Edward Hotard Versus Charles C. Julien and Eliana Defrancesch, in Her Capacity as Clerk of Court

• Court: Louisiana Court of Appeal
• Decided: August 24, 2023
• Docket: 23-CA-410
• Status: Unknown

Opinion

EDWARD HOTARD NO. 23-CA-410

VERSUS FIFTH CIRCUIT

CHARLES C. JULIEN 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. 80,281, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

August 24, 2023 9:36 am

MARC E. JOHNSON JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Marc E. Johnson, Stephen J. Windhorst, and Scott U. Schlegel

AFFIRMED MEJ SMC SJW

CONCURS WITH REASONS FHW

CONCURS WITH REASONS ASSIGNED BY JUDGE WICKER SUS COUNSEL FOR PLAINTIFF/APPELLEE, EDWARD HOTARD Ike Spears Devin C. Jones

COUNSEL FOR DEFENDANT/APPELLANT, CHARLES C. JULIEN Travis J. Turner Keyojuan G. Turner Alvin J. Turner, Jr. JOHNSON, J.

Appellant, Charles C. Julien, seeks review of the 40th Judicial District

Court’s August 18, 2023 judgment disqualifying Appellant as a candidate for the

office of St. John the Baptist Parish President in the October 14, 2023 primary

election. For the following reasons, we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On August 8, 2023, Appellant, Charles C. Julien, filed a sworn Notice of

Candidacy with the St. John the Baptist Clerk of Court announcing his intent to run

for the office of Parish President. Before a notary and two witnesses that same day,

Appellant declared 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 or both.”

Plaintiff, Edward Hotard, a registered voter and qualified elector domiciled

in St. John the Baptist Parish, filed an Objection to Candidacy and Petition to

Disqualify Candidate pursuant to La. R.S. 18:492(A)(7). Mr. Hotard alleged that

Mr. Julien failed to file federal and state tax returns for all of the previous five

calendar years as required by La. R.S. 18:463(A)(2)(a)(iv). Attached to the petition

were the following exhibits: a certified copy of Mr. Julien’s Notice of Candidacy;

Letters from the Louisiana Department of Revenue dated August 4, 2023 and

August 11, 2023 stating that neither Mr. Julien, nor his wife with whom he files

taxes jointly, filed state tax returns for the year 2019; and Mr. Julien’s W-2 forms

he received as member of the St. John the Baptist Parish School Board for the past

23-CA-410 1 five calendar years, which showed that he earned in excess of $40,000 in taxable

wages in 2018, 2019, 2020, 2021, and 2022.1

The district court heard the matter on August 18, 2023. At the end of the

hearing, the district court sustained Mr. Hotard’s objection to Mr. Julien’s

candidacy, granted his petition, and disqualified Mr. Julien as a candidate for

Parish President. Mr. Julien timely filed a notice of appeal to contest the district

court’s judgment.

ASSIGNMENTS OF ERROR

Mr. Julien urges that the district court committed error when it found that

Mr. Hotard made a prima facie showing that he failed to file a state income tax

return in 2019. He also alleges that the district court erred in denying his request

for a recess during trial so he could make arrangements for his tax preparer, who

was out of state and otherwise unavailable to testify as to the contents of the

affidavit she provided, to testify via ZOOM.

LAW AND DISCUSSION

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. Brehm v.

Shaddinger, 21-59 (La. App. 5 Cir. 2/10/21), 315 So.3d 363, 368, writ denied, 21-

240 (La. 2/25/21), 311 So.3d 350. “A person who desires to become a candidate in

a primary election shall qualify as a candidate by timely filing notice of his

candidacy[.]” La. R.S. 18:461(A)(1). In signing the notice, the prospective

candidate certifies that he has read the notice, that he possesses the required

qualifications for the office he seeks, and that all of the statements contained in the

1 La. R.S. 47:101(A)(1) states, “All individuals required to file a federal individual tax return shall be required to file an individual income tax return.” In 2019, married taxpayers filing jointly were required to file a federal return if their gross income was at least $24,000 if both spouses were under the age of sixty file. See Tax Guide 2019, I.R.S. Pub. No. 17, Cat. No. 10331G (July 17, 2020) https://www.irs.gov/pub/irs-prior/p17--2019.pdf (last visited August 23, 2023).

23-CA-410 2 notice are “true and correct”. La. R.S. 18:463(A)(2)(a). Any doubt as to the

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

candidate to run for public office. Brehm v. Shaddinger, supra.

To further the policy of providing the electorate with the widest possible

choice of candidates, 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 868,

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

the grounds upon which an action objecting to candidacy in a primary election

shall be based is if the person running for office has made a false certification on a

notice of candidacy that, for each of the previous five tax years, he has filed his

federal and state income tax returns, or filed for an extension of time to file those

tax returns, as provided by R.S. 18:463(A)(2), or was not required to file either

federal or state income tax returns or both. La. R.S. 18:492(A)(7). Once an

objector makes a prima facie showing that the grounds for disqualification exist,

the burden shifts to the candidate to rebut the showing. Lumar, supra.

Appellate courts review findings of fact under the manifest error or clearly

wrong standard. Brehm, supra, citing 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.

Upon review of the record, we find that Mr. Hotard made a prima facie

showing that grounds for the disqualification of Mr. Julien as a candidate for the

office of St. John the Baptist Parish President existed, pursuant to La. R.S.

18:492(A)(7).

At trial on August 18, 2023, Mr. Hotard called Ms. Brandea Averett,

Director of Policy for Louisiana Department of Revenue (“LDR”), and Mr. Julien

as witnesses. Ms. Averett testified that, in response to plaintiff’s public records

23-CA-410 3 requests, LDR found that neither Mr. Julien, nor his wife, filed state income tax

returns for 2019. The letters that LDR sent in response to the public records

requests stating the same were admitted into evidence. Mr. Julien’s notice of

candidacy form was also offered into evidence with no objection. The evidence

provided by Mr. Hotard was sufficient to establish a prima facie case for

disqualification. See 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.

At trial, Mr. Julien’s counsel objected to that ruling and argued that “the

plain language of Louisiana revised statute 18:492 does not purpose to disqualify a

candidate for actual failure to file the required tax return or for the failure to file

them regularly and in a timely manner, but rather provides for disqualification for

the false certification in the notice of candidacy that the required tax returns have

been filed”, citing Braggs v. Dickerson, 22-361 (La. App. 5 Cir. 8/9/22), 349 So.3d

56, writ granted, decision rev'd, 22-1227 (La. 8/13/22), 344 So.3d 63. But,

once 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. To the contrary, the challenged 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.

Crosby v. Cantrelle, supra at 1242-43. [Emphasis in original.]

Having found that Mr. Hotard made a prima facie showing of grounds for

disqualification, we now consider the burden of proof that shifted to Mr. Julien.

See id. at 1243. Mr. Julien admitted during his testimony that he did not bring any

direct proof that he had mailed or filed his 2019 state tax return with him to court.

Mr. Julien attested to the fact that he filed his state and federal taxes every year and

that he always received refunds, but also stated that he did not have proof of

receipt of a tax refund in 2019. Mr. Julien insisted that his attestation that he “never

23-CA-410 4 missed a day of filing my taxes” in fifteen years was proof that he filed a state

income tax return for 2019. Mr. Julien’s W-2 forms for the years 2018, 2019, 2020,

2021, and 2022 were admitted into the record. Mr. Julien did not present any

evidence that suggested that he was not required to file a tax return in 2019, or that

he had requested an extension. Transcripts of Mr. Julien’s federal tax returns for

the previous five years were admitted into evidence.

Mr. Julien further testified that he had no reason to doubt that he had filed

his state taxes for the previous five years. He offered as evidence the affidavit2 of

Kim Y. Tatum, his tax preparer. The trial judge sustained Mr. Hotard’s objection to

the affidavit as inadmissible hearsay. The district court allowed Mr. Julien to

proffer the affidavit, after ruling against his request for a brief recess to make

arrangements for the tax preparer, who was in North Carolina the week of trial, to

testify via ZOOM. In her affidavit, Ms. Tatum attested that she prepared Mr.

Julien’s 2019 state tax return on November 13, 2020 and sent the return to the

Department of Revenue via first class mail. However,

[this Court’s] interpretation of [State jurisprudence] is that the challenged candidate is not required to prove actual delivery to the LDR, but that the challenged candidate must show reliable circumstances of mailing (e.g., by certified mail), that would tend to ensure delivery, to maintain a justified reasonable belief that her returns have been filed as of the date of her certification.

Lumar v. Lawson, 301 So.3d at 1256, citing Russo v. Burns, 14-1963 (La. 9/24/14),

147 So.3d 1111; See also Braggs, 344 So.3d 63. Further, in Braggs, the Supreme

2 The proffered Affidavit of Tax Preparer, signed on August 17, 2023 before a notary, reads as follows:

I hereby verify through this letter and attest to l the preparation and filing of the year 2019 tax return for Charles C. Julien. I personally prepared federal and state tax returns on November 13, 2020, and remitted the federal returns electronically. The Louisiana state tax return was placed in the U.S. mail on November 13 th 2020, and sent via first class mail. I have prepared Mr. Julien’s taxes in this fashion for the past seven years, and have never had an issue with the receipt of the documents. If any additional information is required, please contact me [. . . ].

If the return was not filed in the State of Louisiana for the tax year of 2019, it is a mere oversight on my part. I take full responsibility for the fact that the return was not received by the State of Louisiana. At all times Charles C. Julien believed that all of his returns were filed and submitted timely by me.

I hereby swear under oath that that [sic] the above and forgoing [sic] statement is true and accurate.

23-CA-410 5 Court found that “nothing in the record evidences the Department of Revenue’s

actual receipt of the returns.” Id. Similar to the instant case, the tax preparers in

Braggs, Russo, and Lumar did not send the candidates’ tax returns by certified

mail.

Mr. Julien’s case is distinguishable from those cases in that he stated that he

believed that all of his tax returns had been filed timely, well in advance of his

notice of candidacy, and only one state tax return was at issue in his case.

Unfortunately, his attempts to prove that he did in fact file his 2019 state tax return

through establishing a pattern of timely or regularly filing his taxes were not

sufficient. Although not dispositive of the issue, his federal tax return transcripts

showed that he did not claim any state tax income refunds as income for any of the

tax years at issue. Mr. Julien stated that he contacted the Department of Revenue

about his records, but they were unable to respond before trial. In his brief, Mr.

Julien argued that there were approximately six days between LDR’s response to

Mr. Hotard’s public records request and the filing of Mr. Julien’s Notice of

Candidacy. That fact does not affect Mr. Hotard’s prima facie case or the shifting

on the burden to Mr. Julien. Mr. Julien claims that the relevant tax return was filed

at the end of 2020, not days before the election. More importantly, although actual

delivery of the return to the LDR has evidentiary value, “it is not essential to, and

its unavailability at the time of trial is not dispositive of, the question of whether

the candidate's prior certification was truthful.” Crosby, 301 So.3d at 1242. Also,

Mr. Julien did not produce any financial records that showed he received a refund

from, or paid taxes to, the state for the tax year in question, or even paid for

delivery of the state tax return via certified mail. Further, the affidavit submitted by

his tax preparer stated that she sent the tax return via first class mail. Upon review

of the proffered evidence, we find Ms. Tatum’s affidavit did not provide

information that would be sufficient to rebut Mr. Hotard’s prima facie showing

23-CA-410 6 that Mr. Julien’s 2019 state tax return had not been filed. Also, the affidavit did not

suggest that the tax preparer would be able to provide additional relevant evidence

sufficient to rebut Mr. Hotard’s prima facie case that Mr. Julien’s 2019 tax return

was not filed and disqualification was proper.

Further, we cannot say that the district court abused its discretion in denying

Mr. Julien’s request to recess trial in order to arrange for the tax preparer’s

testimony to be taken via Zoom.

[La.] C.C.P. art. 1632 further provides that the order of trial may be varied by the court when justified by the circumstances. The trial court has great discretion in controlling the presentation of evidence. The decision to hold open or reopen a case for production of additional evidence rests within the discretion of the trial judge.

Kim v. Kim, 07-318 (La. App. 5 Cir. 10/30/07), 970 So.2d 1158, 1163 (citation

omitted). Also, La. C.C.P. art. 1633.1 provides that orders authorizing live

testimony of a witness may be entered at pretrial conference, or on motion set for

hearing at least ten days prior to trial, which we acknowledge would have been

impossible in this case. Mr. Julien received notice of the hearing three days earlier

and the court hearing began at 10:00 a.m. According to the trial transcript, Mr.

Julien did not advise the court before the hearing that he may need to take

testimony via videoconferencing when asked by court personnel before the trial

began. Last, there is no local rule that specifically provides for testimony via

videoconference. See Uniform Rules of Court, District Court Rules 3.5 and

Appendix 3.5.

To sum, we find that Mr. Julien did not present any objective evidence to

prove that the method by which he and his tax preparer attempted to file his 2019

state tax return reliably ensured delivery of that tax return to the LDR sufficient to

rebut Mr. Hotard’s prima facie showing that Mr. Julien did not file a 2019 state tax

return and should, therefore, be disqualified. Accordingly, we find that Mr. Julien

falsely certified that he filed his state and federal tax returns for the last five years

23-CA-410 7 upon signing his Notice of Candidacy and his disqualification as a candidate

pursuant to La. R.S. 18:492(A)(7) and La. R.S. 18:494 was proper.

DECREE

Considering the foregoing, the August 18, 2023 judgment of the district

court sustaining the objection to Mr. Julien’s candidacy and disqualifying him as a

candidate for St. John the Baptist Parish President in the October 14, 2023 primary

election is affirmed. Costs of the appeal are assessed against Appellant, Charles C.

Julien.

AFFIRMED

23-CA-410 8 EDWARD HOTARD NO. 23-CA-410

CHARLES C. JULIEN AND ELIANA COURT OF APPEAL DEFRANCESCH, IN HER CAPACITY AS CLERK OF COURT STATE OF LOUISIANA

WICKER, J., CONCURS WITH REASONS

While I agree with the majority’s decision to affirm the trial court’s

judgment sustaining the objection to Mr. Julien’s candidacy, I write separately to

emphasize the Louisiana Supreme Court’s recent holding in Braggs v.

Dickerson, 22-1227 (La. 8/13/22), 344 So.3d 63, which instructed that “[t]ax

returns that have not been delivered to the Louisiana Department of Revenue

have not been filed.” 22-01227 (La. 8/13/22), 344 So.3d 63, citing Russo v.

Burns, 14-1963 (La. 9/24/14), 147 So.3d 1111, 1114. The Braggs decision

instructs that proof of actual delivery of a mailed tax return to the LDR is

required to prove that the individual’s taxes have been “filed” as contemplated

under La. R.S. 18:463. Specifically, the Louisiana Supreme Court held that a tax

preparer’s testimony that state income tax documentation had been mailed—

without evidence of LDR’s receipt of said documentation—is not sufficient to

prove that the individual’s taxes have been “filed” as contemplated under La.

R.S. 18:463. Id.

I disagree with the majority opinion insofar as it approvingly cites to certain

portions of this Court’s prior decisions in Lumar v. Lawson, 301 So.3d 1243 (La.

App. 5 Cir. 8/10/20), 301 So.3d 1243, 1256, writ denied, 20-994 (La. 8/13/20), 300

So.3d 868, and 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, for the proposition

that evidence demonstrating “reliable circumstances of mailing”—rather than

evidence demonstrating actual receipt of a tax return—may be sufficient to prove

23-CA-410 9 that a mailed tax return has been “filed” as contemplated under La. R.S. 18:463.

Specifically, the majority cites to Crosby, supra, in support of its finding that

“although actual delivery of the return to the LDR has evidentiary value, ‘it is not

essential to, and its unavailability at the time of trial is not dispositive of, the

question of whether the candidate’s prior certification was truthful.’”

However, the Louisiana Supreme Court’s recent holding in Braggs stands

for the proposition that actual delivery of the return to the LDR is, in fact, essential

for a candidate to meet his or her burden to rebut the prima facie case presented in

an election challenge case. The Court found that, “[w]ithout ensuring their

delivery, [the candidate] could not have known whether or not his tax returns were

filed when he signed his Notice of Candidacy.” Braggs, supra.3 The Braggs case

places the burden on the qualifying candidate to confirm delivery to the LDR (e.g.,

actual proof of receipt by the LDR) prior to completing the Notice of Candidacy

form. Therefore, in light of the recent binding decision in Braggs, I disagree with

the majority opinion insofar as it could be interpreted to conclude that evidence of

actual delivery of a mailed tax return to the LDR is not essential to rebut the

plaintiff’s prima facie case in an election challenge matter.

3 Since the Braggs decision, the Louisiana Supreme Court has further reiterated that, “[t]his court’s rulings in Braggs and Russo involved filing of tax returns by mail, which is separately governed by La. Admin. Code Title 61, pt. I, § 4911(B)(1). As Braggs and Russo indicate, filing by mail requires its own specific form of proof of transmittal, generally limited to confirmation from the post office that the tax returns were delivered.” Clark v. Bridges, 23- 00237 (La. 2/22/23), 356 So.3d 990, 885-6.

23-CA-410 10 EDWARD HOTARD NO. 23-CA-410

CHARLES C. JULIEN AND ELIANA COURT OF APPEAL DEFRANCESCH, IN HER CAPACITY AS CLERK OF COURT STATE OF LOUISIANA

SCHLEGEL, J., CONCURS FOR THE REASONS ASSIGNED BY JUDGE WICKER

23-CA-410 11 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 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-410 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE J. STERLING SNOWDY (DISTRICT JUDGE) DEVIN C. JONES (APPELLEE) IKE SPEARS (APPELLEE) TRAVIS J. TURNER (APPELLANT)

MAILED ALVIN J. TURNER, JR. (APPELLANT) LEANDRE M. MILLET (APPELLEE) KEYOJUAN G. TURNER (APPELLANT) ASSISTANT DISTRICT ATTORNEY ATTORNEYS AT LAW FORTIETH JUDICIAL DISTRIST 413 WEST MAIN STREET PARISH OF ST. JOHN THE BAPTIST GONZALES, LA 70737 POST OFFICE BOX 399 1342 HIGHWAY 44 RIVER ROAD RESERVE, LA 70084