What AG’s memorandum should have said

Attorney General Jeff Landry

On March 27 Judge Tommy Kliebert allowed criminal defendant, Kenny Matassa, the opportunity to “re-urge” a Motion to Quash already denied by Judge Jason Verdigets on October 18, 2017; before Verdigets inexplicably recused his court and the prosecution was re-allotted.  The facts of the case had not changed so it is curious that Kliebert allowed the motion to be re-argued at all but he did.  Kliebert reserved ruling and gave the prosecution 15 days to file a memorandum on “the applicability of RS 18:451” in light of recent caselaw.

Louisiana’s Second Circuit Appellate Court’s October 2017 ruling in State of Louisiana versus Yolanda King gave Matassa’s lawyers a new theory.  In King the defendant had already been elected to Orleans Parish’s juvenile court bench only to be criminally charged, and subsequently convicted, by the Attorney General for (1) executing a false affidavit with her Notice of Candidacy; and (2) filing a false public record.  Matassa’s reliance on King is misplaced.

Should Judge Kliebert grant the Motion to Quash in light of King he will have committed reversible error; which would be corrected by the First Circuit on the immediate appeal certain to follow.

The case would be on point had it involved a defendant, similarly situated to Matassa, who had been charged with bribery of Yolanda King whose post-election removal from the juvenile court bench was a result of two felony convictions; and not due to King’s non-compliance with requisite domicile to have run for the seat in the first place.

Like Wayne Lawson, no civil proceeding was ever filed to seek disqualification of Yolanda King’s candidacy.  Only after her election did her criminal conduct, execution of a false affidavit and filing a false public record, become an issue (and that was only because King won the election).  By that time King’s candidacy could not be challenged since the election was over, so King’s removal was the product of her status as a convicted felon.

State v. King establishes no binding precedent on Matassa’s case at all.

RS 18:451 establishes the qualifications necessary for Louisiana election candidates.  Procedure for seeking a disqualification is found in RS 18:491 (“Standing to object to candidacy”), RS 18:492 (“Grounds for an objection to candidacy”), and RS 18:493 (“Time for objecting to candidacy”).  In the case of Wayne Lawson, who qualified for the Division E, Gonzales City Council seat, whoever could seek his disqualification had to do so by July 29, 2016 (even if it meant bribing Lawson to “voluntarily” withdraw).

The well-settled, and time-honored election law is crystal clear and the Second Circuit’s ruling in State v. King does nothing to change that law.

Even if it had, Kenny Matassa and his legal team did not meet its burden of proving Wayne Lawson did not reside at the address indicated in his Notice of Candidacy.  On March 27 Lewis Unglesby challenged Lawson’s claim of residency in the City of Gonzales, a fact sworn to in the affidavit accompanying Lawson’s Notice of Candidacy.  Multiple witnesses including Lawson’s wife and her former landlord,  Lawson’s mother and brother, a friend with whom he lived two decades ago all testified regarding Lawson’s residence.

None of them would claim Lawson as their own; none could say where Lawson resided.

Since Unglesby relies so heavily on State v. King it seems prudent to consider what the Second Circuit had to say about the issue.  The King court wrote:

“The domicile of an individual is the place of that individual’s habitual residence. La. Civil Code Article 38. An individual may have several residences but only one domicile. La. C.C. art. 39.  If one lacks a habitual residence, any place of residence may be considered one’s domicile at the option of “persons whose interests are affected.” Id. One’s domicile remains unchanged until a new one is acquired. La. C.C. art. 44. An individual changes his domicile when he moves his residence with the intent to make the new location his habitual residence. Id. The intent to establish or change one’s domicile depends upon the circumstances, such as a sworn declaration. La. C.C. art. 45. In the absence of a sworn declaration, other evidence is required.”

It’s like The Temptations sang, “Papa was a rolling stone, Wherever he laid his hat was his home.”

But we digress.  The King court went on:

“Because domicile requires a physical residence plus intent to remain, a party’s uncontroverted testimony regarding his intent ‘may be sufficient to establish domicile, in the absence of any documentary or other objective evidence to the contrary.’ Landiak [v. Richmond] (La. 3/24/05) ], 899 So.2d [535,] 543.”

Matassa filed the Motion to Quash which means he bears the burden of proving Lawson was domiciled somewhere other than the City of Gonzales on July 21, 2016 when Lawson filed his Notice of Candidacy.  All the legal hair-splitting Lewis Unglesby can dream up cannot change the fact that Wayne Lawson was a candidate for Gonzales City Council; and that Matassa bribed him.