Matassa’s reply memo (It is legal to bribe a dishonest man)

Matassa and Unglesby

NOTE:  Below is the memorandum filed by Lewis Unglesby on Kenny Matassa’s behalf in response to the one submitted by the Attorney General on the issue of Wayne Lawson’s candidacy.  (In BOLD are any notes your writer may deem appropriate for context).

The Attorney General has this upside down.  The “Notice of Candidacy” is an application to become a candidate.  LSA-R.S. 18:451 could not be more clear:

“A person who meets the qualifications for the office he seeks may become a candidate…”

Stated differently (much differently), it is only those persons who “meet the qualifications” for the office they seek that become a candidate.  Moreover, the “Notice of Candidacy” that is filed by the office seeker is, in effect, an application for candidacy.  Again, as noted by the unambiguous wording of the statute, the applicant “may become a candidate” if, in fact, he “meets the qualifications.”

A person “may become a candidate” but only if he “meets the qualifications…” for the office sought.

Nowhere in RS 18:451 does “but only if” appear.  Curiously omitted from Matassa’s memo is RS 18:461 which states; “A person who desires to become a candidate in a primary election shall qualify as a candidate by timely filing notice of his candidacy.”  That’s it, and that’s all. 

This is not just parsing words.  Nothing is more essential to the integrity of the election to office of public officials than that they honestly, truthfully and accurately disclose their qualifications for the office sought (not even discouraging those who would bribe those individuals?).  Lying is not permitted.  Those who lie on their applications for candidacy never become candidates because they do not “meet the qualifications…”for the office sought.”

And RS 18:493 which, since 1976, provides the mechanism to disqualify a candidate: “An action objecting to candidacy shall be commenced in a court of competent jurisdiction within seven days after the close of qualifications…After the expiration of the time period set forth in this Section, no action shall be commenced objecting to candidacy.”  Or you can offer that individual a bribe.

It requires a sworn affidavit because the Clerks of Court cannot check the qualifications.  It is self-proving on the document that the person seeking to become a “candidate” must meet the specific criteria on the list.  If the candidate does in fact meet the criteria to which he has sworn, then he is a candidate.

If the candidate does not meet the qualification criteria, and lies about it, he never becomes valid.  (When Louisiana’s legislature enacts a statute to this effect, or a court of competent jurisdiction renders such a ruling, he’ll provide that citation).  The State of Louisiana has recognized the importance of the oath on qualifications and removed even duly elected office holders when their qualifications were deficient.  State v. Yolanda King (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. Tony Gibson (who was removed from office pursuant to Louisiana’s constitutional prohibition against convicted felons holding public office).

The Rule of Judicial Estoppel prevents the Attorney General from taking a different opinion in this case.  (So you should, if the AG agrees with Matassa as to the facts, expect Wayne Lawson’s being charged with Filing a False Public Record.  None of which absolves Matassa of his crime; bribery).

The State turns to the Civil Code Articles on nullity.  This law supports the accused, not the State.  An absolute nullity occurs when the contract violates a Rule of public order, or when the contract is illicit or immoral (like bribery).  An absolute nullity cannot be confirmed and may be invoked by any person, or the Court on its own initiative (the remedy provided by RS 18:493 above).  An absolutely null contract is declared to have never existed.  The Attorney General has chosen to analyze the Rule of Nullity to “Notice of Candidacy.”  That law helps prove why the qualification of Lawson as a candidate never existed and supports the Sexton testimony that in the eyes of the Election Code, Lawson’s Notice of Candidacy was “void ab initio” (no matter that a century of case law disagrees with the proposition).

Therefore, Lawson has to be a “candidate” as defined in the law for a prosecution under Title 18 to occur.  The law states that these qualifications must exist at the time the Notice of Candidacy is filed (and if they don’t a party with standing has seven days in which to object, something that did not happen in the instant case).  They are never waived and the deficiency can be addressed at any time (for which there is no legal precedent, but it sure helps my client out).

The criminal law is stricti juris, the Rule of Lenity in statutory construction of a criminal statute is required.  The idea that Lawson can be “transformed” into a candidate when he failed to meet the qualifications is not our law (anymore if Judge Tommy Kliebert and, then, the First Circuit Court of Appeal agrees with Kenny).  The position of the Attorney General that Matassa’s state of mind, or the fact Lawson was successful in his fraudulent Notice of Candidacy does not and cannot change the requirements of statutory construction (citation omitted).

To be a valid candidate Lawson had to prove that he was domiciled for one year continuously in the district for which he qualified.  (Actually, one who objected to Lawson’s candidacy bore the burden of proof, and must have met same within seven days).

He had to prove he was up to date on any fines or assessments owed to the Board of Ethics regarding campaign finance debts.  He had to show that he paid his income taxes and that they were up to date.  He must possess the qualifications at the time he qualifies. RS 18:451(2).  The legal issues have been previously briefed in detail and are not repeated here.  The law fully supports the Matassa Motion to Quash.

The hearing revealed all of these requirements to be deficient and the Attorney General produced no contrary facts.

  1. Domicile

Lawson claimed his mother’s address.  She and his brother testified he had not lived there since he left home as around age 18.  His wife testified she did not know where he lived the year proceeding (sic) his qualification for office.  He testified he lives in many places.  The only specific location identified in the evidence was 15580 George O’Neal Lane, Apartment 1521, Baton Rouge, Louisiana 70817, the apartments on George O’Neal Lane.  That is where he was arrested on February 3, 2016 for theft and burglary.  The apartment maintenance man testified he saw Lawson come and go from that apartment, park his car there throughout the day, observed his clothes there, use a key to enter, and possessed the pass code to get through the gate.

As a result of Lawson’s criminal activity, his wife Angela was evicted and moved to 8623 Rush Avenue, Apartment 602, Baton Rouge, Louisiana 70810.  Evidence was presented that Lawson also lived there off and on with her and lived there still on the date of this hearing.  No evidence was presented that he lived at 553 W Oak Street in Gonzales during the year proceeding (sic) July 2016.

Clearly Lawson was not domiciled at this West Oak address continuously from July 2015 to July 2016, and failed to meet the requirements of RS 33:384 and 385 and the Attorney General’s own Opinion No. 98-319.   But the court in State v. King, relied on by Matassa, also addressed the domicile issue holding:  “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.” One’s domicile remains unchanged until a new one is acquired.”

2. Fines

Everyone agreed that Lawson owed approximately $1,900 in fines at the time he qualified. The Secretary of State’s website print-out was admitted and Lawson did not deny the fines.  His justification for swearing otherwise was lack of knowledge (unrefuted, by the way.  And anyway, isn’t that an issue of fact to be decided by the jury like Judge Verdigets ruled last October?), he never got his mail.  This was contradicted by his friend Michael Green, by his wife, and by the documents sent to the addresses which he admitted he used to qualify for office (two decades ago).  Further Green placed Lawson at his address in Convent when one of the certified letters came from the Board (two decades ago).  Green and Lawson admitted that the receipt was signed for by Green’s brother, who also lived at that address when Lawson was living there.  RS 18:463 requires that a valid candidate have no debts from prior campaigns.

But, RS 18:1511.11 states: “Actions for violation of this Chapter must be commenced before three years have elapsed from the date of the violation or, if the violation is contained in a report, before one year has elapsed from filing of the relevant report.”  (Not two decades later).

As the Clerk of Court witness testified that her office has to take the word of the candidate on the fine issue as they don’t independently check each one.  Gray Sexton the expert testified the Notice of Candidacy form was created to put the responsibility on the applicant so that issues like this are avoided.  The numerous letters and Board decisions were sent and received at the addresses Lawson used to qualify (two decades ago).  He admitted he still lived at these addresses when these letters were sent (two decades ago), he just denied receipt of his mail.

3. Income Tax

That Lawson does not pay taxes was established by his testimony.  (Inexplicably, his wife turned over tax returns including Lawson for the court’s in camera inspection).  He personally boasted of his cash earnings as a culinary chef.  He testified he would make between eight to over $10,000.00 every year through his catering, and that he didn’t need to keep records because it was all cash.  Lawson also admitted to earning money as a barber. He specifically agreed that he had these earnings in 2015 and 2016.  Which would seem to be a matter for the Internal Revenue Service.  Is it legal to bribe a dishonest individual?

His sworn income form required by his candidacy showed no earnings.  He wrote on his qualification form that he did not have to pay taxes because he earned less than $5,000.  His attitude to the truth is problematic.  (On this we can all agree.  That’s why a jury of one’s peers is impaneled to decide who’s telling the truth).  In Court he admits to all this income.  On his documents he swears to the opposite.  He is not constrained by the oath.

The State ask (sic) the Court to declare whether or not Lawson was a candidate for the purposes of RS 18:1461.5(4).  The defense agreed to that request and litigated its Motion to Quash.

The evidence was unequivocal and largely unchallenged.

The law is clear, the term “candidate” is specifically defined.  Lawson never was one.

Lawson received 1587 votes but “was never a candidate” asserts Matassa

The Motion to Quash should be granted.  The State’s request for a pretrial ruling should be that Lawson was not a candidate for the purpose of the statute, and this prosecution should be dismissed.

The State is asking the Court to ignore the definition of the word “candidate” that is an element of the State’s indictment.  Interestingly enough RS 18:1483(3)(a) defines it: “Candidate” means a person who seeks nomination or election to public office…” The State argues that the whole election code is set up to “catch me if you can” regarding the qualification requirements, and that if you get away with false sworn statements under oath, you can become a public official (and free to receive bribes with impunity).  However misguided that public policy adopted by the Attorney General may be, the fact is the definition of “candidate” requires the applicant to possess the  necessary qualifications when he signs the form (and establishes the procedure for objecting to the candidacy of one who doesn’t).  

If he is untruthful, then the form itself is no good (although there is no legislative or case law to support the conclusion) so there never is a legal “Notice of Candidacy.”  The oath is the promise that makes the form legitimate.  If the candidate refused to sign it, or refused to swear to its truthfulness, then the Clerk not accept it (sic).  The essence of the process is the requirements on the form are met by the potential candidate but swearing to a set of falsehoods does not equate a valid “Notice of Candidacy.”  No valid qualification form equals no candidate, no matter how the Attorney General argues (and if there were any legal authority for this conclusion he’d have inserted here).

The Attorney General does not contest any of the case facts about Lawson.  It does not justify or argue that anything he did was based on good faith error, nor subject to any interpretation other than fraud (and when Lawson is charged with the crimes alleged, the AG will have to weigh in).

This is criminal law, and the definition in the criminal component of the election code must be interpreted strictly.  Under all the rules of statutory construction, Lawson was never a “candidate” so that should be the end of this prosecution (no matter the publishers of Merriam-Webster think).