text:
    LOCKHEED MARTIN CORPORATION, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-1694.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Rehearing Denied June 30, 2004.

      Susan K. McKenna and Keith L. Hammond, of Jackson Lewis LLP, Orlando, for Appellant.
    Wayne L. Allen and Adrienne E. Trent, of Wayne L. Allen & Associates, P.A., Melbourne, for Appellee, Timothy J. Steinmetz.
    No Appearance for Appellee, Unemployment Appeals Commission.
   PER CURIAM.

Lockheed Martin Corporation [“Lockheed”] appeals an Unemployment Appeals Commission’s [“Commission”] affirmance of an appeals referee order awarding unemployment compensation benefits to Timothy J. Steinmetz [“Steinmetz”] after his termination for misconduct.

The findings of fact made by the appeals referee were as follows:

The claimant worked as a launch inspector for Lockheed Martin Corporation from March 1, 1989 to December 18, 2001. The employer had a policy that prohibited sexual harassment. The policy prohibited “All immoral or indecent conduct ... including sexual harassment.” It defined harassment, in part, as “physical conduct, touching, assault, impeding or blocking movements.” The claimant was aware of the policy through yearly training sessions, printed materials and a computerized training program. The claimant and at least two of his co-workers, a male and a female, disregarded the policy over a period of several years. They engaged in physical “horseplay” that included touching or grabbing each other’s buttocks, crotches and breasts. Their immediate supervisors were aware of this behavior, but chose to disregard it. No complaints were made by the participants. In late 1999 the claimant placed his hands on the breast of the female coworker and twisted them as though they were knobs. She told him to stop and not to touch her. He did not touch her again.
There were no incidents of such behavior by the claimant thereafter. Another coworker had witnessed the final incident. Approximately two years later that worker filed a sexual harassment complaint against the employer. She had not complained about or reported that incident at the time it happened. She did mention the incident when discussing her complaint with the employer’s senior human resource manager for launch operations. She mentioned also that she had objected to the claimant touching her hair while they were riding in a cart. It had blown up into his face. She had no other complaints about the claimant’s actions toward her. The human resources manager confronted the claimant and then discharged him for his reported actions prior to January 2000. The claimant was later offered re-employment without conditions and returned to work after thirty-seven days. The other two workers who had participated in horseplay were suspended for thirty-seven days so that their punishment was equal to his.
The testimony of both parties established that the employer had a sexual harassment policy that included the actions admitted by the claimant. Witnesses for both parties testified that the employer’s on-site supervisors condoned the actions of the claimant and his co workers. The record shows that none of the participants complained. Even the worker that eventually reported the claimant’s actions did not complain of the incident she witnessed, but mentioned it in passing while discussing other matters with a human resources official. It appears that the employer only decided to enforce its policy after it was threatened with legal action. It discharged the claimant, but soon reconsidered [sic] he was unconditionally reinstated. A policy that is not enforced is not a policy, but a suggestion. The record shows that the claimant voluntarily discontinued the actions for which he was discharged after the previously provocative and compliant female coworker told him to stop. In any case, the claimant’s last offence [sic] was two years prior to discharge, which is too distant in time to provide good grounds for discharge.

The issue is whether Steinmetz was properly discharged for “misconduct,” i.e. violation of Lockheed-Martin’s policy against “immoral or indecent conduct ... including sexual harassment.” There is little factual dispute that the behavior of Steinmetz violated the policy. It appears, however, that the appeals referee reached the legal conclusion that such conduct is not “misconduct” where: 1) the on-site supervisors of the employer “chose to disregard it;” 2) the victim failed to complain; 3) the other employees who witnessed it failed to complain; 4) the employer appeared to decide to enforce its policy only after threatened with a lawsuit by a witness to the behavior; and 5) it had happened two years before the discharge. None of these reasons eliminate the misconduct.

First, the victim’s acquiescence in or the failure of on-site supervisors to enforce the policy does not constitute a waiver or es-toppel against the employer. Historically, this type of behavior has been condoned by supervisors or has gone unpunished in the workplace. A key reason such policies were made express and emphasized through training is to make clear that such behavior is misconduct, without regard to complaint by the victim or rebuke by the on-site manager. This is essential because such conduct adversely affects others in the workplace, not just the victim or participant.

As for the final two reasons, there are no findings of fact to establish, and nothing we see in the record suggests, that once Lockheed’s human resource manager learned of the conduct, she did not act promptly to discharge Steinmetz. Such misconduct does not dissipate with the passage of time any more than would an employee’s theft, breach of confidentiality or other misdeed.

REVERSED and REMANDED.

SAWAYA, C.J., GRIFFIN and PALMER, JJ., concur.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Daniel E. ZURLA, Appellant, v. CITY OF DAYTONA BEACH and City of Port Orange, Appellees.
    No. 5D03-3612.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Rehearing Denied July 6, 2004.

      Daniel E. Zurla, Port Orange, pro se.
    Robert G. Brown, City Attorney, and Benjamin S. Gross, Assistant City Attorney, of Office of City Attorney for Daytona Beach for Appellee, City of Daytona Beach.
    Terrence R. Perkins and Robert F. Stepniak of Smith, Hood, Perkins, Loucks & Stout, P.A., Daytona Beach, for Appel-lee, City of Port Orange.
   PLEUS, J.

Daniel Zurla is unhappy with the policy of two municipally-owned golf courses which requires golfers to ride golf carts instead of walking at certain times and on certain days. He is appealing the trial court’s dismissal of his pro se second amended complaint with prejudice. Not only does he feel constitutionally violated, but in addition he seeks injunctive relief and damages. Zurla alleges that he wishes to walk the courses for beneficial exercise. Because we agree that the learned trial judge’s dismissal order accurately analyzed the second amended complaint, we set forth that order in relevant part:

The Second Amended Complaint fails to specifically identify a liberty interest protected by the United States Constitution. See Washington v. Glucksberg, 521 U.S. 702[, 117 S.Ct. 2258, 138 L.Ed.2d 772] (1997); see also Khan v. Gallitano, 180 F.3d 829 (U.S. 7th Cir.1999); Coyne v. City of Somerville, 972 F.2d 440 (U.S. 1st Cir.1992). The “substantive due process” protected by the Fourteenth Amendment reaches “those fundamental rights which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ... and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Glucksberg, 521 U.S. at 720-21[, 117 S.Ct. 2258] (internal citations omitted). Included in this category are such rights as those enumerated in the Bill of Rights, the right to contract, to marry, to bodily integrity, to use contraception, and to raise one’s children as one deems fit. See id. at 720[, 117 S.Ct. 2258]. The sincerity of Plaintiffs desire to walk while golfing notwithstanding, the Court simply cannot find a constitutional right to do so. Accordingly, Plaintiffs claims that the Defendants have violated his due process rights under the Fourteenth Amendment of the United States Constitution fail to state a cause of action and must be dismissed.
Likewise, the Court concludes that Plaintiffs claim that the regulations at issue are arbitrary and capricious must fail as well. Defendants’ actions carry a presumption of rationality, Hodel v. Indiana, 452 U.S. 314[, 331-32, 101 S.Ct. 2376, 69 L.Ed.2d 40] (1981), and Plaintiffs burden is “to negative every conceivable basis which might support it.” FCC v. Beach Communications, Inc., 508 U.S. 207[307], 314-15[, 101 S.Ct. 2376, 69 L.Ed.2d 40] (1993). Stated differently,
The legislation must be sustained if there is any conceivable basis for the legislature to believe that the means they have selected will tend to accomplish the desired end. Even if the court is convinced that the political branch has made an improvident, ill-advised, or unnecessary decision, it must uphold the act if it hears a rational relation to a legitimate governmental purpose.
Cash Inn of Dade, Inc. v. Metropolitan Dade County, 938 F.2d 1239, 1241 (11th Cir.1991) [upholding ordinance limiting hours of operation of pawn shops to 7:00 a.m. to 5:00 p.m.] (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469[, 101 S.Ct. 715, 66 L.Ed.2d 659] (1981)). Further, a determination of whether a rational basis exists “is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, 508 U.S. at 315 n. 1[, 113 S.Ct. 2096]. Accord Hudson v. State, 825 So.2d 460, 468-69 (Fla. 1st DCA), cause dismissed 831 So.2d 673 (Fla.2002).
As the United States Supreme Court has observed, golf cart use is ubiquitous on golf courses today, and the use of carts may speed play and enhance revenue. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 685[, 121 S.Ct. 1879, 149 L.Ed.2d 904] (2001) [Americans with Disabilities Act required that disabled professional golfer be permitted to use golf cart, despite walking requirement that applied to professional association’s tournaments]. Either objective — speeding play or increasing revenue — is sufficient for the golf cart requirement to survive the claim of arbitrariness and capriciousness in the instant case. This is particularly true given the long-standing law in Florida that “[w]hen a municipality operates in its propriety capacity, it is governed by the same law and may exercise the same rights as a private corporation engaged in a similar undertaking.” City of Winter Park v. Montesi, 448 So.2d 1242, 1245 (Fla. 5th DCA), rev. denied 456 So.2d 1182 (Fla.1984) (emphasis added) (citing Hamler v. City of Jacksonville, 97 Fla. 807, 122 So. 220 (1929); Edris v. Sebring Utilities Comm’n, 237 So.2d 585 (Fla. 2d DCA), cert. denied 240 So.2d 643 (Fla.1970)).

We conclude with the observation that our founding fathers must be wondering if anyone today even reads the Constitution, much less understands it.

AFFIRMED.

SAWAYA, C.J., and PALMER, J„ concur.


author: HAZOURI, J.

text:
    David H. KLIGFELD, Dhalco Financial Services, Inc., James A. Torchia and Empire Insurance, Inc., Appellants, v. STATE of Florida, OFFICE OF FINANCIAL REGULATION, Appellee.
    Nos. 4D03-2880, 4D03-3298.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Rehearing Denied July 13, 2004.

      Barry S. Mittelberg of Mittelberg & Nicosia, P.A., Ft. Lauderdale, for appellants.
    Peter G. Fisher, Assistant General Counsel, Office of Financial Regulation, Tallahassee, for appellee.
   HAZOURI, J.

David Kligfeld and. James Torchia (appellants), were Florida-licensed life and health insurance agents. Appellants provided their clients with applications for viatical settlement contracts with American Benefits Corporation (ABS) in 1998 and 1999. During this time frame, appellants collected money from individuals for the purposes of purchasing viaticated life insurance policies, the benefits of which were to be assigned to a trust. By virtue of the contracts, the individuals were to receive a share of the trust income proportionate to the amount of money they'had placed with ABS. Such agreements are generally called viatical settlement purchase agreements (VSPA’s).

The ABS program was determined to be a fraudulent financial scheme, and its organizers have been criminally prosecuted and convicted. The Florida Department of Banking and Finance, which has been reorganized into the Office of Financial Regulation (OFR), filed administrative complaints against both appellants, alleging that they acted as unregistered securities dealers and offered and sold unregistered securities to Florida investors. As a result of the administrative complaints filed by the OFR, thé Floridá Division of Administrative Hearings conducted separate hearings on both cases.

In March 2003, the Administrative Law Judge (ALJ) in the Kligfeld case concluded as a matter of law that the Florida Securities and Investors Protection Act, Chapter 517, Florida Statutes, had been preempted by the Viatical Settlement Act, Chapter 626, Part X, Florida Statutes, and that as a result, Kligfeld had not sold unregistered securities. The OFR filed exceptions and the OFR disagreed with the ALJ’s conclusion of law that Chapter 517 had been preempted. The OFR entered a final order against Kligfeld in June 2003.

In May 2003, the ALJ in the Torchia case, contrary to the decision of the ALJ in the Kligfeld case, found that Torchia had sold unregistered securities and had acted as an unregistered dealer. The ALJ recommended that Torchia be ordered to cease and desist and to pay a fine for each violation. Torchia filed exceptions and the OFR approved the ALJ’s findings of fact and recommendations in August 2003. The appellants were ordered to cease and desist and to pay a fine for each violation, the total of which equaled or exceeded the amount of commissions they had collected for selling the VSPA’s.

In this consolidated appeal, the appellants conceded at oral argument that the VSPA’s involved in this cause meet the Howey test and therefore constitute securities which would ordinarily be subject to regulation under Chapter 517. Appellants argue, however, that Chapter 626 preempts Chapter 517 and therefore the regulation of viatical settlement agreements is within the exclusive purview of the Department of Insurance. We disagree and affirm.

The OFR’s exercise of jurisdiction in this case is based upon the appellants’ sale of investment contracts. Investment contracts are expressly defined as securities under section 517.021(20)(q), Florida Statutes, and the ABS program clearly meets the investment contract analysis as adopted by Florida courts. See § 517.021(20)(q), Fla. Stat. (2003); Farag v. Nat'l Databank Subscriptions, Inc., 448 So.2d 1098, 1101 (Fla. 2d DCA 1984); Adams v. State, 443 So.2d 1003, 1005 (Fla. 2d DCA 1983).

Chapter 626, Part X, does not expressly preempt the Securities Act. In order for the legislature to be deemed to have expressly preempted the Florida Securities Act through the enactment of Chapter 626, the statute must contain express and unambiguous preemption language. See Lowe v. Broward County, 766 So.2d 1199 (Fla. 4th DCA 2000) (stating “for the legislature to expressly preempt an area, the preemption language of the statute must be specific; ‘express preemption cannot be implied or inferred’ ”). Chapter 626 contains no language that can be construed as an express preemption of Chapter 517. Thus, if preemption is to exist, it would have to be implied. The Florida Supreme Court, however, has made clear that implied preemption is not favored under Florida law.

In Flo-Sun, Inc. v. Kirk, 783 So.2d 1029 (Fla.2001), the Florida Supreme Court emphasized that, in cases where one statute is alleged to have repealed another, “the general rule ... is that implied repeals are not favored and will not be upheld in doubtful cases.” Id. at 1035 (citing State v. Digman, 294 So.2d 325 (Fla.1974)). “Moreover, before making a determination that a subsequent statute has impliedly repealed one previously enacted, there should appear either a positive repugnancy between the two statutes or a clear legislative intent that the later act prescribes the only governing rule.” Kirk, 783 So.2d at 1035 (citing Atkinson v. State, 156 Fla. 449, 23 So.2d 524 (1945)); see also City of Punta Gorda v. McSmith, Inc., 294 So.2d 27 (Fla. 2d DCA 1974) (stating “[t]he general rule of legislative construction presumes later statutes are passed with knowledge of prior existing laws, and favors a construction which gives each a field of operation, rather than have one meaningless or repealed by implication”). There is certainly no positive repugnancy between Chapter 517 and Chapter 626. Since the statutes are not positively repugnant to one another, and there is no express preemption between Chapter 626 and Chapter 517, preemption should not be read into the statutory scheme. We, therefore, affirm the final orders.

AFFIRMED.

WARNER and GROSS, JJ., concur.

      . S.E.C. v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946) (To prove the existence of an investment contract there is a three pronged test which requires: 1) an investment of money; 2) a common enterprise; and 3) expectations of profits to be derived solely from the efforts of another.).


author: I .PER CURIAM.

text:
    STATE of Louisiana v. Sean STRANGE, Talbert Porter.
    No. 2004-KK-0273.
    Supreme Court of Louisiana.
    May 14, 2004.
   I .PER CURIAM.

The state’s application is hereby granted, the rulings of the courts below suppressing evidence seized from defendants are reversed, and this case is remanded to the district court for further proceedings.

The evidence adduced at the hearing on defendants’ motion to suppress established that on November 19, 2002, a Thunderbird traveling east on Interstate 10 through St. Martin Parish caught the attention of State Trooper Troy Dupuis because the vehicle had both a regular or “hard” license plate located in its customary position near the rear bumper of the car and a paper or temporary tag displayed in the back window. Both tags were from Texas. Aware of Louisiana law requiring that the owner of a vehicle must remove any temporary tags once he receives a hard copy of his license plate, Trooper Dupuis decided to stop the Thunderbird to determine “which plate was the real plate” and to check the registration “to see if it wasn’t stolen” or whether the plates had been switched.

| gAfter pulling the vehicle over, the trooper explained the reason for the stop, determined that the driver, Talbert Porter, had no license on him and that the passenger, Sean Strange, was in fact the owner of the vehicle. A check of the papers produced by defendant Strange, including a bill of sale from a car dealer in Fort Worth, Texas, satisfied the trooper that Strange had recently purchased the vehicle in Texas and was driving on a temporary tag while waiting for his registration in his own name. Strange had, in fact, insured the vehicle on the day before the officer pulled the car over in Louisiana. The paper work thus “show[ed] that [the vehicle] was not stolen” and that its plates had not been switched. Strange explained to the trooper on the scene, as he would later to the court during the hearing on the motion to suppress, that Texas would eventually issue a registration sticker to be placed on the front- windshield near the inspection sticker as a replacement for the temporary tag issued by the car dealer. He further explained that in Texas, license plates do not change with the owner, “[t]he owners change with [the plates].”

In the course of checking the paper work, the trooper also asked defendants about their travel plans, and obtained largely consistent accounts that they were traveling from Texas to Florida to see Strange’s aunt in Tallahassee. However, the trooper noted that the defendants had embarked on a cross country trip without a clear idea of where the aunt lived in Tallahassee and that defendant Strange, rather than becoming less nervous as the traffic stop proceeded, became increasingly agitated. His suspicions aroused, Trooper Dupuis asked for, and received, Strange’s consent to search the vehicle. In the course of the ensuing search, the trooper discovered 60 pounds of marijuana hidden behind the Thunderbird’s rear bumper. The trooper immediately placed |3the defendants under arrest, and in a search incident to the arrests discovered small amounts of cocaine and methamphetamine concealed in defendant Strange’s wallet. The state subsequently charged the defendants with a variety of offenses arising out of the stop including possession of marijuana with intent to distribute in violation of La.R.S. 40:966.

On the basis of the testimony provided by Trooper Dupuis and the defendants at the evidentiary hearing conducted in May, 2003, the trial court, satisfied that Texas law permitted a vehicle registered in that state to display both a hard license plate and a temporary tag, and that Louisiana permits vehicles properly registered in other jurisdictions to travel on the roads of this state without complying with this state’s registration requirements, granted respondents’ motion to suppress. The court thus took the position that “[i]f the plates were properly displayed under Texas law, then [Trooper Dupuis] didn’t have any reasonable suspicion to stop them.” The court of appeal agreed. State v. Strange, 03-0901 (La.App. 3rd Cir.12/30/03), 861 So.2d 951 (unpub’d)(Saunders, J., dissenting). The court acknowledged that as a matter of Louisiana law, a vehicle may not display both a hard license plate and a dealer’s temporary tag. See La.R.S. 47:519(G). Under certain circumstances, failure of a vehicle owner to destroy the temporary tag on receipt of annual plates constitutes a one-year misdemeanor offense. La.R.S. 47:519(J). However, the court of appeal further noted that “Louisiana also has reciprocity arrangements with other states, which permit vehicles owned by out-of-state residents and lawfully registered in those states to legally travel upon Louisiana’s public highways without being registered |4here.” Strange, 03-0901 at 5 (citing La.R.S. 47:511). The court thus reasoned that while “it is a violation of Louisiana law for a Louisiana-registered vehicle to display both the temporary and permanent tags at the same time ... there is no violation of Louisiana law when a vehicle registered in another state displays both at the same time if that state allows such a display.” Id. Given that premise, the court of appeal affirmed the ruling of the trial court on grounds that “the trooper’s subjective mistaken belief that the display violated Louisiana vehicle registration laws and any ‘hunch’ based thereon were not sufficient to establish a reasonable basis or a reasonable cause for the traffic stop.” Id., at 5-6.

In dissent, Saunders, J., argued that “[ajlthough subsequent research revealed that the vehicle was properly registered in Texas, it is unrealistic to expect Louisiana State Troopers, or any other peace officer of the State of'Louisiana to be versed in the vehicle registration laws of the other forty-nine states.” Strange, 03-0901 at 6 (Saunders, J., dissenting). In his view, the vehicle’s display of a hard hcense plate and temporary tag constituted the “ ‘particularized and objective basis’ ” required for a lawful investigatory stop which then led to the discovery of the marijuana concealed in the car after defendant gave his consent to search the vehicle. Id., at 6 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

|sWe agree with Judge Saunders that the pertinent question in the present case is not whether defendant Strange had taken all of the appropriate steps to register the Thunderbird in his name in Texas under the laws of that state after he purchased the vehicle, and had in the interim displayed on the vehicle the license tags required by Texas law, but whether Trooper Dupuis’s conduct was reasonable as a matter of the Fourth Amendment and La. Const. art. I, § 5. See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990)(“ “It is apparent that in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government — whether the magistrate issuing a warrant, the police officer conducting a search or seizure under one of the exceptions to the warrant requirement — is not that they always be correct, but that they always be reasonable.... ” ”). We also agree with Judge Saunders that while the trooper’s suspicions about the status of the vehicle were ultimately unfounded, the apparent discrepancy in the vehicle’s plates arising from the simultaneous display of both permanent and temporary tags, an anomaly in Louisiana, and a violation of this state’s law if the tags had |fibeen issued by Louisiana, provided the officer with the requisite “ ‘minimal level of objective justification,’ ” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), for a brief stop of the Thunderbird to determine whether the different tags revealed an underlying problem regarding the lawful ownership of the car by its occupants or its proper registration in a foreign jurisdiction, or whether it simply reflected the fact, as it turned out, that Texas follows different criteria for registering newly purchased vehicles than does Louisiana. The stop accomplished its initial purpose by proving to the trooper’s satisfaction that the vehicle had not been stolen, that respondent Strange had lawful possession of it while waiting for a registration tag from the state of Texas, and that he had otherwise fully complied with the registration laws of that jurisdiction.

The trial court therefore erred in concluding that the initial stop of the Thunderbird was illegal. However, the court correctly found that “once the stop was made, everything that occurred after that was appropriate.” Nothing precluded Trooper Dupuis from engaging the defendants in conversation, State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90, and the officer did not need any degree of reasonable suspicion, as opposed to intuition or “hunch,” to ask for, and receive, Strange’s consent to search the car. Consent is a well-recognized exception to the warrant requirement, State v. Owen, 453 So.2d 1202, 1206 (La.1984); State v. Packard, 389 So.2d 56, 58 (La.1980), and rendered lawful the subsequent discovery and seizure of the marijuana hidden behind the Thunderbirds’s rear bumper. Seizure of the small amount of cocaine and methamphetamine from Strange’s wallet was incident to the lawful arrests 17and was therefore also lawful. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wilson, 467 So.2d 503, 517 (La.1986).

The ruling of the trial court granting defendants’ motion to suppress is reversed, and this case is remanded to the court for further proceedings in accord with the views expressed herein.

JUDGMENT REVERSED; CASE REMANDED.

      . The statute provides that "[a] vehicle owned by a resident of another state, which is lawfully registered in that state, may be operated upon the public highways of this state without registration or license, when, by statute, contract, or understanding, an agreement between the proper authorities of such state and the secretary of tire Department of Public Safety and Corrections has effected reciprocal arrangements whereby license plates of each state affected thereby are recognized by each other states, respectively, and when the vehicle bears approved license places of such state, if same are required by the laws of that state.” R.S. 47:511(A).

      . In fact, under Texas law, the Department of Transportation issues a single set of license plates for a vehicle (front and back) for use during a five-year period and thereafter "[o]n application and payment of the prescribed fee for a renewal of the registration of a vehicle for the first, second, third, or fourth registration year after the issuance of a license plate or set of plates for the vehicle, the department shall issue a registration insignia for the validation of the license plate or plates to be attached .... to the inside of the vehicle's windshield ... within six inches of the place where the motor vehicle inspection sticker is required to be placed.” Tex. Transp. Code Ann., § 502.180(c) and (d) (Vernon 1999). In addition, temporary cardboard tags issued by a car dealer, valid for a period of 21 days while the’ new owner registers the vehicle, Tex. Transp. Code Ann., § 503.063 (Vernon 1999), "may be displayed either in the rear window or on the rear license plate holder of unregistered vehicles,” and in the case of a car bearing Texas multi-year license plates, "may be ... placed over the rear license plate.” 16 Tex. Admin. Code § 111.9 (2004). However, "[t]he multi-year plates should not be removed from the vehicle.” Id. (emphasis added).


author: PER CURIAM.

text:
    STATE of Louisiana v. Edith SANDERS.
    No. 2004-KO-0017.
    Supreme Court of Louisiana.
    May 14, 2004.
    Rehearing Denied Sept. 3, 2004.
   PER CURIAM.

Granted. The defendant’s sentence of 15 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence is amended to provide that the defendant shall serve a term of 15 years imprisonment at hard labor without benefit of probation or suspension of sentence, and without benefit of parole for a period of five years. See La.R.S. 40:967(B)(4)(b) (1997 La. Acts 1284); La.R.S. 15:529.1(G). In cases in which the sentencing error made by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence but the imposition of limits beyond what the legislature has authorized in the sentencing statute(s), an appellate court should not rely on La.R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La.C.Cr.P. art. 882 to correct an illegal sentence “at any time”.


author: hPER CURIAM.

text:
    STATE of Louisiana v. Patrick Wayne TERRELL.
    No. 2003-K-3246.
    Supreme Court of Louisiana.
    June 4, 2004.
   hPER CURIAM.

Granted. The court of appeal’s decision is reversed and defendant’s sentence of life imprisonment at hard labor imposed under La.R.S. 15:529.1(A)(l)(c)(ii), is reinstated. A remand for resentencing is necessary only when the defendant presents to the reviewing court “a substantial possibility that [his] complaints of an excessive sentence [have] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982). In the present case, the trial court has already considered and rejected the defendant’s argument that he is an exceptional offender for whom a legislatively-prescribed mandatory sentence is excessive as a matter of La. Const. art. I, § 20. See State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. We find no abuse of discretion by the trial court in concluding that it had no constitutional basis for departing from the mandatory sentence specified by the legislature. The court otherwise correctly applied the law in effect at the time of the offense and not the ameliorative changes, of which the court was fully aware, made in the law with respect to habitual offender sentencing by 2001 La. Acts 403. State v. Parker, 03-0924 (La.4/14/04), 871 So.2d 317. Our decision in State v. Wilson, 01-2815 (La.11/22/02), 836 So.2d 2, does not dictate a different result as it was premised on the court of appeal’s action in reducing the grade of defendant’s crime for which he was convicted, a significant change in circumstance not previously addressed by the trial court in imposing sentence.

JOHNSON, KNOLL and WEIMER, JJ., would deny the writ.


author: | .PER CURIAM.

text:
    In re Kathleen L. ROGGE.
    No. 2004-B-0291.
    Supreme Court of Louisiana.
    June 18, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kathleen L. Rogge, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On May 17, 1996, respondent filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. In re Kathleen Louise Rogge Jacobs, No. 96-12160 on the docket of the United States Bankruptcy Court for the Eastern District of Louisiana. Respondent’s discharge in bankruptcy was entered on October 25, 1996.

After the discharge, the bankruptcy trustee discovered respondent made fraudulent conveyances of movable and immovable property prior to the filing of her bankruptcy petition. In particular, within one year prior to her bankruptcy filing, respondent recorded an act of sale purporting to transfer her Mandeville condominium to her fiancé, Edward Sean Jacobs, in consideration of the stated price of $75,000 with a down payment of $12,000. Respondent later acknowledged that she continued to reside in the condominium after the purported transfer, that she never relinquished ownership of the condominium, that she continued to make the mortgage payments, and that Mr. Jacobs did not make the $12,000 down payment as recited in the act ofj^sale. In November 1997, Mr. Jacobs transferred the condominium back to respondent via a dation en paiement. Respondent failed to disclose the transfer of the condominium in the bankruptcy proceeding.

After learning of the dation, the trustee filed a Complaint to Avoid and Recover Fraudulent Conveyance against Mr. Jacobs and respondent. Respondent subsequently entered into a consent judgment on the complaint, whereby she paid $15,000 to the bankruptcy estate in settlement.

During the course of the proceedings related to the complaint concerning the condominium, the trustee learned that respondent had also donated several pieces of expensive jewelry to her sister and to Mr. Jacobs shortly before the bankruptcy filing. These donations were not disclosed in respondent’s bankruptcy filings. In December 1999, the trustee filed a motion seeking to compel respondent to turnover the jewelry as property of the bankruptcy estate. On January 26, 2000, the bankruptcy court ordered respondent to turnover the jewelry to the trustee. Respondent failed to fully comply with the court’s order and was held in contempt. The court awarded the trustee attorney’s fees of $5,587.50 and costs of $18.75, and imposed a $2,000 sanction against respondent.

DISCIPLINARY PROCEEDINGS

On July 13, 2001, the ODC filed one count of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.3(a) (making a false statement of material fact to a tribunal), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct | ¿prejudicial to the administration of justice). The formal charges were served upon respondent by certified mail received on July 30, 2001.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee agreed that respondent violated the Rules of Professional Conduct as charged. The committee found that respondent violated her duties to the legal system and the profession when she failed to be truthful and candid with the bankruptcy court and others. Within one year of filing for bankruptcy, respondent transferred her condominium to her then flaneé under a sham act of sale. During the same period of time as this purported transfer, respondent also donated several pieces of expensive jewelry to relatives. Respondent failed to list these transfers in the bankruptcy proceedings. Considering the circumstances surrounding the transactions and respondent’s experience in the practice of law, the committee concluded that respondent knowingly and fraudulently concealed the assets and personal property with the intent to defraud creditors, all in violation of the Bankruptcy Code. By failing to list the transfer of the condominium and the donations of jewelry |4in the bankruptcy proceedings, respondent knowingly withheld information and/or made false submissions to the court which adversely affected the proceedings and the parties. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent’s misconduct is a three-year suspension.

In aggravation, the committee recognized respondent’s substantial experience in the practice of law (admitted 1975), her refusal to acknowledge the wrongful nature of her conduct, and dishonest or selfish motive. As mitigating factors, the committee considered that respondent has no prior disciplinary record and the fact that other penalties have already been imposed. Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three years.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

Following its review, the disciplinary board accepted the hearing committee’s factual findings and its application of the Rules of Professional Conduct. The board found that respondent knowingly violated duties owed to the public and the legal system. By failing to properly disclose her assets, respondent violated federal bankruptcy law, causing an adverse effect on the trustee, the creditors and the bankruptcy proceedings. The trustee had to initiate litigation against respondent and others in order to force respondent to disclose the assets and remit funds representing their value to the bankruptcy estate.

The board adopted the aggravating and mitigating factors cited by the hearing committee, and agreed that a suspension is the baseline sanction in this matter. | ..¡Considering the prior jurisprudence of this court involving similar misconduct, the board recommended that respondent be suspended from the practice of law for three years. The board also recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

One board member dissented and would recommend that respondent be disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case support a finding that prior to filing for bankruptcy protection, respondent transferred substantial personal assets with the intent to defeat the claims of her creditors. Such conduct clearly violates the prohibition in Rule 3.3(a) against making a false statement to a tribunal. Additionally, respondent’s actions involved elements of dishonesty, fraud, deceit, and misrepresentation in violation of Rule 8.4(c) and were prejudicial to the administration of justice, in violation of Rule 8.4(d).

Having found professional misconduct, we now turn to consideration of the appropriate sanction. In fashioning an appropriate sanction, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon | fithe facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports the disciplinary board’s finding that respondent knowingly violated duties owed to the public and to the legal system, causing harm to the participants in the bankruptcy proceeding and to the administration of justice. The baseline sanction for such misconduct ranges from a lengthy suspension to disbarment. See In re: Minnieweather, 94-1782, 94-2462 (La.12/9/94), 647 So.2d 1092 (lawyer disbarred for a conviction of two counts of misappropriation of bankruptcy estate property, one count of concealing the assets of a bankruptcy estate, and four counts of mail fraud, among other misconduct); In re: Beard, 609 So.2d 245 (La.1992) (lawyer suspended for three years based upon a federal conviction of concealing assets in a personal bankruptcy case). See also In re: Bilbe, 02-1740 (La.2/7/03), 841 So.2d 729 (lawyer suspended for three years for knowingly making numerous false statements to an immigration judge).

In aggravation, we find respondent has substantial experience in the practice of law and has acted with a dishonest or selfish motive. In mitigation, we recognize that respondent has never been the subject of prior disciplinary proceedings during her nearly thirty year legal career. Additionally, we acknowledge that respondent was held in contempt by the bankruptcy court and significant penalties were imposed on her by that court.

Under these circumstances, we conclude the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law.

|7DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kathleen Louise Rogge, Louisiana Bar Roll number 2411, be suspended from the practice of law for three years. All costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . At the time of the purported transfer the condominium was valued at more than $100,000.

        . The return receipt card was signed by respondent personally.

      . Respondent filed nothing for the hearing committee's consideration.


author: JjPER CURIAM.

text:
    In re Franklin W. HALL and Dale L. Sibley.
    No. 2004-B-0243.
    Supreme Court of Louisiana.
    June 18, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from three counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondents, Franklin W. Hall and Dale L. Sibley, attorneys licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of these matters are not in dispute, having been stipulated to by the parties.

Counts I and II

In the latter part of 1999, respondents practiced law in a three-lawyer partnership. During this time, respondents hired Martha Minnieweather to work as a secretary/paralegal, knowing that Ms. Minniew-eather was a disbarred lawyer. While Ms. Minnieweather was employed by respondents, she falsely told clients that she was a lawyer, conducted client interviews without supervision, and received and misappropriated client funds.

In Count I, the Whorton matter, Ms. Minnieweather accepted $870 from Ora Lee Whorton in connection with a legal matter. However, Ms. Minnieweather failed | ¡¡to advise respondents’ firm of the payment and misappropriated the funds to her own use. While respondents had no personal knowledge of Ms. Minniew-eather’s activities, they admit they had no meaningful procedures in place that would have uncovered and/or prevented these improprieties. Respondents acknowledge that their conduct violated Rule 5.3 (responsibilities regarding non-lawyer assistants) of the Rules of Professional Conduct. In addition, respondent Hall acknowledges that his conduct in the Whorton matter violated Rule 1.3 (failure to act with reasonable diligence and promptness in representing a client).

In Count II, the Minnieweather matter, Ms. Minnieweather’s brother, James Minnieweather, retained respondents to handle the succession of Dorothy Min-nieweather. Mr. Minnieweather paid respondents a $3,500 fee in January 2000, but no succession was ever opened. In April 2000, Mr. Minnieweather discharged respondents and demanded the file and a return of the legal fee he paid. Respondents did not refund the fee until October 2001, long after Mr. Minniew-eather filed a complaint with the ODC in September 2000. Respondents acknowledge that their conduct in the Minniew-eather matter violated Rules 1.5(f)(6) (failure to refund an unearned fee) and 1.16 (obligations upon termination of the representation) of the Rules of Professional Conduct.

Count III

In February 1999, Flenard Autrey, Sr. retained respondents to file an application for post conviction relief on behalf of his son, Flenard Autrey, Jr., who in 1997 had pleaded guilty to manslaughter in Caddo Parish. Respondents were paid $2,500 to review the records of Mr. Autrey, Jr.’s criminal proceedings, and were paid an additional $2,100 towards their quoted fee of $25,000 for filing the application for post Isconviction relief. Respondents performed some work in the matter, but they did not enroll as Mr. Autrey, Jr.’s counsel, nor did they file an application for post conviction relief on his behalf. In February 2000, Mr. Autrey discharged respondents, citing a lack of progress on the appeal. However, respondents delayed in refunding the unearned portion of the legal fee paid on Mr. Autrey, Jr.’s behalf.

Respondents acknowledge that their conduct in the Autrey matter violated Rules 1.1(a) (failure to provide competent representation to a client) and 1.5(f)(6) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

This matter proceeded to a formal hearing on December 9, 2002. In light of the stipulated facts and rule violations, the only issue remaining for the hearing committee’s consideration was the appropriate sanction for the respondents’ misconduct. During the hearing, respondents acknowledged that they “made some mistakes in how we handled these problems that arose within our firm,” but they contended these were “mistakes of ignorance” and were unintentional.

Hearing Committee Recommendation

The committee acknowledged respondents’ assertion that they made mistakes in ignorance, but noted that respondent Sibley has been a practicing attorney since 1987 and respondent Hall has been a practicing attorney since 1993. In light of this fact, the committee felt it was difficult to fully attribute the admitted mistakes to simple inexperience. In addition, the committee noted it was troubled by respondents’ failure to refund $2,100 to Mr. Autrey, which respondents admitted was unearned. Under all the circumstances, the committee recommended that respondents be suspended from 14the practice of law for a period of ninety days, with the suspension to be deferred “if and only if the $2,100.00 owed in the Autrey matter is refunded within thirty (30) days of the final decision in this matter.”

Neither respondents nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board, Recommendation

The disciplinary board determined that respondents’ actions were partly negligent and partly knowing. In Counts I and II, respondents negligently failed to properly supervise a non-lawyer employee. In Count III, respondents knowingly failed to promptly refund unearned fees paid on Mr. Autrey’s behalf. These actions resulted primarily in respondents’ violation of duties owed to their clients, who have suffered actual injury in the delay of their legal matters and by the deprivation of funds rightly due them.

As aggravating factors, the board recognized multiple offenses and substantial experience in the practice of law. In mitigation, the board recognized that neither respondent has a prior disciplinary record, as well as respondents’ full and free disclosure to the disciplinary board, cooperative attitude toward the proceedings, and remorse.

Standard 4.12 of the ABA’s Standards for Imposing Lawyer Sanctions provides that suspension is appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. In Count III, the Autrey matter, respondents have failed to promptly provide an accounting or to return any unearned fee. Their actions deprived Mr. Autrey, Jr.’s Isfamily (who paid the fee on Mr. Autrey, Jr.’s behalf) of funds rightfully due them for a significant period of time. Standard 4.43 provides for a reprimand when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. The failure of respondents to ensure that Ms. Minnieweather was properly supervised led to a lack of diligence in the handling of their clients’ legal matters. As a result, their clients’ legal matters were unduly delayed and jeopardized.

Based on the ABA Standards and the case law, the board determined that either a reprimand or a deferred suspension is the appropriate sanction for respondents’ misconduct. Primarily considering respondents’ delay in refunding the unearned fee in the Autrey matter, the board concluded that a short suspension is warranted. However, given respondents’ cooperation in this matter, the board felt it is appropriate to fully defer the suspension. Accordingly, the board recommended that respondents be suspended from the practice of law for a period of ninety days, deferred, with any misconduct occurring during a one-year period following the finality of the court’s order being grounds for making the deferred period of suspension executory. The board also recommended that respondents be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondents nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

In light of respondents’ stipulation to the underlying facts and rule violations, the sole issue presented for our consideration in this case is the appropriate sanction | ¿for respondents’ misconduct. In considering that issue, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The rule violations in this case, as admitted by respondents, principally involve their failure to supervise Ms. Min-nieweather, their non-lawyer assistant, and their failure to promptly refund unearned legal fees. Their failure to supervise Ms. Minnieweather appears to be the result of negligence, as there is no evidence in the record that respondents were aware Ms. Minnieweather, a disbarred attorney, was holding herself out as an attorney licensed to practice law. Respondents’ failure to refund unearned fees to their clients was knowing and caused actual harm to these clients. However, respondents ultimately made full restitution of all unearned fees.

In cases principally involving a failure to account for and return unearned fees to one client, this court has generally imposed sanctions ranging from public reprimand to suspension. See, e.g., In re: Slaughter, 01-0151 (La.2/16/01), 778 So.2d 1138 (attorney with a prior disciplinary record suspended for six months, fully deferred, subject to a one-year period of probation, for failing to refund an unearned fee and failing to keep an accurate accounting of the client’s fee payments); In re: Colwart, 98—2303 (La.11/6/98), 721 So.2d 848 (attorney suspended for six months for neglect of a legal matter, failure to communicate with a client, failure to return an unearned fee, and failure to cooperate with ODC; several aggravating factors present); In re: Johnson, 97-0879, 97-0880 (La.9/26/97), 700 So.2d 1260 (attorney with a prior disciplinary record suspended for one year, with six months deferred, followed by two years of probation for failure to refund advanced expenses to a client and failing to cooperate with the ODC); In re: Guidry, 94-1923 (La.10/28/94), 645 So.2d 625 (attorney with no prior disciplinary record was suspended from practice for three months for neglect of a legal matter, failure to communicate with a client, and failure to account for or return unearned fee); and In re: Mouton, 610 So.2d 787 (La.1992) (attorney with no prior disciplinary record received a public reprimand for failing to return a total of $3,125 in unearned fees advanced by two clients).

There is not much jurisprudence addressing an attorney’s failure to supervise non-attorney assistants. However, in In re: Wilkinson, 01-2310 (La.1/15/02), 805 So.2d 142, the court imposed a sixty-day suspension in a case in which an attorney knowingly turned over a succession matter to a law clerk for handling.

Considering this jurisprudence, we conclude the baseline sanction for respondents’ misconduct, taken as a whole, is a short suspension from the practice of law, some or all of which may be deferred.

As aggravating factors, we find respondents have committed multiple offenses and have substantial experience in the practice of law. In mitigation, we place great emphasis on the fact that neither respondent has a prior disciplinary record. Additionally, we recognize respondents have made full and free disclosure to the disciplinary board, demonstrated a cooperative attitude toward the proceedings, and have expressed sincere remorse for their actions.

1 ¡^Considering all the facts of the case, we conclude the appropriate sanction for respondents’ misconduct is a ninety-day suspension from the practice of law. However, in light of the mitigating factors, we will defer this suspension in its entirety, subject to the condition that any misconduct during a one-year period following the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Franklin W. Hall, Louisiana Bar Roll number 22408, and Dale L. Sibley, Louisiana Bar Roll number 18433, be suspended from the practice of law for a period of ninety days. It is further ordered that these suspensions shall be deferred in their entirety, subject to the condition that any misconduct by respondents during a one-year period following the date of finality of this court’s judgment may be grounds for making the deferred suspensions executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON and TRAYLOR, JJ., would impose greater sanctions.

      . Ms. Minnieweather was disbarred in 1994 for her conviction of two counts of misappropriation of bankruptcy estate property, one count of concealing the assets of a bankruptcy estate, and four counts of mail fraud. She also commingled and converted client funds, neglected legal matters, and failed to communicate with her clients. In re: Minnieweather, 94-1782, 94-2462 (La.12/9/94), 647 So.2d 1092.

      . On June 25, 2003, respondents refunded $2,120 in unearned fees in connection with the Autrey matter.

      . We note that effective July 1, 2002, this court amended Rule 5.5 of the Rules of Professional Conduct to prohibit attorneys from employing a disbarred attorney during the period of disbarment. That amendment does not apply in the instant case, as both Ms. Minnieweather's disbarment and her employment by respondents preceded the effective date of the amendment.


author: 11 JOHNSON, Justice,

text:
    Mustafa H. MUHAMMAD v. Richard STALDER, et al.
    No. 2003-CI-0844.
    Supreme Court of Louisiana.
    June 18, 2004.
   In re Muhammad, Mustafa H.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, Nos. 483,907; to the Court of Appeal, First Circuit, No. 2002 CA 0400.

11 Writ denied.

JOHNSON, J., would grant the writ and assign reasons.

11 JOHNSON, Justice,

would grant the writ application for the following reasons.

At the time that this defendant was adjudicated a multiple offender, he was to be discharged from state custody on August 23, 2002. However, he was not released, as the habitual offender proceedings had been initiated. It was not until December 17, 2002, nearly four months after his release date, that defendant was re-adjudicated and re-sentenced as a habitual offender.

Although the habitual offender law, contained within LSA-R.S. 15:529.1 does not contain a prescriptive period for the completion of habitual offender proceedings, this Court has historically required the State to complete habitual offender proceedings within a reasonable time. In State ex rel. Williams v. Henderson, 289 So.2d 74, 77 (La.1974), this Court set forth a bright line rule that “a proceeding to have a defendant sentenced as a multiple offender must be completed before the defendant serves the sentence which is to be enhanced.” Additionally, in State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986), the defendant had served his two year sentence before he was adjudicated a multiple offender. This Court, citing Williams, unequivocally stated, “Proceedings against a convicted defendant to enhance his sentence under R.S. 15:529.1 must be completed before he has satisfied his sentence on the underlying felony and been discharged from custody for that offense.”

12Like the defendants in Williams and Glynn, this defendant’s sentence had been served before his adjudication as a multiple offender. I do not believe that there is any compelling reason to overrule Williams and Glynn, particularly where the defendant was not convicted of a violent offense.

For these reasons, I believe that the defendant’s life sentence should be vacated.


text:
    In re Robert C. THOMAS.
    No. 2004-OB-1320.
    Supreme Court of Louisiana.
    June 22, 2004.
   ORDER

The Office of Disciplinary Counsel (“ODC”) is conducting an investigation into allegations that respondent mishandled the financial affairs of an elderly client. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Robert C. Thomas, Louisiana Bar Roll number 17827, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Robert C. Thomas for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Robert C. Thomas shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


author: LPER CURIAM.

text:
    In re James David TURNAGE.
    No. 2004-B-0288.
    Supreme Court of Louisiana.
    June 25, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James David Turnage. Respondent has been disbarred since 2002. In re: Turnage, 01-2585 (La.9/13/02), 826 So.2d 546 (“Turnage I").

UNDERLYING FACTS

On July 14, 1995, respondent settled Jacqueline Anderson’s personal injury claim for the sum of $4,036.50. On July 19, 1995, respondent accounted to Ms. Anderson for the settlement proceeds, deducting the sum of $1,382.00 for payment to The Ebrahim Clinic, Ms. Anderson’s medical provider. However, respondent did not forward the funds to the medical provider, and instead converted the funds to his own use. As a result of respondent’s failure to pay The Ebrahim Clinic, Ms. Anderson’s account was turned over to a collection agency. In April 2000, Ms. Anderson filed a complaint against respondent with the ODC.

DISCIPLINARY PROCEEDINGS

On April 3, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct in the Anderson matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with ^reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.15(a)(b)(c) (safekeeping property of clients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent converted funds belonging to Ms. Anderson and earmarked for The Ebrahim Clinic, falsely communicated to his client that he was going to pay the funds to The Ebrahim Clinic, and failed to communicate with his client and return the funds. Based on these findings, the committee determined that respondent knowingly and intentionally violated multiple duties that he owed to Ms. Anderson.

The committee found no mitigating factors in this case, but determined the following aggravating factors are present: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, and indifference to making restitution.

13Under these circumstances, the committee recommended respondent be disbarred.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board found that the deemed admitted facts support the conclusion that respondent failed to promptly and diligently complete his client’s legal matter by paying a third-party medical provider with funds retained for that purpose, in violation of Rule 1.3; failed to provide his client with reasonable information about the status of the legal matter after the settlement funds were disbursed, in violation of Rule 1.4; failed to promptly deliver funds to a third-party medical provider, in violation of Rule 1.15(b); and misrepresented to his client that he was going to use the $1,382.00 withheld from the settlement proceeds to pay the third-party medical provider, in violation of Rules 8.4(a) and 8.4(c). However, the board concluded that the deemed admitted facts do not support a finding that respondent commingled property of his client or third persons in violation of Rules 1.15(a) and 1.15(c), as charged in the formal charges.

The board determined respondent violated duties owed to his client, Ms. Anderson, and that his conduct was knowing, if not intentional. Actual harm to Ms. Anderson is present in that her credit report, rating and history were adversely affected by the failure of respondent to pay her medical provider.

The board adopted the aggravating factors found by the hearing committee, and agreed that no mitigating factors are present.

1/Turning to the issue of an appropriate sanction, the board determined that respondent’s misconduct in this matter warrants disbarment; however, the board noted that the misconduct occurred in the same time frame as the misconduct at issue in Turnage I. Accordingly, citing Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), the board recommended that respondent be adjudged guilty of additional violations warranting disbarment, to be considered in the event he makes a future application for readmission. Additionally, the board recommended that respondent be ordered to make restitution in the amount of $1,382.00 plus interest to The Ebrahim Clinic or to his client, Jacqueline C. Anderson, if the debt to the clinic has been satisfied. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case establish that respondent failed to promptly deliver funds to a third-party medical provider that were withheld for that purpose from his client’s personal injury settlement. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the | [¡integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

As the disciplinary board observed, the substantive misconduct at issue in this case occurred in the same time frame as the misconduct forming the basis of respondent’s disbarment in Tumage I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that when the underlying conduct occurs within the same period as the misconduct forming the basis of a previous disbarment, the discipline imposed should be determined as if both proceedings were before the court simultaneously. Applying this procedure in Chatelain, we declined to extend the minimum period for readmission. Instead, we adjudged the respondent guilty of additional violations warranting disbarment which were added to his record for consideration in the event he applied for readmission after becoming eligible to do so. See also In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794.

In determining an appropriate sanction in the instant case, we believe the approach of Chatelain is instructive. Accordingly, our determination of a sanction will be based upon the appropriate sanction we would have imposed if these charges had been before the court at the same time as the charges in respondent’s previous disciplinary proceeding.

Had the instant charges been filed simultaneously with those charges forming the basis of respondent’s earlier disbarment, they would have only reinforced our view that respondent lacks the moral fitness to practice law and must be disbarred, both as | f;a sanction for his misconduct and to protect the public. Therefore, as in Chatelain, we will adjudge respondent guilty of additional violations which warrant disbarment and which will be added to his record for consideration in the event he applies for readmission after becoming eligible to do so. We further emphasize that although respondent may have a procedural right to apply for readmission, this court retains absolute discretion to grant or deny such an application. In light of respondent’s lengthy history of egregious misconduct, this court will carefully scrutinize any application for readmission with a critical eye.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that James David Turnage be adjudged guilty of additional violations which warrant disbarment and which may be considered in the event he applies for readmission from his disbarment in In re: Turnage, 01-2585 (La.9/13/02), 826 So.2d 546, after becoming eligible to do so. It is further ordered that respondent shall pay restitution to The Ebrahim Clinic in the amount of $1,382.00 plus legal interest, or to- Jacqueline C. Anderson if she has satisfied the debt to The Ebrahim Clinic. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent filed nothing for the hearing committee’s consideration.

      . The misconduct at issue in Tumage I occurred between June 1996 and August 1999, while the misconduct in the instant matter commenced in July 1995 and continued at least through the filing of the complaint in April 2000.