Allison Nocito Versus Kendall Bussey, Sr. and Jon Gegenheimer, in His Official Capacity as Clerk of Court for the Parish of Jefferson, State of Louisiana

• Court: Louisiana Court of Appeal
• Decided: August 5, 2020
• Docket: 20-CA-243
• Status: Unknown

Opinion

ALLISON NOCITO NO. 20-CA-243

VERSUS FIFTH CIRCUIT

KENDALL BUSSEY, SR. 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. 808-704, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

..._, August 05, 2020 = ""' =

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, U1 N Marc E. Johnson, and John J. Molaison, Jr.

JOHNSON, J., DISSENTS WITH REASONS MEJ

AFFIRMED SMC JJM COUNSEL FOR PLAINTIFF/APPELLEE, ALLISON NOCITO Stephen M. Petit, Jr.

COUNSEL FOR DEFENDANT/APPELLANT, KENDALL BUSSEY, SR. G. Karl Bernard Jon S. McGill CHEHARDY, C.J.

In this election appeal, plaintiff Allison Nocito challenges the qualifications

of defendant Kendall Bussey, Sr., a candidate for the office of Constable, Second

Judicial Court, Parish of Jefferson in the November 3, 2020 election. Ms. Nocito

contends Mr. Bussey does not qualify because he failed to file his state income

taxes for 2019. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 24, 2020, Mr. Bussey qualified to run for the Constable of Second

District Court in Jefferson Parish by signing and filing his Notice of Candidacy

with the Clerk of Court for the Parish of Jefferson. Line 9 of the Notice of

Candidacy form states: “If I am a candidate for any office other than United States

Senator and/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 returns, or both,

or was not required to file either a Federal or State income tax return, or both.”

At trial Mr. Bussey testified that he filed tax returns for 2015, 2016, 2017,

and 2018. Before trial, however, Mr. Bussey stipulated that he did not file his 2019

tax forms. The trial court disqualified Mr. Bussey as a candidate after determining

plaintiff proved her case but he presented insufficient evidence on rebuttal, citing

Petit v. Ducote, 18-452 (La. App. 5 Cir. 8/6/18), 253 So.3d 252, writ denied, 18-

1318 (La. 8/9/18), 248 So.3d 325.

DISCUSSION

Election Law

The manner of qualifying for an election is set forth in La. R.S. 18:461(A)(1),

which provides, in pertinent part: “A person who desires to become a candidate in

20-CA-243 1 a primary election shall qualify as a candidate by timely filing notice of his

candidacy....” La. R.S. 18:463 provides, in pertinent part:

A. (2)(a) The notice of candidacy … 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.

*** (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.

(b) The certificate shall be executed before a notary public or shall be witnessed by two persons who are registered to vote on the office the candidate seeks.

The purpose of the notice of candidacy is to provide sufficient information to show

a candidate is qualified to run for the office he seeks. Trosclair v. Joseph, 14-675

(La. App. 5 Cir. 9/9/14), 150 So.3d 315, 317. 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).

In an election contest, the person objecting to the candidacy bears the burden

of proving the candidate is disqualified. La. R.S. 18:492; Russell v. Goldsby, 00-

2595 (La. 9/22/00), 780 So.2d 1048, 1051; Trosclair, 150 So.3d at 317. “The laws

governing the conduct of elections must be liberally interpreted so as to promote

rather than defeat candidacy.” Russell, 780 So.2d at 1051. Although Louisiana law

favors candidacy, once an objector makes a prima facie showing of grounds for

disqualification under La. R.S. 18:492, the burden shifts to the defendant “to

present sufficient evidence to overcome the other party’s prima facie case.”

Landiak v. Richmond, 05-0758 (La. 3/24/05), 899 So.2d 535, 541-2.

20-CA-243 2 Standard of Review

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.

Assignment of Error

In a single assignment of error, Mr. Bussey argues the trial court committed

reversible error in finding he failed to present sufficient evidence to rebut the

plaintiff’s prima facie case.

Mr. Bussey stipulated before trial that he failed to file federal and state taxes

for 2019 but contends he was not required to file federal or state returns for 2019

because he did not meet the $12,200 threshold earnings that necessitate filing. Mr.

Bussey offered at trial a copy of his 1040 for 2019 prepared by his accountant and

showing Mr. Bussey’s and the accountant’s signatures, both dated July 2, 2020.

That unfiled return lists Mr. Bussey’s income as being below the amount he claims

is the applicable threshold that necessitates the filing of a tax return for a person

filing as “single.”

Plaintiff’s counsel objected to Mr. Bussey’s testimony regarding his

accountant’s alleged representation as to the threshold for filing, which the trial

court sustained. Mr. Bussey did not call his accountant to testify at trial, nor did he

offer any affidavit or other evidence to corroborate his claimed exemption from

filing a tax return for 2019. After the case was submitted, Mr. Bussey’s counsel

asked the court to take judicial notice of federal and state tax laws and produced a

document allegedly prepared by the IRS listing the threshold amounts for filing a

return.1 Plaintiff’s counsel objected to the introduction of this evidence after the

case was closed, and the trial court sustained the objection.

1 Mr. Bussey also has included this information in his brief to this court. Even if this court were to accept this additional evidence that the trial court refused to admit after trial had concluded, Mr. Bussey does not explain how, if he has been married and did not separate from his wife until

20-CA-243 3 Mr. Bussey also failed to offer any corroborating evidence of his income in

2019, or lack thereof, other than his own self-serving testimony.

In response, plaintiff offered documentary evidence from Mr. Bussey’s

Facebook page and from a restaurant website indicating that Mr. Bussey served as

the owner and/or managing partner of this restaurant in 2019. At trial, Mr. Bussey

denied he was the owner or managing partner, claiming instead that he was a

“consultant” and had “signed on the lease” and “helped them out with the books”

and with the “day-to-day operation,” all of which were unpaid activities. Plaintiff

offered additional evidence that Mr. Bussey was a manager of Nola Auto Group

and a member of 2KB’s LLC, which Mr. Bussey stated were uncompensated

positions. Mr. Bussey also testified that he is married but that he and his wife

separated in September 2019.

The trial court is in the best position to evaluate the evidence and the

testimony presented. Based upon our review of the record, we cannot say the trial

court manifestly erred in determining Mr. Bussey failed to adequately rebut Ms.

Nocito’s prima facie case by establishing that he was not required to file federal

and state tax returns for tax year 2019.

DECREE

We hereby affirm the trial court decision disqualifying the candidacy of Mr.

Kendall Bussey, Sr., for the position of Constable in the November 3, 2020

election.

AFFIRMED

September 2019, he may be permitted to file as “single.” The 2019 filing requirements to which Mr. Bussey points indicate that the threshold filing requirement for a taxpayer who is “married filing separately” is only $5.

20-CA-243 4 ALLISON NOCITO NO. 20-CA-243

KENDALL BUSSEY, SR. 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

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion in this matter. Here,

Petitioner, Allison Nocito, alleged in her “Verified Petition Objecting to the

Candidacy of Kendall Bussey, Sr.” that Defendant, Kendall Bussey, Sr., falsified

his notice of candidacy by declaring he had filed the last five years (2015, 2016,

2017, 2018, and 2019) of federal and Louisiana income tax returns. She further

alleged that, upon information and belief, Mr. Bussey was required to file the

required state tax forms for the last five years, and his failure to do so was a

ground for disqualification for candidacy for Constable of Second Justice Court

in Jefferson.

On the “State of Louisiana – Notice of Candidacy (Qualifying Form)”,

which was accepted into evidence, Mr. Bussey certified that the following

statement was true and correct:

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 or both.

In a sworn affidavit, Mr. Bussey attested that he was not employed or self-

employed during the 2019 tax year.

20-CA-243 5 Because election laws must be interpreted to give the electorate the widest

possible choice of candidates, a person objecting to candidacy bears the burden of

proving that the candidate is disqualified. Landiak v. Richmond, 05-758 (La.

3/24/05); 899 So.2d 535, 541. The party on which the burden of proof rests must

establish a prima facie case. If that party fails to carry its burden of proof, the

opposing party is not required to present any countervailing evidence. Id. at 542.

A court determining whether the person objecting to candidacy has carried her

burden of proof must liberally construe the laws governing the conduct of

elections “so as to promote rather than defeat candidacy.” Any doubt concerning

the qualifications of a candidate should be resolved in favor of allowing the

candidate to run for public office. Id. at 541.

In the case at bar, Mr. Bussey introduced federal and state tax returns that

had been filed for 2015-2018 tax years, and he stipulated that he did not file any

tax returns for the 2019 tax year. However, he consistently testified that he was

not required to file federal or Louisiana tax returns for the 2019 tax year because

he did not earn taxable income over the $12,200 threshold required for the filing

of those tax returns. As stated in the majority opinion, Ms. Nocito offered exhibits

that listed Mr. Bussey as a manager or owner of different businesses. For each of

those businesses, Mr. Bussey testified that he was either uncompensated or those

businesses did not generate any income.

While Ms. Nocito introduced many exhibits into evidence, she did not

present any relevant evidence that proved Mr. Bussey received any taxable income

and/or was required to file a federal or state income tax return for the 2019 tax

year. La. R.S. 18:463 and the notice of candidacy requires that a candidate file

the previous five federal and state income tax returns, file for an extension of time

for filing either the federal or state income tax return or both, or was not required

to file either a federal or state income tax return or both. Thus, Ms. Nocito failed

20-CA-243 6 to meet her prima facie burden to prove her ground for Mr. Bussey’s

disqualification from the Constable race; therefore, Mr. Bussey was not required

to present any countervailing evidence. Consequently, I find that the trial judge

and the majority in this matter improperly shifted the burden of proof to Mr.

Bussey, and this legal error interdicts the fact-finding process and the deference

given to the trial court’s factual findings.

Assuming arguendo that Ms. Nocito presented a prima facie case that Mr.

Bussey was required to file federal and state tax returns for the 2019 tax year, I

would find that the trial court was manifestly erroneous in its disqualification of

Mr. Bussey. In his testimony, Mr. Bussey attested that he did not meet the $12,200

threshold income requirement for filing federal and state taxes. His testimony was

sufficient evidence to prove his income, particularly in the absence of evidence to

the contrary.2 The burden of proof shifted back to Ms. Nocito. Again, Ms. Nocito

failed to present any relevant evidence to rebut Mr. Bussey’s claims that his

income for the 2019 tax year did not exceed $12,200, and he was not required to

file a tax return for that year. The courts not charged with performing an audit of

Mr. Bussey’s tax returns or discovering the reason he failed to file a tax return.

We are simply here to determine whether Mr. Bussey met the qualifications for

candidacy to run for Constable. The relevant evidence presented in this matter

established that Mr. Bussey met the requirements for candidacy.

For the foregoing reasons, I find that the trial court committed a legal error

in shifting the burden of proof to Mr. Bussey and subsequently disqualifying him

as a candidate. Accordingly, I would resolve the matter by reversing the trial

court’s judgment, dismissing Ms. Nocito’s objection to Mr. Bussey’s candidacy,

and allowing Mr. Bussey to run for the office of Constable.

2 To find that Mr. Bussey needed more evidence to prove that he did not have taxable income over $12,200 would be a strenuous standard. It would make a candidate attempt to prove a nonexistent situation or outcome.

20-CA-243 7 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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20-CA-243 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) BRITTANY D. ROGERS (APPELLEE) STEPHEN M. PETIT, JR. (APPELLEE) JON S. MCGILL (APPELLANT) CAREY B. DASTE (APPELLEE)

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