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Smith v. Charbonnet

Court of Appeals of Louisiana, Fourth Circuit

August 2, 2017

CASSANDRA SMITH AND KEION SMITH
v.
ERNEST "FREDDIE" CHARBONNET AND ARTHUR MORRELL IN HIS CAPACITY AS CLERK OF CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-07090, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Ernest L. Jones COUNSEL FOR PLAINTIFFS/APPELLANTS

          Douglas Hammel THE HAMMEL LAW FIRM Arthur A. Morrell Clerk of Criminal District Court for the Parish of Orleans COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Terrel J. Broussard, Pro Tempore Judge Marion F. Edwards, Pro Tempore

          SANDRA CABRINA JENKINS JUDGE

         This is an election contest suit. Plaintiffs/appellants Cassandra Smith and Keion Smith (collectively, "Plaintiffs") appeal the trial court's July 27, 2017 judgment denying Plaintiffs' objection to the candidacy of defendant Ernest "Freddie" Charbonnet for Orleans Parish City Council District E.[1]

         For the reasons that follow, we reverse the judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 13, 2017, Mr. Charbonnet filed a signed and notarized Notice of Candidacy form which included the following certification as required by La. R.S. 18:463(A)(2)(a):

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.

         On July 21, 2017, Plaintiffs filed an Objection to Candidacy and Petition to Disqualify Candidate. The Petition alleged that Mr. Charbonnet had falsely certified in his Notice of Candidacy form that he had filed his state income tax returns for the previous five years.[2] Plaintiffs asserted that Mr. Charbonnet had not filed income tax returns for 2012 and 2016.

         On July 21, 2017, Judge Christopher Bruno and Judge Cherrell Simms Taplin recused themselves. On July 24, 2017, Judge Ethel Simms Julien, Judge Robin M. Giarrusso, and Judge Sidney H. Cates, IV recused themselves. On July 24, 2017, this matter was allotted to Judge Piper D. Griffin, who then signed an order setting the matter for trial on July 27, 2017.

         On July 26, 2017, Mr. Charbonnet filed a Motion to Dismiss the Plaintiffs' Objection to Candidacy and Petition to Disqualify Candidate for Failure to Timely Prosecute Pursuant to La. R.S. 18:1409(A)(1) ("Motion to Dismiss"). Mr.

         Charbonnet argued that the Plaintiffs' objection to his candidacy should be dismissed because the matter was set for trial later than 10:00 a.m. on the fourth day after suit was filed.[3]

          This matter proceeded to trial on July 27, 2017. On that date, before the introduction of evidence, the trial court signed an order denying Mr. Charbonnet's Motion to Dismiss.

         At trial, Plaintiffs introduced correspondence from the Louisiana Department of Revenue ("LDR") which, in response to Plaintiffs' public records request, stated that it could not confirm the filing of Louisiana income tax returns by Mr. Charbonnet for the years 2012 and 2016. A representative of LDR also testified at trial that, based on the information contained in the public records request, the ...


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