Panepinto v. Smith

348 So.3d 185

Peter PANEPINTO

v.Darryl David SMITH and Gary Stanga, in His Official Capacity as Clerk of Court for the Parish of Tangipahoa

2022 CE 0830

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: August 09, 2022

Frank J. DiVittorio, Hammond, LA, James M. Garner, Stuart D. Kottle, New Orleans, LA, Counsel for Defendant/Appellant, Darryl David Smith

Stephen M. Petit, Jr., Brittany D. Rogers, Harahan, LA, Counsel for Plaintiff/Appellee, Peter Panepinto

BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, PENZATO AND WOLFE, JJ.

WHIPPLE, C.J.

In this suit challenging the candidacy of Darryl David Smith for the office of Mayor of the City of Hammond, the trial court rendered judgment granting the objection and disqualifying Mr. Smith as a candidate. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 22, 2022, Mr. Smith filed a sworn notice of candidacy with the Tangipahoa Parish Clerk of Court, declaring his intent to run for the office of Mayor of the City of Hammond in the election scheduled for November 8, 2022. In the notice of candidacy, Mr. Smith certified that his domicile address was 1312 N. Oak, Apt. B, Hammond, Louisiana, 70401, which is located in Precinct 40. He also attested that he was a duly qualified elector in Precinct 40.

In the notice of candidacy form, Mr. Smith attested, in pertinent part, as follows:

8) If I am a candidate for any office other than United States senator or representative in congress, that if I claim a homestead exemption on a residence pursuant to Article VII, Section 20 of the Constitution of Louisiana, I am registered and vote in the precinct in which that residence is located, unless I reside in a nursing home as defined in La. R.S. 40:2009.2 or in a veterans’ home operated by the state or federal government.

Subsequently, on July 29, 2022, Peter Panepinto, Mayor of and a qualified elector in the City of Hammond, filed an objection to Mr. Smith's candidacy. Mr. Panepinto alleged that Mr. Smith resides and claims a homestead exemption at 19477 Par Lane, Hammond, Louisiana, 70401, which is located in Precinct 44. Mr. Panepinto contended that Mr. Smith should be disqualified from the mayoral election "for violation [of] Louisiana law by claiming a homestead exemption in a precinct different from the precinct in which he is registered to and votes."

Trial was held on August 2, 2022. At trial, Kevin Raiford, the Chief Deputy/Chief Financial Officer of the Assessor's Office for Tangipahoa Parish, testified that Mr. Smith has a homestead exemption on the Par Lane property. Mr. Raiford testified that the homestead exemption has been in effect since 2008, and there have been no changes to the exemption since that time. He indicated that the homestead exemption was still in effect on July 22, 2022, the date Mr. Smith filed his notice of candidacy. Mr. Raiford testified that had an act translative of ownership been filed into the public records, it would have triggered a change in the assessor's records and the right to the exemption. Mr. Raiford indicated that a person has to be the owner of the property in order to claim the homestead exemption.

Mr. Smith testified that his ex-wife is the owner of the property located at 19477 Par Lane. Mr. Smith stated that he has lived separate and apart from his ex-wife since October 7, 2014, and has not lived at the Par Lane address since that time. Further, Mr. Smith introduced an October 7, 2015 consent judgment signed by the trial court in his divorce proceedings, which he contends recognizes his ex-wife as the sole owner of the Par Lane property. Mr. Smith testified that he lives at 1312 North Oak in Hammond. Mr. Smith also introduced two driver's licenses—one issued on October 30, 2015, and a second issued on July 29, 2021—both of which reflect that his address is 1312 North Oak in Hammond.

Following the trial, the trial court found "that Mr. Smith claimed the homestead exemption or had the right to claim the homestead exemption on the Par Lane property." As such, the trial court found that Mr. Smith was required to register and vote in Precinct 44, or where the Par Lane property was located. On August 4, 2022, the trial court signed a judgment granting Mr. Panepinto's objection and ordering that "Darryl David Smith's name be struck from the ballot in the Election for Mayor of City of Hammond, which is to take place on the 8th day of November, 2022." Mr. Smith has appealed.

On appeal, Mr. Smith has raised the following as error:

1. The trial court legally erred in finding that Mr. Smith was registered to vote in a precinct other than the one he claims as a homestead exemption because Mr. Smith does not claim a homestead exemption.

2. The trial court legally erred in finding that Mr. Smith's Notice of Candidacy contained an error as to Certification #8 because he does not own the house located on, have any ownership interest in, and does not claim a homestead exemption on property on Par Lane, Hammond, Louisiana in Precinct 44.

DISCUSSION

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 , 2005-0758 (La. 3/24/05), 899 So.2d 535, 541. Once the party bearing the burden of proof has established a prima facie case that the candidate is disqualified, the burden shifts to the party opposing the disqualification to rebut the showing. Landiak , 899 So.2d at 542.

A court determining whether the plaintiff 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." Landiak , 899 So.2d at 541 (quoting Becker v. Dean , 2003-2493 (La. 9/18/03), 854 So.2d 864, 869 (per curiam)). Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Landiak , 899 So.2d at 541.

A challenge to the candidacy of a person may be based on the ground that the candidate "failed to qualify for the primary election in the manner prescribed by law." La. R.S. 18:492(A)(1). The "manner prescribed by law" for qualification is the notice of candidacy. La. R.S. 18:461(A)(1). Louisiana Revised Statutes 18:463(A)(2)(a)(viii), which was added by 2019 La. Acts, No. 374, § 2 and effective January 1, 2020, requires a candidate to certify in his notice of candidacy that if the candidate "claims a homestead exemption on a residence pursuant to Article VII, Section 20 of the Louisiana Constitution," except in limited circumstances that do not apply herein, he is registered and votes "in the precinct in which that residence is located." Moreover, as noted above, the foregoing provision was included on the notice of candidacy form executed by Mr. Smith.

Here, the parties do not dispute that Mr. Smith is registered to vote in Precinct 40, the precinct where the North Oak property is located. Moreover, the parties do not dispute that the Par Lane address is located in Precinct 44.¹ Our sole focus on appeal is whether Mr. Smith improperly certified that he does not reside or vote where he claims his homestead exemption.

On appeal, Mr. Smith contends that based on the undisputed evidence at trial, he did not falsely or even erroneously make a certification on his notice of candidacy, specifically Certification #8, maintaining that he has not claimed a homestead anywhere since at least 2015, long before he executed his notice of candidacy. Mr. Smith avers that since 2015, he has not owned the Par Lane property and has no interest in the Par Lane property, and argues that, as such, the trial court erred in disqualifying him as he could have no tax liability to which he had to claim a homestead exemption. Mr. Smith further avers that he has not resided on the Par Lane property since at least October of 2014; therefore, his Certification #8 of the notice of candidacy "could not have been false or inaccurate."

Mr. Smith contends that the evidence presented at trial showed that he transferred the property to his ex-wife in 2015, and that in the divorce proceedings, the parties and the trial court recognized his ex-wife as the sole owner of the Par Lane property. Specifically, Mr. Smith points to the following provision in the Smiths’ agreement: "[T]he Parties stipulate and agree that [Ms. Smith] is the sole owner of the immovable property at 19477 Par Lane ... and she shall pay the existing mortgage and any future mortgage on the Par Lane Property and, except as provided in paragraph 1(b)(3), if she sells it, she shall receive 100% of the net profits."² Mr. Smith alleges that the foregoing declaratory judgment was filed into the divorce court proceeding on October 7, 2015, and the inventory was executed in authentic form by Mr. Smith and Ms. Smith. Considering the foregoing, Mr. Smith maintains that based on the judgment in the divorce proceeding, after 2015, he had no tax obligation on the Par Lane property. As such, he insists that he had nothing to lose at a tax sale and nothing to protect via a homestead exemption.

Mr. Smith notes that under the election code, a candidate must certify, among other things, "that if he claims a homestead exemption on a residence pursuant to Article VII, Section 20 of the Constitution of Louisiana, he is registered and votes in the precinct in which that residence is located." La. R.S. 18:463(A)(2)(a)(viii) (emphasis added). Mr. Smith avers that Ms. Smith continued to reside at the Par Lane property and continues to legally claim the homestead exemption. With regard to Mr. Raiford's testimony, Mr. Smith argues that one has to actually own the property to claim the homestead exemption. See also La. Const. art. 7, § 20.³

In opposition, Mr. Panepinto notes that although there may be a consent judgment between the parties, there is no evidence that an act translative of ownership was ever filed into...