
    Derserlene NIXON v. Jason HUGHES and The Honorable Arthur A. Fourth Circuit Morrell.
    No. 2015-CA-1036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2015.
    
      Douglas Hammel, Alan D. Alario, II, The Hammel Law Firm, Metairie, LA, for Plaintiff/Appellee, Derserlene Nixon.
    Stephen H. Kupperman, Joshua 0. Cox, Barrasso USDIN Kupperman Freeman & Sarver, LLC, New Orleans, -LA, for Defendant/Appellant, Jason Hughes.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.'

| jThis appeal arises from the disqualification of Jason Hughes from the candidacy for the 100th Representative District for the State of Louisiana. The trial court disqualified Jason Hughes because he certified on his qualifying form that he filed his 2010 Louisiana state income tax return when he had not. Jason Hughes contends that he did not possess the malicious intent to deceive when he signed the qualifying form because he possessed an honest belief that he was not required to file a return in 2010. Following the jurisprudence of the Louisiana Supreme Court, we find that the trial court did not err, as the subjective intent of a candidate is irrelevant when determining whether a candidate should be disqualified for certifying that he filed his tax returns in compliance with the qualifying form, when he had not. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jason Hughes completed his Notice of Candidacy Qualifying form to become a candidate for the 100th Representative District for the State of Louisiana on September 8, 2015. After filing his sworn form, Mr. Hughes filed an extension for filing his 2014 Louisiana state income tax return. Mr. Hughes then filed ^electronic returns for 2010, 2011, 2012, on September 16, 2015; The next day, Dérserlene Nixon filed a Petition for Action Objecting to Candidacy against Mr. Hughes and the Honorable Arthur A. Morell seeking to disqualify Mr. Hughes for failing to file his State tax returns for the previous five years. The trial court stated that “the subjective intent of Mr. Hughes must yield to the mandatory provisions of the Internal Revenue Code.” The trial court then granted Ms. Nixon’s petition and disqualified Mr. Hughes from the race for the 100th Representative District for the State of Louisiana. Mr. Hughes’ timely appeal followed.

Mr. Hughes contends that the trial court erred by failing to consider his scienter when he completed the Notice of Candidacy form.

STANDARD OF REVIEW

Appellate courts review a trial court’s findings of fact utilizing the manifest error or clearly wrong standard of review. Duhon v. Briley, 12-1137, p. 3 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

“Regarding issues of law, the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct.” Id., 12-1137, p. 4, 117 So.3d at 257-58. “Accordingly, if the decision of the trial court is based upon an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court.” Id., 12-1137, p. 4, 117 So.3d at 258.

DISQUALIFICATION

l.qMr. Hughes asserts that he was erroneously disqualified because the trial court failed to consider his subjective intent when he completed his Notice of Candidacy form. Further, Mr. Hughes contends that the Louisiana Supreme Court did not overrule the scienter considerations contained in Russo v. Burns, 14-1008, p. 5 (La.App. 4 Cir. 9/17/14), 150 So.3d 377, 381 (“Burns I ”) and Louisiana Bd. of Ethics v. Wilson, 14-925, p. 7 (La. App. 3 Cir. 9/9/14), 161 So.3d 785, 788.

In order to qualify as a candidate for the 100th Representative District for the State of Louisiana, Mr. Hughes was required to sign a sworn Notice of Candidacy. He attested ■ that the following was true and correct under section 8 of the form:

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.

“The person objecting to the candidacy of a person bears the burden of proof.” Louisiana State Bd. of Ethics v. Garrett, 06-0263, p. 8 (La.App. 4 Cir. 3/21/06), 929 So.2d 176, 180. “However, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party.” Id.

' Ms. Nixon established a prima facie case to disqualify Mr. Hughes because it is undisputed that his 2010 Louisiana state tax return was not filed until after the filing of his Notice of Candidacy. The burden then shifted to Mr. Hughes to prove that the information contained in his Notice of Candidacy was “true and correct.” Mr. Hughes asserts that he did not possess the intent to deceive when he completed his Notice of Candidacy because he believed that he did not need to file a state 14income tax return for 2010.

The Third Circuit examined a trial court’s decision not to disqualify a candidate who believed he paid penalties prior to completing the Notice of'Candidacy form. Wilson, 14-925, p. 7, 161 So.3d at 788. The Third Circuit stated that “Mr. Wilson’s testimony regarding his belief that the-penalty issue had been resolved was uncontested by the Board who failed to cross-examine him regarding that belief.” Id. The trial court was affirmed based upon the candidate’s belief. Id. The Louisiana Supreme Court subsequently denied writs.

This Court then relied upon Wilson and determined that the candidate’s subjective intent should factor into the determination of whether .the information contained in the Notice of Candidacy form was “true and correct.” Russo v. Burns, 14-1008, p. 5, 150 So.3d at 381. We held that “it was not an error of law for the trial court to consider Mr. Burns’ state of mind in deciding if he made a false certification.” Id. This Court found that “[a] careful review of the record shows that the trial court had a reasonable basis upon which to find that Mr. Burns truthfully believed that he had in fact filed his taxes when he certified that he had done so,” and affirmed the trial court’s judgment overruling the candidate’s disqualification. Id., 14-1008, p. 6, 150 So.3d at 381.

However, unlike in Wilson, the Louisiana Supreme Court granted writs and reversed this Court in Bums I. The Court found that “[wjithout sending the returns via certified mail or otherwise ensuring them delivery to LDR, Burns could not have known whether or not his tax returns had been filed pursuant to Louisiana regulation when he signed his Notice of Candidacy.” Russo v. Burns, 14-1963, p. |B4 (La.9/24/14), 147 So.3d 1111, 1114 (“Bums II ”) (Emphasis in the original). The Court reversed' this Court and the trial court, and disqualified the candidate. Id.

Mr. Hughes avers that the Supreme Court did not overrule Wilson and Bums ’ examination of the candidate’s subjective intent. The Supreme Court did not overturn Wilson. However, the Supreme Court overturned Bums I. Further, we find no instruction contained in the binding precedent of Bums II that would permit this Court to once.again consider a candidate’s subjective intent in deciding whether to disqualify a candidate who certified that he filed all of his tax returns when, in fact, he had not. As such, we find Bums II controlling and affirm the trial court’s disqualification of Mr. Hughes, as it is undisputed that he had not filed all of his tax returns when he completed the Notice of Candidacy form.

DECREE

For the above-mentioned reasons, we find that the trial court correctly disquali■fied Mr. Hughes for certifying that he filed his income tax returns when he had not. The judgment of the trial court is affirmed.

AFFIRMED

TOBIAS, J., concurs.

BELSOME, J., concurs in the result.

BONIN, J., dissents with reasons.

LOBRANO, J., concurs with reasons.

TOBIAS, J.,

concurs.

|¾1 fully and respectfully concur in the majority’s opinion.

I feel compelled to comment about my colleague’s dissent in which he asserts that the district court lacks subject matter jurisdiction to entertain a suit challenging, a candidate for a seat in the Louisiana Legislature. La. Const. Art. Ill, § 4 sets forth the qualifications for a member of the legislature: (a) an elector; (b) at least 18 years of age on the date he qualifies for election; (c) residing in Louisiana for two years preceding his qualifying; and (4) actually being domiciled for one year in the legislative district from which he seeks election. La. Const, art. Ill, § 7 says that each house of the legislature is the judge of the qualifications and elections, of its members. But La. Const, art. XI, §■ 1 requires the legislature to adopt an election code that provides “for the conduct of all elections.”

Pursuant to the Article XI mandate, the legislature adopted the Louisiana Election Code, La. R.S. 18:1, et seq. Without going into a detailed analysis of the Code, suffice it to say that the legislature has set up a framework for qualifying for and conducting all elections, including members of the legislature. Thus, the legislature provided a means for a citizen to question, whether an- individual possessed the qualifications to run for-the office of a member of the legislature. Without that statutory authority, in theory, and by way of example, a 10-year-old, a | anon-elector, a non-citizen, or a Louisiana nonresident could qualify and run for the office of a Louisiana legislature member and only after such individual’s election could it be questioned by a house of -the - legislature. Such is clearly not the intent.

The La. Const, art. Ill, § 7 provision (judging of the qualifications and elections) is intended to allow.'a house of the legislature to eject a member for cause, such as a serious crime. To embrace otherwise would allow a housé of the legislature to eject a member because of his religion or his articulation or support of unpopular causes — in other words a supposed “nonconformist.” To think that the third branch of government, the judiciary, cannot provide a check upon the legislature in that regard would be pure bunkum.

. BONIN, J., dissents with reasons.

hi respectfully dissent. I would vacate the judgment of the district court because the district court does not have subject matter jurisdiction over a challenge to the qualifications of a candidate for a member of the legislature (and only a member of the legislature).

•Jason Hughes seeks office as a member if the Louisiana House of Representatives. Article 3, § 4(A) of the Louisiana Constitution of 1974 sets forth the qualifications for a member of the legislature: “An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for | ¡¿membership in the legislature.” Article 1, § 10(B) of the Louisiana Constitution of 1974 also establishes a disqualification from candidacy and office under specified circumstances following a felony conviction, but this provision is not implicated in this election challenge because Mr. Hughes has not been convicted of a felony.

Most importantly for our purposes is the provision of Article 3, § 7(A) of the Louisiana Constitution of 1974 which provides that “[e]ach house shall be the judge of the qualifications and elections of its members ...” (emphasis added). This provision, in my view, preempts the general jurisdictional provision for district courts at Article -5, § 16(A) of the Louisiana Constitution of 1974, which confers exclusive original jurisdiction of cases involving “the right to office or other public position” “[ejxcept as otherwise authorized by this constitu-tion_” |«And, thus, the provision assigning the House of Representatives the mandatory role of “judge of the qualifications” renders inapplicable the application of La. R.S. 18:492 (grounds for objecting to a candidacy).

La. Const, art. 3, § 7(A) is remarkably similar to the Elections Clause of the United States Constitution, Article I, section 5, clause 1, which provides that “[e]aeh House shall be the Judge of the Elections, Returns and Qualifications of its own members.” (emphasis added). This text demonstrates a clear “.‘constitutional commitment’ of an issue to another branch of government to the exclusion of the courts ...” Morgan v. U.S., 801 F.2d 445, 447 (D.C.Cir.1986) (ellipsis indicates citation omitted). “The provision states not merely that each House ‘may judge’ these matters, but that each House ‘shall be the Judge’ (emphasis added).” Id. (emphasis in original opinion). And from this, Morgan instructs, that “[t]he exclusion of others — and in particular of others who are judges — could not be more evident.” Id. (emphasis added). Morgan concluded that the judiciary, a separate branch of government, in the face of that constitutional provision “simply lack[s] jurisdiction to proceed.” Id. In my view, La. Const, art. 3, § 7(A) operates in precisely the same manner: we have no jurisdiction to judge the qualifications of candidates for the House of Representatives because the Louisiana Constitution has “committed” that determination to the House of Representatives to our exclusion.

Louisiana, too, has three separate branches of government. See La. Const, art. 2, § 1 (“The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.”). And, very importantly for our purposes, Article 2, § 1 of the Louisiana Constitution of 1974 states that “Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall- exercise power belonging to either of the Mothers.” (emphasis added). Its application here is that we judges have no business “judging” the qualifications of a candidate for the House of Representatives as that has been committed by our constitution to the persons holding office in'the legislative, and not judicial, branch of government.

The legislative branch is the most representative branch of government. The propriety of each house being the judge of the qualification of its members, /without interference or intrusion from another branch, ought to be obvious. See John Randolph Tucker and Henry St. George Tucker, The Constitution Of The United States. A Critical Discussion of Its Genesis, Development, and Interpretation, Volume I, pp. 426-427 (1899). This is so whether it is the federal legislature or the state legislature and whether the intrusion is at the beginning or the end of the election.

“Jurisdiction is the legal power and au-' thority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which • they are entitled.” La. C.C.P. art. 1. And “¡jjurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. C.C.P. art. 2. And, finally, “[a] judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” La. C.C.P. art. 3. The district court simply had no subject matter jurisdiction over this matter and the judgment disqualifying Mr. Hughes ought to be vacated.

LOBRANO, J.,

concurs with reasons.

|,I respectfully concur. I agree with the majority opinion that the district court’s judgment, disqualifying Jason Hughes from candidacy for the 100th Representative District for the State of Louisiana, should be affirmed. I write separately to note that, at the time Hughes signed his Notice of Candidacy, Hughes lacked sufficient knowledge of the law governing whether he was required to file tax returns for the year 2010. As Hughes did not know whether tax returns were required, I find that Hughes falsely certified that he was not required to file tax returns for the year 2010.

In Russo v. Burns, 14-1963 (La.9/24/14), 147 So.3d 1111 (“Burns II”), the Louisiana Supreme Court held that, without sending tax returns via certified mail or otherwise ensuring them delivery to the Louisiana Department of Revenue, the candidate, Burns, could not have known whether his tax returns were filed in compliance with Louisiana law when he signed his Notice of Candidacy. I do not interpret Bums II to reach the question as to whether a court is permitted to consider a candidate’s subjective intent or good faith beliefs in determining if a candidate should be disqualified for making an allegedly false certification. Instead, I read Burns II to hold that it is false certification for a candidate to certify to facts of which the candidate does not have sufficient knowledge. For these reasons, I would affirm the judgment of the lower court disqualifying Hughes from candidacy for falsely certifying that he was not required to file tax returns for the year 2010. 
      
      . Mr. Hughes contends that he was unemployed for two years, so he did not file for 2011 and 2012.
     
      
      . The Supreme Court held that returns were not filed unless delivered: Burns, 14-1963, p. 4, 147 So.3d at 1114.
     
      
      . Mr. Hughes’ testimony presented numerous explanations for his failure to file the 2010 income tax return. " However, because' we find that the Louisiana Supreme Court does not permit the consideration of subjective intent, a discussion of Mr. Hughes’ testimony is pretermitted.
     
      
      . We have a duty to take up the lack of subject matter jurisdiction sua sponte, despite the litigants failure to raise the issue. See Boudreaux v. State, Dept. of Transp. and Development, 01-1329, p. 8 (La.2/26/02), 815 So.2d 7, 13.
     
      
      . The precise challenge to the candidate, Jason Hughes, is that he failed to file one year’s tax return which results in his disqualification for office under La. R.S. 18:492 A(7). See Russo v. Burns, 14-1963 (La.9/24/14), 147 So.3d 1111. The constitutionality of this provision was not challenged in the district court and thus could not be considered by us on appeal. See Council of the City of New Orleans v. Washington, 09-1067, p. 4 (La.5/29/09), 9 So.3d 854, 857 (per curiam) ("The longstanding jurisprudential rule of law in Louisianá is that litigants must raise constitutional attacks1 in the' trial court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for _ the claim particularized.”). Some members of this court, however, have expressed a concern with the constitutionality of statutes which seek to add qualifications to those enumerated by the Louisiana constitution. See, e.g., Russo v. Burns, 14-0952, p. 5 (La.App. 4 Cir. 9/9/14), 150 So.3d 67, 75 (Belsome, L, concurring) ("the principle remains the same: an act of the legislature should not circumvent a constitutional article, whether state or federal").
     
      
      . Notably, as remarked in n. 1, ante, the challengers do not question his eligibility for membership on any of these three constitutional grounds.
     
      
      . La. Const, art. 1, § 10(B) reads as follows:
      (B) Disqualification. The following persons shall not be permitted to qualify as a candidate for elective public office or take public elective office or appointment of hoiior, trust, or profit in this state:
      (1) A person who has been convicted within this state of a felony and who has exhausted all legal remedies, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be a felony and who has exhausted all legal remedies and has not afterwards been pardoned either by the governor of this state or by the officer of the state, nation, government or country having such authority to pardon in the place where the person was convicted and sentenced.
      (2) A person actually under an order of imprisonment for conviction of a felony.
     
      
      . La. Const, art. 5, § 16(A) reads as follows:
      Original jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political coiporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.
     
      
      . Then-Circuit Judge Scalia was the author of the opinion.
     
      
      . I am aware of the First Circuit’s distinction that Article 3, § 7(A) is only operative after a -person is elected. See Deculus v. Welborn, 07-1836, pp. 4-6 (La.App. 1 Cir. 9/19/07), 970 So.2d 1057, 1060. But it seems to me that the First Circuit overlooked the exception in La. Const, art. 5, § 16(A) respecting the exception to the district court’s jurisdiction, to wit: “[ejxcept as .otherwise authorized by this ■'constitution....”
     