Regina Rizzutto v. Lance Joseph and Hon. Amanda Gross Thies, West Baton Rouge Parish Clerk of Court

STATE OF LOUISIANA

FIRST CIRCUIT

NO. 2024 CE 0701

REGINA RIZZUTTO

VERSUS

LANCE JOSEPH AND HON. AMANDA GROSS THIES,
WEST BATON ROUGE PARISH CLERK OF COURT

AUG 0' 2024
Judgment Rendered:

Appealed from the
18th Judicial District Court
Parish of West Baton Rouge, State of Louisiana
No. C1049358

The Honorable Tonya S. Lurry, Judge Presiding

Douglas S. Smith, Jr. Attorney for Plaintiff/Appellee
Baton Rouge, Louisiana Regina Rizzutto

Hope L. Harper Attorney for Defendant/Appellant
New Orleans, Louisiana Lance C. Joseph

BEFORE: PENZATO, WOLFE, MILLER, GREENE, AND STROMBERG,
JJ.

be
x

11V

MILLER, J.

A mayoral candidate appeals a judgment disqualifying him for the office of

Mayor of the City of Port Allen. For the reasons expressed herein, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On July 17, 2024, through a duly authorized representative, Lance C. Joseph

filed a notice of candidacy for the office of Mayor of the City of Port Allen. In the

notice of candidacy, Joseph certified that he was a qualified elector of Ward 00,

Precinct 15 of West Baton Rouge Parish. Joseph listed 814 North 13th Street in Port

Allen as his domicile address.

On Friday, July 26, 2024, Regina Rizzutto filed a verified petition objecting

to Joseph' s candidacy for the office of Mayor of the City of Port Allen. Rizzutto

named Joseph and Amanda Gros Thies, in her official capacity as the Clerk of Court

of West Baton Rouge Parish, as defendants to the action. In the petition, Rizzutto

alleged Joseph lives and resides at 59210 Island Drive, Plaquemine, Louisiana, in

Iberville Parish, where he claims a homestead exemption. She therefore alleged that

Joseph does not meet the qualifications for the office he seeks in the primary election

and should be disqualified as a candidate. In accordance with the election code, trial

of the challenge to Joseph' s candidacy was set for July 31, 2024)

Rizzutto and Joseph were the only witnesses to testify at the trial. Rizzutto

briefly testified to her residency and registration to vote in Port Allen, and the

remainder of the trial was devoted to the testimony of Joseph. Joseph was questioned

extensively regarding his properties in Port Allen and Plaquemine. At the

conclusion of the trial, the district court found that Rizzutto met her burden of

showing that Joseph is not qualified to run for the office of Mayor of the City of Port

Allen mainly "because of his homestead exemption that has been claimed in Iberville

See La. R.S. 18: 1409( A)( 1).

2

Parish for well over a decade." The district court signed a judgment that same day

declaring Joseph disqualified from candidacy for the office of Mayor of the City of
Port Allen and ordered his name stricken from the ballot. Joseph timely appealed

the judgment to this court.'

ASSIGNMENTS OF ERROR

In this appeal, Joseph alleges that the district court committed the following

errors in rendering judgment disqualifying him from running for the office of Mayor

of the City of Port Allen:

1. The District Court erred in finding that Lance Joseph " claimed a
homestead exemption" on his Plaquemine, Louisiana residence
pursuant to Article VII, Section 20 of the Constitution of Louisiana.

2. The District Court erred in finding that receiving a benefit from a
homestead exemption for a residence that is subject to a community
property regime that is not within the municipality for which Lance
Joseph is seeking election is a ground for disqualification of
candidacy under Louisiana Revised Statute 18: 492( A).
3. The District Court erred in finding that an incorrect certification on
the notice of candidacy " 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," required by Louisiana Revised Statute
18: 463( A)(2)( a)( viii), serves as a ground for an objection to
candidacy under Louisiana Revised Statute 18: 492.
4. The District Court erred in finding that Lance Joseph has not been
domiciled in Port Allen, Louisiana for the immediately preceding
year as required by Louisiana Revised Statute 33: 384.
5. The District Court erred in finding Lance Joseph has not actually
resided in Port Allen, Louisiana for at least the immediately
preceding year as required by Louisiana Revised Statute 33: 384.
6. The District Court erred in admitting Plaintiff' s Exhibit B into
evidence.

2See La. R.S. 18: 1409( D) (" Within twenty-four hours after rendition ofjudgment, a party
aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum
fixed by the court to secure the payment of costs."). Joseph' s motion for appeal was e -filed at
11: 23 a.m. on August 1, 2024.

3

DISCUSSION

In his sixth assignment of error, Joseph challenges an evidentiary ruling of the

district court. If a trial court commits an evidentiary error that interdicts its

factfinding process, this court must conduct a de novo review. Wolfe Washauer

Construction, LLC v. Dart, 2022- 1241 ( La. App. 1st Cir. 12/ 4/ 23), 383 So. 3d 193,

197. Hence, we will begin our review of this matter with a discussion of that

assignment of error.

In objecting to the candidacy of Joseph for the office of Mayor of the City of

Port Allen, Rizzutto asserted that Joseph does not meet the qualifications of the

office he seeks in the primary election. See La. R.S. 18: 492( A)(3). Generally, to

qualify for the office of mayor, the candidate must be an elector of the city who has

been domiciled and actually resided" in the city for at least the immediately

preceding year prior to qualifying. La. R.S. 33: 384. As proof that Joseph was

neither domiciled nor actually resided in Port Allen for at least a year prior to

qualifying for the office of mayor, Rizzutto offered as Plaintiff' s Exhibit B, an

unsigned and undated document purporting to have been issued by Randy Sexton,

the Assessor of Iberville Parish, attached to which is a document titled " Iberville

Parish Assessor 2024 Assessment Listing" that bears the internet address for a

property in Iberville Parish on the Iberville Parish Assessor' s website. Rizzutto

offered Plaintiff' s Exhibit B to establish that a homestead exemption exists for the

home that Joseph and his wife own in Plaquemine and asked the court to take judicial

notice of the evidence. Joseph objected to the evidence on the basis of improper

authentication. Observing that the exhibit appeared to be a regularly kept business

record of the assessor' s office, as it indicates it is from the assessor' s website and

contains the assessor' s name, title, address, and phone number on the first page of

the two-page exhibit, the district court allowed the exhibit into evidence over

Joseph' s objection.

11

It is well- settled that a trial court is afforded vast discretion with regard to

evidentiary rulings, and the court' s decision to admit or deny evidence will not be
disturbed on appeal absent a clear abuse of that discretion. Wolfe Washauer

Construction, LLC, 383 So. 3d at 198. Though the substance of a document may

be considered trustworthy and clearly admissible under the exception to the hearsay

rule for public documents, La. Code Evid. art. 803( 8), " the rule of authentication

evidencing the genuineness of a particular document has always to be satisfied."
Schexnayder v. Gish, 41, 819 ( La. App. 2nd Cir. 2/ 7/ 07), 948 So. 2d 1259, 1264

1374 ( La. 1978)). "[ A] n official
quoting State v. Martin, 356 So. 2d 1370,

document may belong to a class clearly admissible, but still the document actually

offered must be authenticated as genuinely that which it purports to be." Martin,

356 So. 2d at 1374.

The requirement of authentication or identification as a condition precedent

to admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims. La. Code Evid. art. 901. Evidence must

either be authenticated as provided in La. Code Evid. art. 901, or it must be self -

authenticating. Wolfe Washauer Construction, LLC, 383 So. 3d at 198.

Authentication pursuant to Article 901 generally requires the testimony of a witness

with knowledge that the evidence is what it purports to be. No one with such

knowledge of Plaintiff' s Exhibit B testified at trial in the instant case. Moreover,

Plaintiffs Exhibit B does not meet the necessary requirements to be self -

authenticating, as it does not contain a seal; it does not contain a signature of an

officer or employee in his official capacity; it was not certified as being the original

by an officer or employee; nor does it fall within any other class of self -

authenticating documents under La. Code Evid. art. 902. See Wolfe Washauer

Construction, LLC, 383 So. 3d at 198.

5

Accordingly, we find the district court abused its discretion in admitting
Plaintiff' s Exhibit B. Nevertheless, despite the inadmissibility of Plaintiff' s Exhibit

B, Joseph acknowledged in his testimony that a homestead exemption does exist on

the Plaquemine home that he owns with his wife. Therefore, any error in admitting

Plaintiff's Exhibit B did not interdict the factfinding process and does not obligate

this court to conduct a de novo review. Wolfe Washauer Construction, LLC, 383

So. 3d at 199. Hence, we will now turn our review to Joseph' s other assignments of

error.

The Louisiana Election Code provides that "[ a] person who desires to become

a candidate in a primary election shall qualify as a candidate by timely filing notice

of his candidacy." La. R.S. 18: 461( A)( 1). According to La. R.S. 18: 463( A)( 1), "[ a]

notice of candidacy shall be in writing and shall state the candidate' s name, the office

he seeks, the address of his domicile, his telephone number, his electronic mail

address, and the parish, ward, and precinct where he is registered to vote." Paragraph

A)(2) of the same statute further states that the notice of candidacy shall also include

a certificate, signed by the candidate, containing nine statements which the candidate

must certify. Germane to this case is the eighth statement ( identified by the district

court as simply " number 8"), whereby a candidate certifies, in pertinent part, 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."

In this case, documentary evidence was introduced to show that Joseph is

registered to vote in West Baton Rouge Parish, and he testified that he votes and has

only ever been registered to vote in West Baton Rouge Parish. But as previously

discussed, there is a homestead exemption on the home he owns with his wife in

Plaquemine, which is located in Iberville Parish. Thus, he is not registered and does

not vote in the precinct where he claims the homestead exemption. See La. R.S.

18: 463( A)(2)( viii).

In Deal v. Perkins, 2022- 01212 ( La. 8/ 19/ 22), 347 So. 3d 121, 127, the

Louisiana Supreme Court granted certiorari to resolve a split in the circuits regarding

whether a candidate should be disqualified for incorrectly certifying on his notice of

he is
candidacy " that if he claims a homestead exemption on a residence ...,

registered and votes in the precinct in which that residence is located." The supreme

court ultimately held that such an incorrect certification was not grounds to

disqualify a candidate. The court found that " only those false certifications

specifically listed in La. R.S. 18: 492( A)( 5) through ( 7) constitute grounds for

objecting to a candidate." 3 Deal, 347 So.3d at 123, 137. As an incorrect certification
to number 8 in the list of nine statements to which a candidate certifies in his notice

of candidacy is not listed in La. R.S. 18: 492, the court held that such an incorrect

certification cannot serve as a basis to disqualify a candidate. Deal, 347 So. 3d at

137.

Hence, according to Deal, an incorrect certification in a notice of candidacy

that a person is registered to vote in the same place that he claims a homestead

exemption would be insufficient to disqualify a candidate from seeking office.

Therefore, Joseph' s assertion in assignment of error number three is correct.

Accordingly, we pretermit consideration of Joseph' s first assignment of error,

because we find the issue of "claiming" a homestead exemption relates solely to the

certifications required in the notice of candidacy under La. R.S. 18: 463.

However, while Joseph acknowledged in his testimony that there is a

homestead exemption on his Plaquemine home, our review of this matter does not

3The certifications identified in paragraphs ( A)(5) through (A)(7) of La. R.S. 18: 492 relate
to the owing of any outstanding fines, fees, or penalties pursuant to the Campaign Finance
Disclosure Act or the Code of Governmental Ethics and having filed all federal and state tax returns
for the five years immediately preceding qualifying.
VA

end there. In an election contest, the person opposing candidacy bears the burden of

proving the candidate is disqualified. La. R.S. 18: 492; Becker v. Dean, 2003- 2493

La. 9/ 18/ 03), 854 So. 2d 864, 869. Hence, it is only if Rizzutto made a prima facie

showing that Joseph is disqualified that the burden of proof would shift to Joseph to
show that he is qualified. See Landiak v. Richmond, 2005- 0758 ( La. 3/ 24/ 05), 899

So. 2d 535, 542.

As discussed by the supreme court in Deal, there are three requirements for
Those requirements are
qualifying for the office of mayor under La. R.S. 33: 384.

establishing that the candidate: ( 1) was an elector of the municipality at the time of

qualifying; ( 2) was domiciled in the municipality for at least a year prior to

qualifying; and ( 3) actually resided in the municipality for at least a year prior to

qualifying. Deal, 347 So. 3d at 135.

With respect to being an elector, La. R.S. 18: 101, which provides the

requirements for registering to vote, states a requirement similar to the certification

found in La. R.S. 18: 463; that is, if a person claims a homestead exemption on a

residence, he shall register and vote in the precinct where the residence is located.

See La. R.S. 18: 101( B). However, the supreme court in Deal found that "[ i] n cases

where the issue of `qualified elector' has been raised, courts have looked to whether

a candidate' s voter registration has been cancelled in determining whether a

candidate was not a qualified elector." Deal, 347 So. 3d at 135- 36; see also La. R.S.

18: 191, 193, and 198 ( regarding the causes and procedures for canceling a voter' s

registration). In this case, Joseph testified that he registered to vote in West Baton

Rouge Parish in 1995, and he has not changed his voter' s registration since

registering to vote in 1995. The copy of Joseph' s voter' s registration offered into

evidence displays the date of October 24, 1995, and the address 814 North 13th

Street, Port Allen. Rizzutto offered no evidence to show that Joseph' s voter' s

0

registration has ever been cancelled. Thus, she failed to establish a prima facie case

that Joseph is not an elector of Port Allen.

That leaves for our review whether, in fact, Joseph is domiciled and actually

residing in Port Allen. Again, it should be pointed out that the burden rested with

Rizzutto to establish that Joseph was neither domiciled nor actually residing in Port

Allen. In this case, Rizzutto established that not only does Joseph own a home in

Plaquemine, but a homestead exemption exists on the home. Further, Joseph

testified that he, his wife, and daughters actually reside in the Plaquemine home.

Joseph testified that one of his daughters attends college, but that she " was home for

the summer" at the Plaquemine residence at the time of trial. Joseph expressly

acknowledged that he and his wife are not separated or estranged.' See and compare

State v. Bourgeois, 2020- 00883 ( La. 5/ 13/ 21), 320 So. 3d 1047.'

The terms " residence" and " domicile" are legal terms that are not

synonymous. Landiak, 899 So. 2d at 542. Generally, the domicile of a natural

person is the place of his habitual residence. La. Civ. Code art. 38. A natural person

may reside in several places but may not have more than one domicile. In the

absence of habitual residence, any place of residence may be considered one' s

domicile at the option of persons whose interests are affected. La. Civ. Code art. 39.

Spouses may have either a common domicile or separate domiciles. La. Civ. Code

art. 40. As a minimum qualification, a candidate who seeks to become an elected

official must first be domiciled among the public he wishes to serve. Gray v.

4H further testified that his wife not only lives at the Plaquemine home, but she is also
registered to vote in Plaquemine, the address of the Plaquemine home is on her driver' s license,
and she is a fifty percent owner of the home.

5In Bourgeois, the defendant was convicted of filing or maintaining a false public record
based on falsely representing his domicile on his notice of candidacy. Although the underlying
proceedings giving rise to the question of domicile are distinguishable from those herein, in
upholding the unanimous jury verdict, the supreme court observed that the evidence supported the
jury' s conclusion that the defendant' s true domicile was where his wife and children lived, such
that he " surround[ ed] himself with his family and the comforts of domestic life." Bourgeois, 320
So. 3d at 1051.

X

Brown, 53, 265 ( La. App. 2nd Cir. 8/ 27/ 19), 278 So. 3d 1104, 1107, writ denied,

2019- 0140 ( La. 8/ 31/ 19), 277 So. 3d 1186.

The types of documentary evidence commonly considered by courts to

determine domicile include such things as voter registrations, homestead

exemptions, vehicle registration records, driver' s license addresses, statements in

notarial acts, and evidence that most of the person' s property is housed at that

location. Obviously, the more of these items presented by a party opposing

candidacy in a given case to show lack of domicile in the district, the more difficult
it will be for the candidate to overcome the plaintiff' s evidence. Landiak, 899 So. 2d

at 543- 44.

A person may maintain more than one residence and the fact that one is

maintained for political purposes does not itself prevent a residence from being

actual and bona fide. There must be actual, physical use or occupation of quarters

for living purposes before a bona fide residence is established. McClendon v. Bel,

2000- 2011 ( La. App. 1 st Cir. 9/ 7/ 00), 797 So. 2d 700, 705. Likewise, the Louisiana

Supreme Court has applied the interpretation of the term " actually domiciled" to the

phrase " actually resided" in La. R.S. 33: 384 and determined that the inquiry of

whether someone " actually resides" in a particular place should focus on whether

plaintiff established that the residence at issue is a fictitious residence rather than a

real residence. Becker, 854 So.2d at 872.

Domicile and residency, for purposes of an election contest, present issues of

fact. The standard of review of findings of fact by the trial court is the clearly wrong

or manifest error standard. McClendon, 797 So. 2d at 705.

In this case, the district court found that Rizzutto met her burden of proving

that Joseph was neither domiciled nor actually residing in Port Allen based on

evidence that a homestead exemption existed on the Plaquemine home that Joseph

owned with his wife. Such evidence, along with the fact that Joseph' s wife and

daughters reside at the Plaquemine home, is among the type of evidence generally

considered in determining domicile. Thus, the record demonstrates that Rizzutto

made a prima facie showing that Joseph does not meet the domicile and residency

requirements to qualify for office.

The burden then shifted to Joseph to offer countervailing evidence to rebut

that prima facie showing. In this case, Joseph presented evidence to support his

claim that he maintained his domicile of origin; that is, domicile and actual residency

at his ancestral home located at 814 North 13th Street in Port Allen.

A person' s domicile of origin continues until another is acquired. Pattan v.

Fields, 95- 1936 (La. App. 1st Cir. 9/ 26/ 95), 669 So.2d 1233, 1238, writs denied, 95-

2382, 95- 2381 ( La. 9/ 29/ 95), 661 So.2d 1341, 1342. Joseph testified that his parents

purchased the land and built the home located at 814 North 13th Street in 1969, and

the home has been his residence since his birth in 1975. Domicile is maintained

until acquisition of a new domicile. A natural person changes domicile when he

moves his residence to another location with the intent to make that location his

habitual residence. La. Civ. Code art. 44. Joseph testified that he intends to remain

at 814 North 13th Street, and it has not ever been his intent not to remain there.

Nevertheless, "[ t]he expressed intent of the party may be at variance with the

intent as evidenced by conduct." Landiak, 899 So. 2d at 543. In this case, the

district court found the evidence offered by Joseph did not outweigh the prima facie

evidence offered by Rizzutto regarding his intent. As previously discussed, the

district court' s findings regarding domicile and residency are issues of fact subject

to the manifest error standard of review. McClendon, 797 So. 2d at 705. Hence, the

issue to be resolved by the reviewing court is not whether the trier of fact was right

or wrong, but whether the fact finder' s conclusion was a reasonable one. Pattan,

669 So. 2d at 1239. The manifest error -clearly wrong standard of review is applied

not only due to the district court' s better capacity to evaluate live witnesses, as

11

compared with the appellate court' s access to only a cold record, but also upon the

proper allocation of trial and appellate functions between the respective courts.

Hoskins v. State Through Division of Administration, Office of Community

Development, 2018- 1089 ( La. App. 1st Cir. 2/ 25/ 19), 273 So. 3d 323, 330- 31.

Moreover, when documentary or other objective evidence casts doubt on a person' s

statements regarding intent, it is incumbent on courts to weigh the evidence

presented in order to determine domicile in fact. See Landiak2 899 So.2d at 543.

Herein, the district court clearly considered all the evidence presented by

Joseph and observed that what he provided were " all things that the courts have said

you ... take into consideration when looking to determine someone' s domicile: his

driver' s license, his voter' s application, application of the state bar association

membership directory, and vehicle registrations." Nevertheless, the district court

clearly found the evidence of the homestead exemption on Joseph' s home in
Plaquemine ( from which he arguably benefits) clearly outweighed any

countervailing evidence presented by him.

Based on the record in its entirety and showing proper deference to the district

court, we find that the court was not clearly wrong or manifestly erroneous in

determining that Joseph did not maintain his domicile of origin at 814 North 13th

Street in Port Allen. Consequently, we reject Joseph' s remaining assignments of

error.

CONCLUSION

We recognize that the laws governing the conduct of elections should be

liberally construed so as to promote rather than defeat candidacy and that any doubt

as to the qualifications of a candidate should be resolved in favor of permitting the

candidate to run for public office. McClendon, 797 So. 2d at 705. However, we

cannot say that the district court erred in finding that the weight of the evidence

establishes that the candidate is neither domiciled, nor does he actually reside in Port

12

Allen.' Hence, we affirm. All costs of this appeal are assessed to the appellant,

Lance C. Joseph.

AFFIRMED.

6Indeed, we cannot help but observe the dichotomy of having a mayor and his family living
in a neighboring parish where they would be insulated from the policies and decisions of his
administration. As the court in Gray recognized, there are many legitimate political and
governmental purposes served by a one- year domicile requirement, including accountability and
accessibility. See Gray, 278 So. 3d at 1112.

13