author: [ .PER CURIAM.

text:
    In re Gary W. BAILEY.
    No. 2003-B-0839.
    Supreme Court of Louisiana.
    June 6, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

[ .PER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gary W. Bailey, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

Count I — The Matthews Matter

Respondent represented the plaintiff in the matter entitled Nakita Matthews v. Timothy Creswell, et al., No. 458,130 on the docket of the 19th Judicial District Court for the Parish of East Baton Rouge. In the course of the litigation, the defendants filed an exception of prescription which was set for hearing on Monday, July 26, 1999. On July 20, 1999, respondent filed a motion to continue the hearing, representing that he could not be present because he was “scheduled for trial” in a Texas personal injury case beginning on July 22, 1999. Respondent further represented that the “trial on the merits” in Kenneth J. Bailey v. Rebecca Lander, No. 98-2333 on the docket of the 168th Judicial District Court for El Paso County, Texas, was anticipated to last three to five days.

The judge presiding in the Matthews case, Judge Timothy E. Kelley, subsequently learned that the Bailey trial had been completed in May 1999, two | ¡¡months prior to the prescription hearing in Matthews, and that the only matter remaining on that docket was a motion for new trial which was to be heard on Thursday, July 22, 1999, four days prior to the prescription hearing. Based upon this information, Judge Kelley denied respondent’s motion for a continuance.

On July 26, 1999, respondent did not appear at the hearing in the Matthews case, nor did he file any pleading on his client’s behalf. Following a hearing on August 2, 1999, Judge Kelley sanctioned respondent for misrepresenting facts to the court. On August 20, 1999, Judge Kelley filed a complaint against respondent with the ODC.

The ODC alleges that respondent’s conduct violates the following provisions of the Louisiana Rules of Professional Conduct: 3.3(a)(1) (making a false statement of material fact or law to a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 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).

Count II — The Wagner Matter

Respondent represented the plaintiff in the matter entitled Bette Rose Wagner v. Rose and Randy Daquanno, No. 9907-06989-D on the docket of the Baton Rouge City Court. Plaintiffs petition alleged that she had been the victim of a battery committed at her home by her neighbors, the defendants. At the trial of the matter on August 8, 2000, respondent attempted to introduce into the record a medical narrative report authored by Dr. Nicholas J. Campo. However, the report was altered on its face. Specifically, although the original narrative report referred to the plaintiff sjjjhistory of being “accosted at work,” the words “at work” had been deleted from the copy of respondent’s exhibit that he attempted to introduce at trial.

On August 11, 2000, defense counsel filed a complaint against respondent with the ODC.

The ODC alleges that respondent’s conduct violates the following provisions of the Louisiana Rules of Professional Conduct: 3.3(a)(4) (offering evidence the lawyer knows to be false), 3.4(a) (unlawfully altering a document having potential evidentia-ry value), 3.4(b) (falsifying evidence), 8.4(a), 8.4(c), and 8.4(d).

DISCIPLINARY PROCEEDINGS

Following an investigation of the complaints, the ODC filed two counts of formal charges against respondent on January 2, 2002. Respondent answered the formal charges and denied any misconduct.

Review of the Record

Six exhibits were introduced at the formal hearing in connection with Count I, including (1) the complaint filed against respondent by Judge Kelley, with its attachments, (2) respondent’s reply to the complaint, with its attachments, (3) the suit record in the Matthews case, (4) the Texas court’s records in the Bailey case, including correspondence to Judge Kelley from the Texas trial judge, Guadalupe Rivera, and (5) the post-trial motions filed by respondent in the Bailey case. The ODC called Judge Kelley and his assistant, Paula Dennis, to testify in person before the committee; respondent testified on his own behalf.

Respondent testified that when he was notified of the hearing date on the exception of prescription filed by the defendants in the Matthews case, he was in El |4Paso, Texas, preparing for some post-trial motions in his brother’s personal injury case. Respondent called his office in Baton Rouge and asked his assistant to find a prior motion for continuance and send him a rough draft in Texas to review. Respondent received the draft and made corrections to it before sending it back to Baton Rouge to be filed on July 20, 1999. The motion to continue states in pertinent part as follows:

Counsel for plaintiff has been scheduled for trial in another matter entitled Kenneth Bailey v. Rebecca Lander, Cause Number 98-23833 pending in the 168th Judicial District Court in El Paso, El Paso County, Texas, beginning on Jult [sic] 22, 1999; and continuing thereafter until trial is complete. It is anticipated that a trial on the merits will require from three (3) to five (5) days. This appearance will preclude counsel’s appearance at the hearing scheduled for July 26, 1999. [emphasis added]

Thereafter, Judge Kelley received information from defense counsel that the grounds necessitating the continuance, i.e., that respondent was scheduled to go to trial in Texas on another matter at the same time, were false. Accordingly, Judge Kelley directed his assistant, Paula Dennis, to call the trial court in Texas to verify the information provided by respondent. When Ms. Dennis did so on July 20, 1999, she was informed that the Bailey case had been tried on May 19,1999 and that a jury verdict had been rendered for the defendant on the same day. Ms. Dennis was further informed that the “trial” set on July 22, 1999 was a 4:00 p.m. hearing on respondent’s post-trial motions, and that respondent did not have any matters pending before the Texas court during the week of July 26,1999. Ms. Dennis relayed this information to Judge Kelley, who then denied respondent’s motion for a continuance of the prescription hearing in Matthews.

UOn the afternoon of Friday, July 23, 1999, unaware of Judge Kelley’s ruling on the motion for a continuance, respondent called Ms. Dennis to inquire whether the motion had been granted. Ms. Dennis told respondent that the continuance had not been granted, and that the exception of prescription was still set for the following Monday. Respondent replied that he was still in Texas and asked what he was supposed to do. Ms. Dennis inquired whether “it was on the same case that he had referred to in his motion to continue and he said, yes. And he said he would probably be there until Wednesday of the next week, what was he supposed to do.” Judge Kelley was not available to take respondent’s call at the time, so Ms. Dennis asked respondent to call back at 5:00 p.m. In the meantime, Ms. Dennis called the Texas court again:

I did call Rebecca Gonzales, who was Judge Rivera’s secretary, just to find out if the motion had been heard the day before and if it had turned into a trial. And she said that it had not gone into a trial, that it had only lasted about 30 minutes. And she had received a note from the Judge that day to prepare an order [denying the post-trial motions] and send to the attorneys. And I asked her if this was the case that was on the docket, was it on the docket at all the next week. And she said, no, that he should not be in the court in the hext week.

When respondent called Ms. Dennis at 5:00 p.m., she informed him that Judge Kelley had the prescription hearing on his docket for Monday and that he was expected to be present. Respondent said that he “would not be back by then” and that he “would have to see about getting someone to cover for him.”

Nevertheless, respondent did not appear at the prescription hearing on Monday, July 26, nor did anyone appear on behalf of the plaintiff. Following the hearing, Judge Kelley signed an order on his own motion directing respondent to show cause on August 2, 1999 why he should not be sanctioned under La.Code Civ. P. art. 868. At 1 (¿he hearing, respondent explained that he had not intentionally made a misrepresentation of fact to the court in his motion for a continuance. Respondent essentially testified that he meant to say that a hearing on his pending post-trial motions in the Texas case was scheduled on July 22,1999, and that he was hopeful the new trial motion would be granted and that he might obtain a three-to five-day trial the following week (the week during which the hearing on the exception was scheduled before Judge Kelley), because Judge Rivera’s bailiff had said her docket was fairly clear that week. He further noted that if his new trial motion was not granted, he felt at least that his JNOV motion would be granted and, if so, he would expect to be arguing the damages part of his case in Texas during the week of July 26. In any event, respondent said that even if he lost the post-trial motions, he planned to stay in Texas to work on an appeal of the case. Not satisfied with this explanation, which he described as “implausible” and “not credible,” Judge Kelley sanctioned respondent under La.Code Civ. P. art. 863.

Six exhibits were introduced in connection with Count II, including (1) the complaint filed against respondent by defense counsel in the Wagner case, with its attachments, (2) respondent’s reply to the complaint, with its attachments, (3) the suit record in the Wagner case, including the transcript of trial, and (4) correspondence from the office of Dr. Nicholas Cam-po. The ODC called Robert J. Burns, Jr., counsel for the defendants in the Wagner case, and Pat Munson, records custodian for Louisiana Internal Medicine Associates, the medical group of which Dr. Cam-po is a member, to testify in person before the committee; respondent testified on his own behalf.

17Robert Burns was retained by Allstate Insurance Company to represent its insureds in connection with the civil suit filed by respondent on behalf of Ms. Wagner. The basis of the claim was that Ms. Wagner had been assaulted in her home by the defendants. Shortly before the start of the trial on August 8, 2000, respondent handed some exhibits to Mr. Burns. One of the exhibits was a typewritten report from Dr. Campo dated July 25, 2000, the first paragraph of which states:

Upon reviewing my chart of 07/17/98, I saw Ms. Bette Wagner in the office on that day. The patient came in having alleged that she was accosted. She suffered some trauma to her rib cage and right shoulder, per history. She denied any chest pain or shortness of breath, [emphasis added]

However, Mr. Burns noticed that the second sentence of the report contained a suspicious gap after the word “accosted,” and the period after that word appeared to have been inserted in ink. When respondent tried to introduce the report into evidence, Mr. Burns objected to the exhibit on the basis of its lack of authenticity. At the suggestion of respondent, the presiding judge agreed to hold the record open until a full copy of Dr. Campo’s records could be filed. When the narrative report was faxed directly to the judge from Dr. Campo’s office, the second sentence read: “The patient came in having alleged that she was accosted at work.”

Respondent testified at the hearing that he did not review Ms. Wagner’s file until the night before trial. He admitted specifically reviewing Dr. Campo’s report and noticing a blank space at the end of the second sentence of the report. Respondent claimed that he did not think that this blank space at the end of that sentence was highly irregular because “sometimes doctors aren’t really professional about correcting their reports.” He also claimed that what’ he reviewed was a copy, and that he never |ssaw an original of the report. It was that copy that respondent attempted to file into evidence as an exhibit at the trial of the matter.

In addition to claiming ignorance as to the report’s alteration, respondent defended his actions by contending that the claim was worth a very small amount of money; that he was handling the matter pro bono for Ms. Wagner; and that he had taken the initiative in suggesting to the court that the full records of Dr. Campo be admitted into the record. However, respondent ultimately suggested that Ms. Wagner, whom he claimed to have employed briefly as a file clerk at his office, had herself altered the file copy of Dr. Campo’s report without his knowledge.

Hearing Committee Recommendation

After considering the evidence presented at the hearing, the hearing committee found that respondent intentionally misrepresented to Judge Kelley a professional conflict in a Texas proceeding in connection with his seeking a continuance of the hearing on the exception of prescription pending before Judge Kelley:

To argue as respondent did the semantics of the meaning of the word “trial” in the body of that motion (e.g., that he actually meant a hearing on his post-trial motions) is unpersuasive and strains credulity considering the context of these representations.... This Committee ... is well aware of the difference between a trial and a hearing and is convinced that respondent was equally aware of that distinction. To compound the straining of his credibility by asserting as respondent did that he was hopeful that the Texas judge would grant his motion [for new trial] and schedule the matter for a new three to five day trial on the very next week is in stark contradiction to the realities of the practice of law, including subpoena delays, witness preparation and crowded dockets. The presiding judge in the Texas matter placed all doubt to rest with her letter and attached docket entries sent to Judge Kelley in connection with the sub- ' sequent contempt hearing against respondent, | ¿verifying that at no time was anything placed on the docket for the following week of July 26 involving this respondent’s matters, [emphasis in original]

In conclusion, the committee noted that it was “greatly influenced by the clear and concise testimony of Judge Kelley, who found, as does the Committee, that respondent was done with Judge Rivera on Thursday afternoon and would be available in Baton Rouge during the week of July 26,1999.”

In connection with Count II, the committee found respondent either altered or was aware of the altering of Dr. Campo’s report at the time he attempted to file it into evidence in the Wagner case. The committee noted that the original report was never found or produced by respondent; rather, the only version of the report produced by respondent

was a copy with the alteration that deleted the work reference. This Committee does not accept respondent’s explanation that the report in that condition was simply consistent with sloppy work done by doctors, and feels that at the very least the report in that condition should have prompted an inquiry by respondent to Dr. Campo’s office as to the obvious irregularity of that sentence. The fact that respondent attempted to file a copy into evidence rather than the original mailed by Ms. Munson is further evidence to this Committee that respondent was or should have been aware of its altered state and concluded that a copy would be less obvious in its altered state than the original would be.

The committee squarely rejected respondent’s assertion that Ms. Wagner had altered the report without his knowledge.

Based upon these factual findings, the committee determined that respondent violated the Rules of Professional Conduct as charged in the formal charges. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence, the committee determined the baseline sanction for respondent’s misconduct is a | ^suspension. As aggravating factors, the committee recognized, among other things, multiple offenses and respondent’s refusal to acknowledge the wrongful nature of the conduct. In mitigation, the committee recognized that respondent has no prior disciplinary record.

Based on this reasoning, and noting that it was “particularly influenced” by “the multiplicity of sanctionable conduct committed by respondent and by his total refusal to acknowledge the wrongful nature of his conduct,” the committee recommended that respondent be suspended from the practice of law for two years.

Respondent filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board generally adopted the hearing committee’s findings of fact and conclusions of law, and agreed that respondent should be suspended from the practice of law for two 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.

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

^DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

We agree that the factual findings of the hearing committee are well supported by the evidence. We also agree that these factual findings support the conclusion that respondent has violated the Louisiana Rules of Professional Conduct.

Having found professional violations, we now turn to a determination of the appropriate sanction for this misconduct. In determining an appropriate 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).

Each instance of respondent’s misconduct is serious in nature. In 1999, respondent filed a motion for continuance in which he knowingly misrepresented to the trial court that he had a scheduling conflict (i.e., a trial that would last three to five days), when he had no reason to believe his statements were in any way truthful or Inaccurate. In 2000, respondent filed a medical report into evidence at trial when he clearly knew that the report had been altered. It is particularly disturbing to us that the alteration pertained to an issue that was central to respondent’s case (i.e., whether his client’s alleged injury occurred at home, as she claimed, or at work). After reviewing the record, we agree with the hearing committee and the disciplinary board that such serious misconduct justifies a lengthy suspension from the practice of law. Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for two years.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Gary W. Bailey, Louisiana Bar Roll number 21996, be suspended from the practice of law in Louisiana for a period of two years. 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 is not licensed to practice law in Texas; rather, he appeared pro hac vice on behalf of the plaintiff, who is his brother.

      . The hearing on the exception of prescription was held in respondent’s absence, following which Judge Kelley denied the exception.

      . Before the hearing committee, Judge Kelley testified it was his impression that respondent sought the continuance because he “was off in Texas with family or whatever it was and just didn’t want to bother to come back and he was going to make sure that he didn't have to be here.”

      . It should be noted that respondent presented no records of Ms. Wagner's employment at his office, claiming that she had been paid on a cash basis.

      . Noting that respondent graduated from law school in 1977, the committee also assigned substantial experience in the practice of law as an aggravating factor. However, the disciplinary board determined that factor is not applicable here because respondent was not admitted to the practice of law in Louisiana until 1993. Furthermore, the committee assigned indifference to making restitution as an aggravating factor, based upon its conclusion that respondent did not comply with the art. 863 sanctions ordered by Judge Kelley. However, respondent testified without contradiction that he did, in fact, comply with the sanctions imposed upon him. Finally, the committee concluded that respondent's behavior demonstrated a pattern of misconduct, because he admitted violating the law in paying an office employee, Ms. Wagner, in cash. The board noted that only the two instances of proven misconduct should be considered in determining whether a "pattern of misconduct” is present, and that two instances of misconduct does not generally qualify as a pattern. The ODC did not file an objection in this court to the board's findings in these respects.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cynthia COCKERHAM v. Velma BANKS and Allstate Insurance Co.
    No. 2003-C-0936.
    Supreme Court of Louisiana.
    June 6, 2003.
   PER CURIAM.

The application is granted. The rulings of the trial court and the court of appeal are reversed. See Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184. Furthermore, respondent concedes that the judgment exceeds the limits of the Allstate policy.


author: | JOHNSON, J.,

text:
    STATE of Louisiana v. Anthony GUILBEAU, Jr.
    No. 2003-K-0553.
    Supreme Court of Louisiana.
    June 6, 2003.
   In re Guilbeau, Anthony, Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court, Div. D, No. 99-0371D; to the Court of Appeal, Third Circuit, No. 02-0972.

Writ denied.

CALOGERO, C.J., and WEIMER, J., would grant the writ.

JOHNSON, J., dissents from the denial of the writ and assigns reasons.

| JOHNSON, J.,

dissenting from the denial of the writ.

I respectfully disagree with the majority’s decision to deny the writ application in this matter for the following reasons.

On January 29, 1999, police responded to a domestic disturbance call at the home of Anthony Guilbeau, Sr. and Anne Guil-beau involving a fight between Mr. Guil-beau, Mrs. Guilbeau and defendant. While at the Guilbeau home, police discovered over 315 grams of cocaine and four pounds of marijuana.

Defendant was originally charged by bill of information with one count of possession of cocaine in excess of 200 grams, but less than 400 grams, a violation of R.S. 40:967(F)(l)(b), and one count of possession of marijuana with intent to distribute, a violation of R.S. 40:966(A)(1). Pursuant to a plea agreement, the state reduced the charge in count one to possession of more than 28 grams but less than 200 grams of cocaine, in violation of R.S. 40:967(F)(l)(a). Defendant withdrew his former not guilty plea and entered a plea of guilty to both counts as amended. After accepting his guilty plea, the trial court ordered a pre-sentence investigation report. Subsequently, defendant filed a motion to withdraw his guilty plea, but that motion was denied following a hearing.

|?At sentencing on May 34, 2002, the trial court sentenced defendant under the new law to serve five years at hard labor without the benefit of probation, parole of suspension of sentence for the possession of cocaine conviction and to five years at hard labor for the possession of marijuana with intent to distribute, to run concurrently.

Defendant appealed his conviction and sentence to the Third Circuit Court of Appeal. The court affirmed defendant’s conviction. In reviewing the record for errors patent, the court found that defendant was given an illegally lenient sentence for the possession of cocaine conviction. State v. Guilbeau, 02-0972 (La.App. 3 Cir. 2/5/03), 838 So.2d 160. The sentencing range in 1999, the year the offense was committed, was 10 to 60 years imprisonment at hard labor and a fine of $50,000 to $100,000. Under the amended law, 2001 La. Acts. 403, the sentence dropped to 5 to 30 years imprisonment at hard labor. Since defendant was given a sentence of only five years, the minimum under the new law but half of what the law required as a minimum term of imprisonment at the time of the offense, the court of appeal ordered that his sentence be vacated, and it remanded the case to the trial court for resentencing in accord with R.S. 40:967(F) as it existed at the time of the offense. State v. Guilbeau, 02-0972 at 4-5, 838 So.2d at 163.

In State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, this Court noted that a defendant does not have a constitutional or statutory right to an illegally lenient sentence and concluded that an appellate court may recognize, sua sponte, an illegally lenient sentence on patent error review. However, there is a distinction to be made between Williams and the case subjudice. Unlike the defendant in Williams, who simply pled guilty to the charges against him, the defendant’s guilty plea in the instant case was made pursuant to a plea agreement |,-¡with the state. Pursuant to this plea agreement, the defendant pled guilty to the lesser offense of possession of between 28 grams and 200 grams of cocaine, which inherently included the lesser sentence of imprisonment at hard labor for five to thirty years.

In my view, it is fundamentally unfair for the state to bargain for a guilty plea in exchange for a lesser sentence, and to subsequently have this sentence vacated in favor of a more onerous sentence on appeal. The defendant is not receiving that which he bargained for. This is especially disturbing in cases such as the instant one, where the state has not objected below or complained on appeal regarding the leniency of the defendant’s sentence. The state receives a fortuitous benefit because the defendant exercised his right to appeal.

If the defendant is not allowed to receive the sentence for which he bargained in exchange for his guilty plea, his guilty plea should be set aside and the state should be required to prove the charged offense against the defendant.

For these reasons, I would grant defendant’s writ application.


text:
    In re Ronald D. BODENHEIMER.
    No. 2003-OB-1383.
    Supreme Court of Louisiana.
    June 18, 2003.
   ORDER

Considering the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Ronald D. Bodenheimer, and the concurrence thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the request of Ronald D. Bodenheimer, Louisiana Bar Roll number 3206, for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1.

■IT IS FURTHER ORDERED that Ronald D. Bodenheimer 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.

/s/ Pascal G. Calogero, Jr.

Chief Justice, Supreme Court of Louisiana


author: |,VICTORY, J.

text:
    L.D. SPEARS, Jr. v. BEAUREGARD PARISH SCHOOL BOARD.
    No. 2002-CC-2870.
    Supreme Court of Louisiana.
    June 27, 2003.

      David W. Burton, District Attorney, Counsel for Applicant.
    James I. Funderburk, Abbeville, Nancy Dunning, Counsel for Respondent.
    Sanettria R. Glasper, Robert L. Ham-monds, Baton Rouge, Counsel for Louisiana School Board Association.
   |,VICTORY, J.

At issue in the case is whether the school board or the teacher must pay the cost of preparation of the transcript of a teacher removal hearing held pursuant to La. R.S. 17:443, when the teacher seeks review of the action of the school board before the district court. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and hold that the teacher is responsible for these costs.

FACTS AND PROCEDURAL HISTORY

Plaintiff, L.D. Spears, Jr. (“Spears”), formerly served as principal of East Beauregard School, which is part of the Beauregard Parish school system. Spears was subject of a removal hearing before the Beauregard Parish School Board (the “School Board”) from January 12, 1998, through January 18, 1998, conducted in accordance with La. R.S. 17:443. After reviewing documentary evidence and hearing the testimony of numerous witnesses, the School Board found that Spears had committed four acts of dishonesty and directed that Spears be removed as principal. The School Board also placed Spears on administrative leave, at full pay, through August 3, 1998, and instructed the Superintendent of the Beauregard Parish school system to offer Spears a teaching position at any school in Beauregard Parish, except East Beauregard ^School, at teacher’s pay, beginning August 4, 1998. Spears is now teaching math at the high school level at South Beauregard School.

On February 23, 1998, Spears filed a suit for declaratory judgment and injunc-tive relief in the district court asking that the School Board be enjoined from filling his position as principal. The trial court rejected Spears’ claim, the Third Circuit Court of Appeal affirmed that ruling, and this Court denied Spears’ writ application. Spears v. Beauregard Parish School Board, 98-1604 (La.App. 3 Cir. 3/31/99), 732 So.2d 671, writ denied, 99-1270 (La.6/18/99), 745 So.2d 608. Thereafter, Spears filed a “Petition for Appeal from LSA R.S. 17:443 Removal Hearing” in the district court on October 1, 1998. As prayed for in the petition, the trial court signed an order directing the School Board to produce and file the transcript of the removal hearing with the trial court within thirty days. This was not done and no further pleadings were filed until Spears filed a “Motion and Order to Fix for Trial” on December 12, 2001, which the trial court denied on January 16, 2002 as follows:

Request for trial date denied. This is request for review of administrative hearing. Court review in such cases is based upon record of case and transcript of hearing. No trial date is necessary. Court will review matter when transcript is filed. Trial de novo not authorized.

On March 7, 2002, Spears filed a “Motion for School Board to Pay Transcript Costs,” which was set for hearing on April 25, 2002. The Board filed a “Motion to Set Aside Ex Parte Order” directed at the order previously signed by the trial judge ordering the School Board to produce and file the transcript. At this point, the School Board had voluntarily provided and paid a certified court reporter to record Spears’ removal hearing and had already paid the court reporter $8,140.00 for attending and transcribing the School Board’s findings and decision. The estimated cost of transcribing the remaining portion of the hearing, including the testimony adduced at the hearing, is $10,000.00. At the April 25, 2002, hearing, the trial court denied USpears’ motion and at the School Board’s request, set a schedule for the perfection of Spears’ appeal. The trial court adopted the provisions of La. C.C.P. art. 2126, requiring that Spears, as the appellant, post a deposit equal to the estimated costs, including the cost of the preparation of the transcript, with the clerk of court. Spears was ordered to post these costs within twenty days of the notification thereof or suffer dismissal of his suit.

On Spears’ application, the court of appeal rendered a decision reversing the trial court’s judgment and holding the School Board responsible for paying the advanced costs of the transcript to be filed in the trial court. Spears v. Beauregard Parish School Board, 02-515 (La.App. 3 Cir. 10/30/02), 829 So.2d 1156. The court of appeal, in reversing the trial court, reasoned as follows:

Although it is the disciplined teacher who must initiate trial court proceedings within the one year prescriptive period provided in the statute, it is the school board who must satisfy the trial court that the hearing was conducted in accordance with the authority and formalities of the statute; that there was substantial evidence presented to support the school board’s findings of fact, and the action taken by the school board as a result of these factual findings was neither arbitrary nor an abuse of the school board’s discretion. It would be extremely difficult, if not impossible, for the school board to establish for the trial court that it acted in accordance with the provisions of La. R.S. 17:443 unless the school board produces for the court the entire record of that proceeding, including the transcript. Thus, it becomes the school board’s responsibility to pay for the transcription of the proceeding and the filing of the record into the trial court proceeding.

Id. at 1159. We granted the School Board’s writ application to consider the correctness of that ruling. Spears v. Beauregard Parish School Board, 03-2870, 836 So.2d 82 (La.2/7/03).

DISCUSSION

“The Teacher Tenure Law (“TTL”), originally enacted by Act 100 of 1922 and amended and reenacted by Acts 58 and 79 of 1936, defines the status of Louisiana’s public school teachers and outlines the procedures a school board must follow to | ¿discharge them.” Wright v. Caldwell Parish School Bd., 98-1225 (La.3/2/99), 733 So.2d 1174, 1175 (citing Rousselle v. Plaquemines Parish School Bd., 93-1916 (La.2/28/94), 633 So.2d 1235, 1241 and other related cases). Under the TTL, permanent teachers are entitled to strict substantive and procedural protections before they can be removed from office, including specific enumerated grounds for discharge, a hearing by the school board prior to discharge, and judicial review of the school board action. Id. For purposes of the TTL, a “teacher” is an employee of the parish school board, including a principal, who holds a teaeher’js certificate and whose legal employment requires such certificate. Rousselle, supra.

La. R.S. 17:443 provides the procedure for removal of a permanent or tenured teacher:

A. A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency or dishonesty, or of being a member of or contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
IbB. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty, or of incompetency, or dishonesty, or of being a member of or contributing to any group, organization, movement or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the teacher a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reason(s), offense(s) or instance(s) upon which the recommendation is based. Such teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board. (Emphasis added.)

Thus, in accordance with La. R.S. 17:443(B), a permanent teacher who is found guilty by a school board after a removal hearing may petition a court of competent jurisdiction for a full hearing to review the action of the school board. However, while La. R.S. 17:443 specifies some rules of procedure to be utilized at removal hearings, the statute is silent as to which party pays the costs of transcribing the removal hearing. In fact, La. R.S. 17:443 contains no requirement that a transcript of the removal hearing be made, even though in some cases, the transcript of the proceedings will be the only record or evidence that the trial court has before it to review.

While not addressing the precise issue before us, courts have interpreted the district court’s authority in reviewing a school board’s decision under La. R.S. 17:433 and today, in Wise v. Bossier Parish School Board, we discussed that authority as follows:

| fiIn Howell v. Winn Parish School Bd., 332 So.2d 822 (La.1976), we held that judicial review of tenure proceedings must be limited to an inquiry of whether the School Board complied with the statutory formalities under Louisiana’s Teacher Tenure Law and whether the School Board’s findings were supported by substantial evidence ... In conducting such an examination, the district court must give great deference to the school board’s findings of fact and credibility. Arriola v. Orleans Parish Sch. Bd., 01-1878 (La.2/26/02), 809 So.2d 932, 941. Reasons for dismissal are largely in the sound discretion of the school board. Gaulden v. Lincoln Parish School Board, 554 So.2d 152, 157 (La.App. 2 Cir.1989), writ denied, 559 So.2d 126 (La.1990). Thus, the school board’s judgment should not be reversed in the absence of a clear showing of abuse of discretion. Id. ...
The district court may not substitute its judgment for that of the school board or interfere with the school board’s good faith exercise of discretion. Howard, 793 So.2d at 153; McLaughlin v. Jefferson Parish School Board, 560 So.2d 585 (La.App. 5 Cir.1990); Sampson v. Lincoln Parish School Board, 439 So.2d 454 (La.App. 2 Cir.1983). The district court’s responsibility in such a case is to determine whether the school board’s action was supported by substantial evidence, or conversely, constituted an arbitrary decision and thus an abuse of discretion. Howell, 332 So.2d at 825; Roberts v. Rapides Parish School Board, 617 So.2d 187, 190 (La.App. 3 Cir.), writ denied, 619 So.2d 1068 (La.1993). As with the district court, a court of appeal may not reverse the decision of a district court unless it finds the school board’s termination proceedings failed to comply with statutory formalities and/or the school board’s findings were not supported by substantial evidence. Wiley [v. Richland Parish School Bd., 476 So.2d 439, 442 (La.App. 2 Cir.1985) ]; Cook v. Natchitoches Parish Sch. Bd., 342 So.2d 702 (La.App. 3 Cir.), writ denied, 345 So.2d 52 (La.1977); Mims v. West Baton Rouge Parish Sch. Bd., 315 So.2d 349 (La.App. 1 Cir.1975).

Wise v. Bossier Parish School Board, 02-1525, 851 So.2d 1090, 1094-95, 2003 WL 21480271 (La.6/27/03), Slip Op. at pp. 6-7. Significantly, we noted that review by the district court under La. R.S. 17:443 “is an instance where both the district court and the court of appeal sit as appellate courts in reviewing school board decisions.” Id. at p. 7, n. 5, at 1095, n. 5. (Citing Alio v. Home, 95-713 (La.App. 5 Cir. 3/13/96), 672 So.2d 961, writ denied, 96-1554 (La.9/27/96), 679 So.2d 1352 and see also Muggivan v. Jefferson Parish Sch. Bd., 583 So.2d 1157 (La.App. 5 Cir.), writ denied, 590 So.2d 66 (La.1991)).

|7In an ordinary civil appeal, La. C.C.P. art. 2126 clearly provides that the appellant must pay the estimated costs of the appeal, including “the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court.” Accordingly, the trial court analogized Spears to an “appellant” under La. C.C.P. art. 2126 and ordered him to pay the costs of transcribing the record in this case.

We agree with the trial court’s application of La. C.C.P. art. 2126 to the facts of this case. While we recognize the rules of appellate procedure found in La. C.C.P. arts. 2081 et seq. “are applicable to all appeals to the supreme court and the courts of appeal, except as otherwise provided by law,” La. C.C.P. art. 2081, as we explained in Wise, “both the district court and the court of appeal sit as appellate courts in reviewing school board decisions.” Wise, supra at p. 7, n. 5, at 1095, n. 5. Because La. R.S. 17:448 provides no rules of procedure contrary to those contained in Article 2126, we see no inequity in applying this time-honored rule of appellate procedure to a district court review of a school board decision under La. R.S. 17:443. Furthermore, as recognized by the court of appeal, under La. C.C.P. 1920, a court can award costs to the prevailing party; thus, if Spears is successful in having the school board’s decision reversed, the School Board may ultimately be cast for these transcription fees and other costs.

IsFinally, the School Board, as well as the Louisiana School Boards Association as amicus, 'articulate several policy reasons why the teacher should be responsible for these costs. First, they argue that imposing court reporting and transcription costs on school boards each time that employees choose to appeal actions taken against them following tenure hearings will substantially diminish the funds available to school systems for the provision of educational services to children. Second, it would have a chilling effect on school boards considering such hearings since they would know that, no matter how incompetent, dishonest, or neglectful of a duty an employee might be, they would still have to bear the substantial expense of preparing the administrative record if the employee chooses to appeal disciplinary action taken against him at said hearing. Thus, they argue, the decision of the court of appeal discourages public school systems from taking the actions necessary to dismiss and/or discipline tenured employees who have not been performing satisfactorily or who may have been guilty of acts of dishonesty or willful neglect of duty. We agree that, while not necessarily present in this case, these policy reasons expressed by the School Board favor the teacher paying the costs of transcription of the removal hearing if he or she chooses to have that decision reviewed by a trial court under La. R.S. 17:443.

CONCLUSION

The procedure for removal of a permanent or tenured teacher by a school board is governed by La. R'.S. 17:443. Although that statute provides the procedures by which a teacher removed by a school board can seek review of that decision in a district court, it does not specify which party must pay the costs of transcribing the record at the removal hearing. As the district court sits as an appellate court in reviewing the actions of the school board at the removal hearing, we find that the provisions of La. C.C.P. 2126 apply and that the teacher, as the “appellant,” bears the Iflinitial responsibility for paying the fee of the court reporter for preparing the transcript from the removal hearing. If the teacher is successful in his or her appeal, the school board may ultimately be hable for these transcription fees and costs under La. C.C.P. art. 1920.

DECREE

For the reasons expressed herein, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

JOHNSON, J., concurs in result.

      . La. R.S. 17:441(1) defines a teacher as “any employee of any parish or city school board who holds a teacher's certificate and whose legal employment requires such teacher's certificate.” There is no dispute that Spears is covered by the provisions of the TTL.

      . Although La. R.S. 17:443 provides for review by a court of competent jurisdiction and not a trial de novo, this Court has held that a discharged employee of a school board is allowed to present additional evidence to the district court. Howell v. Winn Parish School Board, 332 So.2d 822 (La.1976); Lowing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959). The school board is not allowed to present additional evidence unless the teacher chooses to do so. Lewing, supra, 113 So.2d at 465. If the teacher chooses not to present additional evidence, then the appeal is decided on the basis of the record. Id.

      . Contrast La. R.S. 49:964, which provides the procedural rules for judicial review of agency proceedings under the Administrative Procedure Act, and which states that a person aggrieved by a final decision of an agency adjudication may seek review in the district court and "the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. La. R.S. 49:964(D). Political subdivisions of the state are specifically ex-eluded from the provisions of the Administrative Procedure Act. La. R.S. 49:951(2).

      . La. C.C.P. art. 1920 provides:
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.


author: | TRAYLOR, Justice.

text:
    STATE of Louisiana v. Kenneth J. DILOSA and Johnny L. White, Jr.
    No. 2002-KA-2222.
    Supreme Court of Louisiana.
    June 27, 2003.

      Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Anne M. Dickerson, Valentín M. Solino, for Applicant.
    Ike Spears, Katherine M. Mattes, Pamela R. Metzger, Hans P. Sinha, New Orleans, for Respondent.
   | TRAYLOR, Justice.

This case is before us on direct appeal from a judgment of the district court which granted defendants’ motion to quash their indictments and declared unconstitutional all or portions of Articles 412, 413, and 414 of the Louisiana Code of Criminal Procedure and Section 114 of Title 15 of the Louisiana Revised Statutes. These statutes provided procedures for selecting grand jurors, grand jury forepersons, and grand jury venires in Orleans Parish. We find that the lower court correctly determined that the provisions of the statutes which provide(d) unique procedures pertaining to grand juries in Orleans Parish only, were and are unconstitutional local laws within the meaning of Article III, § 12 of the Louisiana Constitution. We also find that the unconstitutionality of portions of the statutes does not render the entirety | ?,of the statutes unenforceable because the remaining portions may be severed.

FACTS and PROCEDURAL HISTORY

On October 21, 1999, defendants Johnny L. White, Jr., and Kenneth Jack Dilosa were indicted in Orleans Parish with two counts each of possession of heroin with intent to distribute. Both defendants pled not guilty.

On March 16, 2001, defendants filed motions to quash, arguing that Article 413(C) violated the Due Process and Equal Protection clauses of the state and federal constitutions, and that Articles 412, 413, and 414, and § 15: 114 were local laws which are prohibited under the state constitution. On June 18, 2001, the trial judge granted the motions to quash the indictments, ruling that the statutes were unconstitutional local laws which “separately] New Orleans from the rest of the state of Louisiana” and created “one method of criminal law for the City of New Orleans and ... another method for criminal law for the [remainder of the] State ...” Tr., June 18, 2001, at 5-6. The state filed a direct appeal to this court pursuant to La. Const, art. V, § 5(D), which provides for a direct appeal where a law or ordinance has been declared unconstitutional.

DISCUSSION

Our Constitution provides that the Legislature shall not pass local or special laws concerning any of the subjects enumerated in Article III, § 12(A) of our state constitution.

A law is local if it operates only in a particular locality without the possibility of extending its coverage to other localities or areas should the requisite criteria come to exist in the new locality or area. State v. Brazley, 2000-0293 (La.11/28/00), 773 So.2d 718, 721. When the operation of a law is restricted to one or certain parishes, it is immediately suspect as a local law. Kimball v. Allstate Insurance Co., 97-2885, 97-12956, (La.4/14/98), 712 So.2d 46, 51. But a law whose application and immediate effect is restricted to a particular locality is not considered local where persons throughout the state are affected by it or it operates on a subject in which the people at large are interested. Livingston Downs Racing Association, Inc. v. State, 96-2890 (La.12/2/97), 705 So.2d 149, 156.

The statutes in question read as follows:

Art. 412. Drawing grand jury venire and subpoena of veniremen; Orleans Parish
A. In Orleans Parish, upon order of the court, the commission shall draw indiscriminately and by lot from the general venire box the names of seventy-five qualified persons, who shall constitute the grand jury venire.
B. The commission shall prepare and certify a list containing the names so drawn, and the list shall be delivered to the judge who ordered the drawing.
C. The court may direct the jury commission to prepare subpoenas directed to the persons on the grand jury venire, ordering their appearance in court on the date set by the court for the selection of the grand jury, and the jury commission shall then cause the subpoenas to be served in accordance with the provisions of Article 404.1(B) or R.S. 15:112, as directed by the court.

La.Code CRIM. Proc. art. 412 (1999).

Art. 413. Method of impaneling of grand jury; selection of foreman
A. The grand jury shall consist of twelve persons plus a first and second alternate for a total of fourteen persons qualified to serve as jurors, selected or drawn from the grand jury venire.
B. In parishes other than Orleans, the court shall select one person from the grand jury venire to serve as foreman of the grand jury. The sheriff shall draw indiscriminately and by lot from the envelope containing the remaining names on the grand jury venire a sufficient number of names to complete the grand jury. The envelope containing the remaining names shall be replaced into the grand jury box for use in filling vacancies as provided in Article 415.
C. In the parish of Orleans, the court shall select twelve persons plus a | ¿first and second alternate for a total of fourteen persons from the grand jury venire, who shall constitute the grand jury. The court shall thereupon select one of the jurors to serve as foreman.
D. The first and second alternates shall receive the charge as provided in Article 432 but shall not be sworn nor become members of the grand jury except as provided in Article 415.

La.Code Crim. Proo. art. 413 (1999).

Art. 414. Time for impaneling grand juries; period of service
A. A grand jury shall be impaneled twice a year in each parish, except in the parish of Cameron in which at least one grand jury shall be impaneled each year.
B. In parishes other than Orleans, the court shall fix the time at which a grand jury shall be impaneled, but no grand jury shall be impaneled for more than eight months, nor less than four months, except in the parish of Cameron in which the grand jury may be impaneled for a year.
C. In Orleans Parish, a grand jury ve-nire shall be drawn by the jury commission on the date set by the presiding judge. On the next legal day following the drawing, the jury commission shall submit the grand jury venire to the presiding judge, who shall impanel the grand jury. A grand jury in Orleans Parish shall be impaneled on the first Wednesday of March and September of each year.
D. A grand jury shall remain in office until a succeeding grand jury is impaneled. A court may not discharge a grand jury or any of its members before the time for the impaneling of a new grand jury, except for legal cause.

La.Code Crim. Peoc. art. 414.

§ 114. Parish of Orleans; rotation and selection of grand jury; control of grand jury
Each judge of the criminal district court for the Parish of Orleans shall, in rotation, select the grand jury for the Parish of Orleans. The order of rotation among the judges in the selection of the grand jury prevailing at the time this Section goes into effect shall be preserved and continued. The judge of the section of the criminal district court who shall have appointed said grand jury shall have control and instruction over the grand jury, exclusive of all other judges of the criminal district court, and such grand jury shall make all findings and returns in open court to said judge; and in addition thereto may make reports and requests in open court as provided by law; provided that if the judge to |Rwhom the control of the grand jury shall belong shall not be from any cause in the actual discharge of his duties as judge, the judges of the criminal district court then present shall designate some other judge to impanel and instruct said grand jury, or to receive its returns and findings, as the case may be, and the judge so designated shall continue to act for the judge to whom the control of such grand jury shall belong until said last-mentioned judge shall return to the discharge of duties; provided, further, that the grand jury in office at the time of the adoption of this Section shall, until the expiration of that term of office, be under the control of the presiding judge of the section by whom it was selected and shall return all indictments and findings to said judge in open court.

La.Rev.Stat. § 15:114.

These statutes either wholly or in part specifically concern(ed) only Orleans Parish grand jury proceedings. The only locality in which the complained of laws or portions of laws operate(d) is or was Orleans Parish. The only parish which would or could ever be affected in the future by the complained of laws or portions of laws is or was Orleans Parish. The complained of statutes are quite clearly local in nature.

The state argues, however, that these laws are general laws which operate on a subject in which the people at large are interested-the operation and administration of the criminal justice system, of which grand juries are an integral part. In the broadest possible sense, the state’s argument may be correct; however, when the issue is narrowed, as it should be, it is extremely doubtful as to whether the citizens of the other sixty-three parishes in the state care at all about what, if any, local grand jury procedures are used in Orleans Parish. Neither has the state come forward with any viable geographic or demographic necessity which would justify the existence of the unique grand jury procedures in Orleans Parish mandated by the statutes.

Next, we must determine whether the laws concern any of the prohibited matters enumerated in Article III, § 12(A) of our Constitution. This section states that the Legislature may not pass local laws “[c]on-cerning any ... criminal actions, including ... regulating the practice or jurisdiction of any court ...” La. CONST, art. Ill, § 12fcA)(3).fi The questioned statutes’ regulation and selection of grand juries by Orleans Parish criminal courts clearly “coneern[ ] ... criminal actions” and “reg-ulat[e] the practice ... of [those] courts.” Because the complained of statutes are local laws which concern the practice of the criminal courts in Orleans Parish, we conclude that they are unconstitutional.

When a portion of a law is unconstitutional, however, the entire law may remain enforceable if the remaining portion of the law is severable. See, e.g., Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 895 (La.1993). In determining whether severability is appropriate, this court has previously stated that:

The test for severability is whether the unconstitutional portions of the law are “so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention manifested” by the enacting body. If the remaining portion is separable from the offending portion, this Court may strike only the offending portion and leave the remainder intact.

Dwplantis v. Louisiana Board of Ethics, 2000-1750, 1956 (La.3/23/01), 782 So.2d 582, 591 (citations omitted).

With regard to Article 412, it is impossible to sever Paragraph A from the remainder of the statute without destroying the statute’s intent. Article 412, then, as it was constituted at the time of defendants’ indictment, is unconstitutional in its entirety. Likewise, § 15:144 is unconstitutional in its entirety.

The offending language in Article 413, as it read in 1999, and in Article 414 is severable, however. Considering Article 413, the introductory phrase of Paragraph B, as well as all of Paragraph C, may be struck without damaging the intent of the legislature, which, as indicated by the title of the statute, was to provide a method of impaneling a grand jury and selecting its foreperson. Likewise, the introductory phrase of Paragraph B, as well as all of Paragraph C, may be struck without doing violence 17to the legislature’s intent, which was to provide for a time for impaneling grand juries and their terms of service.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s quashing of defendants’ indictment, and find that Article 412 of the Code of Criminal Procedure, as it was written in 1999, and Section 114 of Title 15 of the Louisiana Revised Statutes are unconstitutional in their entireties, and that Article 413, as it was written in 1999, and Article 414 of the Code of Criminal Procedure are unconstitutional in part, as designated above. To the extent that the judgment of the trial court might conflict with this opinion, if at all, it is overruled. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

AFFIRMED.

       Judge Lemmie O. Hightower sitting as Justice Ad Hoc for Associate Justice Bernette J. Johnson, recused.

      . The legislature repealed La.Code Crim. Proc. art. 413(C) and amended Arts. 412 and 413(B) in 2001, subsequent to the defendants' indictments, to provide for random selection of grand jurors and grand jury forepersons, and for selection of grand jury venires in accordance with Article 411(A), the general provision governing all other Louisiana parishes. The constitutionality of these two articles, as amended, is not before the court.


author: | TRAYLOR, Justice. [ 1 KIMBALL, Justice,

text:
    Lana Marie Dailey ABSHIRE, et al. v. VERMILION PARISH SCHOOL BOARD.
    No. 2002-C-2881.
    Supreme Court of Louisiana.
    June 27, 2003.
    Silas B. Cooper, Jr., Abbeville, Richard P. Ieyoub, Attorney General, Isaac Jackson, Jr., Gonzales, Counsel for Applicant.
    James L. Brazee, Jr., Lee A. Gallaspy, Brazee & Cormier, Lafayette, Counsel for Respondent.
   | TRAYLOR, Justice.

In this dispute over ownership of immovable property, defendants, Vermilion Parish School Board (School Board) and the State of Louisiana, appeal the judgment of the trial court which found that the School Board had executed a sale of a strip of land, rather than a canal servitude, to the United Irrigation and Rice Milling Company (United Irrigation) for canal purposes in 1910. The court of appeal affirmed the trial court. 02-620 (La.App. 3 Cir. 10/30/02), 829 So.2d 1209. We granted the defendants’ writ to determine whether a sale of full ownership of the strip occurred where the School Board president, who was expressly authorized to sign an act of donation of a “right of way” by the School Board minutes annexed to and, therefore, part of the contract, signed instead a cash deed. For the forgoing reasons, we reverse the trial court and court of appeal and find that the transfer in 1910 was limited to a servitude, rather than full ownership of the land in question.

FACTS AND PROCEDURAL HISTORY

On February 6, 1909, the Vermillion Parish School Board passed a resolution, authorizing its president, M.L. Eldredge, to sign an act of donation conveying a “right of way” to United Irrigation for the purposes of building a canal on the instant contested property located in Kaplan, Louisiana, and designated “Section 16, | ¡.Township 12 South of Range 2 East” (16 T. 12 S.R. 2 E.). The minutes from the School Board meeting of that date reflect:

Right of Way Canal
On motion of Mr. Perry duly seconded this Board hereby donates a right of way of a uniform width of 200 feet along the north side of Section 16, T. 12 S.R. 2 E., to the United Irrigation and Rice Milling Company, and the President is hereby authorized to sign [an] act of donation on the part of this Board, (emphasis added)

However, on February 2,1910, Eldredge appeared before a notary public and signed a “Cash Deed” form. The cash deed declared that Eldredge agreed to “Grant, Bargain, Sell, Convey, Transfer, Assign, Set Over and Deliver” the now contested land to United Irrigation to build a canal for the consideration of $1.00 and “the further consideration of the benefits and advantages to accrue to this and adjoining lands by reason of the construction, operation and maintenance of an irrigating Canal on the strip of land herein sold.” The cash deed further guaranteed “successors or assigns forever, with full and general warranty of title.... ” The instrument made specific | ¡¡reference to the February 6, 1909, minute entry which authorized Eldredge to donate a “right of way” and a certified copy of the minutes were annexed to the contract.

In 1910, United Irrigation built a rice irrigation canal on the land. The canal remained in operation under the control of United Irrigation and then several successors until 1980. Thereafter, the land passed through several more companies and then portions of the contested strip were sold by another company, AVICO, United Irrigation’s then successor in title, to the existing landowners or their predecessors in title.

In April of 2000, the Vermillion Parish School Board advised the plaintiffs that the land in dispute was owned by the School Board. Rather than displacing the plaintiffs from the land, the School Board provided them the option to lease the property for an annual sum.

On or about September 12, 2000, the plaintiffs filed a petition for declaratory judgment seeking a judicial determination that they were the owners of the property. |4A trial on the merits was held on December 10, 2001.

During trial, the defense submitted testimony of Harold Mire, by way of deposition. Mr. Mire was the general manager of canal systems for AVR ICO from 1969 until 1976. He continued to work for AVR ICO’s business successor, Southwest Louisiana Land Company, who operated the canals until 1980. Regarding the land at issue, Mr. Mire stated that AVR ICO’s records dating back to 1969 reflected that its interest in the land was only an “easement.”

According to Mire, rights to the property passed through many corporate hands, all of which he could not name. The canal ceased operations in 1980 because it was no longer profitable. The property rights to the contested strip were passed to more successors and eventually were sold to AV-ICO in approximately 1980. At the time of Mire’s deposition in December 2001, there were two houses and one trailer on the lots divided from the contested land.

At the close of trial, the judge requested the parties to submit post argument briefs regarding the applicability of La.Rev.Stat. 41:1321. Thereafter, the trial court entered judgment in favor of the plaintiffs. The trial court found that the defendants did not possess an ownership interest in the property and that the 1910 cash deed confected a sale of the property, rather than a mere servitude. The court of appeal affirmed this judgment.

The School Board and the State now appeal these judgments, arguing that the court of appeal erroneously applied La. Rev state 41:1321 to convert a “right of way” into a fee title sale (a sale of full ownership). They submit that as Mr. El-dredge was only authorized to convey a “right of way” and because there was no express mandate for him to execute a sale, any such sale was null and void, regardless of the execution of sale instruments.

|,LAW AND DISCUSSION

The first hurdle which we must cross is whether a sale of the school lands or only a transfer of a “right of way” occurred in the instant case. The second hurdle is the determination of whether La.Rev.Stat. 41:1321 applies to cure any informalities in the contract.

Louisiana Civ.Code art.2045 guides us in determining the intent of the parties to a contract. Article 2045 mandates that “[ijnterpretation of a contract is the determination of the common intent of the parties.” Furthermore, under La. Civ. Code art.2046, “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation need be made into the parties’ intent.” Additionally, under La. Civ.Code art.1971, parties are free to contract for any object that is lawful, possible, and determined or determinable. Lastly, this court has concluded that the interpretation of a contract is the determination of the common intent of the parties with courts giving the contractual words their generally prevailing meaning. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La.6/29/01), 808 So.2d 294.

In this case, the School Board’s February 6, 1909, resolution unequivocally speaks to the intent of the School Board in the instant contract. This court has held that a resolution authorizing an agent to act on behalf of the vendor, if referenced in a contract conveying interest in land, is not “extrinsic evidence” and must be considered along with the deed to determine exactly what was conveyed in the contract. Standard Oil Co. of New Jersey v. Evans, 218 La. 590, 50 So.2d 203 (1950). Furthermore, |fithe words “right of way” included in a grant, usually connote a grant of a servitude and not full ownership. Arkansas Improvement Co. v. Kansas City Southern Ry., 189 La. 921, 181 So. 445 (1938).

Given this jurisprudence, we conclude that the annexed minutes detailed that only a donation conveying a “right of way” to United Irrigation for the purposes of building a canal on the instant contested property was authorized. The language of the contract also comports with the passing of only a servitude because the contract clearly limits the use of the land for “construction, operation and maintenance of an irrigating Canal on the strip of land.” However, the deed does not provide a gratuitous donation as was intended by the School Board, rather it effectuates a sale of a canal servitude. The language in the cash deed, when referencing and annexed to the February 6, 1909, School Board resolution limiting Mr. Eldredge’s authority to provide United Irrigation with a servitude, clearly shows that no sale of full ownership was intended by the School Board. Taking the wording of the contract as a whole, it is abundantly clear that no sale of full ownership occurred.

In short, Mr. Eldredge did not sign an act of donation, but a sale of a canal servitude to United Irrigation, however flawed the sale was. The record reveals that both the trial court and the court of appeal were clearly wrong in finding to the contrary. Therefore, the lower courts erred in finding that a sale of complete or full ownership occurred in the instant contract.

Regarding the second issue, we find that La.Rev.Stat. 41:1321 applies to cure any informalities or flaws in the contract, with regard to Mr. Eldredge’s mandatary authority to only “donate” the servitude rather than “sell” it. The Statute does not limit its restorative powers to only sales of full ownership to school lands. Specifically, the Statute ratifies and confirms “[a]ll sales of sixteenth section school lands” 17notwithstanding informalities in the sales. This statute directly addresses the issue presently before this court, which is whether there is a valid sale. Therefore, the defects which occurred when Mr. Eldredge signed an act of sale of the “right of way,” rather than an act of donation of the “right of way,” were cured by the Statute upon the execution and filing of the cash deed in conformance with the law, regardless of his lack of authority to so bind the School Board. Even though Mr. Eldredge exceeded the scope of his mandatary power, the Statute nonetheless ratified the sale of the servitude.

CONCLUSION

The cash deed contract signed by the School Board president sold only a “right of way”, a servitude, for canal purposes to United Irrigation. No sale of full ownership occurred. For the foregoing reasons, we reverse the judgment of the trial court and court of appeal. We remand this matter to the trial court for determination of whether the canal servitude has terminated for non-use.

DECREE

REVERSED AND REMANDED.

KIMBALL, J., concurs in the result.

[ 1 KIMBALL, Justice,

concurring in result.

I agree with the majority that there was no sale of full ownership of the disputed land between the Vermilion Parish School Board and the United Irrigation and Rice Milling Company.

However, I disagree with the majority’s discussion of La. R.S. 41:1321 and any curative effects it may have had. The language contained in the School Board’s meeting clearly reflect that the School Board only gave its president, M.L. El: dredge the actual authority “to sign [an] act of donation” to convey a “right of way” to United on the School Board’s behalf. Because the School Board only gave El-dredge the express authority to donate a canal servitude, he could not have sold a canal servitude on behalf of the School Board. La. R.S. 41:1321 applies only to sales of sixteenth section school lands and cures any informality or defect in those sales. In the instant case, Eldredge did not effect a sale of the land, which renders discussion of La. R.S. 41:1321 inapplicable to the resolution of this case.

Accordingly, I agree with the majority’ judgment reversing the judgments of the lower courts and remanding this matter to the trial court to determine whether the canal servitude has terminated after non-use of three years.

      . On January 7, 1911, the School Board minutes memorialized three resolutions which were titled in globo "Abbeville Canal.” The board minutes pertinent to the instant land dispute are:
      Jan. 7th, 1911

      Whereas this Board did on February 6th, 1909 by Resolution ... grant to the United Irrigation and Rice Milling Company of New Orleans, Louisiana, a canal right of way along the north, and east sides of Section sixteen (16) in Township twelve (12) South Range two (2) East of Louisiana Meridian, and
      Whereas, no deed to said right of way has ever been executed by the authority of this Board,
      Now, Therefore Be It Resolved, That the President of this Board be and he is hereby authorized to make and execute in the name of this Board, a duly authentic act transferring to the said United Irrigation and Rice Milling Company, its successors and assigns, the aforesaid strips of land ...
      And the said President of this Board, is hereby fully authorized to sign, execute, and, deliver, any and all acts, and, deeds requisite and necessary in the premises, and, all of his acts in carrying out the intent of this resolution are hereby ratified and confirmed.
      Duly adopted.

      . The annexed version of the minutes from February 6, 1909, was nearly identical to the actual minutes with the exception of punctuation, spelling, and grammar differences. The minor differences make no change in the intention or effect of the resolution.

      . As there are factual errors recited in the opinion of the court of appeal, we will detail the history of United Irrigation and its successors as it appears in the record: United Irrigation was placed into receivership and its assets later liquidated in 1926. United Irrigation's rights "of every kind” to one hundred and ninety-eight tracts of land lying in Vermillion Parish were sold under court order to Acadia-Vermilion Rice Irrigation Company (AVR ICO). According to records from the Louisiana Secretary of State, AVR ICO was dissolved in 1973.
      A similarly named but unaffiliated corporation, Acadia-Vermilion Irrigation Company (AVICO) was formed in 1979. AVICO’s corporate charter was revoked in 1990, reinstated in 1992, and again revoked in 1998 by the Secretary of State.
      AVICO attained rights to certain properties once held by AVR ICO, including the instant strip, but the two have never had any connection in terms of management or ownership. By the time this property passed to AVICO, AVR ICO had been dissolved for twelve years. AVICO did not operate the canal system but sold properties it had acquired even when it did not have proper title to such properties. See Porter v. Acadia-Vermilion Irrigation Co., Inc., 479 So.2d 1003 (La.App. 3 Cir.1985).

      .Because the property in dispute was located in a sixteenth section, which was designated for school purposes by the United States Congress, defendants asserted that the State must be a party to this case. The State of Louisiana Education Department was added as a defendant in the proceeding.

      . However, when there is anything doubtful in a contractual agreement, a court must endeavor to ascertain the common intention of the parties, rather than adhere to the literal sense of the terms. Boisseau v. Vallon & Jordano, 1932, 174 La. 492, 141 So. 38. Meaning and intent of parties to a written instrument is ordinarily determined from instrument's four corners and extrinsic evidence is inadmissible either to explain or to contradict instrument’s terms. Ortego v. State, Dept. of Transp. and Dev., 96-1322 (La.2/25/97), 689 So.2d 1358.


author: |,PER CURIAM.

text:
    STATE of Louisiana v. Woodrow DAVIS, Jr.
    No. 2002-K-1043.
    Supreme Court of Louisiana.
    June 27, 2003.
    Richard P. Ieyoub, Attorney General, James C. Downs,'District Attorney, Roger J. Breedlove, Alexandria, Counsel for Applicant.
    Paula C. Marx, Lafayette, Counsel for Respondent.
   |,PER CURIAM.

In reversing defendant-respondent’s conviction and sentence for unauthorized entry of an inhabited dwelling in violation of La.R.S. 14:62.3(A), the court of appeal concluded that “[g]iven the longtime relationship between Ms. Reed [the victim] and the defendant, Ms. Reed’s admitted addiction to crack cocaine, the defendant’s explanation for his early hours visit to her apartment, and the delay between the incident and Ms. Reed’s report of the incident, we find that the state did not sufficiently prove every element to exclude every reasonable hypothesis of innocence.” State v. Davis, 01-1177, p. 6 (La.App. 3rd Cir.2/6/02), 812 So.2d 158 (unpub’d).

We granted the state’s application to reverse the decision below because the court of appeal erred in addressing the sufficiency of the evidence as if the state’s ease turned exclusively on circumstantial evidence. Jurors might have paused in making a credibility determination between the victim, a self-confessed cocaine | ^addict, who had spent approximately five years in what she freely described as a “dysfunctional” relationship which “got physical most of the time” with respondent, her next door neighbor, who had prior convictions for burglary and aggravated battery, and a drug habit of his own. However, the victim’s testimony provided direct evidence that after an earlier argument in which they had “passed words,” the defendant entered her residence without her permission through the locked back door and confronted her with a screwdriver, prompting the victim, who denied that she had given him a key to her residence, to retrieve a knife from underneath the pillow on her bed and to cut the defendant over his eye in a struggle before she pushed him out of the door. See State in Interest of M.Q., 98-1017, p. 2 (La.1/29/99), 728 So.2d 849, 850 (“ ‘Direct evidence is evidence which, if believed, resolves a matter in issue. Circumstantial evidence may also be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the proposition to which it is directed.’ ”)(quoting 1 McCormick on Evidence, § 185, p. 777 (John W. Strong, ed., 4th ed 1992)(footnote omitted)).

Because the direct evidence provided by the victim, if believed by the trier of fact, established all of the essential elements of the charged offense, i.e., that respondent had made an “intentional entry ... without authorization into an[ ] inhabited dwelling ... used in whole or in part as a home,” La.R.S. 14:62.3(A), the only question on sufficiency review in the present case is whether the jury acted rationally in finding the victim’s testimony credible. State v. Mussall, 523 So.2d 1305, 1310 (La.1988)(“[I]rrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion |swill be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.”)(footnote omitted).

We agree with the court of appeal that the circumstantial evidence in the case, i.e., the pry marks the investigating officer at first “thought,” and then was sure, he observed on the back door, consistent with the use of a screwdriver to gain entry, and the blood he found “somewhere” on the floor of the victim’s residence, did not alone negate beyond a reasonable doubt the defendant’s exculpatory account that he had simply used a key given to him by the victim to gain access to her apartment, after they had had sex and consumed drugs on his side of the common wall, and then found himself cut above the eye by the victim angered over his explanation that she would have to wait several hours before he could buy her some more cocaine. The officers responding to the victim’s call did not find a screwdriver or photograph the scene to preserve any evidence, and the initial report of the incident did not even mention the existence of the pry marks at the back door. In addition, although his prior record eroded the credibility of his testimony, respondent’s account at least provided jurors with an explanation of why the victim appeared to have waited several hours before calling the police.

Nevertheless, the task of an appellate court reviewing the sufficiency of the evidence is not to second-guess the credibility choices of the trier of fact “beyond ... sufficiency evaluations under the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] standard of review.” State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983). A victim’s or eyewitness’s testimony alone is therefore usually sufficient to support a verdict. State v. Bright, 98-0398, p. 24 (La.4/11/00), 776 So.2d 1134, 1148; State v. Rash, 444 So.2d 1204, 1206-07 (La.1984); State v. Bland, 419 So.2d 1227, 1230, n. 3 (La.1982); State v. Rives, 407 So.2d 1195, 1197 (La.1981). In the present case, jurors had full disclosure of the circumstances bearing on the credibility of the testimony given by the victim and respondent within the larger context of a long-term dysfunctional relationship marked by physical confrontations and drug use on both sides. Given police testimony about the pry marks on the one hand, and respondent’s prior felony record on the other, we cannot say that the jury’s verdict resting on the credibility of the victim’s testimony and rejection of respondent’s exculpatory account appears so irrational that an appellate court must intervene to assure due process of law.

The decision below is therefore reversed and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermitted on original appeal.

DECISION OF COURT OF APPEAL REVERSED; CASE REMANDED FOR ADDITIONAL CONSIDERATION.