AG seems to think Lawson ran for parish presidency (still illegal to bribe him)

Matassa and his mouthpiece.

NOTE:  Criminal defendant, Kenny Matassa seeks dismissal of the bribery charge against him, arguing that Wayne Lawson was not a candidate for Gonzales City Council even though he had filed his Notice of Candidacy, appeared on the ballot, and garnered just under 40% of the vote.  Therefore, Matassa argues, it was not a crime to bribe Lawson and the indictment should be dismissed.

Given the opportunity to brief the issue of Wayne Lawson’s candidacy by Judge Tommy Kliebert, the Attorney General submitted the following (we’ve added a few of our own thoughts in BOLD text throughout):

MAY IT PLEASE THE COURT:

On March 10, 2017, the Grand Jury of the Parish of Ascensions, State of Louisiana indicted defendant, Kenneth Matassa, on one count of Election Offenses Involving Bribery, La. R. S. 18:1461.5(A)(4)(a).  On September 21, 2017, defense counsel, Lewis Unglesby, filed a Motion to Quash in this matter alleging that Wayne Lawson was not a qualified candidate for office.  That original Motion to Quash was denied after a hearing by the Honorable Judge Jason Verdigets.  Upon recusal of this matter by Judge Verdigets, the defendant filed a Motion to Reurge Motion to Quash on January 9, 2018.  This motion must be denied; Wayne Lawson became a candidate upon the timely filing of his notice of candidacy, and qualifying fee or nominating petition and remained a candidate until his withdrawal (Lawson never withdrew) because his candidacy was never challenged. La. R.S. 18:1461(A)(1) (titled “Manner of qualifying”).

The defendant here asks this court to retroactively declare Wayne Lawson unqualified to be a candidate for office, despite the fact that at the time of the events alleged in the State’s indictment, no challenge to his candidacy had been lodged.  He argues that because Wayne Lawson did not meet the qualifications criteria, established in La. R.S. 18:451, he was never a true candidate for office, despite the fact that his notice of candidacy and qualifying fee were accepted by the Secretary of State and his candidacy was unchallenged (and he received 1587 votes in the election on November 8, 2016).

The defendant argues that Mr. Lawson was never a candidate because of this language in La. R.S. 18:451; “A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election.  Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office.”  But, as the Louisiana Supreme Court has explained, “(t)he manner of qualifying for election to public office in Louisiana is set forth in La. R.S. 18:461(A)(1), which provides, in pertinent part, 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.'”  Landiak v. Richmond (citation omitted).

“‘Grounds for an objection to candidacy’ include the following:  ‘The defendant does not meet the qualifications for the office he seeks in the primary election,'” and qualifications are laid out in the Defendant’s favored statute, La. R.S. 18:451 (quoting La. R.S. 18:492(A) (3).

So, if a person qualifies as a candidate but does not, in truth, possess the qualifications for the  office sought, is that person a candidate?  Yes.  The Louisiana Supreme Court has held that a person who files the necessary qualification paperwork is a candidate until successfully disqualified: “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.

In Landiak, the issue was “whether the defendant, Cedric Richmond, a candidate for New Orleans City Council District D, is qualified to run for that office…”  The Louisiana Supreme Court “disqualified Mr. Richmond “as a candidate” because he did not meet the relevant domicile requirements.  The Supreme Court did not suggest that Mr. Richmond’s candidacy was retroactively disqualified because La. R.S. 18:451, the statute relied upon by Mr. Matassa here.  Rather, the Court applied that statute as if it would allow a court to declare a candidate prospectively disqualified: “The effect of these legal requirements (which include La. R.S. 18:451)…is that the plaintiff in this case bears the burden of proving that Mr. Richmond was not domiciled in New Orleans City Council District D for at least two years immediately preceding the scheduled April 2, 2005 election.”

This is similar to the difference between an absolute nullity and a relative nullity.  Like relative nullities, candidates subject to disqualification may be elected until their candidacies are declared null.  This is also similar to the law of recusals, where a judge subject to recusal may validly act until a motion to recuse has been filed or he is recused.

Common sense requires this reading of these statutes.  Had no one challenged Mr. Lawson’s candidacy, and had no one given Mr. Lawson a thing of value to withdraw from the election, would Mr. Lawson have been on the ballot (he was on the ballot, by the way)?  Could he have been elected to the office he sought?  The answer to those questions is yes.  To say then, that he was (retroactively) never a candidate does not comport with reality and has no support in Louisiana jurisprudence.

Recently, the Louisiana Supreme Court dealt with a challenge to the jury tampering statute, La R.S. 129(A), which does not expressly include prospective jurors.  The Second Circuit had concluded that the word “juror,” includes “prospective jurors” and explained:

“We ascertain the intent of the legislature in enacting this statute is to prevent acts that, by influencing a juror in order to gain an unfair advantage, obstruct the fair and impartial trial of jury cases in our courts.  Because any threat or attempt to influence a person summoned for jury duty (i.e., a ‘prospective juror’) in a pending trial impairs the administration of justice in exactly the same way that justice is impaired by a threat or influence of an impaneled ‘juror,’ we conclude that the term ‘juror’ in the statute includes ‘prospective juror’ within its reach.”  (citation omitted).

Last month, the Louisiana Supreme Court denied review over Justice Genovese’s dissent which makes similar arguments to the one here.

Here, perhaps Mr. Matassa could have properly objected to Mr. Lawson’s candidacy.  But he did not do that.  But, like the jury tampering statue the Legislature’s intent is to prevent obstruction of a “fair and impartial” election.  The intent to prohibit the very act alleged to have occurred here; one candidate giving another something of value (Neal Bourque was not indicted, was he?) to withdraw.  The cramped reading proposed by the Defendant would give bad actors every incentive to break this law and hope to find a loophole later by attacking the candidacy of the bribed/withdrawn candidate.

A person who desires to become a candidate for office becomes a candidate upon fulfilling the requirements of La. R.S. 18:461.  If such candidate, inadvertently or purposefully, does not meet the qualifications for candidacy, the candidate is vulnerable to an objection to his candidacy or potential criminal prosecution, such as the defendants in State v. Yolanda King (citation omitted).

Yolanda King’s case is a perfect example.  She was never qualified to be a candidate pursuant to La. R.S. 18:451.  According to Mr. Matassa’s logic, she was never a candidate for the very office to which she was elected.  But Ms. King was elected and became, for a short period of time, a juvenile court judge.  Had someone given Ms. King a thing of value in order to withdraw from the judicial race prior to the election, that person would be in the same position in which Mr. Matassa finds himself.

A person whose candidacy forms have been accepted by the Secretary of State is and remains a candidate for office until the candidacy is disqualified by proof that the candidate lacks the necessary qualifications.  Because Wayne Lawson’s candidacy had not been challenged as of July 29, 2016, he was a candidate for office at the time of the events alleged by the State.

The issue is whether or not Kenneth Matassa bribed Wayne Lawson to drop out of the race, not whether Mr. Matassa could have hypothetically challenged Lawson’s candidacy.  The word “candidate” as found in various statutes in the election code, is not vague or inconsistent such that the doctrine of lenity should apply.  Lenity has no place in this analysis.  As Chief Justice John Marshall explained, the maxim of lenity “is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend.”  (Citation omitted).

The word “candidate” in La. R.S. 18:1461.5(A)(4)(a) includes Mr. Lawson who, had he not withdrew or been challenged (in fact, he did not withdraw and was not challenged and if the AG has not processed that fact at this late date we begin to lose confidence in its mastery of the case) could have been elected to the Ascension Parish Presidency (it was Kenny Matassa who ran for parish president; not Wayne Lawson.  Lawson sought Gonzales’ Division E Council seat.  Come on guys, you gotta do better than this).  Any other interpretation would defeat the purpose of the statute, i.e., to prohibit the removal of candidates from a race through bribery.  Just because Mr. Lawson could have been properly removed from the ballot by Mr. Matassa does not excuse Mr. Matassa’s removal of Mr. Lawson through criminal means.  Even if lenity applied the construction of this statute could not be so narrowly construed as to inject artificial form requirements in the statute that are not contained within the ordinary understanding of the words employed.

WHEREFORE the Attorney General prays that this Court deny Defendant’s Motion to Quash.

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