet the qualifications to be a candidate for
councilman in District 3 of Jefferson Parish. Accordingly, we find that Mr. Lee
meets the qualifications to be a candidate for the office of councilman for Jefferson
Parish, District 3.
DECREE
For the reasons stated herein, we affirm the trial court’s judgment denying the
objection to Mr. Lee’s candidacy and finding Mr. Lee qualified to be a candidate for
Jefferson Parish Councilman, District 3.
AFFIRMED
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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
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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-414
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
STEPHEN M. GELE (APPELLANT) GWYNETH A. O'NEILL (APPELLEE) WILLIAM P. GIBBENS (APPELLEE)
CAREY B. DASTE (APPELLEE)
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