Karen Schindler v. Derek T. Russ and the Honorable Darren Lombard

• Court: Louisiana Court of Appeal
• Decided: August 8, 2022
• Docket: 2022-CA-0533
• Status: Published

Opinion

KAREN SCHINDLER * NO. 2022-CA-0533

VERSUS * COURT OF APPEAL

DEREK T. RUSS AND THE * FOURTH CIRCUIT HONORABLE DARREN LOMBARD * STATE OF LOUISIANA

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CHASE, J., CONCURS AND ASSIGNS REASONS TGC I concur with the majority and write separately to offer additional reasons in

support of the majority opinion’s affirmation of the trial court’s application of

fundamental legal principles. The trial court found that Ms. Schindler did not

establish a prima facie case. “The party on which the burden of proof rests must

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

opposing party is not required to present any countervailing evidence” Landiak v.

Richmond, 2005-0758, p.8 (La. 3/24/05), 899 So.2d 535, 542. As the plaintiff

failed to establish a prima facie case, the burden never shifted to Mr. Russ to rebut

the showing.

Several fundamental principles have been repeatedly espoused by our

Supreme Court and courts across Louisiana. "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,

2005-0758, pp. 6-7, 899 So.2d at 541; See Becker v. Dean, 2003–2493, p. 7 (La.

9/18/03), 854 So.2d 864, 869; Russell v. Goldsby, 2000–2595, p. 4 (La. 9/22/00),

780 So.2d 1048, 1051; Dixon v. Hughes, 587 So.2d 679, 680 (La. 1991); Messer v.

London, 438 So.2d 546 (La. 1983). It follows that, when a particular domicile is

required for candidacy, the burden of showing lack of domicile rests on the party

1 objecting to the candidacy. Becker, 2003–2493, p. 7, 854 So.2d at 869; Pattan v.

Fields, 1995–2375 (La. 9/28/95), 661 So.2d 1320. Further, a court determining

whether the person objecting to candidacy has carried his burden of proof must

liberally construe the laws governing the conduct of elections “so as to promote

rather than defeat candidacy.” Becker, 2003–2493, p. 7, 854 So.2d at 869; Russell,

2000–2595, p. 4, 780 So.2d at 1051; Dixon, 587 So.2d at 680. Any doubt

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

allowing the candidate to run for public office. Becker, 2003-2493, p. 7, 854 So.2d

at 869; Landiak, 2005-0758, pp.6-7, 899 So.2d at 541.

Mr. Russ lists the Pauger Address as his domicile and testified that he is

currently domiciled there. While Mr. Russ admits to having several residences

over the years, he contends that his domicile has always remained at the Pauger

Address. Counsel for Ms. Schindler questioned Mr. Russ about a house purchased

in 2006, the Oxford Address. Mr. Russ stated that although he purchased the

house in 2006, he never intended to change his domicile from the Pauger Address.

In fact, Mr. Russ testified that his mother, who was going through a divorce in

2017 moved in and remained at the Oxford Address after her divorce and

throughout her illness. Both Mrs. Russ and Mr. Russ’ cousin corroborated Mr.

Russ’ statement. Mr. Russ presented voter registration records from the Louisiana

Secretary of State- dating back to 1996, a drivers’ license, vehicle registration and

insurance, all bearing the Pauger Address. Specifically, the Pauger Address is also

the mailing address on several of the documents. All of these documents are

indicia of domicile. Of significance, while the vehicle registration initially

indicated the Oxford Address, the Progressive Insurance documents for the

vehicles submitted reveals that Mr. Russ was insured in Orleans Parish

(undoubtedly at a higher insurance rate than Jefferson Parish) at the Pauger

Address. The only vehicle information presented to the trial court was for the

2 Chevy Tahoe and Chevy Suburban. Moreover, a review of the testimony of every

witness presented, including Mr. Russ, never revealed that Mr. Russ ever actually

resided at the Oxford Address. To the contrary, the testimony was that Mr. Russ’

belongings were at the Pauger Address. Testimony of a private investigator hired

by Ms. Schindler, who researched the Jefferson Parish Assessor’s Office records,

noted that the records revealed that Mr. Russ did not take a homestead exemption

at the Oxford Address. The trial court heard the testimony presented, weighed the

credibility of the witnesses and found the responses given by Mr. Russ satisfactory

and plausible.

The facts of this case hinge on credibility. The premise begins with the

principle that “every person has a domicile of origin that he retains until he

acquires another. La. C.C. art. 44. Davis v. Glen Eagle Ship Mgmt. Corp., 1997-

0878 (La.App. 4 Cir. 8/27/97), 700 So.2d 228, 230. An individual changes his

domicile when he moves his residence with the intent to make the new location his

habitual residence. La. C.C. art 44. Ms. Schindler failed to produce sufficient

evidence to establish that Mr. Russ has not been domiciled in Orleans Parish for

two years.1 The trial court specifically made that finding, after hearing the

testimony and reviewing the evidence. Our appellate court system recognizes that

is impossible for an appellate court to consider a witness’ tone or inflections from a

transcript, i.e. words on a page. For this very reason, appellate courts are cautioned

to not make credibility determinations. Appellate courts should not substitute its

own fact findings, credibility calls, and reasonable inferences for those made by

the trial court in the absence of manifest error. Villane v. Azar, 566 So.2d 645, 648

(La.App. 4th Cir. 1990). Because election laws must be interpreted to give the

1 Ms. Schindler maintains that the FHA Mortgage documents are dispositive of the issue of

domicile. However, Ms. Schindler’s private investigator testified that Mr. Russ did not file for a homestead exemption on the Oxford Address. Thus, the trial court was tasked with weighing these facts and making a determination. 3 electorate the widest possible choice of candidates and maintaining candidacy is

favored, I would not disturb the ruling of the trial court.