author: | .DOWNING, J.

text:
    Richard SEAL and Dree Seal v. Richard DUNHAM and Annette Dunham.
    No. 2002 CA 0197.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Tammy Keaton, Franklinton, Counsel for Plaintiffs/Appellees Richard Seal and Dree Seal.
    William J. Knight, Franklinton, Counsel for Defendants/Appellants Richard Dun-ham and Annette Dunham.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   | .DOWNING, J.

This appeal involves a lawsuit wherein Richard and Dree Seal claim Richard and Annette Dunham violated a Washington Parish subdivision’s building restrictions when they constructed an accessory workshop budding on their property. The trial court granted a mandatory injunction ordering the Dunhams to remove the workshop building from their property. The Dunhams appealed. For the following reasons, we affirm the grant of a mandatory injunction in this matter but vacate the portion of the judgment requiring the removal of the metal workshop. We remand with instructions for further proceedings.

GROUNDS FOR INJUNCTION

Louisiana Civil Code art. 779 provides that building restrictions may be enforced by injunction without regard to the general limitations on injunctions set forth in La. C.C.P. art. 3601. In granting a mandatory injunction ordering the Dunhams to remove their accessory building, the trial court found violations of three provisions of the controlling “Zoning and Building Restrictions.” We discuss these in turn.

1. Residential Use.

Restriction 5 provides that each lot, including improvements, “shall be used only for single family residential purposes.” The record before us contains no evidence that the Dunhams used the workshop building at issue for any commercial or agricultural purpose. Mr. Dunham’s stated purpose in building the building was to house a workshop so that he could restore an MG Midget and “piddle and do some work.” Nothing in the record contradicts these purposes, and even though the workshop building was |3rather large at 1200 square feet, we conclude that such activity is consistent with normal residential purposes.

The restrictions contain no definition of “residential purposes,” but in Concord Estates Homeowners Assoc. Inc. v. Special Children’s Foundation Inc., 459 So.2d 1242, 1244 (La.App. 1 Cir.1984), this court defined “residential purposes” as follows: “Giving the word its plain and ordinary meaning, we may confidently say that a building used for residential purposes is one in which people reside or dwell, or in which they make their homes, as distinguished from buildings in which people conduct business or commerce.” (Emphasis added.) Here, there is no evidence in the record from which the trial court could conclude that the workshop was being used to conduct any business or commerce. And we note, without need for citation, that tending to one’s hobbies and “piddling” and “do[ing] some work” in a home workshop are part of making one’s home and are normal, expected, traditional residential activities.

This holding is consistent with the general nationwide understanding of the term, “residential purposes.” 20 Am.Jur.2d Covenants, Conditions and Restrictions § 181 (1995), states: “Generally speaking, restrictions built around the terms ‘residence’ or ‘residential purposes,’ without more, merely limit the use of the property to living purposes as distinguished from business or commercial purposes.” And similar provisions are interpreted accordingly: the construction of a garage to be used in connection with a residence does not violate a restriction limiting a residence to a “single dwelling house, together with any necessary and suitable outbuildings.” C.J.S. Deeds § 361 (2001); but, a “restriction prohibiting the erection of any | ¿building other than a dwelling house is violated by the erection of a private garage.” Id.

Under Louisiana law, we are bound to resolve any doubt as to the existence, validity or extent of building restrictions in favor of the unrestricted use of immov-ables. La. C.C. art. 783. Here, the trial court’s finding that the workshop was not being used for residential purposes is unsupported by any evidence. Accordingly, the trial court erred in finding the Dun-hams had violated Restriction 5.

2. Use of Adjacent Lot

Restriction 21, entitled “TEMPORARY HOUSING,” contains the following language: “No accessory building shall be constructed or used unless the dwelling on the lot is completed or under construction.” The Seals argue that this restriction precluded the Dunhams from building the workshop on lot adjacent to their home.

The building restrictions, however, do not impose such a limitation. Rather, Restriction 3, entitled, “RESUBDIVISION,” suggests that lots can be attached to provide larger building sites, which is exactly what the Dunhams did. Further, it is undisputed that the Dunham home was constructed prior to the construction of the workshop. Accordingly, construing all doubt about the validity or extent of Restriction 21 in favor of the unrestricted use of the Dunhams’ property in accordance with La. C.C. art. 783, we conclude the trial court erred as a matter of law in finding that the Dunhams had violated Restriction 21.

| BFurther, the record contains no evidence showing that the workshop was actually built on a lot other than the one or ones on which the house was constructed. We therefore conclude that the trial court was manifestly erroneous in its implicit finding to this effect. Accordingly, the trial court erred in this regard as well.

3. Building Materials

Restriction 6, entitled “Building Material,” states in pertinent part that, “No building shall ... be covered with corrugated or other types of sheet metal .... ” The Dunhams acknowledge that their workshop is covered with corrugated metal. They argue, however, that this restriction has been abandoned. The trial court disagreed. And in this regard, the trial court was not manifestly erroneous.

Abandonment, as it relates to building restrictions, is governed by La. C.C. art. 782, which provides:

Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restrictions; when a particular restriction is abandoned, the affected area is freed of that restriction only.

Abandonment of a particular restriction is predicated on a sufficient number of violations of that restriction in relation to the number of lots affected by it. See Revision Comments, La. C.C. art. 782. Further, once a violation of a building restriction has been established, the burden shifts to the violator to prove abandonment of a particular restriction. To determine whether building restrictions have been abandoned, there are three areas of consideration: the number of violations, the character of those violations, and the adverse reaction of property owners to those violations. Belle Terre Lakes Home Owners Association v. McGovern, 01-722 (La.App. 5 Cir. 1/29/02), 805 So.2d 1286.

[ fiHere, the trial court found that 5 of 21 lots in the subject subdivision had accessory buildings or sheds with metal roofs but that the Dunhams’ workshop was the only one that was also sided with corrugated metal. The trial court then found as a fact that the metal roofed buildings and sheds did not subvert the general plan or scheme of the subdivision and concluded that they could not serve to establish abandonment of the restrictions. The trial court did not address the homes covered with metal roofs.

While we may have evaluated the evidence differently in this regard, we cannot disturb on review the trial court’s reasonable inferences of fact. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The trial court’s finding that metal roofs did not subvert the general plan or scheme of the subdivision is reasonable and not manifestly erroneous. Therefore, its conclusions that the pertinent building restriction had not been abandoned and that the Dunhams were in violation are not erroneous.

SCOPE OF INJUNCTION

On concluding that the Dunhams had violated three building restrictions in their subdivision, the trial court granted a mandatory injunction pursuant to La. C.C. Art. 779 and ordered the Dunhams’ workshop removed. Since we conclude that the Seals have proven only a violation of Restriction 6 concerning use of metal siding, it appears that removal of the building from the site is be an overbroad remedy. We observe that an injunction is a harsh, drastic, and extraordinary remedy. Lassalle v. Daniels, 96-0176, p. 8 (La.App. 1 Cir. 5/10/96), 673 So.2d 704, 709.

The Dunhams argue that the noncompliance can be removed by covering the workshop with some type of siding such that it is no longer | ./‘covered with corrugated or other types of sheet metal.” If the noncompliance can be cured in this manner, the Dunhams should be allowed to cure the noncompliance rather than remove the structure. See Travasos v. Stoma, 95-1568, p. 8 (La.App. 3 Cir. 4/3/96), 672 So.2d 1070, 1074-1075. Accordingly, we will remand this matter to the trial court to determine whether the siding on the workshop on the Dunhams’ property can be brought into compliance with the Restriction 6 and, if so, the best method for doing so.

DECREE

For reasons stated, the judgment of the trial court is affirmed insofar as it grants a mandatory injunction against the Dun-hams in favor of the Seals. However, we vacate the portion of the judgment requiring the removal of the metal workshop building on the Dunhams’ property. We remand the matter to the trial court with instruction to allow the Dunhams to bring the siding of the workshop into compliance with Restriction 6, if they can do so. If they cannot or will not, the trial court may then order the removal of the workshop from the Dunham property. Costs are divided equally between Richard and Dree Seal and Richard and Annette Dunham.

AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTION.

      . • The restrictions contain no size limitation for accessory buildings.

      . The issue in Concord Estates was whether a building restriction designating all lots as residential excluded use of the property as a group home.

      . But see the Louisiana Homeowners Association Act, La. R.S. 1141.1 — 1141.9, which applies when a residential planned community exists with mandatory membership in a homeowners' association. The Act says that building restrictions are to be construed liberally to give effect to the purpose and intent of the restrictions. Here, however, the Louisiana Homeowners Association Act does not control because the restrictions create no homeowners’ association and require no mandatory membership.'


source: Caselaw Access Project

author: UGAIDRY, J. 1 ^OWNING, J.,

license: Public Domain

text:
    ST. MARY ANESTHESIA ASSOCIATES, INC. v. HOSPITAL SERVICE DISTRICT NO. 2 OF the PARISH OF ST. MARY, State of Louisiana d/b/a Lakewood Medical Center.
    No. 2001 CA 2852.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.
    See also 805 So.2d 1083.

      James B. Supple, Franklin, Counsel for Plaintiff/Appellant St. Mary Anesthesia Associates, Inc.
    Nicholas F. LaRocca, Jr., Morgan City, George M. Papale, New Orleans, Counsel for Defendant/Appellee Hospital Service District No. 2 of The Parish Of St. Mary.
    Norman F. Pizza, Margaret A. Keavney, New Orleans, Counsel for Arnica Curiae Louisiana Hospital Association and Community Hospital Coalition.

      Jack Stolier, John O. Pieksen, Jr., New Orleans, Counsel for Amicus Curiae Rural Hospital Coalition, Inc.
    David A. Woolridge, Baton Rouge, Counsel for Amicus Curiae Louisiana Press Association.
    Salvador Anzelmo, Brian J. Burke, New Orleans, Counsel for Amicus Curiae Jefferson Parish Hospital Service District No. 2.
    Charles H. Braud, Jr., Baton Rouge, Assistant Attorney General State of Louisiana.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   UGAIDRY, J.

This appeal raises the issue of the constitutionality of La. R.S. 46:1071, 46:1072, and 46:1073 (the core provisions of the “Enhanced Ability to Compete Act”). The plaintiff, St. Mary Anesthesia Associates, Inc. challenges these statutes as being overly broad and therefore violative of Article XII, Section 3 of the Louisiana Constitution of 1974. For the reasons set forth below, we affirm the decision of the trial court, rejecting plaintiffs claim and upholding the constitutionality of the statutes at issue.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The facts underlying this declaratory judgment action are set forth in detail in the opinion of the prior connected case of Joseph v. Hospital Service District No. 2 of the Parish of St. Mary, 2001-1951, pp. 3-12 (La.App. 1st Cir.12/28/01), 805 So.2d 400, 401-08, writ denied, 02-0322 (La.4/19/02), 813 So.2d 1083. In that case, the plaintiff, St. Mary Anesthesia Associates, Inc. (SMA) and two anesthesiologists sued the defendant, Hospital Service District No. 2 of the Parish of St. Mary, doing business as Lakewood Medical Center (Lakewood) and its chief executive officer for alleged violations of La. R.S. 42:4.1, et seq. (the “Open Meetings Law”), as well as other claims. The plaintiffs sought injunc-tive and declaratory relief, mandamus, and a protective order. Specifically, the plaintiffs claimed that Lakewood’s Board of Commissioners used the Enhanced Ability to Compete Act as a subterfuge to improperly conduct closed executive sessions. Reversing the judgment of the ' district court in the plaintiffs’ favor, this court held that Lakewood did not violate the Open Meetings Law, and remanded the case for consideration of the plaintiffs’ alternate argument that the Act is unconstitutional.

| aFollowing remand, SMA instituted this separate action against Lakewood, seeking a declaratory judgment that La. R.S. 46:1071, 46:1072, and 46:1073 (referred to hereafter for convenience as “the Act”) are unconstitutional, since their broad language contravenes Article XII, § 3. At the conclusion of the trial, the district court ruled that the Act was constitutional, reciting detailed oral reasons. The district court’s judgment declaring the Act to be constitutional was signed on September 7, 2001. From that adverse decision, SMA appeals.

THE CONSTITUTION AND THE OPEN MEETINGS LAW

The United States Supreme Court has recognized a First Amendment right to “receive information and ideas” and to receive speech. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976). Even that right, however, is not absolute. Davis v. East Baton Rouge Parish School Board, 78 F.3d 920, 928 (5th Cir.1996). While the public’s right to be informed of the governmental process has occasionally been characterized as an inherent component of the First Amendment guarantees, or as derivative of other constitutional protections in the Bill of Rights, no definitive pronouncement to that effect has ever emanated from the United States Supreme Court. In fact, the Court has never unequivocally held that the First Amendment of the federal constitution establishes a right of access to governmental proceedings. See Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 404-05, 99 S.Ct. 2898, 61 L.Ed.2d 608 (Rehnquist, J., concurring), 411, 99 S.Ct. 2898 (Blackmun, J., concurring in part and dissenting in part), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

|4Since 1952, Louisiana has recognized by statute the right of the public to attend meetings of governmental bodies. This commendable philosophy was later reinforced by the adoption of Article XII, § 3 of the 1974 Louisiana Constitution, providing:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law. (Our emphasis.)

The avowed purpose of this constitutional provision (“Section 3”) was to establish a general constitutional right of public access to deliberations of public bodies and to public records. This general right was expressly qualified, however, by an exclusionary proviso authorizing exceptions “in cases established by law.” The records of the Constitutional Convention demonstrate that it was not the intent of the drafters to change the existing law, and that the language chosen by the drafters was intended to establish a presumption in favor of openness, except where a specific statutory limitation was created. IX Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Jan. 3 1974, at p. 3073. See generally Bruce Y. Schewe, Comment, Entering the Door Opened: An Evolution of Rights of Public Access to Governmental Deliberations in Louisiana and a Plea for Realistic Remedies, 41 La. L.Rev. 192 (1980).

IsActs 1976, No. 665 revised the prior versions of La. R.S. 42:5, 42:6, and 42:7, enacted in 1952, and enacted a comprehensive statutory scheme implementing Section 3 in La. R.S. 42:4.1, et seq. (the “Open Meetings Law”).

As evidenced by the enactment of numerous state “sunshine laws” nationwide and the Federal Freedom of Information Act, citizens’ access to governmental poli-cymaking and activities and to public records is a matter of considerable public interest and attention. This appeal raises the issue of the proper meaning and application of Section 3’s exclusionary proviso, as applied to the Enhanced Ability to Compete Act.

APPLICABLE PRINCIPLES OF INTERPRETATION

Unlike the federal constitution, the state constitution’s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people exercised through the legislature. Board of Commissioners of Orleans Levee District v. Department of Natural Resources, 496 So.2d 281, 286 (La.1986). To hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature to enact such a statute. Louisiana Public Facilities Authority v. Foster, 2001-0009, p. 14 (La.9/18/01), 795 So.2d 288, 298.

Statutes are presumed constitutional unless fundamental rights, privileges, or immunities are involved. This presumption is especially forceful in the case of statutes enacted to promote a public purpose. Caddo-Shreveport Sales and Use Tax Commission v. Office of Motor Vehicles, 97-2233, p. 5 (La.4/14/98), 710 So.2d 776, 779.

The burden of proving that an act is unconstitutional is upon the party attacking the act. Moore v. Roemer, 567 So.2d 75, 78 (La.1990). This is a heavy burden. State v. Weaver, 2001-0467, p. 5 (La.1/15/02), 805 So.2d 166, 170. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. Louisiana Public Facilities Authority v. Foster, 2001-0009 at p. 14, 795 So.2d at 298. To successfully challenge a legislative act as unconstitutional, the challenger must show that no circumstances exist under which the act would be valid. AFSCME, Council # 17 v. State Through Department of Health & Hospitals, 2001-0422, p. 8 (La.6/29/01), 789 So.2d 1263.

With regard to the particular constitutional provision at issue, our Supreme Court has held that Section 3 “must be construed liberally in favor of free and unrestricted access to public documents, and that access can be denied only when a law, specifically and unequivocally, provides otherwise.” DeSalvo v. State, 624 So.2d 897, 902 (La.1993).

ANALYSIS

La. R.S. 46:1071, 46:1072, and 46:1073 provide as follows:

§ 1071. Legislative findings and purpose
The legislature hereby finds that the market for hospital and health care services is becoming increasingly competitive. The legislature finds that hospital and other health care providers |7are contracting to engage in economic joint ventures or form partnerships to offer integrated health care services to the public. The legislature finds that this increasing competition is forcing hospitals and other health care providers to develop market strategies and strategic plans to effectively compete. The legislature further finds that hospital service districts are presently at a competitive disadvantage. The legislature hereby declares that the purpose of R.S. 46:1071 through 1076 is to enhance the ability of a hospital service district to compete effectively and equally in the market for health care services. Towards this end, the provisions of R.S. 46:1071 through 1076 shall be construed liberally.
§ 1072. Definitions
As used in this Subpart, the following words and phrases shall have the following meanings ascribed for each unless the context clearly indicates otherwise:
(1) “Hospital health services” means but is not limited to any clinical, diagnostic, or rehabilitation service and any administrative, managerial, or operational service incident thereto.
(2) “Hospital service district” means:
(a) A political subdivision of the state of Louisiana organized pursuant to an Act of the Legislature of Louisiana or pursuant to R.S. 46:1051 et seq.
(b) A hospital owned by a city, parish, or other political subdivision of the state of Louisiana or a hospital owned or operated by the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
(3) “Market strategies” means any plan, strategy, or device developed or intended to promote, sell, or offer to sell any hospital health service.
(4) “Strategic plans” means any plan, strategy, or device developed or intended to construct, operate, maintain a health facility or engage in providing, promoting, or selling a hospital health service.
(6) “Hospital service district commission” means the governing authority or managing board of a hospital service district as defined herein.

§ 1073. Market strategies and strategic planning

A. In addition to powers and duties otherwise provided and notwithstanding any law to the contrary, a hospital service district may develop marketing strategies for its existing |shospital health services or any hospital health service to be provided in the future and may develop strategic plans for the development of any future hospital health service or facility.
B. Notwithstanding the provisions of R.S. 42:4.1 et seq. or any other law to the contrary, a hospital service district commission may hold an executive session for the discussion and development of marketing strategies and strategic plans.
C. Notwithstanding the provisions of R.S. 44:1 et seq. or any other law to the contrary, any marketing strategy and strategic plan of a hospital service district commission and the facility owned or operated by the district shall not be public record and shall be confidential but shall be subject to court subpoena.

As noted above, the express purpose of the Enhanced Ability to Compete Act is “to enhance the ability of a hospital service district to compete effectively and equally in the market for health care services.” To effectuate that purpose, the Act expressly authorizes executive sessions of hospital service district commissions “for the discussion and development of marketing strategies and strategic plans,” as defined in La. R.S. 46:1072(3) and (4). It is undisputed that the authorized executive sessions may exceed in scope those sessions contemplated by the Open Meetings Law.

While the Open Meetings Law is expressly based upon the public policy expressed in Section 3, the Act is also ostensibly based upon the legitimate public purpose of maintaining the mission of hospital service districts to provide public health care in an increasingly competitive arena. The deleterious effect of open disclosure of the inside operations of a market-competitive public body is clearly analogous, for example, to that involved in real estate acquisition by a public body, as discussed by one commentator:

On the one hand, the public persuasively may claim that secret discussion of real estate acquisitions increases the risk that “inside” information will be channeled to persons who may use it for private gain and not to promote general public welfare. On the other hand, the public, interested in observing property acquisition deliberations, is also ^comprised of taxpayers who bear the costs speculation adds to the price of public purchases. Speculation, inevitable when a public body resolves in open session to acquire real estate, will raise prices and hamper efficient purchasing. (Footnotes omitted.)

SMA contends that Section 3 establishes a “fundamental right akin the rights of speech, free press, and assembly.” We disagree. Those rights viewed as preeminent and fundamental under our constitution are clearly set forth in Article I, Declaration of Rights. The drafters of our constitution could have placed Section 3 within Article I, enshrining the right established in the pantheon of inalienable individual rights recognized by our state. They did not, implying that Section 3’s right, although worthy of constitutional weight, does not rise to the level of Article I’s enumerated rights. We also note that Section 3’s right of public access is not one of the individual rights traditionally eonsid-ered as fundamental in constitutional law, although it may embrace in part elements similar to those of the rights of free speech, a free press, assembly, and due process. While the Louisiana Supreme Court in Title Research Corporation v. Rausch 450 So.2d 933, 936 (La.1984), characterized Section 3’s right as “a fundamental right,” it acknowledged |inthat the right was subordinate “when a law, specifically and unequivocally, provides otherwise.” This prioritization simply does not comport with that associated with a “fundamental” and inalienable constitutional right.

In Board of Elementary & Secondary Education v. Nix, 347 So.2d 147, 151 (La.1977), the Supreme Court was called upon to interpret the meaning of the similar phrase “as provided by law,” as used in the Article VIII, § 3(A) of the state constitution. At that time, the phrase “provided by law” was used 104 times in the constitution. As so used, it was held to mean “provided by legislation,” the court citing La. C.C. art. I’s definition of “law” as “the solemn expression of legislative will.” Id. (Emphasis in original.) The use of the word “estab-fished” in the proviso at issue, instead of “provided,” does not warrant a different interpretation. Thus, the legislature is clearly empowered to fashion exceptions to the general right of public access. The central issue in this appeal, of course, is the permissible scope of such exceptions.

SMA argues that the term “cases” in the exclusionary proviso refers only to specific circumstances or situations, rather than to particular public Inbodies in general, and that the legislature may not constitutionally create a virtual exemption of a public body from Section 3 through overly broad and imprecise statutory definitions. Again, we disagree. It is certainly true that the term in ordinary usage refers to “situations” or “circumstances,” but this does not warrant the conclusion that “cases” as used in the proviso may not, in appropriate scenarios, include all “circumstances” involving a particular public body. Here, the constitution has specifically empowered the legislature to “establish” such exceptions to Section 3 as it determines are in the public interest. One commentator has even characterized the exclusionary proviso as a “broad invitation to legislation,” including legislation authorizing complete exemptions from Section 3 to particular governmental bodies.

We hold that the inclusion of the term “cases” in the proviso does not add a limitation on the legislature’s authority to specify the scope of the exceptions it may establish. As correctly observed by one writer, “the plain language of article XII, section 3 of the state constitution empowers the legislature to exempt from disclosure any information it wishes.” John A. Devlin & David Hilburn, Louisiana Constitutional Law, Developments in the Law 1990-1991, A Faculty Symposium, 52 La. L.Rev. 575, 584 (1992). Another commentator has even more forcefully asserted that “the subject is under legislative control, and the constitutional provision is merely a precatory admonition.” (Our emphasis.) Lee Hargrave, “Statutory” and 1 ¿‘Hortatory” Provisions of the Louisiana Constitution of 197k, 43 La. L.Rev. 647 (1983). Regardless of whether the Act is viewed as creating a de facto exemption of hospital service districts or only broad exclusions in their favor, it is a permissible exercise of the legislative power granted in Section 3’s proviso.

Even so, SMA argues that the Act is unconstitutionally overbroad. The constitutional doctrine of “substantial over-breadth,” generally applied only in First Amendment cases, has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation. It is “strong medicine, to be applied sparingly and only as a last resort.” State v. Cinel, 94-0942, p. 2 (La.11/30/94), 646 So.2d 309, 312. The overbreadth involved must be “substantial” before a statute can be invalidated on its face. Id. A litigant charging substantial overbreadth must demonstrate from the text of the challenged statute and from actual fact that a substantial number of instances exist in which the statute cannot be applied constitutionally. In a First Amendment context, this requires a showing of a realistic danger that the statute will compromise recognized First Amendment protections. Id., 94-0942 at p. 8, 646 So.2d at 315.,,

Although Section 3’s right of public access encompasses considerations which overlap those protected by the First Amendment of the federal constitution, we conclude that the substantial overbreadth doctrine is not applicable here. Section 3’s right is not a fundamental, inalienable constitutional right, in the sense of those enumerated rights under Article I, and we decline to extend that doctrine to cases arising under Section 3’s ambit, or to fashion an analogous doctrine. Given the public purpose behind the Act at issue, we must conclude that SMA has failed to rebut the strong presumption in favor of its constitutionality.

| ^Further, there is no logical basis for according Section 3’s exclusionary proviso any less “sanctity” than that accorded its general language, as it is as equally enshrined in our constitution as the general right it qualifies. While narrower and more precisely drawn language in the Act would seem to be more in accord with the spirit of both Section 3 and the Open Meetings Law, that is an issue which addresses itself to the sound discretion of the legislature as the people’s elected representatives. Likewise, it is not appropriate for this court or any other to set the limits of the proviso’s constitutional grant of power to the legislature based upon its own perception of how that plenary power should be exercised.

The parameters of the Act’s definitions and the scope of its authorized exclusions from Section 3’s general rule should be addressed by proper statutory interpretation of the Act, as was done in the prior connected case, rather than by challenging the broad grant of legislative discretion conferred by Section 3 itself. Even if the Act can be interpreted as violative of Section 3 (a proposition with which we do not agree), it is a basic rule of statutory construction that if a statute is susceptible of two constructions, one rendering it constitutional and the other unconstitutional, the court will adopt that which will maintain its constitutionality, without doing violence to its language. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 2001-0185, p. 8 (La.10/16/01), 797 So.2d 656, 662, citing Hondroulis v. Schuhmacher, 553 So.2d 398, 416-17 (La.1988). Stated more concisely, if a statute is broad enough to be applied both validly and 114invalidly, the valid interpretation should be used when it conforms to the legislative intent or purpose of the statute. Mobley v. Department of Social Services, 594 So.2d 914, 917 (La.App. 1st Cir.1991).

We distinguish the cases of Succession of Lauga, 624 So.2d 1156 (La.1993), and Chamberlain v. State Through Department of Transportation and Development, 624 So.2d 874 (La.1993), cited by SMA, on tiré grounds that the scope of the constitutional grants of legislative power at issue were clearly less broad than that of Section 3’s proviso. In Succession of Lauga, the Supreme court held that Article XII, § 5 “clearly and unambiguously place[d] a prohibition or express limitation on the power of the legislature to pass laws abolishing forced heirship,” and that the codal article at issue violated that provision by depriving the plaintiffs of their individual rights. The court reasoned that the power of the legislature under that provision to pass statutes relating to forced heirship was subordinate to the protection of forced heirship, and had to be interpreted to accomplish that public purpose. In Chamberlain, the Supreme Court expressly found that the waiver of the state’s sovereign immunity in tort and contract expressed in Article XII, § 10(A) was self-executory. It further held that the power allotted to the legislature in § 10(C) was clearly limited by its language to enactment of legislation regulating the procedure s and enforcement of judgments in such cases, and did not extend to substantive monetary limitations on the extent of the waiver. No such limitations on the power of the legislature are set forth in Section 3’s proviso, nor can any be implied from the history of Section 3.

DECREE

Our review of the Act, in light of its avowed public purpose, convinces us that its terms are not so broad as to warrant the finding that they violate plaintiffs’ rights both bestowed and limited by Section 3, let |1Ralone any fundamental, inalienable right guaranteed them under the Louisiana or federal constitutions. The judgment of the district court is affirmed.

All costs of this appeal are assessed to the plaintiff-appellant, St. Mary Anesthesia Associates, Inc.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

1 ^OWNING, J.,

concurs and assigns reasons.

I concur. In my opinion, Joseph v. Hospital Service District No. 2 of Parish of St. Mary, 2001-1951, 805 So.2d 400 (La.App. 1 Cir. 12/28/01) was wrongly decided. This exception to the open meetings law was interpreted so broadly that a pest control contract could be considered “strategic planning.” Such a broad interpretation negates the intent of the open meetings law. However, even though I disagree with that holding, I am compelled to follow it.

Even so, the breadth of the majority’s dicta here is expansive. Under the law and facts before us, I agree with the result. But I would narrow the discussion to the law and facts before us and limit the opinion accordingly. I can foresee circumstances where the law might lead to a result opposite of the one reached today. Our decisions should be narrowly tailored so that we do not decide more than is before us.

      . See Joseph v. Hospital Service District No. 2 of the Parish of St. Mary, 2001-1951 at p. 12, 805 So.2d at 407-08.

      . Acts 1984, No. 322, § 1, the Enhanced Ability to Compete Act, enacted La. R.S. 46:1071 through 46:1076. Only the first three numbered statutes are at issue in this appeal.

      . See Acts 1952, No. 484, originally enacting La. R.S. 42:5, etseq.

      . This commentator makes the following observations regarding the issue of whether Section 3 is self-executoiy:
      Because the right to observe the deliberations of public bodies is guaranteed, the provision seems self-executory; such a right is legally enforceable without legislative action.... Yet, ,as the constitutional right unqualifiedly relates to "public bodies,” whether the provision will be effectively self-executing is uncertain. Undoubtedly, the principle was framed with the intent that the constitutional provision co-exist with a statutory scheme authorizing the public to view governmental activity. Specifically, as the statement includes the proviso that it is inapplicable in cases established by law, legislation governing the public's right of access to and observation of governmental deliberations may remove the topics treated statutorily from the constitution's self-executing effect. The "except in cases established by law” clause apparently envisions this situation.

        Id. atpp. 198-200. (Footnotes omitted.)

      . To fulfill and implement the purposes of Article XII, § 3, the legislature enacted the Open Meetings Law, La. R.S. 42:4.1, et seq., which requires that "[e]very meeting of any public body shall be open to the public unless closed pursuant to R.S. 42:6 [allowing executive sessions], R.S. 42:6.1 [listing reasons executive sessions may be held, including "matters now provided for or as may be provided for by the legislature”] or R.S. 42:6.2 [executive meetings of legislative houses and committees].” La. R.S. 42:5(A). The Open Meetings Law is to be liberally construed in favor of open meetings. La. R.S. 42:4.1. Further, any action taken in violation of the Open Meetings Law shall be voidable by a court of competent jurisdiction. La. R.S. 42:4.9.

      . 5 U.S.C. § 552.

      . Schewe, supra, at 216. See also La. R.S. 42:6.1(A)(2), authorizing executive sessions for "[s]trategy sessions or negotiations with respect to collective bargaining, prospective litigation after formal demand, or litigation when an open meeting would have a detrimental effect on the bargaining or litigating power of the public body.”

      . La. Const, art I, § 1 provides that ”[t]he rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.” Among those enumerated rights are the fundamental rights of freedom of speech (§ 7), freedom of the press (§ 7), and assembly (§ 9), as listed by SMA.

      . Our conclusion is supported by the language of La. Const, art. I, § 24, providing that ”[t]he enumeration in this constitution of certain rights shall not deny or disparage other rights retained by the individual citizens of the state.” Although recognizing innomi-nate rights other than the enumerated constitutional rights, this provision implicitly accords those rights not specifically recognized by the Constitution less gravity than the enumerated rights. Likewise, it implies that Article I's "inalienable" rights are entitled to greater weight than those enumerated in other constitutional articles. Article I, § 24 "does not have the effect of limiting state government to enumerated powers. The state continues to have the power to legislate generally in all fields, except as limited by the state or federal constitutions or statutory provisions.” Lee Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L.Rev. 1, 67 (1974).

      .In State v. Perry, 610 So.2d 746, 755 (La.1992), the Supreme Court explained that the rights set forth in Article I's Declaration of Rights “embody and often amplify the protection of certain individual rights” guaranteed by the federal constitution, and provide greater protection of individual rights than does the federal constitution with respect to state rights phrased identically to federal counterparts, [citations omitted]; ... and state rights that have no explicit federal analog [citing Title Research Corporation ].... The consensus of the justices of this court has been that “our state's declaration of individual rights ... represents] more specific ... [and] broader protection of the individual.” [Citation omitted.] This language supports the position that Article I's enumerated rights are certainly entitled to a greater level of protection than the right conferred by Article XII, § 3. The use of the adjective “fundamental” in Title Research Corporation v. Rausch, 450 So.2d 933, 936 (La.1984), insofar as it may be construed as being equivalent to "inalienable,” is unfortunate. Its use is correct insofar as it is limited to meaning a right having its source in the state constitution. All inalienable rights are fundamental, but all fundamental rights are not inalienable. Black's Law Dictionary 675, 759 (6th ed.1990).

      . Counsel for both parties, in their eloquent oral arguments to this court, inadvertently used the phrase “cases provided by law” in discussing Section 3's proviso. (Our emphasis.)

      . Black's Law Dictionary 215 (6th ed.1990); Merriam-Webster's Collegiate Dictionary 176 (10th ed.1998).

      . Schewe, supra, at 200-01. The commentator discusses the legislative removal of "topics” from the general right of public access, but questions whether a specific "exemption” of a public body by statute might be "interpreted as not a case established by law,” and therefore as unconstitutional. Id. at 200. (Emphasis in original.) However, he concedes that "it is likely that, were the issue to be litigated, [an] exemption from the open meetings law would be found to be a case provided by law, on the grounds of the constitutional provision's broad invitation to legislation." /¿.at 201.

      . See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094, pp. 10-12 (La.7/6/00), 766 So.2d 501, 510 (''[0]ur constitution is not ... subject to judicial amendment to express whatever a majority of the court happens to conclude at any given time is the more enlightened viewpoint on a particular controversial issue. If our constitution can be judicially amended in such a manner, that constitutes government by this court, rather than government through a constitutional system of which this court is a separate and equal branch.”)


author: | ,GAIDRY, J. hDOWNING, J.,

text:
    STATE of Louisiana v. David M. KIRSCH.
    No. 2002 KA 0993.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Walter Reed, District Attorney, Coving-ton, By: Dorothy Pendergast, Attorney for the State, Metairie, Counsel for Plaintiff/Appellee State of Louisiana.
    Jennifer Pate, Baton Rouge, Counsel for Defendant/Appellant David M. Kirsch.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   | ,GAIDRY, J.

The defendant, David M. Kirsch, was charged by bill of information with indecent behavior with juveniles, a violation of La. R.S. 14:81. He pled not guilty. Upon a trial by jury, the defendant was found guilty as charged. The trial court imposed a sentence of seven (7) years imprisonment at hard labor, but suspended three (3) years of the sentence. The trial court further ordered the defendant to complete a course for sex offenders upon release from imprisonment and to submit to random polygraph testing. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, urging the following assignments of error:

1. The trial court erred in denying the defendant the right to present evidence of the victim’s accusation and subsequent denial of prior sexual activity with her biological brother;
2. The trial court erred in denying the defendant’s motion to reconsider sentence;
3. The sentence is excessive.

We affirm.

FACTS

On or about August 29, 1999, the defendant exposed the victim to a sexually explicit magazine while she was alone with him in his home. The victim was eight years of age at the time of this incident. The defendant lived in a home located on the same property as the trailer home of the victim and her family. After showing the victim several pages from the explicit magazine, the defendant then pulled down the strap of her clothing and looked at her “private parts.” He then showed the victim a sexually explicit videotape. The defendant also touched the victim’s vaginal area over her clothing and told her that it was beautiful and further stated, “when you are ready for it to be licked, let me know.” The defendant then took the lavictim’s hand and forced her to touch his crotch area over his clothing. When the victim informed her- mother of the incident, she immediately confronted the defendant and contacted the police a few days later. The Child Advocacy Center conducted an interview of the victim. The defendant was arrested and subsequently convicted of indecent behavior with a juvenile.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues that the trial court erred in denying him the right to present evidence of the victim’s accusation and subsequent denial of prior sexual activity with her biological brother. The defendant further submits that the trial court’s failure to allow him to present such evidence was not harmless error.

In the instant case, the defendant attempted to present evidence to show that the victim made prior false statements concerning sexual activity between herself and her biological brother. The defendant filed a motion to compel the production of documents in an attempt to gain access to the victim’s school records and the records of the Office of Community Services (O.C.S.) in order to obtain information regarding the allegations of sexual behavior between the victim and her brother. During a pretrial hearing, the defendant submitted that since O.C.S. did not maintain records concerning the contention by the victim regarding sexual behavior with her brother, they must have determined the contention to be unfounded or false. The state argued that there was no false allegation, but rather a report at school of consensual sexual activity between the victim and her brother. The state further argued that the fact that O.C.S. was not contacted did not indicate that the activity never occurred or that the allegations were untrue. The trial judge ruled that such information regarding sexual contact between the |4eight-year-old victim and her nine-year-old brother was irrelevant and inadmissible.

During the trial, the judge allowed the defendant to proffer the testimony of Joseph Stuiee, who was a counselor at Nac-ogdoches Boys and Girls Club when the victim attended camp there. According to Stuiee’s testimony, several children informed him that the victim had stated that she and her brother had engaged in sexual intercourse. When Stuiee confronted the victim, she stated that she had not made such statements and that it was not true. Stuiee further testified that he met with the victim and her mother to discuss the matter. He stated that during this meeting, the victim’s mother gave him the impression that the victim had previously lied about such matters. However, the victim’s mother testified that she did not recall making any statements which would lead Stuiee to believe that her daughter told lies. She also testified that she never received any calls from teachers or school counselors about her daughter lying in school. Following the proffer of Stuiee’s testimony, the trial court ruled that the defendant could only question Stuiee as to the victim’s reputation for truthfulness and did not allow the defendant to question him regarding the specific allegations of sexual contact between the victim and her brother.

The Louisiana Supreme Court has held that a defendant may present evidence for impeachment purposes pursuant to La. Code Evid. art. 607(C) that a victim “made false allegations regarding sexual activity.” State v. Smith, 98-2045, pp. 3-5 (La.9/8/99), 743 So.2d 199, 201-203. In State v. Smith, the defendant was convicted of attempted indecent behavior with a juvenile. During trial, the defense counsel cross-examined the victim’s mother’s friend regarding similar accusations the victim had made against her cousin and then allegedly recanted. The state thereafter moved to | .¡prevent any further such questioning in accordance with La.Code Evid. art. 412. The court held that La. Code Evid. art. 412, the so-called “rape shield statute,” which prohibits the introduction of evidence of the victim’s past sexual behavior, does not preclude the introduction of evidence of the victim’s prior false accusations for impeachment purposes. Smith, 98-2045 at pp. 3-6, 743 So.2d at 201-203. The court concluded that when a defendant seeks to introduce evidence that the victim made prior false allegations of molestation, the issue is one of credibility, and La. Code Evid. art. 412 is inapplicable. The Smith court stated:

When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made pri- or false accusations and whether all other requirements of the Code of Evidence have been satisfied.

State v. Smith, 98-2045 at p. 7, 743 So.2d at 203-204.

Thus, two requirements must be satisfied before evidence of prior sexual activity can be admitted for impeachment purposes, assuming this evidence is otherwise admissible. First, the activity must be of a sexual nature. Second, there must be evidence the statement is false. State v. Richard, 01-1112, p. 4 (La.App. 1st Cir.2/15/02), 812 So.2d 737, 739, writ denied, 02-1264 (La.11/22/02), 829 So.2d 1038.

We find, in the instant case, that the trial court properly applied State v. Smith and did not err in ruling the evidence concerning sexual behavior between the victim and her brother inadmissible. Furthermore, the trial court did not err in ruling that there was insufficient admissible evidence that the victim made false allegations regarding sexual activities. The trial judge is in the best position to determine if the evidence to be offered is for impeachment purposes or solely to prejudice the jury’s view of the victim | fibased on unsupported allegations. The trial court reviewed the school records and determined that there was no reasonable probability that the victim had made prior false allegations. According to the trial judge, the victim’s school records indicated that the victim had claimed to have had sexual intercourse with her brother, but did not contain anything which would suggest that such information was false. The victim did not relate the occurrence of the incident to Mr. Stuiee. Mr. Stuiee’s testimony was hearsay evidence based upon other children’s statements concerning the occurrence of the incident between the victim and her brother. The defendant failed to produce sufficient admissible evidence such that reasonable jurors could find that the victim had made a prior false accusation. It is the duty and the responsibility of the trial judge to act as a gatekeeper in balancing the admissibility of evidence under La. C.E. arts. 412 and 607(c). This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

In his second and third assignments of error, the defendant contends that the trial court erred in denying his motion to reconsider sentence and in imposing an excessive sentence. The defendant argues the imposition of the maximum sentence allowed by law was improper since he had no prior criminal history and since the conduct for which he was convicted consisted of a one time event of fondling over the clothing of the victim and making inappropriate comments.

A punishment is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and |7suffering or is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251, 1253 (La.1983). To determine whether a penalty is excessive, we must determine whether the penalty is so grossly disproportionate to the severity of the crime as to shock one’s sense of justice. State v. Bonanno, 384 So.2d 355, 358 (La.1980). Additionally, in reviewing a claim of excessive sentencing, the trial judge is to be afforded wide discretion in the imposition of sentences within statutory limits. State v. Abercrumbia, 412 So.2d 1027, 1028-1029 (La.1982). Given compliance with the sentencing criteria of La.Code Crim. Proc. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Gedric, 96-2262, p. 3 (La.App. 1st Cir.9/23/97), 700 So.2d 564, 566.

Upon the defendant’s conviction of indecent behavior with juveniles, in violation of La. R.S. 14:81, the trial court herein imposed a sentence of seven (7) years imprisonment at hard labor, but suspended three (3) years of said sentence. The sentencing range for indecent behavior with a juvenile is a fine of not more than $5,000, or imprisonment with or without hard labor for not more than seven years, or both. La. R.S. 14:81(C). We note that the defendant did not receive the maximum punishment allowed by the statute, as the court could have imposed the entire seven-year sentence without suspension, and also could have imposed a fine in an amount as high as $5,000.

The trial court thoroughly articulated its reasons for imposing this sentence. The record clearly reflects that the trial judge took into consideration all of the factors enumerated in La. Code Crim. Proc. art. |s894.1 in the imposition of sentence. The trial court reviewed the facts of the case and considered the effect of the defendant’s behavior on the victim, who was only eight years old at the time of the offense in sentencing the defendant.

The jurisprudence indicates that maximum, or nearly maximum, terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. State v. Badeaux, 01-406, p. 8 (La.App. 5th Cir.9/25/01), 798 So.2d 234, 239. In State v. Hubb, 97-304 (La.App. 5th Cir.9/30/97), 700 So.2d 1103, the court held that sentences of six and one-half (6.5) and seven (7) years, both without probation, parole, or suspension of sentence, were not constitutionally excessive for two defendants who had pled guilty to sexual battery and lived in the home with the ten and eleven-year-old female victims and their mother. The record reflected that both defendants had “french” kissed both of the children on several occasions, and that one defendant had exposed his genitals to both children and forced one of the children to fondle him. The record further reflected that the other defendant attempted to make one of the children fondle him, and showed the other child photographs of nude women. State v. Hubb, 97-304 at pp. 2-4, 700 So.2d at 1104-1105. The court noted that one of the defendants had no criminal history and the other had only misdemeanor offenses. Nevertheless, under these factual circumstances, the sentences imposed were not an abuse of the trial judge’s discretion. State v. Hubb, 97-304 at p. 6, 700 So.2d at 1106. Likewise, in State v. Morgan, 97-997, 97-998 (La.App. 3rd Cir.2/4/98), 706 So.2d 1084, the court affirmed maximum terms of | flimprisonment for a defendant who pled guilty to two counts of sexual battery. These offenses arose out of the defendant’s touching a twelve-year-old girl’s breasts and genitals while the child was at his apartment. A similar incident occurred upon an eleven-year-old child while the defendant supervised her at his apartment. The defendant knew the victims and his pre-sentence investigation report suggests that he was sometimes entrusted with their care and supervision. State v. Morgan, 97-997 at p. 6, 706 So.2d at 1088. Finally, in State v. Frith, 98-30, 555 (La.App. 2nd Cir.4/8/98), 711 So.2d 388, the court affirmed the maximum sentence for a defendant, convicted of sexual battery, who molested “the seven-year-old son of a female acquaintance ... by inserting his finger in the child’s anus as the child slept.” State v. Frith, 98-30 555 at pp. 1, 8, 711 So.2d at 389, 392. Even with the maximum term of imprisonment and the denial of good time eligibility under La. R.S. 15:537, the court held that the sentence was not excessive in light of the conduct in the ease. State v. Frith, 98-30 555 at p. 8, 711 So.2d at 392.

We find that the trial court in this case did not abuse its discretion in imposing sentence. The victim’s mother testified that she and the defendant had become very close and that he would often visit and eat meals with the family. The defendant set up Nintendo video games in the bedroom of his home and the children were free to come and play whenever they desired. The defendant established a relationship of trust with the victim and her family and then abused that relationship. Further, as noted by the trial court, there is a potential for long-term mental and psychological effects on the victim. The defendant not only fondled the victim over her clothing and made inappropriate statements, but he also exposed and viewed the victim’s breasts and genital area and forced the victim to fondle his genitals. He also |inexposed this eight-year-old victim to pornographic material. In light of the facts of this case, we do not find the sentence imposed so grossly disproportionate to the crime committed as to shock our sense of justice. For the foregoing reasons, the defendant’s second and third assignments of error are without merit.

CONCLUSION

For the above and foregoing reasons, the conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

DOWNING, J., dissents and assigns reasons.

hDOWNING, J.,

dissents and assigns reasons.

I respectfully dissent. The trial court judgment should be reversed and the matter should be remanded for new trial because the trial court excluded admissible evidence of prior false sexual allegations. From the record it appears that camp counselor Stuiee could testify that the victim confided her sexual activity with her brother to other campers and that she denied these allegations. The record also refers to other evidence of sexual activity between the victim and her brother. Reasonable jurors could infer the victim made allegations of sexual conduct and that the allegations were false. Accordingly, evidence of the victim’s prior sexual conduct should have been permitted for impeachment purposes. State v. Richard, 812 So.2d 737, 739 (La.App. 1st Cir.2/15/02).

In State v. Smith, 98-2045, p. 5 (La.9/8/99), 743 So.2d 199, 202-203, the Louisiana Supreme Court discussed the application of La. C.E. art. 412 in the context of prior false allegations of sexual assault. In concluding such evidence was admissible despite the limits of La. C.E. art. 412, the supreme court stated as follows:

Here, by attempting to introduce evidence that the victim had accused her cousin of molestation and then retracted the accusation, defendant was not seeking to prove that the victim had engaged in prior sexual behavior or that she had an unchaste character. Rather, defendant sought to prove for impeachment purposes that the victim had, in the past, made false allegations regarding sexual activity. Because the evidence defendant attempted to introduce did not concern the victim’s prior sexual behavior, history or ^reputation for chastity, we conclude that prior false allegations of sexual assault by the victim do not constitute “past sexual behavior” for purposes of our rape shield statute. We hold, therefore, that Article 412 is inapplicable in sexual assault cases where defendant seeks to question witnesses regarding the vie-tim’s prior false allegations concerning sexual behavior for impeachment purposes. Consequently, no Article 412 hearing is required when defendant seeks to introduce such evidence. (Emphasis added.) (Footnote omitted.)

Id. See also Id., 98-2045 at p. 4 n. 1, 743 So.2d at 201 n. 1.

The defendant should have been allowed to introduce evidence of the child’s false accusations. As stated by the majority, Smith, 743 So.2d at 203-204, holds that the trial court’s evaluation is to determine “whether reasonable jurors could find, based on the evidence presented ..., that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied.” The trial court appears to have abused its discretion in making credibility determinations that should have been left up to the jury. Here, reasonable jurors could find the child had made prior false accusations of a sexual nature.

Accordingly, we should reverse the trial court’s judgment and remand for new trial.

      . The school records reviewed by the trial court are not included in the record on appeal. They were neither introduced nor proffered.

      . La.R.S. 14:43.1 provides that the punishment for sexual battery is “imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for not more than 10 years.”


author: [ ¡¿PARRO, J.

text:
    Oliver BETHLEY v. KELLER CONSTRUCTION, MAPP Construction, Inc. and St. Paul Fire & Marine Insurance Company.
    No. 2001 CA 1085.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Lexlee Overton, Baton Rouge, for Plaintiff-Appellant Elizzle Bethley, et al.
    R. Gray Sexton, Baton Rouge, for Defendants-Appellees MAPP Construction, Inc. and St. Paul Fire & Marine Ins. Co.
    Before: CARTER, C.J., PARRO and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   [ ¡¿PARRO, J.

The claimant spouse appeals from a judgment awarding workers’ compensation benefits for her husband’s leg injury, based on an average weekly wage of $295, until his death by suicide, but denying her claims for death benefits. For the following reasons, the judgment of the workers’ compensation judge is affirmed.

Facts and Procedural History

Oliver Bethley (Bethley) sustained a crushing injury to his right foot and ankle and laceration to his right leg on December 18, 1998, when he was run over by a hydraulic excavator/backhoe during the course and scope of his part-time employment as a cement finisher for Keller’s Concrete (Keller’s). As a result of his injuries, Bethley underwent multiple surgical procedures. On the day Bethley sustained physical injury to his right leg, foot, and ankle, Keller’s was performing work for MAPP Construction, Inc. (MAPP) pursuant to a subcontract agreement. Since Keller’s did not have workers’ compensation insurance coverage at the time of the accident, Bethley sought benefits from MAPP, his statutory employer, and its workers’ compensation insurer, St. Paul Fire and Marine Insurance Company, via a disputed claim filed with the Office of Workers’ Compensation Administration on February 25,1999. Pursuant to this filing, a mediation hearing was seemingly scheduled for March 18, 1999. In the early morning hours of March 17, Bethley committed suicide by using a belt to hang himself from a tree in his back yard.

Subsequently, Elizzle Bethley, Bethley’s surviving spouse, filed a motion for leave to file an amended disputed claim and to substitute her as the proper party claimant, individually and as natural tutrix of her two minor children. In her amended disputed claim, Ms. Bethley alleged that Bethley’s death resulted from the injuries sustained on December 18, 1998. Accordingly, she asserted a claim for death benefits. In its answer, MAPP denied that Bethley’s death was in any way related to his work accident.

[¡¡In an effort to prove that Bethley’s suicide was causally related to the physical injuries sustained on December 18, 1998, Ms. Bethley sought to have Dr. Robert Davis, a clinical psychologist, testify concerning a “psychological autopsy” he had prepared prior to trial. MAPP objected to the admissibility of such testimony on the grounds that it did not fall within the prescribed parameters of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). After taking MAPP’s objection under advisement, the workers’ compensation judge (judge) excluded the testimony of Dr. Davis. Subsequently, judgment was entered decreeing, in pertinent part, that Bethley’s average weekly wage was $295, that Ms. Bethley had faked to prove by clear and convincing evidence that Beth-ley’s death was causally related to the December 18, 1998 accident, and that Ms. Bethley and her children were not entitled to death benefits. Ms. Bethley appealed contending that the judge erred in his calculation of Bethley’s average weekly wage, in excluding Dr. Davis’s testimony, and in failing to award death benefits.

Average Weekly Wages

Bethley’s disputed claim form alleged an average weekly wage of $750. In its pretrial statement, MAPP took the position that Bethley’s average weekly wage was $270, and had voluntarily paid weekly indemnity benefits on the basis of this figure. Relying on LSA-R.S. 23:1021(10)(d), MAPP then submitted that Bethley’s average weekly wage was $56.53 and filed a reconventional demand, seeking a credit or reimbursement for overpayment of indemnity benefits.

The wage information of record reveals that Bethley worked on a part-time basis for Keller’s a total of 9 days during the twenty-six week period immediately preceding December 18, 1998, at a rate of $120 to $150 per day. His rate of daily pay varied depending on the square footage involved and whether Keller’s was forming, pouring, or finishing concrete. Weekly time sheets disclose that Bethley earned a total of $1,220 from August 3, 1998, through December 17,1998.

| ¿When a claimant earns wages other than on an hourly, monthly, or annual basis, LSA-R.S. 23:1021(10)(d) directs that the average weekly wage shall be determined as follows:

If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

In her brief filed with this court, Ms. Bethley admits that Bethley had been working for Keller’s on a periodic basis during the previous six months when he was injured on the job. Nonetheless, Ms. Bethley submits that Bethley worked for Keller’s for less than a 26-week period and suggests that his average weekly wage was $335, as opposed to $295 calculated by the judge. In arriving at this figure, Ms. Bethley utilized Bethley’s earnings for the foui1 weeks that he worked for Keller’s during the months of August and December of 1998, inclusive of the date of his accident.

Although it is unclear how the judge determined that Bethley’s average weekly wage was $295, he apparently found that Bethley had worked for Keller’s during the 26-week period immediately prior to his accident, that his gross earnings from Keller’s for that 26-week period was at least $1,340, and that he had actually worked a total of 10 days during that time span. These findings are reasonably supported by the record and are not manifestly erroneous. Although the methodology used in determining the average number of days worked per week was not disclosed by the judge, we are satisfied that the record in this case would not support a finding of Bethley’s average | ¿weekly wage that would be greater than the amount calculated by the judge. Thus, Ms. Bethley’s contention that Beth-ley’s average weekly wage was $335 lacks merit.

Admissibility of Dr. Davis’s Testimony

In an effort to prove that Bethley’s suicide was causally related to the injuries sustained on December 18,1998, Ms. Beth-ley sought to have Dr. Robert Davis, a clinical psychologist, testify concerning a “psychological autopsy” he had prepared concerning Bethley. Dr. Davis testified that he had previously qualified as an expert in clinical psychology. Although he had previously been requested to perform a psychological autopsy in connection with a claim for life insurance and the death of an inmate, he had not until now been requested to perform one in connection with a workers’ compensation matter.

Dr. Davis explained that a psychological autopsy is an attempt in retrospect to discern the state of mind of the decedent at the time of his death. He stated that it requires some understanding of the nature of the decedent’s life prior to and leading up to the time of the death. This understanding is obtained by interviewing individuals and reviewing records in order to render an opinion as to the reason the decedent committed suicide.

When Ms. Bethley sought to have Dr. Davis testify concerning the cause of Beth-ley’s suicide, MAPP moved to have the testimony of Dr. Davis ruled inadmissible under LSA-C.E. art. 702 on the basis that his testimony did not meet the standard of admissibility set forth in Daubert, 113 S.Ct. 2786.

When faced with a proffer of expert scientific testimony, the judge must determine at the outset whether the expert is proposing to testify to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181 (La.2/29/00), 755 So.2d 226, 234; Daubert, 113 S.Ct. at 2796; see LSA-C.E. art. 702. In fulfilling this gatekeeping role, the trial judge must ensure that the proffered evidence is not only relevant, but reliable, by utilizing a flexible approach requiring that consideration be given to factors such as whether the technique can be (and has been) tested, whether it has been subjected to peer review and publication, whether there is a known or potential rate of error, and whether the relevant scientific/expert community generally accepts the technique. Daubert, 113 S.Ct. at 2796-2797; Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 149-150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). Each of these factors may or may not be relevant to the particular inquiry. Kum-ho, 119 S.Ct. at 1175.

After considering the evidence presented in support of and in opposition to MAPP’s motion to exclude the testimony of Dr. Davis, the judge found that the psychological autopsy has been subjected to peer review and publication. Furthermore, it was found to be generally accepted in the scientific community with evidence of what the potential rate of error is in conducting these autopsies. However, he observed that the ability to test the expert’s theory or technique is problematic, in that the subject of the theory or technique is deceased. Nonetheless, the judge noted that the technique might still pass the Daubert test, depending on the level of reliability of Dr. Davis’s testimony.

Relative to the level of reliability of the expert testimony sought to be introduced, the judge observed that a psychological autopsy is relatively reliable to show whether a person had a mental or substance abuse disorder or whether an incident was a suicide or a homicide. However, the judge questioned the reliability of a psychological autopsy to prove that a suicide was caused by a specific work-related accident. He remarked that the psychological autopsy is unreliable in revealing the cause of a mental disorder and why a person decided to take his or her own life at a given point in time, which was the issue Ms. Bethley sought to use Dr. Davis’s testimony to prove. Accordingly, [7the judge concluded that the Dau-bert/Kumho requirements for admissibility of an expert’s opinion were not satisfied in this case.

A trial judge has broad discretion in determining whether Daubert’s specific factors are reasonable measures of reliability in a particular case. Ultimately, the trial judge’s decision to admit or exclude expert testimony is subject to the abuse of discretion standard of review. Kumho, 119 S.Ct. at 1176. After considering the evidence presented to the judge concerning MAPP’s motion to exclude the testimony of Dr. Davis, we are not convinced that the judge abused his discretion in ruling on the admissibility of such testimony under the facts of this case. We recognize that there are cases in this state that have been resolved after consideration was given to expert testimony concerning a psychological autopsy; however, the psychological autopsies in those cases were used to prove something other than the reason the decedent committed suicide, for example, whether there was undue influence over the testator by a legatee in the making of a will or whether a death was a homicide or a suicide for purposes of determining coverage under a life insurance policy. See Succession of Reeves, 97-20 (La.App. 3rd Cir.10/29/97), 704 So.2d 252, writ granted, 98-0581 (La.5/1/98), 805 So.2d 185; Brown v. Hartford Life Companies, 593 So.2d 1376 (La.App. 5th Cir. 1992).

Furthermore, Dr. Davis had never met or interviewed Bethley. His conclusion was based largely on (1) conversations with Ms. Bethley, who has a financial interest in this case, (2) his review of medical records pertaining to Bethley’s physical injury that make no mention of complaints of pain by Bethley after January 26, 1999, and (3) his reading of deposition testimony. We recognize that Ms. Bethley introduced literature to show that psychological autopsies may be helpful in determining causation. However, we note that there is conflicting literature in the record focusing on the unreliability of such a procedure, in that generally. much of the information forming the basis of the psychological autopsy, as in this case, is obtained from significant others of the ^deceased. This fact casts doubt on the validity of the psychological autopsy because of the possibility that important data may be intentionally concealed and thus unavailable to the clinical psychologist for consideration in the preparation of the psychological autopsy. Accordingly, we find no abuse of discretion by the judge relative to the exclusion of Dr. Davis’s testimony under the facts of this case.

Entitlement to Death Benefits

Dependents of an injured employee are entitled to receive benefits for any injury that arises in the course and scope of employment that results in the death of the employee. Quinones v. United States Fidelity and Guaranty Company, 93-1648 (La.1/14/94), 630 So.2d 1303, 1306; see LSA-R.S. 23:1031 and 1231. Ms. Bethley contends that the December 18, 1998 accident caused a mental injury resulting in Bethley’s March 17, 1999 death. Thus, Ms. Bethley submits that Bethley’s dependents are entitled to death benefits as a result of the personal injury sustained on December 18,1998.

A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not com-pensable under the workers’ compensation law unless it is demonstrated by clear and convincing evidence. LSA-R.S. 23:1021(7)(c); see LSA-R.S. 23:1021(7)(d). Under LSA-R.S. 23:1021(7)(c), a claimant must prove not only a mental injury, but also a causal link between the physical injury and the mental injury. Smith v. Schwegmann Giant Supermarkets, 94-367 (La.App. 5th Cir.11/16/94), 646 So.2d 1098, 1101, writ denied, 94-3071 (La.2/9/95), 649 So.2d 423. The mental injury must be proven just as any other disabling injury. Bernard v. O’Leary Brothers Signs, Inc., 606 So.2d 1331, 1337 (La.App. 3rd Cir. 1992). The level of proof required to establish temporary total disability and permanent total disability, as well as the causal relationship between the mental injury and the physical injury, is by clear and convincing evidence. See LSA-R.S. 23:1221(l)(c) and (2)(e); LSA-R.S. 23:1021(7)(c); see also Charles v. South Central Industries, 96-0883 (La.11/25/96), 683 So.2d 706, 709. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence. Braud v. First National Bank of Gonzales, 98-2106 (La.App. 1st Cir.6/23/00), 763 So.2d 829, 833.

In deciding whether a claimant in a workers’ compensation action has proven his claimed disability, the totality of the evidence, medical and lay, must be considered. Bass v. National Maintenance Corporation, 95-0367 (La.App. 1st Cir.12/15/95), 665 So.2d 782, 786. The judge’s factual determination as to whether the claimant has discharged his burden of proof should not be disturbed on review absent manifest error. Ross v. Remediation Services of Louisiana, 97-2102 (La.App. 1st Cir.5/15/98), 714 So.2d 218, 221. Because of the possibility of symptoms being feigned in mental injury cases, the judge should exercise extreme care in determining whether an employee proved that he suffered such an injury and whether the injury is related to the accident. Perrodin v. St. Landry Parish School Board, 95-1563 (La.App. 3rd Cir.5/22/96), 676 So.2d 612, 616. Moreover, the judge’s assessments of the credibility of witnesses or the weight of the medical evidence is not to be disturbed unless clearly wrong. Virgil v. American Guarantee and Liability Insurance Company, 507 So.2d 825, 826 (La.1987). If the judge’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that it would have weighed the evidence differently had it been sitting as the trier of fact. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882-883 (La.1993).

Ms. Bethley testified that during the ten years of their marriage prior to the December 18, 1998 accident, Bethley had neither indicated a desire to commit suicide nor received treatment for depression or mental concerns. When she visited him at the 1^hospital following the accident, Beth-ley complained of being in pain. As a result of his injuries, Bethley was treated surgically for a compound comminuted fracture of the tip of the distal right tibia, a fracture/dislocation of all five tarsal metatarsal joints, and a comminuted fracture of the os calcis, which required the placement of pins in his foot. An open wound on the posterior aspect of the leg necessitated the performance of a skin graft by a plastic surgeon. Bethley was released from the hospital on December, 23, 1998, on pain medications. Ms. Beth-ley explained that she witnessed Bethley crying in bed one night because of pain.

Based on complaints by Bethley to his orthopedist of continual pain in the right foot and ankle, the pins were removed from his right foot on January 26, 1999. The records of his orthopedist do not reveal that Bethley was on any type of medication at that time; the space allowed for designation of medications was left blank. The record of this visit was the last to note a complaint of pain by Bethley. The orthopedist’s physical examination revealed that the skin graft on Bethley’s right leg was healing.

On February 15, 1999, Bethley was informed by his plastic surgeon that he would have to undergo another skin graft. According to Ms. Bethley, Bethley was concerned that the condition of his leg would not improve if he did not have the recommended procedure. Ms. Bethley testified that Bethley questioned his doctor at that time about his ability to return to work. He was concerned about his ability to provide for his family in the event that he would not be able to work again.

On February 24, 1999, Bethley’s orthopedist observed that his leg was improving; however, he noted that the fracture had not fully healed and that Bethley still had open wounds to the leg that would require additional skin grafts. Based on these findings, the orthopedist opined that Bethley was still totally disabled. Bethley was placed in a right short leg splint and instructed to continue using crutches. He was to return for follow-up care in three weeks. There is no record that Bethley returned to his orthopedist for treatment after February 24,1999.

_J_yMs. Bethley testified that although Bethley had indicated to her that he was going to take his life, she did not believe him. According to her, the reason Bethley gave for wanting to end his life was that he was tired of not being able to do the things he wanted to do and of being in pain. Ms. Bethley stated that she realized that Beth-ley was in need of help when she returned from church services the Sunday before his death. She testified that on Monday, March 15, 1999, she contacted a psychiatrist and scheduled an appointment for Bethley for the following Monday, March 22, 1999; Bethley had reportedly attempted to commit suicide by use of a pillow during the prior week. Additionally, during the week prior to his suicide, Ms. Bethley had observed Bethley saying his goodbyes to each family member.

The medical notes of Bethley’s plastic surgeon indicated that Ms. Bethley called her office just prior to his death, informed a staff member that Bethley was “going through a depression stage,” and sought a referral to a psychiatrist. Her medical notes from a prior visit, possibly on March 15,1999, indicated that Bethley was almost totally healed, such that it was probably alright to have his leg placed in a cast. Although daily whirlpool therapy ceased on February 14, 1999, his plastic surgeon’s notes from what appears to be February 15, revealed that she would try to schedule Bethley’s still-needed skin graft; however, she noted that Bethley had informed her that he was unsure whether the workers’ compensation carrier would pay for the procedure.

Bethley’s disputed claim for workers’ compensation benefits was filed on February 25, 1999, with a mediation hearing scheduled for Thursday, March 18, 1999. Meanwhile, during the early morning hours of March 1Y, 1999, Ms. Bethley went in search of Bethley upon discovering that he was not in bed. She found him standing in the backyard with his back towards a tree. She explained that he came into the house with a smile on his face, and they talked about the past, without mention of the future, 112until four or five in the morning. Ms. Bethley testified that during this conversation, Bethley assured her that he was not going to kill himself. Af-terwards, she went back to bed. Later that same morning when she woke up to get the children ready for school, she noticed that Bethley was not in the den where he said that he would be. She went to the back door and saw him lying against the tree, seemingly asleep. When he did not respond to her calls, Ms. Bethley contacted his parents and sister. Bethley’s sister went to where he was sitting and discovered the belt that Bethley had used to hang himself.

Ms. Bethley admitted that Bethley was aware of the upcoming mediation hearing. She stated that Bethley feared being arrested at this hearing because the medical bills relating to his physical injury had not been paid. According to Bethley’s sister, Bethley knew that Keller’s did not have workers’ compensation insurance. The sole owner of Keller’s, who testified that coverage had been terminated for nonpayment of premiums, verified this fact. However, Keller’s owner testified that when Bethley asked about the availability of insurance to provide coverage for his medical expenses, she informed Bethley that she was working to get things resolved. By the time of his death, three months after his physical injury, no workers’ compensation benefits had been paid to or on behalf of Bethley.

According to Ms. Bethley, from the time of his injury until his death, Bethley did not have the use of his leg. She denied that he could walk without the aid of crutches. She testified that their eleven-year-old daughter would drive Bethley to nearby locations when she was not around to take him where he wished to go.

In light of the heightened burden placed on a claimant seeking compensation benefits for a mental injury caused by a physical injury and giving due regard to the deference owed by this court to the workers’ compensation judge’s factual determinations and apparent assessments of credibility, we are unable to find manifest |13error in the judge’s finding that Ms. Bethley failed to prove by clear and convincing evidence that Bethley’s death was causally related to the accident. This determination was reasonably supported by the record. Having failed in her burden of proof as to causation, Ms. Bethley and her children are not entitled to death benefits under LSA-R.S. 23:1031 and 1231.

Decree

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed to Elizzle Bethley, individually and as natural tutrix of her two minor children.

AFFIRMED.

CARTER C.J., dissents without reasons.

      . The workers’ compensation judge in this case was Honorable Anthony P. Palermo, of District 5.

      .On Bethley’s disputed claim form, Keller's Concrete was incorrectly identified as Keller Construction.

      . In addition to his part-time employment with Keller's, Bethley worked for a construction company owned by his father.

      . The time sheet dated December 18, 1998, discloses that Bethley's rate of pay for December 18, 1998, was $120. The record reveals that he was not paid for that day since his injury occurred early that morning rendering him unable to work.

      . Because an answer to the appeal was not filed, we pretermit a discussion of MAPP's argument in its brief regarding its calculation of Bethley's average weekly wage.

      . Louisiana has adopted the Daubert standards for admissibility of expert opinion evidence. State v. Foret, 628 So.2d 1116, 1122-1123 (La.1993).

      . Although the supreme court granted writs in this case, there has been no further action from the supreme court.

      . A claimant's own testimony that he experienced debilitating depression after a work-related physical injury, combined with the testimony of family members and a psychologist, can constitute clear and convincing evidence "to support a finding that the claimant has suffered a mental injury as a result of the physical injury. Howell v. Service Merchandise Company, Inc., 95-79 (La.App. 3rd Cir.8/9/95), 663 So.2d 96, 100.

      . Bethley’s sister explained that on Tuesday, March 16, 1999, Bethley informed her that he was going to figure out a way to kill himself. According to Bethley's sister, Bethley voiced complaints of pain during their visit on Tuesday. During her visit with Bethley that same Tuesday, Bethley's mother observed that Bethley was restless and appeared to be in a daze. She testified that Bethley did not respond to her remarks about his interest in committing suicide.

      . Notably, this finding was made by the workers’ compensation judge without a determination as to whether Ms. Bethley had shown that Bethley was suffering from a com-pensable "mental injury” at the time of his death. See LSA-R.S. 23:102l(7)(c) and (d).