Attorney General to appeal Kliebert’s ruling in State v. Matassa

Assistant Attorney General Jeff Traylor on November 15, 2016

On its face Judge Tommy Kliebert’s April 19 denial of a Motion to Quash the indictment against Ascension President Kenny Matassa was a positive for the prosecution.  But Kliebert also denied the state’s Motion in Limine whereby prosecutor, Assistant Attorney General Jeff Traylor sought to exclude evidence related to Wayne Lawson’s status as a candidate for Gonzales City Council on November 8, 2016.  In doing so Kliebert telegraphed his interpretation of the Election Code, erroneous in our opinion, which breathed life into Matassa’s defense strategy earlier thought laughable.

Lawson is the target of the bribe alleged to have been offered by Matassa and Olin Berthelot in return for his withdrawal from that election.  On April 19 Kliebert addressed Revised Statute 18:1461.5 (pursuant to which Matassa is indicted).  Noting that Lawson’s status as a candidate is an element of the crime, the judge wrote:

“(It) does not define the term candidate.  Accordingly, the Court must determine what is meant by the term candidate in that statute.  The Louisiana Election Code establishes that only persons meeting qualifications for the office he seeks at the time he qualifies for that office may become a candidate.  The office sought herein is Gonzales City Councilman.  La. R. S. 33:384-385 provides that when qualifying for this position, a candidate must be an elector and have been a resident and domiciliary of the municipality for at least a year immediately preceding qualification… Therefore, the Court finds that a candidate for Gonzales City Council is one who meets the qualifications for the Gonzales City Council at the time he submits his notice for candidacy.”

No matter that…

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

The prosecution has not conceded the point because four decades of Election Code application and relevant jurisprudence say the Judge Tommy Kliebert’s interpretation is wrong.

Matassa’s Motion to Quash had already been denied by Judge Jason Verdigets on October 18, 2017, before he recused and Judge Kliebert allowed Matassa to “re-urge” the motion.  Lewis Unglesby, Matassa’s attorney, had new case-law to cite in the re-urging.  In State of Louisiana versus Yolanda King the Fourth Circuit Court of Appeals upheld the felony conviction of an elected Orleans Parish juvenile court judge who had falsified information on her Notice of Candidacy.  The King court never addressed the issue of candidacy.

Jeff Traylor’s appeal will be heard by the First Circuit which took up the issue directly in State of Louisiana versus Banta (where the defendant had been elected to Lafourche Parish’s Council).  After Banta was seated the state sought his ouster.  The Banta court wrote:

“The State raised questions regarding his qualifications to run for office. Such issues are controlled by the statutes we commonly refer to as the ‘Louisiana Election Code’…in particular, La. R.S. 18:1401 through 18:1413.  Pursuant to La. R.S. 18:492, the grounds for an objection to the candidacy of a person qualifying for public office are set forth as follows:  An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:

(3) The defendant does not meet the qualifications for the office he seeks in the primary election.”  (18:492 includes “falsely” certifying that a candidate does not owe any outstanding fines,” and that tax returns have been filed, accusations leveled at Wayne Lawson by Matassa in addition to questions about his domicile).

“There has been no such action filed objecting to Mr. Banta’s candidacy. Moreover, pursuant to La. R.S. 18:1405(A), the time to do so has long since expired.”

The Banta Court went on:  “RS 18:1405(A): An action objecting to candidacy shall be instituted not later than 4:30 p.m. of the seventh day after the close of qualifications for candidates in the primary election.  After the expiration of the time period set forth in this Section, no further action shall be commenced objecting to candidacy based on the grounds for objections to candidacy contained in R.S. 18:492.”

In all the pleadings filed in the Matassa prosecution, there has been a single mention of the Banta case.  Lewis Unglesby’s memorandum in support of Matassa’s initial Motion to Quash cited 
the Louisiana Supreme Court’s opinion in State v. Gibson where a convicted felon won election to the Town of Baldwin’s Board of Alderman.  The Court took up the issue: “Whether the State can directly enforce Article I, § 10 of the Louisiana Constitution to prevent a candidate from taking public office without regard to the Election Code’s time limitations on challenges to candidacy.”

Chief Justice Bernette Johnson wrote the opinion, which concluded:

“While the Election Code provides certain procedures for challenging a candidate’s qualifications prior to an election, it does not provide a direct procedure for the State to prohibit a candidate, once elected, from taking public office in violation of Art. I, § 10 of the Louisiana Constitution. Art. I, § 10 is a self-executing provision which specifically prohibits certain felons from qualifying for public office and from taking public office. For the reasons stated herein, we hold the State was entitled to bring a direct action pursuant to Art. I, § 10 to prohibit Mr. Gibson from taking office.”

Quoting Chief Justice Johnson, Unglesby wrote: “to the extent Banta holds the State is limited to the actions and time limitations set forth in the Election Code to enforce Art. I, § 10, it is overruled.”  Unglesby omitted the High Court’s analysis of the Election Code applicable to Matassa’s case, intentionally misleading the local bench.

The Chief Justice also wrote:

“La. R.S. 18:493 requires that challenges to candidacy be brought within seven days of the close of the qualifying period.”

Judge Kliebert got it wrong.  AAG Traylor is wise to get the rules straight before jeopardy attaches in the prosecution of Kenny Matassa.