DARRYL PERSON v. EDWARD WASHINGTON III AND HONORABLE CHELSEY NAPOLEON CLERK OF COURT FOR ORLEANS PARISH (2026)

I respectfully dissent. I would reverse the district court's judgment sustaining Darryl Person's objection to the candidacy of Edward R. Washington III (“Washington”) and maintain Washington's candidacy for Judge, Division F, Civil District Court for the Parish of Orleans. This appeal presents an unusual circumstance not clearly addressed by the Election Code, namely how a court should evaluate a candidate's tax certification when, before qualifying, the candidate sought account specific guidance from the Louisiana Department of Revenue (“LDR”), completed the payment course the LDR expressly prescribed for 2023, and relied upon the same response concerning the absence of any identified balance or prescribed action for 2024.

I apply the sufficient knowledge framework I first articulated in Nixon v. Hughes, 15-1036 (La. App. 4 Cir. 9/29/15), 176 So.3d 1135 (Lobrano, J., concurring), subsequently applied in Towbin v. Fuller, 26-0152 (La. App. 4 Cir. 3/3/26), --- So.3d ---, 2026 WL 642409 (Lobrano, J., dissenting), and most recently applied in Debose v. Marine-Lombard, 26-0592 (La. App. 4 Cir. 8/22/26), --So.3d ---, 2026 WL 2456647 (Lobrano, J., concurring). This inquiry is temporal and objective. The framework does not permit a candidate to rely upon an unsupported subjective belief or professed good faith. It asks whether, at the time the candidate executed the sworn Notice of Candidacy, the candidate possessed sufficient knowledge, grounded in objectively reasonable circumstances, to certify compliance with the Election Code. In other words, it asks whether the candidate possessed a sufficient and reasonable basis to attest to compliance at the moment of signing. Debose, 26-0592, p. 4 --- So.3d ---, ----, 2026 WL 2456647 (Lobrano, J., concurring); Nixon, 15-1036, 176 So.3d at 1142 (Lobrano, J., concurring). The inquiry is temporal because the candidate's knowledge is measured at the moment of certification, not through information acquired afterward. Debose, 26-0592, p. 1 (Lobrano, J., concurring); Nixon, 15-1036, 176 So.3d at 1142 (Lobrano, J., concurring).

The inquiry is objective in two related but distinct respects. First, it requires objective evidentiary support. First, the candidate's subjective belief, standing alone, is insufficient. The certification must be supported by competent evidence or objectively verifiable circumstances independent of the candidate's good faith. Second, the court must evaluate those circumstances under a standard of reasonableness. The question is not merely what the candidate actually believed, but whether a reasonable candidate possessing the same material facts, and having undertaken the inquiry reasonably called for under the circumstances, could have had a sufficient basis to attest to compliance. This standard does not demand certainty or impose agency verification requirements through hindsight. It simply requires merely an objectively justified basis for the certification at the time it was made. By requiring objective justification without imposing hindsight verification, this standard preserves the heavy burden placed upon one who seeks to remove a candidate from the ballot and requires any remaining doubt as to whether the certification was false to be resolved in favor of candidacy. See Landiak v. Richmond, 05-0758, pp. 6-7 (La. 3/24/05), 899 So.2d 535, 541-42; Towbin v. Fuller, 26-00296, p. 1 (La. 3/11/26), 429 So.3d 715, 715.

Justice Griffin's concurrence in Towbin discusses both components of this objective inquiry. She explained that “[w]hat is required is objective evidence establishing that, at the time the candidate certified to having filed all tax filings or extensions, the candidate's sworn belief in subsequent delivery was justified.” Towbin, 26-00296, p. 3, 429 So.3d at 717 (Griffin, J., concurring) (quoting Lumar v. Lawson, 20-0251, p. 16 (La. App. 5 Cir. 8/10/20), 301 So.3d 1243, 1256), on reconsideration, 26-00296 (La. 3/31/26), 431 So.3d 356. Although Justice Griffin addressed the filing alternative, her analysis concerned the truthfulness of the candidate's certification and whether the candidate's knowledge at qualification had an objectively reasonable or justifiable basis.

The lead opinion in Clark v. Bridges, provides additional Supreme Court guidance. It rejected the categorical premise that a candidate must possess formal confirmation from the LDR before executing a Notice of Candidacy. The opinion explained that testimony from reasonably reliable third parties may furnish an objective basis for the candidate's knowledge and concluded that “the objective evidence confirms that transmission, the operative event, was successful.” Clark, 23-00237, pp. 8-9, 356 So.3d 990, 994-95, 994 n.6. Clark thus demonstrates that “objective” does not mean that the candidate must produce a particular form of governmental verification. It means that the certification must rest upon competent evidence or objectively verifiable circumstances, in addition to the candidate's assurance, that furnished a reasonable basis to attest to compliance when the Notice of Candidacy was executed. The inquiry and ultimate determination therefore rests on the objective basis for the candidate's certification at the time it was made.

Louisiana Revised Statute 18:492(A)(7) authorizes an objection when a candidate “falsely certified” the tax filing information required by La. R.S. 18:463(A)(2)(a)(iv). “The statutory focus is therefore the truthfulness of the certification made at a defined point in time, that is, when the candidate executed the Notice of Candidacy.” Debose, 26-0592, p. 2, --- So.3d ---, ---, 2026 WL 2456647 (Lobrano, J., concurring).

Louisiana Revised Statute 18:463(A)(2)(a)(iv) requires a candidate, except one seeking election as United States senator or representative in Congress, to certify that “for each of the previous five tax years, he has filed his federal and state income tax returns, has filed for an extension of time for filing either his federal or state income tax return or both, or was not required to file either a federal or state income tax return or both.”

The certification is written in the disjunctive. Unlike the statement that “a return was filed”, the statement that a candidate “was not required to file” necessarily calls for an assessment of legal and agency status as well as the totality of the circumstances. The Election Code does not expressly address the application of this certification when a candidate's initial filing duty existed for the tax in question, but, before qualification of the candidate for election, the LDR exercised its authority described in La. R.S. 47:1562(A) by calculating Washington's tax, penalty, and interest from federal information and then advised that the candidate that he could either file a return to reverse the determined tax balance or accept the return made by the LDR and pay the balance due and with the LDR prescribing no further balance or corrective action. That omission is central to this appeal. Indeed, Person acknowledges that “Louisiana courts have not yet squarely addressed what evidence a candidate must produce when claiming that no return was required” and describes the issue as “sui generis.”

The ambiguity in this case does not result from the district court's determination that Washington initially had a duty to file his 2023 and 2024 Louisiana returns. For purposes of this analysis, I assume that an initial filing duty existed. The unresolved question, detailed fully below, is whether his later certification was “false” given the LDR's account specific assessment and guidance, and Washington's resulting payment.

The totality of the circumstances regarding the 2024 tax year also support Washington's position that his certification that no return was required was objectively reasonable. Although the LDR's response to Washington's express inquiry regarding 2024 prescribed no action for that year, the absence of a balance does not, standing alone, establish that no return was required, and the Election Code does not explain what further inquiry or documentation a candidate must obtain after receiving such an account specific response from the LDR.

Neither La. R.S. 18:463(A)(2)(a)(iv) nor La. R.S. 18:492(A)(7) expressly addresses that circumstance. The statutes do not state whether payment under an account specific LDR instruction must be disregarded when determining the truthfulness of a later election certification. Nor do they require a candidate to obtain a formal ruling, release, waiver, or other verification from the LDR before relying upon the “not required to file” alternative.

The Louisiana Supreme Court recently confronted a comparable statutory ambiguity in Towbin. The Court found La. R.S. 18:463(A)(2)(a)(iv) and La. R.S. 18:492(A)(7) “ambiguous as applied to the unique facts and circumstances” presented there. Towbin, 26-00296, p. 1, 429 So.3d at 715. Mindful that “[t]here is nothing more fundamental to our society than the ability of our electorate to choose its leaders,” the Court resolved the statutory doubt in favor of candidacy and the electorate's widest possible choice. Id. (quoting Becker v. Dean, 03-2493, p. 6 (La. 9/18/03), 854 So.2d 864, 869). Towbin applied the statutory text to the particular circumstances and resolved the remaining doubt in favor of allowing the candidate to run.

I likewise find La. R.S. 18:463(A)(2)(a)(iv) and La. R.S. 18:492(A)(7) ambiguous as applied to Washington's circumstances. A later judicial determination that Washington remained subject to a filing obligation does not, by itself, establish that his earlier election certification was false. Where the Election Code does not prescribe how the certification applies to an account specific LDR determination, instruction, and completed payment, the controlling question remains whether competent, objectively verifiable circumstances known at qualification supplied Washington with sufficient knowledge and a reasonable basis to certify compliance. The Election Code's silence and ambiguity cannot be filled by imposing the most restrictive possible interpretation or by creating a formal verification requirement that the Legislature did not enact. Any remaining doubt must be resolved in favor of candidacy and the electorate's right to choose. See Towbin, 26-00296, p. 1, 429 So.3d at 715-16; Landiak, 05-0758, pp. 6-7, 899 So.2d at 541.

Louisiana jurisprudence addressing the “not required to file” alternative confirms that nonfiling and false certification are not synonymous. In Nocito v. Bussey, 20-00986 (La. 8/15/20), 300 So.3d 862, the candidate stipulated that he had not filed a 2019 tax return, but testified that he had no taxable income and therefore was not required to file. The stipulation was the only evidence offered during the objector's case to establish a prima facie case. On rebuttal, the objector introduced material from the candidate's Facebook page and the Southern Charm Bar and Bistro website, as well as documents concerning the NOLA Auto Group and 2KB's LLC. The Supreme Court concluded that these materials were not evidence of income and did not contradict the candidate's testimony that he had no taxable income. Accordingly, the Court held that proof of nonfiling, “with nothing more,” was insufficient to establish a prima facie case of false certification, that the burden had been improperly shifted to the candidate, and that his candidacy must be reinstated. Id., 20-0986, p. 3, 300 So.3d at 863.

By contrast, Irvin v. Brown disqualified a candidate who admitted that his business had made “some money” and received compensation and who produced no documentary evidence showing that filing was unnecessary. 17-0614, pp. 6-7 (La. App. 4 Cir. 7/28/17), 367 So.3d 640, 643-44. In Henry v. Bell, the majority also ordered disqualification. 23-0543 (La. App. 4 Cir. 8/25/23), 371 So.3d 566. I dissented because, unlike the candidate in Irvin, Bell submitted documentation supporting his claim that he was not required to file and because Irvin did not address whether such documentary evidence was sufficient. I further concluded that, particularly after Nocito, Irvin should not be applied as a categorical burden shifting rule. Henry, 23-0543 (La. App. 4 Cir. 8/25/23), 371 So.3d 566, 573 (Lobrano, J., dissenting). Importantly, neither Irvin nor Henry involved La. R.S. 47:1562(A), an account specific LDR response, and documented taxpayer action such as that presented in the case sub judice.

The material facts are substantially undisputed. Before qualifying on August 6, 2026, Washington contacted the LDR to resolve his Louisiana tax obligations. On June 9, 2026, the LDR issued Washington a Notice of Proposed Tax Due for 2023 in the amount of $681.66, which accounted for $441.00 in tax, $154.35 in penalties and fees, and $86.31 in interest, after determining Washington's liability from federal information. On June 12, 2026, Washington inquired of the LDR whether “there were any taxes due for any other year, specifically 2022, and 2024.” The LDR responded in writing on June 15. As to the assessed balance, the LDR stated, “[t]o reverse the balance you must file a return, you may also accept the assessment and pay the balance.” As to 2024, the LDR stated, “[t]he account also does not show a return on file for the 2024 tax period,” but also advised that “there are no other balances due for the account.” The June 15 response did not issue a 2024 assessment, set a filing deadline, or direct Washington to file a 2024 return. On July 1, Washington paid $681.66, the exact amount the LDR had assessed. The LDR communications and Washington's payment all preceded qualification by at least five weeks. Defendant Exhibits D-1, D-3, D-4, and D-5, including the LDR communication, call log, Notice of Proposed Tax Due, and payment receipt, were admitted without objection. They constitute substantive, objective evidence of the information Washington possessed and the action he completed before qualifying.

Washington agreed that no Louisiana returns had been filed for 2023 and 2024, but he did not expressly concede at trial that La. R.S. 47:101(A)(1) required him to file those returns. The district court made that legal and factual determination. Relying upon the expert's testimony concerning the $12,500 income threshold and the $400 self-employment threshold, the court found that Washington earned amounts exceeding the applicable thresholds and therefore was required to file returns for both years. Even assuming that determination was correct as a matter of tax law, it did not resolve the distinct question presented under La. R.S. 18:492(A)(7): whether Washington falsely certified his status when he later executed the Notice of Candidacy. The district court treated proof of the underlying filing duty and historical nonfiling as dispositive without separately determining whether the objective circumstances known to Washington furnished a sufficient and reasonable basis for his certification.

The statutory scheme does not squarely address these circumstances. Neither La. R.S. 18:463(A)(2)(a)(iv) nor La. R.S. 18:492(A)(7) requires a candidate to obtain an LDR certificate, formal determination or release, public records response, or other agency confirmation before qualification. Nor does either provision direct a court to disregard an account specific LDR communication and the candidate's documented action in response to it. Such evidence is not independently dispositive, but it is relevant under the sufficient knowledge standard. Its presence or absence cannot be converted into an additional statutory prerequisite to candidacy.

As I observed in Clark v. Bridges, “[t]he judiciary should not be in the business of imposing additional requirements on candidates where the legislature has not done so.” 23-0093, p. 14 (La. App. 4 Cir. 2/15/23), 358 So.3d 550, 559 (Lobrano, J., dissenting), rev'd, 23-00237 (La. 2/22/23), 356 So.3d 990; see also Debose, 26-0592, p. 6, --- So.3d at --- (Lobrano, J., concurring). In reversing this Court and reinstating the candidacy, the Supreme Court's lead opinion expressly stated that the dissents of Judges Lobrano and Dysart had “properly analyzed the applicable statutory and regulatory language.” Clark, 23-00237, p. 10, 356 So.3d at 995 n.9.

“The judicial power to interpret election law does not include the power to supplement the statutory qualifications for candidacy.” Debose, 26-0592, p. 6, --So.3d at --- (Lobrano, J., concurring). If the Legislature determines that a candidate in Washington's circumstances remains subject to disqualification unless a return is separately filed, notwithstanding the LDR's assessment, account specific communication, and Washington's documented payment, it may say so expressly. It may distinguish between satisfaction of an assessed tax liability and satisfaction of the certification required by La. R.S. 18:463(A)(2)(a)(iv). It may also require every candidate to obtain formal verification or release from the LDR before qualifying and prescribe the form, timing, and legal effect of that verification or release. Unless and until it does so, courts should not incorporate those additional categorical requirements into the sufficient knowledge standard. The judicial inquiry remains one based upon the wording of the statutes and the totality of the objectively reasonable circumstances known to the candidate when the Notice of Candidacy was executed.

Because the district court treated the initial filing duty and historical nonfiling as dispositive, without applying the temporal and objective sufficient knowledge inquiry to the LDR communication and Washington's documented response, it applied an erroneous legal standard. When legal error materially affects the outcome and interdicts the factfinding process, the resulting determination is not entitled to deference. Toups v. Kauffman, 16-0248, p. 6 (La. App. 4 Cir. 11/23/16), 204 So.3d 1044, 1049; S.J. v. Lafayette Par. Sch. Bd., 09-2195, p. 13 (La. 7/6/10), 41 So.3d 1119, 1128. Because the record is otherwise complete, this Court must conduct an independent de novo review. S.J., 09-2195, p. 13, 41 So.3d at 1128.

Under that review, Washington's certification rested upon more than an unsupported assertion of subjective belief. The reasonableness of his understanding must be evaluated in light of both the source and the wording of the information he received. The June 15 response was not generic tax information. It was an account specific communication from the agency charged with administering Louisiana's tax laws, issued after review of Washington's account. The LDR knew that no 2023 or 2024 return was on file, had obtained federal information sufficient to calculate Washington's 2023 liability, and expressly addressed both years in its response.

As to 2023, the wording of the LDR's response reasonably presented two alternative courses of action. It stated: “To reverse the balance you must file a return, you may also accept the assessment and pay the balance.” A reasonable recipient could understand this language to mean that filing was necessary if the taxpayer wished to contest or reverse the assessment, while acceptance and payment without the necessity of filing constituted the alternative course for resolving it. The communication did not state that Washington must pay the assessment and also file a return. It did not identify any additional filing deadline or warn that payment would leave a separate corrective act outstanding. Washington selected the payment course and paid the precise amount assessed before qualifying. Washington documented payment of the assessment, and the record contains no further LDR instruction before he executed his Notice of Candidacy.

The informal advice disclaimer does not make Washington's reliance objectively unreasonable. The disclaimer establishes that the email was not a formal ruling, did not bind the LDR in future tax administration, and could not support estoppel. Washington does not contend otherwise. The disclaimer does not dismiss the communication, alter its wording, or deprive it of evidentiary value in determining what Washington reasonably understood before qualifying. Reasonable reliance for purposes of evaluating the truthfulness of an election certification does not require that the agency communication possess the force and effect of law. Nor does it require Washington's interpretation ultimately to prevail in a later tax controversy. The relevant question is not whether a court may later reach a different legal interpretation, but whether Washington's interpretation was objectively reasonable when he executed the Notice of Candidacy.

The expert's testimony does not resolve this question. He testified generally that payment and filing are distinct obligations and that payment of an assessment does not ordinarily eliminate a filing duty. He was not asked to interpret the LDR's account specific wording or whether a reasonable recipient could understand it as Washington did. Nor could his tax law opinion supply the court's legal conclusion concerning whether Washington falsely certified under La. R.S. 18:492(A)(7).

The evidence concerning 2024 is less direct, but the same communication was unclear as to what, if anything, Washington was expected to do. The LDR expressly acknowledged that no 2024 return was on file, stated that “there are no other balances due for the account,” and prescribed no filing, payment, deadline, or corrective act for that year. A statement that no balance is due does not establish that a return is required. Nevertheless, the LDR's express acknowledgment of the missing 2024 return is significant. Because the LDR knew the return was absent, identified specific action for 2023, and identified none for 2024, a reasonable recipient could understand that the Department had identified no additional action then required concerning 2024.

At minimum, the record creates substantial doubt concerning whether Person carried his burden of proving false certification for either year. Election laws must be interpreted to promote rather than defeat candidacy and to afford the electorate the widest possible choice. Any doubt concerning a candidate's qualifications must be resolved in favor of allowing the candidate to run. Landiak, 05-0758, pp. 6-7, 899 So.2d at 541.

For these reasons, I agree with Chief Judge Belsome that the district court's judgment should be reversed and that Washington's candidacy for Judge, Division F, Civil District Court for the Parish of Orleans should be maintained.

LOBRANO, J., DISSENTS WITH REASONS