author: LEMMON, Justice. DENNIS, Justice, PER CURIAM.

text:
    Honorable Charles A. IMBORNONE v. Honorable Thomas A. EARLY, Jr. et al.
    No. 81-CA-0388.
    Supreme Court of Louisiana.
    April 6, 1981.
    Dissenting Opinion April 28, 1981.
    On Rehearing April 30, 1981.

      John T. McCann, Peter A. Winkler, Jr., New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Paul A. Eckert, Staff Atty., New Orleans, for defendants-appellants.
   LEMMON, Justice.

This is a suit by Charles Imbornone, the newly elected Judge of Section “A”, First City Court of the City of New Orleans, to enjoin the Judges of the Civil District Court for the Parish of Orleans, the Mayor of the City of New Orleans, and the City from taking over the courtroom and chambers used by Section “A” and assigning the use of that space to a judge of the Civil District Court. The trial court, after a hearing, denied injunctive relief and dismissed the suit. Judge Imbornone appealed.

I.

The Civil Courts Building was constructed by and has been maintained by the City of New Orleans. Initially allotted to the First City Court was a portion of the second floor of the building, consisting of three courtrooms with adjoining chambers and offices, the office of the clerk of court, and the office of the constable. At the present time there are still three judges of the First City Court, and prior to the events at issue in these proceedings each of the judges occupied one of the courtrooms and adjoining chambers.

The third and fourth floors were initially allotted to the Civil District Court, with courtrooms and chambers for each of the eight judges on the third floor. A total of four additional judges have since been added to the court, and libraries and offices have been converted into makeshift courtrooms. Furthermore, the recent significant increase in jury trials has made the overcrowding problem intolerable.

For several years the Judges and the Mayor have discussed various solutions to the problem, such as an addition to the building, the construction or renovation of other buildings, the moving of one or more courts, or a combination of these proposals. Every proposal was frustrated because of the City’s lack of necessary finances.

Finally, Mayor Morial responded to a request from the Judges of the Civil District Court by offering to authorize them to allot space in the Civil Courts Building. On November 19, 1980, the City’s Chief Administrative Officer, acting upon written instructions from the Mayor, wrote a letter authorizing those judges “to assume full responsibility for determining the most effective utilization of the space assigned to courts and offices under the jurisdiction of the Civil District Court Judicial Expense Fund”. The City also indicated its intention to retain responsibility for maintaining the building.

Pursuant to that authority the Judges of the Civil District Court, acting en banc, assigned the space on the second floor formerly occupied by Section “A” to Judge Ortigue’s use and assigned the space on the third floor formerly occupied by Judge Ortigue to the use of Section “A”. This suit followed to enjoin enforcement of that order.

II.

Defendants’ exception to the jurisdiction over the subject matter, asserting that jurisdiction vested in the Judiciary Commission, was properly overruled by the trial court. The Judiciary Commission has the power and authority to investigate misconduct by judges and to recommend the discipline or removal of judges. Since no such misconduct was involved in this case, the district court had jurisdiction over the subject matter of this action for injunctive relief.

The trial court also properly overruled defendants’ exception of no cause of action based on judicial immunity from suit. The traditional immunity of judges from liability for damages for acts committed in exercise of their jurisdiction has no application to a contest questioning judges’ administrative action in allocating space among judges for the exercise of judicial functions.

III.

The critical issue is the legality of the order issued by the Judges en banc.

R.S. 33:4714 A requires the City to provide suitable courtrooms, offices and furnishings for the various courts in Orleans Parish. The executive and administrative powers of the City are vested in the Executive Branch, of which the Mayor is the chief executive officer. Home Rule Charter of the City of New Orleans, Art. IV, §§ 4-101, 4-206. Furthermore, the Department of Property Management (in the Executive Branch) has the responsibility for performing custodial functions and assigning space in buildings owned and operated by the City for a public purpose. Home Rule Charter of the City of New Orleans, Art. V, § 4-1401.

The judges of the courts of Orleans Parish arguably could require the City to furnish suitable courtrooms and offices necessary for the operation of the judicial branch. Furthermore, the judges of the civil courts or Orleans Parish arguably have the inherent power to assume responsibility for the suitable utilization of space within the Civil Courts Building until additional space is provided by the City.

Here, some of the civil judges requested the City’s chief executive officer to furnish suitable accommodations, since their present accommodations are not suitable, and the Mayor responded by delegating to those judges (who constitute a majority of the civil judges in the parish), as a measure of interim relief, whatever authority he had to allocate presently available space. The delegation to those judges of any authority the Mayor had to allot space for judicial use does not violate the principle of separation of powers. We therefore conclude that the en banc order of the 12 Judges of the Civil District Court was valid, whether issued under the inherent power of the courts or under the properly delegated authority from the Mayor.

A related issue is whether the Judges of the Civil District Court exercised their authority arbitrarily or capriciously.

Two of the Judges of the First City Court testified as to their own overcrowding problems, which had been compounded by the addition of three arbitrators of small claims. They described the problem of confusion among unrepresented litigants appearing in great numbers and predicted a proliferation of the disorder if one of three sections is moved to another floor.

The trial judge recognized “considerable merit in petitioner^ assertions”. Nevertheless, the trial judge found “sufficient justification” to support a conclusion that the action taken was not arbitrary. We agree, noting that while other equally reasonable actions may have been taken, the action that was taken cannot reasonably be classified as arbitrary.

IV.

The final issue is whether the disputed order was adopted at a meeting held in violation of R.S. 42:4.1 et seq., providing for open meetings of public bodies.

The Judges of the Civil District Court did allow other judges in the Civil Courts Building to appear at the en banc meeting and present their views, but the portion of the meeting at which the vote was taken was not open to the public. Thus, the threshold question is whether R.S. 42:4.1 et seq. was applicable.

R.S. 42:4.2 provides in pertinent part: “(1) ‘Meeting’ means the convening of a quorum of a public body to deliberate or act on a matter over which the public body as an entity has supervision, control, jurisdiction, or advisory power.
“(2) ‘Public body’ means village, town, and city governing authorities; parish governing authorities; school boards, and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including. any committee or subcommittee of any of these bodies enumerated in this Paragraph. ‘Public body’ shall not include the legislature.”

It is evident from a review of the above statute and of R.S. 42:4.1, which states the purpose of the requirement of open meetings, that the law is not intended to apply to the judiciary. This reasoning applies even when judges are acting in the performance of their rule making or administrative functions.

We therefore conclude that the Legislature did not intend R.S. 42:4.1 through 42:12 to apply to actions of members of the judiciary in the appropriate exercise of their judicial function. The allocation of court space, whether under the delegated authority of the executive branch to solve current overcrowding problems or under the court’s inherent power, is an appropriate exercise of judicial function. It is therefore unnecessary to reach the issue of the constitutionality of these statutes.

The judgment of the trial court is amended to delete any reference to the constitutionality of R.S. 42:1 et seq. As amended, the judgment is affirmed.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent because I believe (1) the doctrine of inherent judicial powers, which protects the impartiality and independence of the judiciary from legislative or executive interference, cannot be asserted by one lower state court against another; (2) even if the doctrine were applicable, my brethren inadvertently did not apply it in the correct manner; and (3) consequently, the majority also has failed to recognize this Court’s duty to exercise its own administrative authority in the case. Since this Court is the only court authorized by our state constitution to exercise administrative authority over another court, the Mayor’s attempt to authorize the Civil District Court to exercise administrative authority over the First City Court is unconstitutional, null and void.

The separation of powers by our state constitution establishes an inherent judicial power which the legislative and executive branches cannot abridge. Singer Hutner Levine Seeman & Stuart, etc. v. La. State Bar, 378 So.2d 423 (La.1979); Saucier v. Hayes Dairy Products Co., 373 So.2d 102, 115 (La.1979). See, Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765 (1977). Numerous other state supreme courts have approved the inherent powers doctrine as being necessarily implied by the separation of powers doctrine, which includes the concept of functional differentiation and the concept of checks and balances. Judges for the Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436 (1969); modified and opinion substituted 386 Mich. 1, 190 N.W.2d 228 (1971); Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193, cert. denied 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971). See, Baar, Separate but Subservient, Court Budgeting in the American States, 151 — 152 (1975); State Courts: A Blueprint for the Future, National Center for State Courts, 144-45 (1978); Brennan, Judicial Fiscal Independence, 23 U.Fla.L.Rev. 277 (1971). The doctrine of inherent powers has been applied in a broad range of cases to both fiscal and non-fiscal needs of courts. See, Cratsley, Inherent Powers of the Courts, The National Judicial College, pt. 3, Inherent Powers Outline, 29 et seq. (1980).

Under a working definition gleaned from the case law, inherent powers consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity and to make its lawful actions effective. Cratsley, Inherent Powers of the Courts, The National Judicial College vi (1980). See also, In re Integration of the Nebraska State Bar Association, 133 Neb. 283, 375 N.W. 265 (1937); Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709 (1955); Commonwealth ex rel. Carroll v. Tate, supra; Hazard, McNamara and Sentilles, Court Finance and Unitary Budgeting, 81 Yale L.J. 1286, 1287 (1972).

The inherent powers doctrine necessarily is limited in several respects. Since it is based on the separation of powers, which includes the concepts of checks and balances and functional differentiation, it serves primarily to shield the courts’ ability to judge independently and fairly from improper interference due to the actions or inactions of executive or legislative officials. Baar, Judicial Activism in State Courts: The Inherent Powers Doctrine, in Inherent Powers of Courts, National Judicial College (1980). Indeed, I have been unable to discover any case in which a state supreme court approved of an application of the doctrine by one lower court against another. Secondly, a court’s inherent judicial power includes a measure of administrative authority not unlike that primarily and exclusively vested in the executive department, but only so much as is reasonably necessary to its own judicial function. Cratsley, supra, at vi. Cf. Judges for the Third Judicial Circuit v. County of Wayne, supra, 172 N.W.2d 436, 440 (Mich.1969); modified and opinion substituted 386 Mich. 1, 190 N.W.2d 228 (1971). Otherwise, the notion of inherent powers would swallow up the separation of powers doctrine which it is designed to complement. See, Note, “Protective Orders Against the Press and the Inherent Powers of the Courts,” 87 Yale L.J. 342 (1977). Finally, a court should not wander lightly into the field of inherent powers. Because of the risk of negative repercussions, most state supreme courts have placed restrictions on the doctrine. The majority view, and I submit the better view, is that the court asserting its inherent power has the burden of proving that its objective is reasonably necessary to its judicial function. Judges for the Third Judicial Circuit v. County of Wayne, supra; Commonwealth ex rel. Carroll v. Tate, supra; Mathis v. Lovett, 215 So.2d 490 (Fla.App.1968); Matter of Salary of Juvenile Director, 87 Wash.2d 232, 552 P.2d 163 (1976) (“Clear, cogent and convincing proof”); Webster County Board of Supervisors v. Slattery, Chief Judge, 268 N.W.2d 869 (Iowa 1978) (required proof of “immediate [and] necessary” [to the] “efficient and basic functioning of the court”).

Other rules of limitation which have been adopted are as follows: Inherent powers may be used by courts only when the established means for fulfilling its needs have been exhausted. State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392 (1913); In re Clerk of Court’s Compensation for Lyon County v. Lyon County Commissioners, 308 Minn. 172, 241 N.W.2d 781 (1976); Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949); See Annotation, 59 A.L.R.3d 569 at 586. In some states an administrative order of the supreme court requires the judge to obtain approval of the state court administrator before exercising his inherent power to order the expenditure of public funds on the judiciary. Judges for the Third Judicial Circuit v. County of Wayne, supra; O’Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 287 N.E.2d 608 (1972); see, Connors, Inherent Powers of the Court: Management Tool or Rhetorical Weapon? 1 Just.Sys.J. 63, 71-72 n. 28. On review, the appellate courts have limited the use of inherent powers when its exercise was found to have been arbitrary. City of North Las Vegas ex rel. Arndt v. Daines, 92 Nev. 292, 550 P.2d 399 (1976); the ordered items were not essential, State v. Superior Court, 2 Ariz.App. 466, 409 P.2d 750 (1976); or a court attempted to create a new court or judicial position. Lake County Council v. Arrendondo, 266 Ind. 318, 363 N.E.2d 218 (1977). Another restraint that courts have placed on the exercise of inherent powers is that such powers can only be used to control activities and persons within the judicial system. Webster Eisenlohr, Inc. v. Calodner, 145 F.2d 316 (3rd Cir. 1944); Birmingham Bar Association v. Phillips, 239 Ala. 650, 196 So. 725 (1940); Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977 (1937). Some of the underlying policy considerations for careful scrutiny of use of inherent powers by a state’s highest court and restrictions placed on the doctrine are the dangers of undermining the public’s trust in the judiciary, giving the appearance of bypassing the electorate process, overspending the budget, and damaging intergovernmental cooperation. See, State Court Assertion of Power to Determine and Demand Its Own Budget, 120 U.Pa.L.Rev. 1187 (1972).

In the present case, the majority holds that the Civil District Court properly exercised its inherent judicial power in ordering a judge of the First City Court to move from one courtroom to another in a building provided for both courts, contrary to the First City Court’s previous decision to assign him to the courtroom from which he was evicted. I believe my brothers have fallen into error for several reasons.

At the threshold, I do not believe that the inherent powers doctrine can be invoked by one lower state court against another in the absence of a specific constitutional authorization. The doctrine’s purpose is to protect the independence and impartiality of each judge exercising a judicial function against manipulation by officials of the other two governmental branches. Indeed, Senator Sam Ervin was of the opinion that the separation of powers concept as understood by the founding fathers “assumed that each individual judge would be free from coercion even from his own brethren.” Ervin, Separation of Powers: Judicial Independence, 35 Law and Contemporary Problems, 108, 121 (1970). Our state constitution grants only the supreme court and the Chief Justice, subject to rules adopted by the Court, administrative authority over other courts. La.Const. art. 5, § 6. The necessity of stateside, centralized control over the operation of the lower courts was recognized by the 1974 constitution, and the new judiciary article enhances the power of the Supreme Court to exercise administrative control over the entire judicial system of the state. Hargrave, The Judiciary Article of Louisiana Constitution of 1974, 37 La.L.Rev. at 786.

Secondly, since this is not a case of a conflict between branches of government, but merely a dispute between two lower courts under our administrative authority, it is clear that the controversy addresses itself to this Court for resolution administratively. Nor should this Court decide the matter administratively in the present posture without making several preliminary decisions. We should determine whether the form of the action will enable us to reach a fair, just and administratively sound decision without impairing the dignity of the judiciary. Although the trial judge who sat in this case is of the highest caliber and without doubt a fair and impartial jurist, I am now convinced that it was improper of us to have him decide this case while sitting as a member of one of the litigant courts. Moreover, since we are establishing precedent, rather than force any judge to decide such a dispute between colleagues, we could treat the matter as one within our original jurisdiction and have the Judicial Administrator gather evidence and make findings of fact. Our review should be de novo, and our findings and conclusions based on a preponderance of the evidence. The record should be reviewed for the solution most conducive to the administration of justice, not merely to determine if the Civil District Court or our fact finder acted arbitrarily. Since the order in question was issued by one of the parties to the dispute, it should enjoy no presumption of impartiality or validity. Furthermore, although the dispute should be resolved quickly (even if only temporarily), this Court may well conclude that both courts are in urgent need of more courtroom facilities. In such event, this Court has the responsibility to assist both lower courts in obtaining adequate facilities through negotiation, any other avenue available, and ultimately through its own inherent judicial power, if necessary.

Finally, even if the threshold problems could be ignored, the inherent powers doctrine was not applied in a correct manner by the majority. The First City Court’s claim to inherent powers is of equal rank and dignity with that of the Civil District Court. Both courts were established by the constitution. See, La.Const. art. 5, §§ 14 et seq., § 32. Both received the same grant of judicial power. La.Const. art. 5, § 1. Both are protected by the separation of powers, from which inherent judicial powers are inferred. La.Const. art. 2, § 2. Presumably, the founders of our constitution sought to provide safeguards for the fair and impartial administration of justice in the First City Court as in all other courts authorized by the judiciary article. Therefore, we may not presume that the Civil District Court’s aggressive assertion of the inherent power to reassign courtrooms has any greater validity than the First City Court’s defensive reliance on the doctrine. Since the Civil District Court initially asserted the doctrine, and it is the party which seeks to change the status quo, it must bear the burden of proof. Accordingly, it must prove that the proposed reassignment of courtrooms is reasonably necessary to enable it to perform efficiently and properly its judicial function and that the reassignment will not deprive the First City Court of facilities reasonably required to enable it to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. And the proof must be at least a preponderance of the evidence — one state supreme court has even required a standard of “clear, cogent and convincing proof.” Matter of Salary of Juvenile Director, supra.

Our review should be de novo or at least as rigorous as our normal appellate review of facts. All courts which have approved the inherent powers doctrine require a careful appellate review to protect against possible unilateral abuse of the doctrine which would undermine trust in the judiciary, thwart the will of the people or damage intergovernmental cooperation. Moreover, before sustaining the Civil District Court’s assertion of inherent powers we must be satisfied that it has exhausted all other available means of fulfilling its needs.

Accordingly, even if the inherent powers doctrine could be invoked in this case, it is clear that the correct burden of proof and standard of appellate review were not applied. Both the majority and the trial judge terminated their inquiries “without deep consideration of the justification and reason for” the courtroom reassignment order after a finding that the Civil District Court’s unilateral action in its own self-interest was “not arbitrary.” Even so, both conceded that the question of arbitrariness was very close and the majority noted that “other equally reasonable actions may have been taken.” Apparently, the majority of this Court did not inquire into the crucial question of whether the proposed reassignment of courtrooms will deprive the First City Court of facilities reasonably necessary to the proper, dignified and efficient performance of its judicial function.

The question of whether the Mayor had the authority to delegate the responsibility of space allocation to the judges of the Civil District Court is irrelevant, in my opinion. Regardless of whether he had the authority to delegate these administrative functions, the Civil District Court did not have the capacity to perform them, because that court has no administrative authority over any other court. The Mayor may provide space and allocate it directly to either court. However, insofar as he sought to authorize the Civil District Court to exercise such unilateral administrative authority over another court within our state, his actions were unconstitutional as impinging upon the exclusive power and authority of this Court to administer the judicial system of the state. La.Const. art. 5, §§ 5 and 6.

I agree with the majority opinion’s conclusions as to the inapplicability of the Sunshine Law and judicial immunity. Otherwise, I respectfully dissent.

# * * # * ♦

ON REHEARING

PER CURIAM.

We granted a rehearing to reconsider that portion of our original opinion which approved of the order of the Civil District Court judges reallocating court space in the Civil Courts Building. After carefully considering the evidence in this case, we conclude that the record provides an adequate basis for the exercise of our inherent judicial power and administrative authority. Exercising that power and authority we find that the most practical stopgap measure for dealing with the overcrowded condition in the Civil Courts Building is for Judge Imbornone and Judge Artique to exchange courtrooms, as set forth in the Civil District Court judge’s order. Accordingly, our original opinion and decree are amended to direct such reallocation of courtroom space as an administrative order of this Court. Otherwise, the initial decision herein is affirmed.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

      . The trial judge, specially assigned to hear the case, also declared unconstitutional “any prospective application of the Public Meetings Law (R.S. 42:1 et seq.) to the judiciary of this state”. The State of Louisiana and the Judges of the Civil District Court filed a direct appeal to this court pursuant to La.Const. 1974, Art. V, § 5(D). Judge Imbornone then also appealed.

      . The remainder of the second floor was occupied by the Court of Appeal, Fourth Circuit. The Juvenile Court occupied the first floor of the four-story building.

      . At trial Judge Ortigue, whose courtroom has no jury box and no room for a 12-member jury, testified that he was then in a jury trial that was in its third day. He had been required to borrow a different courtroom for each of the three days of the trial, and he described the confusion and extreme delays caused by the problem.
      There are no jury trials in the First City Court.

      .The judges, in testimony at trial, characterized the order as the most efficient and immediately available interim solution to the space problem.

      . R.S. 33:4714 A provides:
      “A. The city of New Orleans shall provide suitable courtrooms and offices to the various courts of the Parish of Orleans, the criminal and civil sheriffs, the recorder of mortgages and register of conveyances, and the clerks and constables of the city courts.”
      Furthermore, R.S. 33:4714 C provides:
      “C. Courts and officers with judicial expense funds are hereby authorized to assist the city of New Orleans with the repair, renovation or construction of suitable courtrooms and quarters for the proper operation of their respective courts in Orleans Parish.”

      . R.S. 42:4.1 provides:
      “It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.”


source: Caselaw Access Project

author: CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Bobby LEONARD.
    No. 80-K-1812.
    Supreme Court of Louisiana.
    May 19, 1981.
   Decision Reported in 394 So.2d 1214.

CALOGERO, Justice,

concurring.

I concur in the majority opinion, 394 So.2d 1214, that the plea, verdict and sentence were each improper and that their correction by remand to the district court for retrial on the merits will not impinge on the defendant’s guarantee against double jeopardy. Additionally, however, I believe that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) defendant must be given credit for the time he has already served on the illegal sentence.

Furthermore, while it is true that C.Cr.P. art. 592 provides that “when a defendant pleads not guilty, jeopardy begins when the first witness is sworn at the trial on the merits”, the United States Supreme Court has stated that as a matter of Constitutional law jeopardy attaches in a jury trial when the jury is impaneled and sworn. Crist v. Betz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); State v. Bodley, 394 So.2d 584 (1981).


author: DENNIS, J., DIXON, C. J.,

text:
    STATE of Louisiana ex rel. Joey L. BARNES v. STATE of Louisiana.
    No. 81-KH-1363.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Joey L. Barnes applying for Remedial Writ, Parish of Terrebonne.

Writ denied.

DENNIS, J.,

concurs in the denial of this application because the applicant has made no showing of a need for him to serve as his own co-counsel other than the bare statement that his trial counsel was ineffective.

DIXON, C. J.,

would grant the writ and permit relator to serve as his own co-counsel. He raises the issue of ineffectiveness of the counsel appointed to represent him.


author: BLANCHE, Justice.

text:
    Dorothy Lozano HUBBS, et al. v. Carlo CANOVA, et al.
    No. 81-C-0014.
    Supreme Court of Louisiana.
    July 2, 1981.
    Patrick W. Pendley, Freeman & Pendley, Plaquemine, for defendant-applicant.
    Hamlet D. May, Baton Rouge, for plaintiff-respondent.
   BLANCHE, Justice.

This is a dispute over land ownership. At issue is the validity of a 1969 tax sale. Plaintiffs filed a class action in 1979 to assert title to land interests in Ibervillé Parish, which were purchased by defendants at the sale. Plaintiffs asked judgment declaring the tax sale null and void. The trial court sustained exceptions of prescription and res judicata and dismissed plaintiffs’ suit. The court of appeal reversed, holding the tax sale and the judgment confirming it to be nullities. Hubbs v. Canova, 392 So.2d 486 (La.App. 1 Cir. 1980). A writ was granted to review the judgment. 396 So.2d 1326 (La.).

FACTS

In 1856 and 1859 Charles Lozano, married to Marguerite Breaux, acquired ownership of the north one-half of section 52 and the northwest quarter of section 43, Township 8 South, Range 11 East, Iberville Parish. The property comprised one contiguous tract, from which Lozano sold three small parcels. Marguerite Breaux Lozano died in 1862 and her community interest in the unsold property descended to her children. No succession proceeding was opened.

Charles Lozano later died and his son Louis purchased his father’s interest in 1878. Louis Lozano also had acquired small interests from his mother and deceased siblings, giving him a 390/672 interest. This interest was sold to A. Wilbert Sons Lumber & Shingle Co. and Joseph A. Grace at an estate sale.

Plaintiffs claim title from Marguerite Breaux Lozano and allege that there are 65 living heirs and/or assigns to her interest in the land. Plaintiffs assert that their interest was first placed on the tax rolls in 1968, assessed as follows:

Heyeau, Lester F., et al 2663 E. Lee Boulevard New Orleans, LA
128s/4 Part NW/4 Section 43; Part NE/4 Section 52; Part NW/4 Section 52; East of Bayou Gross Tete T. 8 S. R 11 E. Cut over Lands 128% ac. 200

According to plaintiffs, Lester F. Hezeau, not Heyeau, is one of those owning an undivided portion of their interest in the land.

The name “Lester F. Hezeau” appears in a document filed in the conveyance records in Iberville Parish. In 1958, 41 individuals signed a “Stipulation of Interests” agreement concerning the NW/4 of Section 43 and the N/2 of Section 52, Township 8 South, Range 11 East, Iberville Parish. This stipulation was filed in the conveyance records in connection with mineral leases to the Aluminum Company of America and served as the basis for division orders setting out the amount of royalties due to each lessee. The tax assessment was in 1968, ten years after this stipulation of interest was filed. The assessment may have been based upon the stipulation. However, A. Wilbert’s Sons Lumber & Shingle Co. was a party to the stipulation, and the Wilbert interest was not included in the assessment and tax sale.

At a tax sale on June 25, 1969, defendant purchased for $19.07 the property described in the assessment:

“Part NW/4 Section 43; Part NE/4 Section 52; Part NW/4 Section 52; East of Bayou Gross Tete T.8 2. R. 11 E. Cut Over Land 128 % acres 200.”

Defendants received a judgment of monition in August of 1977. On October 31, 1977 there was a judgment confirming and homologating the tax sale. The property description in these judgments is a shorter version of the description in the assessment and tax sale:

“Part NW/4 Sec. 43, part NE/4 Sec. 52, part NW/4 Sec. 52, E. of Bayou Gross Tete, T-8-S, R-ll-E.”

At the request of the trial court, plaintiffs and defendants stipulated what the various interests of the “Lozano heirs” were at the time of the tax sale:

“Thé ‘Wilberts’ owned 390/672 and the ‘Lozanos’ owned 282-672 of the entirety of the Northeast Quarter Section 52 and Northwest Quarter Section 43, Township 8 South, Range 11 East, Iberville Parish, Louisiana, both lying in their entirety east of Bayou Gross Tete, at the time of the tax sale . . . The land lying east of Bayou Gross Tete the in Northwest Quarter Section 52, Township 8 South, Range 11 East, on the date of the tax sale, consisted of three tracts of land as follow: a. Seven arpent tract — Wilberts— 100% ownership; b. Twenty-seven arpent tract — Nereaux heirs — 100% ownership; c. Twenty-five arpent tract — Wilberts— 390/672; Lozano — 282/672 .. .
“The Northeast Quarter Section 52, Township 8 South, Range 11 East, contains 159.40 acres according to the Louisiana Land Office patent number 6498, dated May 11, 1859 . . .
“The northwest Quarter Section 43, Township 8 South, Range 11 East, contains 162.06 acres according to the Louisiana Land Office patent number 7043, dated August 11, 1859.”

Defendants allege that plaintiffs’ cause of action has “perempted and prescribed.” (Tr. 55) Art. 7 § 25, LSA-Const. 1974; Art. 10 § 11, Constitution of 1921. Defendants also claim res judicata, contending that the judgment confirming the tax sale bars all attacks due to illegality or informality in the proceedings.

The trial judge sustained defendants’ exceptions. The court of appeal reversed, holding that “. . . the assessment and subsequent tax sale .. . are null and void because the names of all co-owners are not given, . . . and the acreage is given as if it were total acreage without its being indicated that the interest in the tract in question is an undivided interest.” 392 So.2d 488.

CONCLUSION

An assessment which purports to assess unidentified land is not valid. Here, the descriptions in the assessment and tax sale do not reasonably identify the property sought to be assessed and conveyed or provide any means by which it can be reasonably identified. As a result of the deficient property description, there was no true assessment of plaintiffs’ property. The subsequent tax sale was invalid for lack of a requisite assessment and because the property conveyed cannot be identified. A judgment in a monition proceeding confirming and homologating a tax sale cannot cure an absolute nullity.

Plaintiffs’ suit is not barred by the five year period in Art. 7 § 25 of the 1974 Constitution and in Art. 10 § 11 of the 1921 Constitution, due to the insufficiency of the property description. “[W]here there has been a lack of an assessment, meaning lack of a sufficient description of the property to identify it, time does not run. Ewald v. Hodges, 239 La. 883, 120 So.2d 465 (1960); Mansfield Hardwood Lumber Co. v. Butler, 234 La. 322, 99 So.2d 129 (1958). ...” Gulotta v. Cutshaw, 283 So.2d 482 at 491 (La., 1973).

When there is an error in the description of land to be assessed, the tax sale is still valid if the land can be reasonably identified or the description furnishes the means for identification. Knapp v. Jefferson-Plaquemines Drainage Dist., 224 La. 105, 68 So.2d 774 (1953); LSA-R.S. 47:2181. If the description is defective, resort may be had to evidence outside the assessment roll or tax deed to identify the property, provided such evidence unmistakably establishes the identity of the property. Knapp, supra. The question is whether the description would enable an interested party to identify the property sought to be assessed and conveyed. Tillery v. Fuller, 190 La. 586, 182 So. 683 (1938); Jackson v. Irion, 196 La. 728, 200 So. 18 (1941); Yuges Realty v. Jefferson Parish Developers, 205 La. 1033, 18 So.2d 607 (1944).

The property description here is inadequate. It reads:

“Part NW/4 Section 43; Part NE/4 Section 52; Part NW/4 Section 52; East of Bayou Gross Tete T. 8 S., R 11 E Cut over land 128% acres 200.”

This does not reveal whether all or part of the three quarter sections were included in the assessment. Therefore, the name in which the land was assessed becomes significant. The assessment is in the name of “Lester F. Heyeau, et al”. This indicates that the land is owned by more than one person, and might be owned by Lester F. Heyeau and others in indivisión. However, there is no clue in the property description as to the identity of “et al”. All of the northwest quarter of section 43, the northeast quarter of section 52 and the northwest quarter of section 52 were not assessed and transferred in the tax deed. Only the interests of the Lozano heirs were included. The property description itself gives no indication of this. The Wilberts are owners in indivisión with the Lozano heirs. The Wilberts and the Meraux heirs also own a portion of the northwest quarter of section 52. All of these ownership interests fall within the three quarter sections referred to in the property description.

There is nothing in the property description to reasonably identify or furnish the means to reasonably identify the property sought to be assessed as that which was owned by the Lozano heirs at the time of the tax sale.

Had the property at issue belonged to only one person in whose name it was assessed, or had it belonged to more than one person and been assessed in the name of all of the owners, a search of the conveyance records might have provided a certain identification of the property. Even with only one owner identified, the assessment might have been sufficient if the description were adequate, since a records search of his name might have revealed his undivided ownership interest in particularly described property. Here, however, only a portion of the described land was assessed and sold, and only the portions that were owned by a certain group of owners. Others own interests in the three sections in indivisión with these “assessed co-owners”.

The description in the assessment and tax title was so vague and broad it could have encompassed the entirety of the three sections described. It is only plaintiffs’ allegations that it was the “Lozano heirs” interest assessed, and the stipulation of the parties as to the extent of that interest that there is any indication of what portions of the described sections were conveyed and assessed.

“Lester F. Heyeau, et al” is not an identifiable group of land owners on the record. It is necessary to identify the exact owners of the land in order to identify the land itself because of the vague and overbroad description.

A tax sale can be attacked despite the five year prescriptive period where the property assessed and conveyed cannot be reasonably identified. Because of a defective description this tax sale was an absolute nullity.

For the foregoing reasons, the judgment of the court of appeal is affirmed, and the matter is remanded to the trial court for further proceedings.

AFFIRMED AND REMANDED.

LEMMON, J., concurs and will assign reasons.

      . Plaintiffs are Dorothy Lozano Hubbs, Alfred E. Hezeau, Sr., William A. Putnam and Ethel Louise Calhoun, nee Putnam. They filed suit on behalf of all the “Lozano heirs.”

      . Defendants are Carlo Canova and Patrick Pendley.

      . According to the 1978 Stipulations of Interests filed in connection with the mineral lease of the land, A. Wilbert’s Sons Lumber and Shingle Co. owned a 911/1536 (a .593099 fractional interest) in the land, and the remaining undivided interest was owned by individuals referred to by the parties as “the Lozanos”. These individuals held varying fractional interests in the land (e. g. Lester Hezeau, apparently the “assessed co-owner”, owned a .00797 fractional interest, Sally Lozano Cassady a .042752 fractional interest, Charles Lozano Lynn a .021375 fractional interest, etc.).


author: DENNIS, Justice,

text:
    STATE of Louisiana v. Andre J. HAYNIE.
    No. 80-K-2098.
    Supreme Court of Louisiana.
    Aug. 4, 1981.
   Decision Reported 395 So.2d 669.

DENNIS, Justice,

concurring.

I respectfully concur, La., 395 So.2d 669. I believe the arrest warrant was invalid because probable cause was not shown in the warrant application, which under our state constitution should be subject to the same rules as those pertaining to search warrants. Without a valid arrest warrant, the seizure of the defendant in a private residence was illegal under the dictates of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The confession taken thereafter should be suppressed as the fruit of this illegal seizure.


text:
    STATE of Louisiana v. Verna BIBLE, Robert Steven Meziere and Billy W. Moore.
    No. 66584.
    Supreme Court of Louisiana.
    Aug. 4, 1981.
   Decision Reported 389 So.2d 42.

DENNIS, Justice,

dissenting.

I respectfully dissent, La., 389 So.2d 42.

The information received from the confidential informant failed to meet the standards for trustworthiness laid down by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Thus, the initial seizure of the defendant was unconstitutional. Moreover, even if the seizure were proper, the search of the suitcase without a warrant was unlawful in light of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).


text:
    STATE of Louisiana ex rel. Ernest M. SERIO v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0241.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ernest M. Serio applying for writs of certiorari, prohibition, mandamus, habeas corpus, and supervisory. Parish of Jefferson. No. 76 — 2281.

Writ denied.


text:
    In re the Matter of Attorney General William J. GUSTE, Jr., Superseding the District Attorney of the Twenty Fifth Judicial District.
    No. 81-K-0948.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiana, through the Attorney General, William J. Guste, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Plaquemines. No. 62463.

Granted.


text:
    STATE of Louisiana v. William Lester SHARP.
    No. 81-K-1340.
    Supreme Court of Louisiana.
    May 25, 1981.
   In re William Lester Sharp, applying for writs of certiorari, prohibition, review and mandamus. Parish of LaSalle. No. 23761.

Granted. Bail reduced to $10,000.00.


text:
    STATE of Louisiana v. Jimmy A. VIDRINE, Patrick O. Deville.
    Nos. 81-K-1338, 81-K-1339.
    Supreme Court of Louisiana.
    May 25, 1981.
   In re Jimmy A. Vidrine and Patrick 0. Deville, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Evangeline. No. 23902.

Granted in part. The trial in this case is stayed until after a hearing is held on the motion to suppress, at which the defendants are to be allowed to present evidence and cross examine witnesses against them; otherwise denied.


text:
    STATE of Louisiana ex rel. Ernest M. SERIO v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0241.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ernest M. Serio, applying for reconsideration of denied writ, of May 6, 1981. Parish of Jefferson. No. 76-2281.

Writ denied.


text:
    Dvoshea Jean Goldberg, Wife of Phil BAGALMAN v. Phil BAGALMAN.
    No. 81-C-1446.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Phil Bagalman, applying for writ of certiorari, prohibition, mandamus and remedial and a stay order. Parish of Jefferson. No. 178-480.

Granted in part and denied in part. The rule for contempt is recalled and dismissed for failure to comply with the requirements of the contempt statutes. Otherwise, the application is denied.


text:
    STATE of Louisiana v. Elliot Joseph DAVID.
    No. 81-K-1463.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Elliot Joseph David, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of St. Charles. No. 81-059.

Writ granted. The trial court is ordered to grant a continuance for a period of not less than 30 days.

DIXON, C. J., and CALOGERO, J., would deny the continuance.


text:
    STATE of Louisiana v. John B. BENNETT.
    No. 81-K-0942.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re State of Louisiana through the District Attorney, Johnny C. Parkerson, applying for reconsideration of granted writ with order of May 6, 1981. Parish of Ouachita. Nos. M45175 and T96240.

Rehearing granted.


text:
    STATE of Louisiana v. Robert D. NANCE.
    No. 81-K-1488.
    Supreme Court of Louisiana.
    June 8, 1981.
   In re Robert D. Nance, applying for remedial writs, of certiorari, and mandamus. Parish of Ouachita. No. 40122.

Denied.


text:
    STATE of Louisiana v. James E. JONES.
    No. 81-K-1511.
    Supreme Court of Louisiana.
    June 9, 1981.
   In re James E. Jones, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81-1153.

Granted. The ruling of the trial judge is reversed and he is ordered to issue the subpoena for the witness. (Writ of habeas corpus ad testificandum.)


text:
    STATE of Louisiana v. Eduardo ROBINSON.
    No. 81-K-1506.
    Supreme Court of Louisiana.
    June 9, 1981.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for a writ of certiorari. Parish of Orleans. No. 279-499.

Denied.

LEMMON, J., would grant the writ.


text:
    M. P. DUMESNIL CONSTRUCTION CO., INC. v. JEFFERSON PARISH DEPARTMENT OF PUBLIC WORKS, Jefferson Parish Purchasing Department, and Jefferson Parish Council.
    No. 81-C-1507.
    Supreme Court of Louisiana.
    June 9, 1981.
   In re M. P. Dumesnil Construction Co., Inc., applying for supervisory writs and summary relief. Parish of Jefferson. No. 254-235.

Denied.


text:
    STATE of Louisiana v. Cynthia SYLVAN.
    No. 81-K-1527.
    Supreme Court of Louisiana.
    June 11, 1981.
   In re Cynthia Sylvan, applying for remedial writ and habeas corpus. Parish of Orleans. No. M — 110981.

Granted. The trial court is ordered to conduct a preliminary examination before 6:00 p. m. on June 12, 1981 or to order defendant released without bail.


text:
    STATE of Louisiana v. James MARCHADIE.
    No. 81-K-1515.
    Supreme Court of Louisiana.
    June 11, 1981.
   In re James Marchadie, applying for writ of certiorari, and a stay order. Parish of Jefferson.

Granted. Ruling of trial judge set aside. Severance ordered.


text:
    STATE of Louisiana ex rel. Benny PEARSON v. STATE of Louisiana.
    No. 81-KH-1400.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Benny Pearson, applying for writ of review. Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana ex rel. Charles E. WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1401.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Charles E. Williams, applying for remedial writs. Parish of Orleans. No. 244-080.

Denied.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. v. Jerry WILLIAMS.
    No. 81-C-1414.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Jerry Williams, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. No. 14483.

Denied.


text:
    STATE of Louisiana ex rel. Clarence DORSEY v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-1438.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Clarence Dorsey, apply for writs of certiorari, mandamus, habeas corpus, and other remedial writs. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. Craig LANDRENEAU.
    No. 81-K-1489.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Craig Landreneau, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. 4631-81.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John T. MARTIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1235.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re John T. Martin, applying for remedial writs. Parish of Orleans. No. 257-714.

Denied.

DENNIS, J., would grant an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Michael P. ZEY v. TWENTY-NINTH JUDICIAL DISTRICT COURT; Sheriff Lloyd B. Johnson and Deputy Jimmy Young.
    No. 81-KH-1299.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Michael P. Zey, applying for remedial writs. Parish of St. John the Baptist. No. 11788.

Writ denied. Relator must file a motion in the 29th Judicial District Court to reset the matter for trial.


text:
    STATE of Louisiana ex rel. Carl Joseph DAVIS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1301.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Carl Joseph Davis, applying for remedial writs. Parish of East Baton Rouge. No. 1-77-10.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Mark A. MOORE.
    No. 81-K-1328.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Mark A. Moore, applying for writ of certiorari and review. Parish of Concordia. No. 1380.

Writ denied.


text:
    STATE of Louisiana v. Milton W. LEYDECKER.
    No. 81-K-1334.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re State of Louisiana, through the District Attorney Harry F. Connick applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 176-807 C.

Denied.


text:
    STATE of Louisiana ex rel. Billy McCOY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1348.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Billy McCoy, applying for remedial writs. Parish of Ouachita. No. 35583.

Denied.


text:
    STATE of Louisiana ex rel. A. J. HOOKER v. CLERK OF COURT, 4TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, Louisiana.
    No. 81-KH-1349.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re A. J. Hooker, applying for writs of certiorari, review, supervision, prohibition, remedial action, or mandamus. Parish of Ouachita. No. 39062.

Denied.


text:
    STATE of Louisiana v. Joseph DALCOUR.
    No. 81-K-1362.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Joseph Dalcour, applying for writ of review. Parish of Lafayette. No. 43219.

Denied.


text:
    STATE of Louisiana v. Joseph S. GARY.
    No. 81-K-1386.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re State of Louisiana, through the District Attorney, W. Gregory Arnette, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson Davis. No. 1107-81.

Denied. Moot. Trial judge advises that subpoena has been withdrawn.


text:
    STATE of Louisiana ex rel. Hubert HOWARD v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-1395.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Hubert Howard, applying for writ of certiorari. Parish of Orleans. No. 253— 547.

Denied.


text:
    STATE of Louisiana ex rel. Ernest LARSEN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1398.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Ernest Larsen, applying for writ of certiorari and habeas corpus. Parish of Orleans. No. 251-812.

Denied.


text:
    STATE of Louisiana ex rel. Paticus RENO v. STATE of Louisiana.
    No. 81-KH-1399.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Paticus Reno, applying for remedial writs. Parish of Webster. No. 47525.

Denied.


text:
    BOUCHER & SLACK CONTRACTORS, INC., and Bronner Investment Company, Inc., a Joint Venture v. Harvey McLEAN, Jr., Liquidator of Woodlands of Huntington, Inc. et al.
    No. 81-C-1424.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Boucher & Slack Contractors, Inc., and Bronner Investment Company, Inc., a joint venture, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 397 So.2d 45.

Denied.


text:
    BOUCHER AND SLACK CONTRACTORS, INC., and Bronner Investment Company, Inc., a Joint Venture v. Harvey McLEAN, Jr., Liquidator of Woodlands of Huntington, Inc., et al.
    No. 81-C-1420.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Harvey McLean, Jr., Individually and as liquidator of Woodlands of Huntington, Inc. and Woodlands of Huntington, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 397 So.2d 45.

Denied.

DIXON, C. J., and LEMMON, J., would grant the writ and reinstate relator’s appeal.


text:
    Gary K. GALBRAITH v. Sally Jane McCown GALBRAITH.
    No. 81-C-1425.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Gary K. Galbraith, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 396 So.2d 1364.

Denied.


text:
    Annie R. FREE, as Provisional Curatrix of Jessie E. Free v. FRANKLIN GUEST HOME, INC., et al.
    No. 81-C-1418.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Franklin Guest Home, Inc., et al., applying for certiorari, or writ of review. Parish of Franklin. 397 So.2d 47.

Denied.

BLANCHE, J., would grant the writ.


text:
    Gary K. GALBRAITH v. Sally Jane McCown GALBRAITH.
    No. 81-C-1404.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Sally Jane McCown Galbraith, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 396 So.2d 1364.

Denied.


text:
    Charles L. HELAIRE v. LIBERTY MUTUAL INSURANCE COMPANY, et al.
    No. 81-C-1390.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Charles L. Helaire, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 397 So.2d 8.

Denied.


text:
    UNITED STATES FIDELITY AND GUARANTY CO. v. SANDERS DRILLING AND WORKOVER CO., INC.
    No. 81-C-1342.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Sanders Drilling and Workover Co., Inc., applying for writs of certiorari and/or review. Parish of Iberia. 396 So.2d 1353.

Denied.

LEMMON, J., would grant the writ.


text:
    Joseph HORDE v. Gerald FOUCHA and Vanguard Underwriters Insurance Company.
    No. 81-C-1310.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Joseph Horde, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 396 So.2d 441.

Denied.


text:
    Autry BORNE, et al. v. MIKE PERSIA CHEVROLET COMPANY, INC. and General Motors Corporation.
    No. 81-C-1320.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re General Motors Corporation, applying for writ of certiorari to review. Parish of Orleans. 396 So.2d 326.

Denied.


text:
    Nick PUTCH v. James P. STRAUGHAN, et al.
    No. 81-C-1326.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Nick Putch, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 397 So.2d 38.

Denied.

LEMMON, J., would grant the writ.


text:
    Julia WEST v. BELDEN CORPORATION.
    No. 81-C-1221.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Belden Corporation, applying for remedial writs, to the Court of Appeal, Third Circuit. Parish of LaSalle. 396 So.2d 1004.

Writ denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Ena M. LeBLANC.
    No. 81-K(A)-1203.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Ena M. LeBlanc, applying for remedial writs. Parish of Cameron. No. 24748.

Writ denied.


text:
    EASTLAKE TRADING CO., INC. v. IBERIA TRADING CO., INC. and Lanark, Inc.
    No. 81-C-1351.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Lanark, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 1146.

Writ denied.


text:
    Mary Ann Byrd Baker WILLIAMS v. Travis Lee BAKER.
    No. 81-C-1391.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Travis Lee Baker, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 398 So.2d 1188.

Denied.


text:
    Robert VANDERDOES v. ST. CLAUDE GENERAL HOSPITAL, et al.
    No. 81-C-1249.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Robert Vanderdoes, applying for writs of certiorari, prohibition, mandamus and stay order, to the Court of Appeal, Fourth Circuit. No. 12,304. Parish of Orleans.

Denied.

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


text:
    Joseph JOHNSON, Jr. v. CONTINENTAL INSURANCE COMPANIES, et al.
    No. 81-C-1270.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Joseph Johnson, Jr. applying for reconsideration of writ not considered of May 29, 1981. Court of Appeal, First Circuit. Parish of Terrebonne. 396 So.2d 2.

Reconsideration granted, finding the writ timely filed. Writ granted as to the March 2, 1981, judgment of the Court of Appeal.


text:
    STATE of Louisiana ex rel. Michael H. McGEE v. STATE of Louisiana.
    No. 81-KH-1196.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Michael H. McGee, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 270-709.

Granted. Relator’s application transferred to the district court for decision.


text:
    STATE of Louisiana ex rel. Billy Ray BROWN v. SHERIFF, ORLEANS CRIMINAL DISTRICT, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-1197.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Billy Ray Brown, applying for remedial writ. Parish of Orleans. No. 273-727B.

Writ granted. The District Court is ordered to furnish relator with an extract from the jail records as prayed for.


text:
    STATE of Louisiana ex rel. Ray Mitchell CALDWELL, Jr. v. CLERK OF COURT, 1st JUDICIAL DISTRICT, PARISH OF CADDO.
    No. 81-KH-1364.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Ray Mitchell Caldwell, applying for writ of mandamus. Parish of Caddo. No. 114650.

Writ granted. The district court is ordered to furnish relator with a copy of his Boykin transcript.


author: DIXON, C. J.,

text:
    Kenneth Austin GUINN v. PROGRESS DRILLING, INC.
    No. 81-C-1291.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Kenneth Austin Guinn, applying for writs of certiorari and review. Parish of Vernon. Court of Appeal, Third Circuit. 398 So.2d 128.

Granted. The summary judgment is reversed. The material facts that are not genuinely disputed do not entitle mover to judgment as a matter of law. C.C.P. art. 966. The case is remanded to the trial court for trial on the merits.

DIXON, C. J.,

concurs, and would add that the test used by the Court of Appeal to determine whether defendant was a “statutory employer” was incomplete.

DENNIS, J., concurs.


text:
    STATE of Louisiana v. Bonnie R. TONEY.
    No. 81-K-1350.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Bonnie R. Toney, applying for remedial writs. Parish of Ouachita. No. 38732.

Granted. An out of time appeal is granted, and this case is remanded to the trial judge to grant an appeal in accordance with law. La.Const. Art. 5, Sec. 5(D).


text:
    STATE of Louisiana v. Robert Oliver THOMPSON and Marsha Gifford.
    No. 81-K(A)-1191.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Robert Oliver Thompson and Marsha Gifford, applying for remedial writs. Parish of West Carroll. No. 10482.

Granted in part and denied in part. The ruling on the motion to quash is correct. However, the case is remanded to the district court to determine if the property seized is to be used as evidence. See C.Cr.P. 167 and R.S. 15:41.


text:
    Succession of Charles TOLMAS.
    No. 81-C-1313.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Cheryl Kolb, applying for supervisory writs of certiorari and writ of review. Parish of Orleans. No. 487-797.

Not considered. Not timely filed. Rule 10, Section 5(b).


text:
    Gene SOILEAU v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 81-C-1368.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Gene Soileau, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 398 So.2d 648.

Granted.


text:
    STATE of Louisiana In the Interest of Frank DELCUZE, et al. v. OFFICE OF HUMAN DEVELOPMENT OF the DEPARTMENT OF HEALTH AND HUMAN RESOURCES FOR the STATE OF LOUISIANA.
    No. 81-C-1267.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Frank Delcuze, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 397 So.2d 533.

Granted.


text:
    Linda H. McDONALD v. INTERNATIONAL PAPER CO.
    No. 81-C-1379.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re International Paper Co., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Webster. 398 So.2d 1182.

Granted.


text:
    STATE of Louisiana v. Rickey SIMEON.
    No. 81-K-1086.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 278-950.

Granted. Ruling of trial judge on “motion in limine” reversed; case remanded for further proceedings.


text:
    STATE of Louisiana, ex rel. McBeth MITCHELL v. CLERK OF COURT, CRIMINAL DISTRICT COURT, Parish of Orleans, State of Louisiana.
    No. 81-KH-0236.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re McBeth Mitchell, applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. Dennis VIDRINE.
    No. 81-K-1353.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Dennis Vidrine, applying for writs of certiorari, prohibition, and mandamus. Parish of Evangeline. No. 25586.

Granted as to Motion # 4; the trial court’s ruling is reversed and a hearing must be held on suppression of confessions furnished in State’s answer; denied as to Motion # 5, reserving defendant’s right to reapply in the trial court with specificity.


text:
    STATE of Louisiana, ex rel. Robert HARRISON, Jr. v. Honorable Andrew J. BUCARO; Judge Ad Hoc; et al.
    No. 81-KH-0038.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Robert Harrison, Jr., applying for writ of mandamus. Orleans Parish. No. 273-803.

Denied. District court has no record of habeas application allegedly filed by relator in November, 1980. The application must be filed again.


text:
    STATE of Louisiana ex rel. Jasper LYNCH v. Israel M. AUGUSTINE, Jr., Judge, Criminal District Court, Section I, Parish of Orleans.
    No. 81-KH-0109.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Jasper Lynch, applying for writ of mandamus. Parish of Orleans. No. 251— 377 and 251-498.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Honorable Frank A. MARULLO, Judge Criminal District Court.
    No. 81-KH-0510.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Albert Clark, applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ulysses ROBINSON v. Warden Frank C. BLACKBURN.
    No. 81-KH-0513.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Ulysses Robinson, applying for remedial writs. Parish of Orleans. No. 267-019.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Nathaniel GIBBS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0658.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Nathaniel Gibbs, applying for writs of habeas corpus, certiorari, and mandamus. Parish of Orleans. No. 275-205.

Denied.


text:
    STATE of Louisiana ex rel. Albert TAPLETT v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0707.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Albert Taplett, applying for writ of mandamus. Parish of West Feliciana. Nos. 198-971 and 198-972.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Donald VARNADO v. STATE of Louisiana.
    No. 81-KH-0763.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Donald Varnado, applying for remedial writs. Parish of Terrebonne.

Denied.


text:
    STATE of Louisiana ex rel. Joseph WOODS v. Judge Matthew BRANIFF, Section "B" Criminal District Court, Parish of Orleans.
    No. 81-KH-0781.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Joseph Woods, applying for writs of mandamus. Parish of Orleans. 269-488, 497.

Denied.


text:
    LOUISIANA NATIONAL BANK v. Alex C. HOPE.
    No. 81-C-0841.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Alex C. Hope, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. No. 13960. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana, ex rel. Truman McDONALD v. PRESIDING JUDGE, 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA, State of Louisiana.
    No. 81-KH-1058.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Truman McDonald, applying for writs of habeas corpus, certiorari, mandamus, and remedial writs. Parish of West Feliciana. No. W-77 — 1—42.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Alvin RELIFORD v. Warden, Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2679.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Alvin Reliford, applying for writ of certiorari, prohibition, mandamus, or habeas corpus. Parish of Caddo. No. 101561.

Denied.

CALOGERO, J., would grant the writ.


author: DENNIS, J.,

text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. Allen J. BERGERON and Nobert C. Rayford, Commissioners, 19th Judicial District Court.
    No. 80-KH-2997.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Quenton N. Brown, applying for writ of mandamus. Parish of East Baton Rouge. Nos. 234838; 241531; 240131 and 238878.

Writ denied.

DENNIS, J.,

would grant the writ and order the District Court to set a date for trial in suit Nos. 234838 and 13805 (transferred from the 20th Judicial District).


text:
    STATE of Louisiana, ex rel. Lamar SLAUGHTER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0313.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Lamar Slaughter, applying for writ of mandamus. Parish of Orleans. No. 258-258.

Granted. Relator is to be furnished a copy of his Boykin transcript.


text:
    STATE of Louisiana, ex rel. Dennis S. OWENS v. CLERK OF COURT, SECTION "B", PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-0793.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Dennis S. Owens, applying for remedial writs. Parish of Orleans. No. 271-233.

Granted. Relator is to be given a copy of his Boykin hearing.


text:
    STATE of Louisiana ex rel. Gordon S. BAND, Sr. v. CLERK OF COURT, SECTION "H", ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-0919.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re Gordon S. Band, Sr., applying for writs of mandamus. Parish of Orleans. No. 276-801.

Granted. The trial court is ordered to furnish relator a Boykin transcript.


text:
    STATE of Louisiana, ex rel. David COLEMAN v. Frank J. SHEA, Judge, Section G, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-0958.
    Supreme Court of Louisiana.
    June 12, 1981.
   In re David Coleman, applying for writ of mandamus. Parish of Orleans. No. 272-512.

Writ granted. The district court is ordered to furnish relator with a copy of his Boykin transcript of September 28, 1979.


text:
    STATE of Louisiana, ex rel. Johnny Ray HERMAN v. STATE of Louisiana.
    No. 81-KH-1519.
    Supreme Court of Louisiana.
    June 19, 1981.
   In re Johnny Ray Herman, applying for rehearing. Parish of East Baton Rouge. No. 4-80-112.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana, ex rel. Gregory CHANEY v. STATE of Louisiana.
    No. 81-KH-1555.
    Supreme Court of Louisiana.
    June 19, 1981.
   In re Gregory Chaney, applying for rehearing. Parish of East Baton Rouge. No. 4-80-112.

Denied. Adequate remedy by review in event of conviction.


text:
    Joan Grosch, Wife of/and Louis J. ENGOLIA v. Gayle R. BACHEMIN and George Bakapoulos.
    No. 81-C-1632.
    Supreme Court of Louisiana.
    June 20, 1981.
   In re Joan Grosch, wife of/and Louis J. Engolia, applying for supervisory writs to the Trial Court. Parish of Tangipahoa. No. 55717.

Writ granted. Trial of this matter set for Monday, June 22, 1981 is continued, to be reassigned by the trial judge.


text:
    Mary Alice HEBERT v. James F. BREAUX, Jr., et al.
    No. 81-C-1490.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Mary Alice Hebert, applying for writ of certiorari and review. Parish of Lafayette. Court of Appeal, Third Circuit. 398 So.2d 1299.

Denied.


text:
    Eugene SALING v. The CITY OF NEW ORLEANS.
    No. 81-C-1460.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re the City of New Orleans, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 1205.

Denied.


text:
    Donald VEGA, Individually and As Administrator of the Estate of His Minor Child, Desi Vega and Desi Vega v. ST. BERNARD WATER DISTRICT NO. 1, St. Bernard Parish Police Jury, Zurich American Insurance Companies and Continental Insurance Company.
    No. 81-C-1481.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Donald Vega, et al., applying for writs of certiorari, and review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 398 So.2d 1248.

Not considered. Not timely filed.


text:
    Iris Burley, Wife of/and Irving BURLEY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 81-C-1487.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 1251.

Not considered. Not timely.


text:
    J. Douglas STEPHENSON v. Linda Carr STEPHENSON.
    No. 81-C-1459.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Linda Carr Stephenson, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Ascension. 398 So.2d 48.

Granted.


text:
    John Robert BROUSSARD and Patsy L. Broussard, Individually, etc. v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY, et al.
    No. 81-C-1205.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re John Robert Broussard and Patsy L. Broussard, Individually etc., applying for writ of certiorari, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 398 So.2d 205.

Granted.


text:
    STATE of Louisiana In the Interest of Keith G. FORET and Kevin Lavergne. STATE of Louisiana In the Interest of Keith George FORET. STATE of Louisiana In the Interest of Kevin Wayne LAVERGNE.
    No. 81-C-1544.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Keith George Foret and Kevin Wayne Lavergne, applying for writs of cer-tiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 398 So.2d 82, and 398 So.2d 78.

Denied.

CALOGERO, DENNIS, and BLANCHE, JJ., would grant the writ.


text:
    Lana J. HINGLE, Administratrix v. PLAQUEMINE OIL SALES CORPORATION, Eugene C. Nunez and Eugene E. Leon, Jr.
    No. 81-C-1411.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Lana J. Hingle, Administratrix, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 646.

Writ denied.

WATSON, J., recused.

LEMMON J., would grant the writ.


text:
    John L. HARPER v. KAST METALS CORPORATION, et al.
    No. 81-C-1445.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Kast Metals Corporation, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 397 So.2d 529.

Denied.


text:
    Ridgely CANTY, Individually and as Administrator of Minor Children, Sharon Elizabeth Canty and Shane Michael Canty and Christina Lecompte Canty v. TERREBONNE PARISH POLICE JURY, Terrebonne Parish, Louisiana and City of Houma, Houma, Louisiana.
    No. 81-C-1422.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Ridgely Canty, et al., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 397 So.2d 1370.

Denied. The result is correct.

LEMMON, J., would grant the writ.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Wilson J. SONNIER.
    No. 81-C-1315.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Wilson J. Sonnier, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 396 So.2d 996.

Granted.


text:
    STATE of Louisiana ex rel. James PORTER v. STATE of Louisiana.
    No. 81-KH-0596.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re James Porter, applying for writ of certiorari. Parish of Orleans. No. 271 — 700, Section “B”.

Granted. Out-of-time appeal ordered.


text:
    STATE of Louisiana ex rel. Albert LEWIS v. STATE of Louisiana.
    No. 81-KH-1023.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Albert Lewis, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 256 — 342.

Granted. Trial court is ordered to act on relator’s pending application within 14 days.


text:
    In re Jimmy GRIMES et al.
    No. 81-O-1639.
    Supreme Court of Louisiana.
    June 24, 1981.
   In re Jimmy Grimes, et al., applying for an order promulgating rules governing the administration of the Louisiana State Bar Examination to Handicapped Persons. Parish of Orleans. No. Unknown.

Relief requested in paragraph 2 of relator’s prayer is granted; otherwise referred to Bar Association’s Task Force Committee on Revision of Rules for Admissions.


text:
    STATE of Louisiana v. Thomas LOWDINS.
    No. 81-K-1666.
    Supreme Court of Louisiana.
    June 24, 1981.
   In re Thomas Lowdins, applying for writs of certiorari, prohibition review, mandamus and stay order. Parish of Calcasieu. No. 12567-80.

Writ denied. Relator has an adequate remedy on appeal in the event of conviction.

DIXON, C. J.,

dissents from the denial. If the representations in the application are correct, the State runs a serious risk of reversal in the event of conviction.


text:
    STATE of Louisiana v. Antonio McGEE.
    No. 81-K-1687.
    Supreme Court of Louisiana.
    June 25, 1981.
   In re Antonio McGee, applying for supervisory writs and stay order. Parish of Orleans. No. 375-851.

Granted. Relator-defendant is ordered released during trial on bail previously furnished.


text:
    In re Application of Jose M. ALEMAN.
    No. 81-0-1664.
    Supreme Court of Louisiana.
    June 26, 1981.
   In re Jose M. Aleman, applying for permission to take the Louisiana Bar Examination and, contingent on passing the examination to be certified for admission to the Louisiana Bar Association.

Granted. Relator permitted to take Bar examination pending compliance with resident alien requirement.


text:
    Lawrence REGIRA, Jr., et al. v. Ralph FALSETTA, et al.
    No. 81-CA-1337.
    Supreme Court of Louisiana.
    June 26, 1981.
   In re Lawrence Regira, Jr., et als., applying for motion for stay of court’s judgment and request for writ of prohibition. Parish of Ascension. No. 29053.

Denied.


text:
    STATE of Louisiana v. Dexter COMEAUX.
    No. 81-K-1660.
    Supreme Court of Louisiana.
    June 29, 1981.
   In re Dexter Comeaux, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Vermillion. No. 22153.

Denied. Relator has adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana v. Donald ISAAC.
    No. 81-K-1661.
    Supreme Court of Louisiana.
    June 29, 1981.
   In re Donald Isaac, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Vermillion. No. 22151.

Denied. Relator has adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana v. James W. WARD.
    No. 81-K-1742.
    Supreme Court of Louisiana.
    July 1, 1981.
   In re James W. Ward, applying for supervisory and remedial writs. Parish of Grant.

Granted. Bail is reduced to $50,000.00.

MARCUS, BLANCHE and WATSON, JJ., would deny the writ.


text:
    Bobbie J. BELL v. GEORGIA CASUALTY AND SURETY COMPANY.
    No. 81-C-1612.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Bobbie J. Bell, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 399 So.2d 768.

Granted.


text:
    HARRY'S HARDWARE, INC. v. James C. PARSONS, Superintendent of Police, et al.
    No. 81-C-1633.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re James C. Parsons, Superintendent of Police, et al., applying for writs of certio-rari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 632.

Granted and consolidated with 81-C-1614.


text:
    HARRY'S HARDWARE, INC. v. James C. PARSONS, Superintendent of Police, et al.
    No. 81-C-1614.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 632.

Granted and consolidated with 81 — C— 1633.


text:
    Constantina Sanchez, Wife of/and Alejandro SANCHEZ v. Daniel A. LeBLANC and State Farm Mutual Automobile Insurance Company.
    No. 81-C-1638.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Constantina Sanchez, Wife of/and Alejandro Sanchez, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 400 So.2d 349.

Writ denied.


text:
    LEASING SERVICES, INC. v. T & J SERVICES, INC. and Joseph Romano.
    No. 81-C-1323.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Leasing Services, Inc., applying for writs of certiorari and review. Parish of St. Charles. Court of Appeal, Fourth Circuit. 396 So.2d 422.

On the showing made, writ denied.

MARCUS, BLANCHE, and WATSON, JJ., would grant the writ.


text:
    Elite H. VALLOT v. CAMCO, INC., et al.
    No. 81-C-1392.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Kenneth Combs, et al., applying for writ of certiorari, or review, to the Court of Appeals, Third Circuit. Parish of Vermillion. 396 So.2d 980.

Denied.

DIXON, C. J., and CALOGERO, and MARCUS, JJ., would grant the writ.


text:
    Larry KRAAZ and Joyce Kraaz v. LA QUINTA MOTOR INNS, INC.
    No. 81-C-0937.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re La Quinta Motor Inns, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 396 So.2d 455.

Granted.


text:
    Mrs. Elma Pitre CHAMPAGNE v. Russell P. CHAMPAGNE.
    No. 81-C-1568.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Russell P. Champagne, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Lafourche. 399 So.2d 718.

Denied.


text:
    Wayne DUCOTE v. A. Charles BORRELLO.
    No. 81-C-1572.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Wayne Ducote, applying for certio-rari, or writ of review, to the Court of Parish of Orleans. Appeal, Fourth Circuit. 399 So.2d 630.

Writ denied.


text:
    PHYSICIANS AND SURGEONS HOSPITAL, INC. v. Simon LEONE, Jr., and Carolyn M. Leone.
    No. 81-C-1611.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Simon Leone, Jr. and Carolyn M. Leone, applying for writs of certiorari and review, to the Court of Appeal, Third Circuit. Parish of Sabine. 399 So.2d 806. Denied.

DENNIS, J., would grant the writ.


text:
    Melvin HENDERSON v. Dewey Eugene WILLIAMS and S & H Insurance Company.
    No. 81-C-1645.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Melvin Henderson, applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 399 So.2d 773.

Denied.


text:
    Claibert J. MORALES, Sr. v. MAGNOLIA CHEMICALS & SOLVENTS, INC., et al.
    No. 81-C-1615.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Adolph Hilkin, Magnolia Chemicals & Solvents, Inc. and Commercial Union Insurance Company, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 399 So.2d 640.

Denied.

BLANCHE, and LEMMON, JJ., would grant the writ.


text:
    Alvin LOUQUE v. Dr. Gerald La NASA.
    No. 81-C-1558.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Alvin Louque, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 68.

Denied.


text:
    Robert N. RANNEY v. Steve DURKIN.
    No. 81-C-1575.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Steve Durkin, applying for writs of certiorari, and review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 398 So.2d 82.

Denied.


text:
    PARISH OF JEFFERSON v. MARSH INVESTMENT CORPORATION.
    No. 81-C-1576.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Marsh Investment Corporation, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 398 So.2d 27.

Denied.


text:
    Ted GARDEMAL v. MCM INDUSTRIES, INC.
    No. 81-C-1538.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Ted Gardemal, applying for writ of certiorari or review. Parish of Lafayette. Third Circuit Court of Appeal. 398 So.2d 144.

Denied.

LEMMON, J., dissents.


text:
    CAR PARTS, INC. v. Richard BORDELON, d/b/a/ B & B Auto Parts.
    No. 81-C-1539.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Car Parts, Inc., applying for writ of certiorari or review. Parish of St. Bernard. Fourth Circuit Court of Appeal. 398 So.2d 35.

Denied.


text:
    Herman PAGE v. PRESTRESSED CONCRETE COMPANY and Highlands Insurance Co.
    No. 81-C-1701.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Herman Page, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. So.2d 657. Parish of St. Tammany. 399

Writ not considered, timely. Application not


text:
    Rose D. CHAUSER v. Glenn L. BABIN.
    No. 81-C-1521.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Rose D. Chauser, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 398 So.2d 20.

Granted.


text:
    Jesse JOHNSON v. JOHNS-MANVILLE SALES CORPORATION.
    No. 81-C-1385.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Jesse Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 398 So.2d 1193.

Granted.


text:
    Pearl BELL v. Louis BELL.
    No. 80-KA-2024.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Louis Bell, appealing from the 14th Judicial District Court. Parish of Calca-sieu. No. 77-237. Transferred to this Court from the Third Circuit, Court of Appeal.

Treating this matter as an application for writs, writs are denied.

BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Steven R. DOUGHTY.
    No. 81-K-1752.
    Supreme Court of Louisiana.
    July 6, 1981.
   In re Steven R. Doughty, applying for writs of certiorari, prohibition, mandamus and review. Parish of Richland. Nos. 35802, 35803, 35804, 35783, 35784, 35785, 35786, and 35787.

Writ granted. Docket as an appeal.


text:
    STATE of Louisiana v. Verna SCHEXNAIDER.
    No. 81-K-1761.
    Supreme Court of Louisiana.
    July 6, 1981.
   In re Verna Schexnaider, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Vermillion. No. 22338.

Writ denied.


text:
    FIRST NATIONAL BANK v. Ken J. LaGRUE and Howard L. Makofsky, Jr.
    No. 81-C-1768.
    Supreme Court of Louisiana.
    July 7, 1981.
   In re Ken J. LaGrue, applying for writ of certiorari. Parish of Orleans. No. 594-893.

Denied.


text:
    STATE of Louisiana In the Interest of Keith FORET and Kevin Lavergne.
    No. 81-0-1811.
    Supreme Court of Louisiana.
    July 8, 1981.
   In re Keith Foret and Kevin Lavergne, applying for stay of mandamus and time to file application for writs of certiorari, Court of Appeal, Fourth Circuit. No. 12620, Parish of Jefferson.

The Court of Appeal’s peremptory writ of mandamus of July 7, 1981 is hereby stayed until further orders of this Court; relator to supplement this application within 7 days.


author: CALOGERO, and LEMMON, JJ.,

text:
    STATE of Louisiana In the Interest of Keith FORET and Kevin Lavergne.
    No. 81-0-1811.
    Supreme Court of Louisiana.
    July 9, 1981.
   In re Darlene Foret Dills, applying for motion to expedite, Court of Appeal, Fourth Circuit. No. 12620, Parish of Jefferson.

Motion denied.

CALOGERO, and LEMMON, JJ.,

concur in denial of the motion. Nonetheless, action on this writ will be expedited.


author: COLE, Judge.

text:
    Ezra SAWYER v. STATE of Louisiana, Through LOUISIANA STATE EMPLOYEES' RETIREMENT SYSTEM.
    No. 13987.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1981.
    John G. Williams, Natchitoches, counsel for plaintiff-appellant Ezra Sawyer.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., La. Dept, of Justice, New Orleans, counsel for defendant-appellee, State of Louisiana Through Louisiana State Employees’ Retirement System.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

After a thorough review and evaluation of the record, we are convinced the trial court’s conclusion is supported by the facts (as stipulated to by the parties) and by the applicable law. We therefore affirm at appellant’s cost and adopt the appended reasons assigned by the trial judge as our own.

AFFIRMED.

APPENDIX

EZRA SAWYER : NUMBER 230,974, DIVISION F

VERSUS : 19TH JUDICIAL DISTRICT COURT

STATE OF LOUISIANA, THROUGH : PARISH OF EAST BATON ROUGE LOUISIANA STATE EMPLOYEES’

RETIREMENT SYSTEM : STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

Ezra Sawyer instituted this suit to collect State retirement benefits for a twelve-year period prior to 1947 from the Louisiana State Employees’ Retirement System, hereafter referred to as LASER. Counsel for the parties stipulated to the facts, and this matter was taken under advisement to determine the plaintiff’s legal entitlement to benefits under the statutes.

In September, 1935, the plaintiff began working for the State at Northwestern State College, now known as Northwestern State University. While he was employed in this position, the legislature enacted a retirement program known as the “Louisiana State Employee’s Retirement System.” La.R.S. 42:541, et seq., Acts 1946, No. 126. This act provided that all employees in State service on June 30, 1947, had the option of whether or not to join this system. The plaintiff elected not to become a member and filed the appropriate declaration waiving all present and prospective benefits. On June 30, 1953, the plaintiff terminated his employment with the State. However, on January 22, 1954, the plaintiff was reemployed by the State at the same university. Because membership in LASER was mandatory for persons in the plaintiff’s position at that time, the plaintiff became a member upon reemployment and contributed to the system until his retirement on April 1, 1978. The plaintiff is receiving social security benefits and retirement benefits based on his employment since 1954.

The plaintiff now is seeking to recover benefits for services he rendered between 1935 and 1947. He does not claim any benefits for the period of 1947 through 1953 when he elected to remain off of the system. The plaintiff claims that he is entitled to be credited for these early years of employment according to the provisions in Louisiana Revised Statute 42:562. This statute provides:

§ 562. State service for which credit has not been received.
A. Any member shall be entitled to receive credit for any full-time state service for which no social security was paid, and for which the member has not received credit, except for service specifically excluded in this section. Credit shall not be allowable for employment where per diem allowances were paid in lieu of earned compensation, except for legislative service; for part-time, intermittent, emergency, contractual or job appointment employment; employment as patient or inmate help in a state charitable, penal or correctional institution; employment as a student, medical intern or resident physician; employment as a teacher in an educational institution of this state; employment while a member of any other retirement system established by law, and employment with any state agency or governing body whose employees are not contributing members of this retirement system.
B. The appointing authority or personnel officer of the agency wherein the service was performed must certify the inclusive dates of employment, the salary earned by the member during these inclusive dates, that this was full-time state service for which no social security was paid, and that this service was not performed under any category of employment where credit is prohibited in this section, or the member shall submit such other evidence in lieu thereof as shall be requested by the board.
C. Creditable full-time state service may be purchased, at the option of the member, by paying the employee and employer contributions, at the current rate, based on the member’s state salary at the time the service was performed, plus five percent compound interest per year from date of service until paid. No credit shall be given until and unless both the employee and employer portions, plus interest, are paid in full.

The plaintiff argues that credit for these years is mandatory since the statute states “any member shall be entitled to receive credit for any full-time state service for which no social security was paid, and for which the member has not received credit, except for service specifically excluded in this section. . . . ” The facts indicate that the plaintiff did not pay social security for this period of time since it was not required, nor did the plaintiff receive credit for his employment prior to 1954.

The defendant contends that this statute is not applicable in the present case, since the plaintiff was not a “member” of LASER at the time he applied for the credit. In the first alternative, the defendant argues that the statute only grants credit when it is purchased. Secondly, the defendant alleges that the plaintiff waived all claims when he waived his benefits in 1947.

In order to determine whether the plaintiff is entitled to be credited for the years 1936 through 1947, it is necessary to consider the reason and spirit of Louisiana Revised Statute 42:562 as well as its context, since the application of this statute appears to be uncertain. Civ.Code Arts. 16 and 18. Because there is no jurisprudence interpreting this legislation, an analysis of the evolution of this act gives a good insight on the legislature’s intent when it enacted Louisiana Revised Statute 42:562 by Acts 1976, No. 240.

LASER was enacted by Acts 1946, No. 126, and has been amended several times. When LASER was originally passed in 1946, it provided that all persons employed by the State on June 30, 1947, should become members of the system unless they filed a declaration waiving all present and prospective benefits. La.R.S. 42:551 (1946). The plaintiff elected to forego his benefits. When the plaintiff was reemployed in 1954, he was obligated to become a member of the system, since La.R.S. 42:551 required all persons becoming employees after 1947 and who had no prior creditable service to join.

When the plaintiff joined LASER in 1954, he was entitled to receive all benefits that the legislature allowed. Unfortunately, when he joined in 1954, La.R.S. 42:571 only allowed credit for services rendered prior to 1947 to those members who joined prior to July 1, 1953. However, in 1964, La.R.S. 42:571.2 was added. This statute allowed those persons who never obtained credit for services rendered prior to the date the retirement system was established to obtain credit for such service if the member elected to do so prior to his retirement. This statute was repealed in 1972 when the legislature amended and re-enacted Parts I through IV of Chapter 10 of Title 42, which includes the statute in question. However, the plaintiff had the opportunity to receive credit for his early services while La.R.S. 42:571.2 was in effect, but he failed to avail himself of this option.

At the time the legislature amended Parts I through IV, La.R.S. 42:562 was included. The source of this statute was Louisiana Revised Statute 42:571 as amended by Acts 1971, No. 165. The original enactment of Louisiana Revised Statute 42:571 was repealed in 1966. In 1976, Louisiana Revised Statute 42:562 was amended to its present form. These three statutes read essentially the same except for Subsection (C). In the 1971 and 1972 forms, Subsection (C) specifically related to purchasing full-time credit for services performed after 'July 1, 1947, whereas no date is mentioned in the present statute.

Once the legislature repealed Louisiana Revised Statute 42:571.2 and enacted Louisiana Revised Statute 42:562, the plaintiff’s rights became subject to this new legislation. The benefits provided under Louisiana Revised Statute 42:571.2 did not inure to the plaintiff, since he never availed himself of these benefits.

Louisiana Revised Statute 42:562(A) provides that “any member shall be entitled to receive credit. . .” (emphasis added). A member is defined as “any person included in the membership of the system.” La.R.S. 42:543(17). “Membership in the system ceases when a member withdraws his accumulated contributions, or when a member withdraws from active service with a retirement allowance, or when a member dies.” La.R.S. 42:556. In the present case, Mr. Sawyer retired on April 1, 1978, and he is receiving retirement benefits. Louisiana Revised Statute 42:562 is similar to the previous statute, Louisiana Revised Statute 42:571.2, since both statutes require a state employee to obtain credit for early service prior to retirement.

The plaintiff did not make an application to LASER for credit for the years he worked prior to 1947. Because the plaintiff did not apply for credit prior to his retirement, he cannot later do so since he is no longer a member of the system. Therefore, plaintiff’s suit is dismissed at his cost.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 13th day of June, 1980.

(s) Lewis S. Doherty. Ill LEWIS S. DOHERTY, III, JUDGE

Division “F”

19th Judicial District Court

      . Prior to the 1958 amendment, this section read as follows: “All persons who become employees in the state service after June 30, 1947, and who have had no prior state service for which credit is allowable under this Chapter, except those specifically excluded or as to whom election is provided in this Chapter, shall become members of the system as a condition of their employment, provided these persons are under the age of sixty years at the time of employment.”

      . “Acts 1952, No. 326 amended this section to read as follows: ‘Under such rules and regulations as the Board of Trustees shall adopt each person who becomes a member of this retirement system as provided in Part II of this Chapter, prior to August 10, 1952, shall receive credit for all State service rendered prior to July 1, 1947. To receive such credit, such member shall file a detailed statement of all services as an employee rendered by him in the State service prior to July 1, 1947; provided, however, that in respect of all employees of the State of Louisiana, as defined in R.S. 42:543, presently in the service of the state, including those presently or formerly employed in the Drivers License Division of the Department of Public Safety of the State of Louisiana who were prior to their present employment employed in the Drivers License Division of the Department of Public Safety or its equivalent in any City of the State having a population of more than 300,000 inhabitants as of the U.S. Census of 1950 and in addition who were prior to their present employment employed in any Department of Public Works of (sic) its equivalent in any city of the State having a population of more than 300,000 inhabitants as of the U.S. Census of 1950; such employee shall be entitled to prior service credit for such time so served, and in computing his retirement rights under this or other sections of the 1950 Louisiana Revised Statutes such employees shall be given full credit for time so served just as if he had been employed by the State of Louisiana during the said time so served; and in the case of employees now on pension, this provision shall be made retroactive to the date of beginning of said pension.’
      Acts 1952, No. 364 cut this section to one sentence which read as follows: ‘Under such rules and regulations as the board of trustees shall adopt, each person who becomes a member of this retirement system, as provided in Part 11(2) of this Chapter, prior to July 1, 1953, shall receive credit for all state service rendered prior to July 1, 1947.’ ”