Clerk of Court For the Court Allison Nocito v. Kendall Bussey, Sr. And Jon Gegenheimer, In His Official Capacity As Clerk Of Court For The Parish Of Jefferson, State Of Louisiana

The Supreme Court of the State of Louisiana
Clerk of Court
For the Court
ALLISON NOCITO
VERSUS
KENDALL BUSSEY, SR. AND JON
GEGENHEIMER, IN HIS OFFICIAL
CAPACITY AS CLERK OF COURT FOR
THE PARISH OF JEFFERSON, STATE OF
LOUISIANA
No.2020-C-00986
_ _ _ _ _ _
IN RE: Kendall Bussey, Sr. - Applicant Defendant; Election, Parish of Jefferson,
24th Judicial District Court Number(s) 808 -704, Court of Appeal, Fifth Circuit,
Number(s) 20-CA-243;
_ _ _ _ _ _
August 15, 2020
Writ application granted. See per curiam.
JHB
BJJ
SJC
JTG
WJC
Weimer, J., would deny.
Hughes, J., would deny.
Supreme Court of Louisiana
August 15, 2020
08/15/2020 "See News Release 030 for any Concurrences and/or Dissents."

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Generally, the legal term “burden of proof” “denotes the duty of
establishing by a fair preponderance of the evidence the truth of the
operative facts upon which the issue at hand is made to turn by
substantive law.” Black’s Law Dictionary (8th ed). Under Louisiana’s
civil law, the “burden of proof” may shift back and fo rth between the
parties as the trial progresses. Therefore, when the burden of proof has
been specifically assigned to a particular party, that party must present
sufficient evidence to establish the facts necessary to convince the trier
of fact of the exi stence of the contested fact. Stated another way, 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. On the other
hand, once the party bearing the burden of proof has established a prima
facie case, the burden then shifts to the opposing party to present
sufficient evidence to overcome the other party's prima facie case.
Louisiana courts commonly apply thi s “shifting burden of proof” in
numerous specific instances, such as trial on motions for summary
judgment and exceptions, and in workers’ compensation cases.
8/15/20
SUPREME COURT OF LOUISIANA
No. 20-C-986
ALLISON NOCITO
VERSUS
KENDALL BUSSEY, SR. AND JON GEGENHEIMER, IN HIS OFFICIAL
CAPACITY AS CLERK OF COURT FOR THE PARISH OF JEFFERSON,
STATE OF LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON
PER CURIAM
WRIT GRANTED . Because election laws must b e interpreted to giv e the
electorate the widest possible choice of candidates, a person objecting to a candidacy
bears the burden of proving that the candidate is disqualified. Landiak v. Richmond,
2005-0758, pp. 6-7 (La. 3/24/05), 899 So. 2d 535, 541. As this Court explained in
Landiak:

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2005-0758 at 8, 899 So. 2d at 542 (emphasis added). Any doubt as to the
qualifications of a candidate to run for public office should be resolved in favor of
permitting the candidate to run for public office. Dixon v. Hughes, 587 So. 2d 679
(La. 1991).
The plaintiff here offered into evidence only Mr. Bussey’s stipulation that he
did not file a tax return in 2019 to establish her prima facie case. That evidence,
with nothing more, was insufficient to establish a prima facie case that Mr. Bussey
falsely certified on his No tice of Candidacy 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 returns, or both, or was not
required to file either a federal or state income tax return, or both.” Thus, the trial
court erred as a matter of law in shifting the burden of proof to Mr. Bussey to prove
the plaintiff’s unsupported allegation. Furthermore, the other evidence offered by
the plaintiff on reb uttal - the documentary evidence from Mr. Bussey’s Facebook
page and the Southern Charm Bar and Bistro website, as well as the documentary
evidence from the NOLA Auto Group and 2KB’s LLC, is not evidence of income
and does not contradict Mr. Bussey’s testimony that he did not have taxable income
and was not required to file a tax return in 2019.
Accordingly, the judgment s of the court of appeal and trial court
disqualifying Mr. Bussey as a candidate for the office of Constable of Second Justice
Court for the Parish of Jefferson are reversed. Mr. Bussey is hereby reinstated as a
candidate in that race.
REVERSED

8/15/20