author: LEMMON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Isaac KNAPPER.
    No. 82-KA-2713.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Dissenting Opinion Dec. 5, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., David R. Paddison, Donald L. Foret, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Glass, Glass & Reed, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of life imprisonment. The principal issue concerns the admissibility of testimony that a crucial state witness made a statement soon after the crime which was consistent with a portion of his trial testimony. A second issue involves the admissibility of a statement by defendant after the crime. Facts

Two history professors, John Hakola and Dr. Ronald Banks, were attending a meeting in New Orleans. As they approached the entrance to their hotel near the Super-dome at about 9:00 p.m., two young men approached on either side of them and demanded money. The man nearest to Dr. Banks was holding a chrome-plated revolver. Dr. Banks reacted with the statement, “You’ve got to be kidding”. Hakola then struck out at the unarmed robber, who was nearest to him, and burst through the hotel entrance. As he did, he heard a shot and turned to see Dr. Banks lying on the sidewalk, while the two assailants then fled into the night. Dr. Banks had been shot once in the head and was killed instantly.

Hakola described the gunman as 5 feet 9 inches tall and weighing 165 pounds, wearing a dark shirt, dark pants, a grayish-white sailor hat pulled down to his eyes, and a dark bandanna covering his face.

Shortly after the murder, the police, for reasons not revealed in the record, searched for and eventually arrested defendant and Leroy Williams. Both were indicted for first degree murder. Williams eventually entered into an agreement with the prosecutor to plead guilty to manslaughter and to testify against defendant.

At the trial, Hakola testified that defendant was the same height and had the same physical build as the gunman, but he was unable to make a positive identification of defendant as the murderer. Accordingly, Williams’ testimony formed the principal basis of the state’s case.

Williams testified that he met defendant on the evening of the murder in- a New Orleans project, only a few blocks from the hotel where the crime occurred. According to Williams, defendant approached him and asked if he wanted to “make some money”. Williams stated that defendant was wearing blue jeans, a black shirt, and a bandanna, which he pulled up onto his face as they approached two men walking to the hotel. He further stated that defendant stepped in front of them, drew a chrome-plated pistol and demanded money. When one of the two men responded, “You’ve got to be kidding”, defendant shot him, and the robbers ran in different directions.

The defense presented the testimony of defendant and several of his relatives. All testified that defendant was at his mother’s home in the project at the time of the robbery. Defendant also called a prison inmate named Gordon who testified that he overheard Williams tell a fellow inmate that Williams’ mother made him (Williams) “lie on Isaac [defendant] in order for him to get his [Williams’] freedom”.

The arguments of counsel focused on Williams’ credibility, and the prosecutor acknowledged that his case against defendant rested primarily on Williams’ testimony. The jurors, who heard the conflicting versions presented by defendant and Williams, obviously believed Williams and found defendant guilty as charged. After the jury was unable to reach unanimity on a penalty recommendation, defendant was sentenced to life imprisonment without parole.

Prior Consistent Statement

Defendant argues that the trial court committed reversible error when he permitted Williams’ mother to testify during the state’s case-in-chief that Williams told her that he was with defendant on the evening of the murder.

After Williams related his version of the incident at trial, the prosecutor asked if he had ever told the story to anyone else, and Williams replied that he told his mother before his arrest that he was with defendant. He added that he knew the police were looking for him and that he did not shoot the victim.

The prosecutor then called Williams’ mother and asked her about conversations with her son about the crime prior to his arrest. Mrs. Williams testified, over defense objection, that he told her, after they had learned of defendant’s arrest, that he was with defendant and had gone to a wrestling match at the Superdome that night, but he did not tell her what had happened. The trial court sustained defense objections to the prosecutor’s questions probing for more details. However, the evidence of the statement by Williams that he and defendant were together near the Superdome on that fateful night was at least in part consistent (omitting other details) with Williams’ trial testimony. Thus, the testimony of Mrs. Williams had some bearing on the critical issue of whether defendant was at home with relatives listening to records on the evening of April 12, as he claimed, or whether he was on the streets near the Superdome with Williams looking for a robbery victim, as Williams claimed.

Defendant argues' that La.R.S. 15:496 and 497 limit admissibility of prior consistent statements to situations in which the witness’ testimony has been “assailed as to a particular fact” and in which the alleged prior statement was made at “an unsuspi-cious time”.

Reviewing the entire record of the trial, we conclude that the trial court did not commit reversible error in overruling defendant’s objection (which failed to state the ground on which it was based).

At the time Mrs. Williams testified, her son’s testimony arguably had not yet been assailed on the fact of defendant’s presence at the scene, but it was nevertheless evident by that point in the proceedings that Williams’ testimony was clearly being “assailed” insofar as he implicated defendant as a co-actor and “triggerman” in the robbery-murder. During cross-examination, defense counsel vigorously attacked Williams’ credibility, suggesting' by his questions that Williams pleaded guilty to manslaughter to save himself from the electric chair.

La.R.S. 15:496 permits corroboration (by prior consistent statements) only after impeachment, because corroboration prior to impeachment is usually unnecessary. Nevertheless, the witness in this case had been impeached during cross-examination on the basis of bias and interest as an accomplice who was awaiting sentence after a guilty plea. See 4 Wigmore, Evidence § 1128 (Chadbourn rev. 1972). Moreover, if defense counsel’s objection had set forth the grounds as required by La.C.Cr.P. Art. 841, then the trial court could have chosen to require the state to hold Mrs. Williams’ testimony until the state’s rebuttal. Since the trial court was not given the basis for the objection, there was no opportunity to correct the problem by using this option. See State v. Quincy, 363 So.2d 647 (La. 1978).

As to the “unsuspicious time” argument, Williams’ conversation with his mother occurred two days before his arrest and several weeks after the crime. Williams’ mother knew that defendant had been arrested and that the police were looking for her son. Defense counsel therefore argues that the timing of the statement was suspicious and that the statement lacked reliability in that the statement could be explained as an attempt by Williams to mollify his mother.

While the timing of the statement was not completely unsuspicious, the statement was made long before any plea bargaining began. More importantly, the statement was made before suggestions by other persons had intervened. At the time of the statement, there was no reason for Williams to name defendant as his companion unless the two were together that evening, and to that extent the statement does not lack reliability. Moreover, the importance of the statement to this case was not to show Williams’ lack of complicity for the crime, but rather was to show defendant’s presence with Williams at the time of the robbery attempt at the hotel near the Su-perdome. As to that point, the statement had much indicia of reliability because Williams implicated himself as a participant in the incident for which defendant had been arrested, and that declaration against his own interest enhanced the reliability of the statement.

Defendant principally attacks the use of the prior statement for the purpose of corroborating the inherently suspicious testimony of an accomplice. La.R.S. 15:496 does not limit its use to the corroboration of witnesses who are not accomplices. The statutory basis for permitting corroboration by a prior consistent statement made at an unsuspicious time is the probable reliability of the statement. That basis for admissibility is no less valid for a witness who was an accomplice than for any other witness (especially when the statement has inculpatory overtones). We therefore decline to exclude otherwise admissible evidence of Williams’ prior consistent statement simply because of Williams’ status as an accomplice.

Statement by Defendant

Defendant alleges that the trial judge erred in allowing Williams to testify as to statements made by defendant after the crime.

During his examination of Williams, the prosecutor asked the witness whether he had ever discussed the evening’s activities with defendant.

“Q. Did you ever discuss what happened that evening, with Isaac Knap-per?
“A. Yes.
“Q. What was the general gest [sic] of that discussion, Leroy?
“A. He told me not to tell anybody.
“MR. ZIBILICH: Objection, Your Honor.
“THE COURT: Overruled.
“MR. ZIBILICH: Assignment of errors, please.
“EXAMINATION OP MR. PADDISON .CONTINUES:
“Q. Would you go ahead and tell the ladies and gentlemen?”
“A. Told me not to tell them nothing about it.
“Q. Excuse me?
“A. Don’t tell them nothing about it.
“Q. When was that conversation?
“A. Same night.
“Q. Where was it?
“A. In the Melpomene Project.
“Q. Was it in anybody’s house?
“A. No.
“Q. Was anyone else present?
“A. No.”

Defendant argues that the state failed to serve the required notice that it intended to introduce this statement. However, counsel did not state the grounds for his objection, and the issue has not been preserved for appellate review. See State v. Quincy, above.

Furthermore, the purpose of the notice required by La.C.Cr.P. Art. 768 is to prevent surprise and allow adequate time for preparation of the defense. State v. Parker, 436 So.2d 495 (La.1983). Defendant does not suggest how his defense would have been different had he been apprised that the state intended to introduce this statement against him. More significantly, this testimony about the later statement pales in significance when considered in light of Williams’ other testimony. The crucial issue in the trial was Williams’ credibility.

The conviction and sentence are affirmed.

CALOGERO, J., dissents and will assign reasons:

CALOGERO, Justice,

dissenting.

I find merit in the defendant’s assignment of error regarding the state’s use of a co-defendant’s prior consistent statement.

La.R.S. 15:496 provides:

When the testimony of a witness has been assailed as to a particular fact stated by him, similar prior statements, made at an unsuspicious time, may be received to corroborate his testimony.

Four conditions must be satisfied before this statute will allow the use of corroborative hearsay to bolster the witness:

(1) the hearsay statement which is offered must be a statement “similar” to the testimony of the witness on the particular fact;

(2) the hearsay statement must be made at an unsuspicious time;

(3) as to the fact in question, the testimony of the witness must be actually “assailed;”

(4) the assault on the witness must be directed at a “particular fact,” not at a general fact of the case.

In this case, after the accomplice, Williams, had related his version of the incident, his mother was allowed to testify to their conversation two days before his arrest and shortly after the defendant’s arrest. The state’s theory of admissibility fails on several if not all of the conditions required by La.R.S. 15:496.

With regard to the first condition, Williams’ testimony (he and defendant met in the project at 8:30 P.M. and walked directly to the Hyatt Regency where they committed the crime), and his mother’s recitation of Williams’ earlier statement to her (that he and defendant attended a wrestling match at the Superdome adjacent to the Hyatt, with no mention of a robbery or killing) were not really similar, although the majority’s treatment of this issue is not entirely implausible.

With respect to the second condition, it can hardly be argued that the prior statement was “made at an unsuspicious time.” In fact, the timing of the statement made it inherently suspect. According to the trial transcript, the statement was made a full month after the crime occurred, at a time when Williams knew that the defendant had been arrested and that the police were looking for him. The trial transcript further indicates that Mrs. Williams was also aware that the police were looking for her son and that she had considered the possibility of getting him out of town. Under these circumstances, the mother questioned her son about his whereabouts on the evening of the crime, and this seventeen year old’s response was surely motivated by an attempt to minimize his own involvement and to allay her worst fears.

It is also clear that Williams’ testimony on the particular issue was never “assailed” within the meaning of the statute. The use of the word “assail” rather than contradict incorporates the idea of an attack. The record reveals no defense attack on Williams’ direct testimony that he was with defendant at the killing, nor was he challenged as to his assertion that he told his mother about his story. Instead, the defense made a general credibility attack on Williams, and placed contradictory proof of the defendant’s whereabouts and of the identity of the second perpetrator before the jury. And, according to State v. Marcal, 388 So.2d 656, 660 (La.1980), R.S. 15:496 does not authorize the introduction of prior consistent statements to buttress general credibility, where an attack by cross-examination on specific facts asserted by the state witness has not been made. Such “particular facts” must be more narrow than whether or not the defendant was at the scene of the crime and whether he did it, or else every denial of guilt would assail that allegation in a general sense.

In a case such as the present, where defendant strongly protests his innocence, and considering that defendant’s conviction hinged so strongly on the testimony of Williams, I cannot say that this trial error in permitting Williams’ testimony to be bolstered by an ostensible prior consistent statement constituted harmless error.

For these reasons I dissent.

      . Appellate counsel did not represent defendant at the trial. Thus, the procedural default is certainly not attributable to him. Nevertheless, trial counsel did an admirable job of marshaling a significant volume of evidence which undercut the credibility of Williams, which indicated that defendant did not fit the appearance of the fleeing gunman, and which provided an alibi defense. However, the prosecutor effectively cross-examined those defense witnesses. The whole case thus rose or fell on the believability of Williams’ brief but certain testimony naming defendant as his gunman accomplice and describing him as the "prime mover”. The jurors also observed defendant on the stand, and they performed their function of determining credibility after a very fair and well conducted trial.

      . Defense counsel also asked Williams if he ever made any statement concerning the case to or in the presence of Donald Gordon. After Williams denied making any such statement, the prosecutor, obviously aware of Gordon's story (and aware that Gordon would later be called), questioned Williams on redirect about whether he ever told a fellow inmate that he was simply testifying to "get out of trouble”. Williams denied ever making such a statement. At this point, the stage was clearly set for Gordon’s subsequent testimony concerning the alleged statement by Williams to the effect that his mother was forcing him to lie by implicating defendant to save himself.

      . The purpose of the contemporaneous objection rule requiring an objection and a statement of grounds is to permit trial courts to avoid error so that trials will be concluded in as error-free manner as possible. In State v. Thomas, 427 So.2d 428 (La. 1983), this court said:
      "The contemporaneous objection rule has two purposes: (1) to put the trial judge on notice of the alleged irregularity so that he may cure the problem, and (2) to prevent a defendant from gambling for a favorable verdict and then resorting to appeal an error that might easily have been corrected by objection”. 427 So.2d at 433.
      This principle is particularly relevant when, as here, the question presented really depends on whether the evidence was admissible at the point at which the evidence was admitted — and not on whether the evidence should not have been admitted under any circumstances.

      . Because both the declarant and the witness who testified to the statement are available for cross-examination, a witness' testimony about the prior consistent statement of another witness is not subject to the objections of other hearsay evidence. See Fed.R.Evid. 801(d)(1)(B), which authorizes admission of a prior statement by a witness who testifies at the hearing subject to cross-examination, when the statement is offered to rebut an express or implied charge against the witness of improper influence or motive.


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice BLANCHE, Justice

license: Public Domain

text:
    STATE of Louisiana v. Larry STEWART.
    No. 82-KA-2550.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Rehearing Denied Jan. 24,1985.

      William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Campbell, Philip Pressnitz, Michael Simpson, Asst. Dist. Attys., for plaintiff-appellee.
    .John M. Lawrence, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
   DENNIS, Justice.

Defendant, Larry Stewart, was convicted of first degree murder, La.R.S. 14:30, and sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant appealed and filed fifteen assignments of error.

As defendant contends in his 15th assignment of error, the evidence is not sufficient constitutionally to support the jury’s verdict of first degree murder. Stewart’s other assignments of error do not raise any issue of reversible or publishable merit as will be reflected by the reasons stated in the attached unpublished appendix. Accordingly, in this opinion we discuss only the sufficiency of evidence issue.

After an afternoon of drinking, Stewart drove his car into a ditch in front of his house. His common law wife, Ruby Marcel, came out and the two began to quarrel. They entered the house where the argument led to curses, threats and violence. Stewart fired a pistol into the ceiling, and Ruby struck him with a meat cleaver.

Two visitors, Ruby’s son, Richard Marcel, and Ruby’s sister, Gloria Franklin, managed to restrain Stewart while Ruby ran outside and hid under the house. After her sister escaped, Gloria Franklin also ran out of the house. After a brief lull, Stewart placed the barrel of his pistol on Richard Marcel’s neck and fatally wounded him.

Gloria Franklin testified that she heard the weapon fire as she ran towards her car outside Stewart’s house. As she was trying to open the car door, she looked over her shoulder and saw Stewart walking towards her at a brisk pace. He walked directly up to her, grabbed her coat, put the gun to her chest and fired. Gloria Franklin was severely wounded but she recovered to testify against the defendant.

The evidence is susceptible to the interpretation that Stewart, when he shot and killed Richard Marcel inside the house, planned to find Gloria Franklin outside the house and shoot her too. The evidence cannot, however, reasonably support a finding that Stewart, actively desired or specifically intended to kill Franklin by the same act with which he killed Marcel.

Consequently, this case presents the same legal question which was recently . resolved by State v. Andrews, 452 So.2d 687 (La.1984): Under La.R.S. 14:30(3), which provides that first degree murder is “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm upon more than one person,” is the state required to prove that the accused specifically intended by the same act to kill or greatly harm more than one person?

This court in State v. Andrews, supra, answered the question in the affirmative. We pointed out that “specific intent” is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his act or failure to act.” La.R.S. 14:10(1). Under the statutory definition, in order for it to be said that a person has formed a specific intent he must commit an act (or fail to act) and actively desire that certain statutorily prescribed consequences will result from his act (or failure to act). Accordingly, unless a statute clearly indicates that the term “specific intent” is used differently than as defined, the courts cannot extend the meaning of specific intent in the definition of a crime to include an active desire that criminal consequences will result from a future, yet uncommitted act. The articles of the criminal code cannot be extended by analogy so as to create crimes not provided for therein. La.R.S. 14:3.

The use of the term “specific intent” by the lawmakers in defining first degree murder by La.R.S. 14:30(3) does not reflect a clear intention to refer to future criminal acts separate from the commission of the killing. Therefore, La.R.S. 14:30(3) requires that the offender must actively desire that the death or great bodily harm of more than one person result from the act or acts by which he committed the homicide or by an act inseparable therefrom.

Applying these precepts, we conclude that, based on this record, no rational trier of fact could have concluded beyond a reasonable doubt that Stewart, by firing at Richard Marcel inside the house, or by any other act inseparable from the killing of Marcel, actively desired as a result to kill or inflict great bodily harm on more than one person. Due process will not permit a conviction to stand unless, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, since a specific intent to kill or inflict great bodily harm upon more than one person is an essential element of the crime in this case, the conviction cannot withstand constitutional scrutiny.

This court, pursuant to La.C.Cr.P. 821(E), is authorized to modify the verdict and render a judgment of conviction on a lesser included responsive offense. The court’s power to so amend a judgment of conviction is restricted to cases in which the trier of fact necessarily determined that the defendant was guilty of the lesser and included offense because that finding was essential to finding the defendant guilty of the greater and inclusive verdict. La. Const, art. 5 § 5; See State v. Byrd, 385 So.2d 248 (La.1980); State v. Tillman, 356 So.2d 1376 (La.1978), See Note 2. Second degree murder is a responsive offense to first degree murder. La.C.Cr.P. 814(A)(1). La.R.S. 14:30.1(1) defines second degree murder as “the killing of a human being ... [w]hen the offender has a specific intent to kill or inflict great bodily harm.” This finding was essential to a conviction of first degree murder and necessarily was made in this case by the jury in reaching its verdict. The record clearly supports that finding and a conviction of second degree murder.

Accordingly, defendant’s conviction is amended by converting it to a conviction of second degree murder, La.R.S. 14:30.1(1). As amended, the conviction is affirmed. Second degree murder carries a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This is the same sentence which the defendant received. The sentence, therefore, is affirmed.

AFFIRMED AS AMENDED.

WATSON, J., concurs in the result noting that the statute does not limit the offense to the result of a single act.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

Using the test fashioned by the majority, I am of the opinion that the act of shooting Franklin was “inseparable” from the act of killing Marcel. However, the majority unduly restricts specific intent. Intent is a question of fact which “may be inferred from the circumstances of the transaction.” La.R.S. 15:445. Under the circumstances of the transaction in this case, at the time defendant shot and killed Marcel, he specifically intended to kill or inflict great bodily harm upon Franklin. The act of shooting Franklin was part of a single course of conduct that began with the act of shooting and killing Marcel. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

This writer respectfully dissents being of the opinion that the requirements of first degree murder are satisfied when the offender in a single consecutive course of action intends and actually causes the death of one person and the death or great bodily harm of at least one more person. State v. Martin, 376 So.2d 300 (La.1979); State v. English, 367 So.2d 815 (La.1979); State v. Sonnier, 379 So.2d 1336 (La.1980). This case differs from State v. Andrews, 452 So.2d 687 (La.1984) in that the defendant in Andrews could not have killed both brothers in one continuous course of conduct.

      . Our opinion in the present case does not modify the holdings of State v. Welcome, 458 So.2d 1235 (La.1984); State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Martin, 376 So.2d 300 (La.1979), which involved interpretations of one of the rules provided for sentencing in capital cases, La.C.Cr.P. art. 905.4(d), and not crime definitions. Furthermore, the language differences in the crime definition provision and the sentencing provision were intentional since both were enacted by the same act of the legislature. See 1979 Acts, No. 74 §§ 1 and 2.


author: WATSON, Justice.

text:
    Faye D. DURHAM v. LOUISIANA STATE RACING COMMISSION.
    No. 84-CA-1535.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Rehearing Denied Jan. 4,1985.

      William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen., for defendant-appellant.

      Mary Olive Pierson, Cooper, Thompson & Pierson, Baton Rouge, for plaintiff-appel-lee.
   WATSON, Justice.

Faye D. Durham’s 1983-1984 Louisiana licenses as an owner and trainer of racehorses were suspended because her husband’s license as a trainer had been suspended. After a court challenge, her licenses were ordered reinstated. Durham v. La. State Racing Com’n., 449 So.2d 475 (La., 1984).

Since the racing year begins on July 1, Ms. Durham applied for new 1984-1985 licenses on June 28, 1984. Because her husband was still suspended, the Louisiana State Racing Commission refused to issue the licenses. Ms. Durham obtained injunc-tive and declaratory relief. LSA-R.S. 4:150B(10) and LAC-11-6:25.18 were declared unconstitutional and this appeal followed.

The constitutionality of LSA-R.S. 4:150B(10) and LAC-11-6:25.18 was preter-mitted in the prior Durham appeal, because those laws relate to a license application, not a suspension or revocation. The issue is now squarely presented; Mrs. Durham challenges the constitutionality of LSA-R.S. 4:150B(10) and LAC-11-6:25.18 as a deprivation of equal protection and due process.

EQUAL PROTECTION

Mrs. Durham alleges discrimination on the basis of marital status.

Married persons have not historically suffered from discrimination or needed protection from the majority. As a group, their size and diversity militate against any claim that they are a suspect class to which a strict scrutiny analysis applies. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). However, strict scrutiny applies when a classification burdens a fundamental right, and Mrs. Durham claims that the Racing Commission infringes on the fundamental right to marry.

While marriage is a fundamental right, all state regulations impeding marriage are not invalid under the Equal Protection Clause. Compare Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). A social security rule that terminates disability benefits upon marriage is constitutional because marital status is a relevant factor in determining dependency. Since the rule does not directly interfere with an individual’s right to marry, it is not invalid “simply because some persons who might otherwise have married were deterred by the rule or because some who did marry were burdened thereby.” Califano v. Jobst, 434 U.S. 47 at 54, 98 S.Ct. 95 at 99, 54 L.Ed.2d 228 at 235 (1977). Similarly, the “marriage penalty” in the federal scheme of income taxation is valid because it is only an indirect obstacle to marriage. Druker v. C.I.R., 697 F.2d 46 (2d Cir., 1982). Since LSA-R.S. 4:150B(10) and LAC-11-6:25.18 do not directly infringe upon Mrs. Durham’s fundamental right to contract a valid marriage, a strict scrutiny analysis is not required.

Marital status is relevant in determining eligibility for a horse racing license, because of the likelihood that one spouse may aid another in circumventing sanctions imposed by the Racing Commission. In a community property state like Louisiana, both spouses generally have an interest in any horses owned by either. The challenged regulations are designed to protect the public from those who have actively violated any of the horse racing laws by preventing them from continuing their activities under the cloak of a spouse’s license. Thus, imposing sanctions based on marital status helps to maintain the integrity of a licensed business which provides substantial state revenue but is regarded with scepticism by the general public.

DUE PROCESS

For a business or occupational regulation to be valid under the Due Process Clause, the regulation must have a rational relationship to a legitimate state interest.

Within its police powers, a state may do what is reasonably necessary to protect the health, safety and morals of its citizens. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205 (1887); City of Shreveport v. Curry, 357 So.2d 1078 (1978). Like many other states, Louisiana could totally ban horse racing, because it involves gambling, an activity generally prohibited as immoral. Louisiana has a genuine and legitimate interest in regulating horse racing. Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). LSA-R.S. 4:150B(1) and LAC-11-6:25.18 are based on a valid state interest.

In Lewitus v. Colwell, 479 F.Supp. 439 (Md., 1979) a racehorse owner was denied an owner’s license because his trainer had been banned from several tracks and had a bad reputation in horse racing circles. The owner, like Ms. Durham, was not guilty of any personal misconduct. He was denied a license solely because of his association with someone who had acted illegally. Lewitus held that there was no violation of substantive due process.

Similarly, LSA-R.S. 4:150B(10) and LAC-11-6:25.18 meet the requirements of substantive due process. Since it involves legalized gambling, the state has broad powers of regulation. The laws in question are a reasonable implementation of those powers which protect the public’s confidence in horse racing.

There is no violation of procedural due process because Mrs. Durham had no protected property interest in the benefits conferred by a license she did not actually hold. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); LaBauve v. Louisiana Wildlife & Fisheries Com’n, 444 F.Supp. 1370 (E.D.La., 1978). Absent a protected property interest, Ms. Durham was not entitled to notice and a hearing before denial of her application. Board of Regents v. Roth, supra.

The legislature and the Racing Commission acted within their broad constitutional and statutory powers in providing for the denial of plaintiff’s licenses; the trial court erred in holding LSA-R.S. 4:150B(10) and LAC-11-6:25.18 unconstitutional.

For the foregoing reasons, the judgment of the trial court is reversed and plaintiff’s petition is dismissed.

REVERSED.

DIXON, C.J., concurs.

DENNIS and LEMMON, JJ„ dissent.

      .LSA-R.S. 4:150B(10) provides in pertinent part:
      "Applicants for a license under this section shall meet the following qualifications and conditions:
      ******
      "(10) Is not the spouse of a person whose application has been denied or whose license has been revoked, unless judicially separated or divorced.”

      . One of the Rules of Racing, LAC-11-6:25.18 provides in pertinent part:
      "... No entry shall be accepted from a husband or wife while either is disqualified...." LSA-R.S. 4:152A(3) allows the Racing Commission to refuse licenses for any "Violation of the Rules of Racing."

      . LSA-Const. 1974, Art. V, § 5(D).

      . In connection with the first Durham appeal, the author reached a contrary conclusion. 449 So.2d at 479. That initial impression was erroneous.


author: BLANCHE, Justice. DIXON, Chief Justice

text:
    Taylor Ruben ADAMS v. STATE of Louisiana, DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 84-CA-1316.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Rehearing Denied Jan. 4,1985.

      William J. Guste, Jr., Atty. Gen., Leonard K. Knapp, Dist. Atty., Lydia Guillory-Lee, Asst. Dist. Atty., for defendant-appellant.
    Oliver Schrumpf, Charles Schrumpf, Sumpter & Schrumpf, Sulphur, for plaintiff-appellee.
   BLANCHE, Justice.

. Taylor Ruben Adams is the owner and manufacturer of individual sewerage treatment plants for rural communities which are unable to utilize municipal sewerage treatment systems. His treatment system has the trade name “Sani-Robie”, and is also informally known as the “Buddy System”. In 1979, criminal charges were brought against him for installing these sewer systems without a permit in violation of Sections 10:30 and 10:31.1 of the Louisiana Sanitary Code. In 1981, the trial court found that the provisions of the Sanitary Code sought to be enforced against Adams were unconstitutional and quashed the indictment. No appeal was taken from that judgment. In November of 1983, Adams filed a suit for declaratory judgment against the State of Louisiana to have the. Sanitary Code declared unconstitutional. The State of Louisiana responded by filing a reconventional demand seeking to enjoin him eivily from selling any further sewerage treatment systems without first submitting the plans for installation of each sewerage treatment system and obtaining a valid permit from the Department of Health and Human Resources for their installation. On March 16, 1984, the trial court sustained an exception of no cause of action filed by Adams on the grounds that the statutes authorizing the Department of Health and Human Resources to draft regulations controlling the manufacture and sale of individual sewerage treatment systems do not contain sufficient guidelines or standards to constitute a constitutional delegation of legislative authority. Since this appeal involves the declaration of unconstitutionality of a state statute, this suit was transferred by the Third Circuit Court of Appeal to this court for review.

I.

The trial court held that the Louisiana Sanitary Code is unconstitutional because it delegates legislative power to the Department of Health and Human Resources (DHHR) without specifying sufficient standards or guidelines within which the DHHR may act.

La.R.S. 40:4(A) provides:

A. The state health officer acting through the office of health services and environmental quality of the Department of Health and Human Resources, shall prepare, promulgate, and enforce rules and regulations embodied within the state’s sanitary code covering all matters within his jurisdiction as defined and set forth in R.S. 40:5. The promulgation of this sanitary code shall be accomplished in strict accordance with the provisions of the Administrative Procedure Act, 'R.S. 49:951, et seq., and further, in conformity with the following guidelines and directives.

Paragraph 6 further provides:

(6) In order to protect the public against disease and nuisance resulting from the improper disposal of sanitary sewerage, the state health officer shall prepare and promulgate all rules and regulations necessary to insure that adequate conveyance and disposal facilities are provided for all sanitary sewerage, private or public, and in such a manner that will prevent the contamination of surroundings which would have an adverse impact on drinking water supplies, recreational waters, acquatic life, and other mechanisms of human exposure to disease. Standards for the quality of sanitary sewerage discharged to the ground surface (ditches, streams, water pools, or other drainage courses), construction of sewerage works, operation of sanitary sewerage conveyance, and treatment and disposal facilities shall be included. Plans and specifications for sewerage works shall be submitted for review and approval to the state health officer or his designee.

Article II, § 1 of the 1974 Louisiana Constitution divides the powers of government into three separate branches: legislative, executive and judicial. Article II, § 2 provides that no one of these branches may exercise power belonging to either of the other. The legislative power of the state is vested exclusively in the legislature. La. Const, art. Ill, § 1. It is from these provisions that we derive the general principal “that legislative power, conferred under constitutional provisions, cannot be delegated by the Legislature either to the people or to any other body or authority.” State v. Broom, 439 So.2d 357 (La.1983); City of Alexandria v. Alexandria Firefighters Association, 220 La. 754, 57 So.2d 673 (La.1952).

If the Constitution were applied literally, it would preclude any delegation of legislative power to a non-legislative body. Such an application of these principles would unduly hamper the Legislature in the exercise of its constitutionally vested powers. Accordingly, the courts have repeatedly recognized that there are exceptions to the non-delegation doctrine. State v. Broom, supra; State v. Union Tank Car Company, 439 So.2d 377 (La.1983); United States v. Shreveport Grain and Elevator, 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932); State v. Guidry, 142 La. 422, 76 So. 843 (1917).

In determining whether a particular delegation of legislative authority is unconstitutional, this court has relied on the rule established in Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 112 So.2d 606, 613 (La.1959):

So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature.

Consistent with this principle, Louisiana courts have upheld the constitutionality of statutes delegating broad powers to administrative officers to determine the details of legislative scheme where those statutes express a clear legislative policy and contain sufficient standards for the guidance of the administrative official empowered to execute the law. State v. Union Tank Car Company, supra; Johnson v. Pierce, 313 So.2d 812 (La.1975); City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (La.1965). Likewise, this court has fashioned a two prong test in order to prevent the unconstitutional delegation of legislative authority. Under this test, there must be (1) a clear expression of legislative policy accompanied by sufficient standards to prevent the exercise of arbitrary power by the administrative body and (2) adequate procedural safeguards to protect against abuse of discretion by those to whom the power is delegated. State v. Union Tank Car Company, supra; State v. Rodriguez, 379 So.2d 1084 (La.1980).

La.R.S. 40:4(A)(6) provides that the state health officer shall prepare and promulgate all rules and regulations necessary to insure that adequate conveyance and disposal facilities are provided for all sanitary sewerage. The purpose of these regulations is to prevent disease, contamination of water supplies, adverse effects on recreational waters and acquatic life and to prevent any nuisance resulting from the improper disposal of sewerage. The policy behind the Sanitary Code’s provisions on sewerage disposal is thus quite clear. In State v. Union Tank Car Company, supra, we found that the policy to promote an environment free from pollution was a valid exercise of the State’s police power to protect the public health and that it established a definite policy of the State which permits an administrative body to make rules and regulations necessary for the administration of that policy. Similarly, in Johnson v. Pierce, supra, we found that the control and eradication of brucellosis was a proper legislative goal and that it was also sufficient to guide an administrative body delegated by the legislature. Based on the rationale in Johnson and Union Tank Car Company, the policy of the Louisiana Sanitary Code in regard to sewerage disposal, which is to prevent disease and the contamination of water supplies from improper sewerage disposal, is also a valid exercise of the State’s police power to protect the public health and is clearly adequate to support a delegation of legislative authority.

Since the legislature has adequately stated its intent with respect to sewerage disposal, we must now determine whether the standards accompanying this declaration of legislative intent gives adequate guidelines to the Department of Health and Human Resources in promulgating the necessary regulations for the control of sewerage disposal. In testing the constitutional sufficiency of the standards prescribed in these statutes, regard must be given to the purpose and scope of the act, the subject matters covered therein, the duties prescribed, and the broad or narrow powers granted. State v. Union Tank Car Company, supra; Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Cmwlth. 441, 279 A.2d 388 (Pa.1971).

La.R.S. 40:3 provides that a state health officer shall be designated by the DHHR. La.R.S. 40:4(A) further provides that the state health office, through the DHHR, shall prepare and enforce rules and regulations embodied within the state’s sanitary code covering all matters within his jurisdiction as defined and set forth in R.S. 40:5. The treatment and disposal of municipal and domestic sewerage is specifically made part of the jurisdiction of the DHHR’s state health officer in R.S. 40:5. In further defining the authority of the state health officer with regard to sewerage disposal, R.S. 40:4(A)(6) provides that standards for the quality of sanitary sewerage discharged to the ground surface, construction of sewerage works, operation of sanitary sewerage conveyance and treatment and disposal facilities shall be included. Likewise plans' and specifications for sewerage works shall be submittéd for review and approval by the state health officer. Although the legislature has granted the DHHR broad powers, we conclude that they are adequate to support a constitutional delegation of authority. Likewise, even though the exact requirements for the issuance of licenses and permits are not specifically stated they may be inferred from the statutory scheme as a whole. State v. Union Tank Car Company, supra. It is evident that the DHHR may not arbitrarily deny an individual a permit, but rather they must base their decision upon whether or not the proposed sewerage system poses a danger to the health and welfare of the public. This standard is sufficient to guide the DHHR in its enforcement of the legislative will. Likewise, the method of enforcement is the denial of permits to those sewerage treatment plants which pose a threat to the health and welfare of the public. Clearly, R.S. 40:1 through 40:5 provide sufficient guidelines and standards to prevent the arbitrary action by the DHHR.

In addition, the legislature has incorporated the procedural safeguards invoked by the Administrative Procedure Act, La.R.S. 49:951-970 into the promulgation of the Sanitary Code, thereby insuring ample protection against arbitrary action of the DHHR in adopting the regulations. La. R.S. 40:4, State v. Union Tank Car Company, supra.

Therefore, considering the expressed policy and standards enacted by the legislature, we conclude that the Sanitary Code does not involve an unconstitutional delegation of legislative authority.

II.

Mr. Adams further contends that the regulations he is charged with violating are vague and uncertain which therefore makes them unconstitutional. He is charged with violating Chapter 10, Sections 10:30 and 10:31 of the Sanitary Code of Louisiana, the Regulations Controlling Sewerage Disposal for Individual Rural Homes as published in the Louisiana Register, Vol. 6, No. 3, March 20, 1983, Paragraph VI and Calcasieu Parish Ordinance 2128.

Section 10:30 provides that a person or organization may not install individual sewerage disposal systems without obtaining a permit for such installation from the State Health officer. Section 10:31 further provides that plans and specifications must be submitted for each installation at the time of application for the permit. In order to provide guidelines on whether a sewerage treatment plant will be approved and a permit issued, Regulations Controlling Sewerage Disposal for Individual Rural Homes was published in the Louisiana Register. Paragraph 6.4 provides that sewerage treatment plants must comply with “Standard 40 Relating to Individual Aerobic Plants” adopted by the Board of Trustees of the National Sanitation Foundation (NSF) and Paragraph 6.5 further provides that only Class I plants as defined by the NSF will be permitted in Louisiana. NSF Standard Number 40 clearly states the minimum requirements for sewerage treatment plants. Paragraph 6.6 of the Regulations for Sewerage Disposal also requires that individuals intending to sell sewerage treatment plants in Louisiana shall submit for approval evaluation reports prepared by an independent testing laboratory and obtain approval for such plants by complying with the provisions of NSF Standard Number 40 prior to selling sewerage treatment plants in the State of Louisiana. Finally, Ordinance 2128 of Calcasieu Parish provides that an individual must obtain a permit from the Calcasieu Parish Health Unit prior to installing an individual sewerage system. Section 2, which was repealed in July of 1983 provided that the applicant must comply with the Sanitary Code. This provision was not in effect in November of 1983 when this suit was filed by Mr. Adams.

These provisions cannot be found to be anything but clear and definite. An individual who desires to sell individual sewerage systems must comply with the minimum standards established by NSF Standard Number 40. If the standards are met, a permit will be issued by the DHHR. If the standards are not met, the permit will be denied. The standards required by the Sanitary Code are clear and precise and leave little room for arbitrary action by the DHHR. We therefore find no merit in the argument that these provisions are unconstitutionally vague.

III.

Adams presents several other grounds in order to prevent the enforcement of the Sanitary Code. First, Adams contends that because the criminal provisions of the Sanitary Code were declared unconstitutional by the District Court in 1981 in a criminal proceeding in which he was the defendant, this civil suit is res judicata. Under Louisiana Civil Code Article 2286, in order for an issue to be res judicata, the thing demanded must be the same, the cause of action must be the same, and the parties must be the same. R.G. Claitors Realty v. Juban, 391 So.2d 394 (La.1980); Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978). In the prior suit, the thing demanded was criminal sanctions. In this suit, the thing demanded is civil sanctions. Since the thing demanded is not identical in both suits, this suit is not precluded by the doctrine of res judicata. Additionally, an acquittal on a criminal charge is not a bar to a civil action. City of New Orleans v. Lafon, 61 So.2d 270 (La.App.1952); O.D. Jennings and Company v. Maestri, 97 F.2d 679 (5th Cir.1938). We therefore find no merit in plaintiffs argument that this suit is res judicata.

Adams also contends that enforcement of these regulations violates due process in that it is a taking without compensation. He also alleges that it violates equal protection by discriminating against the poor because it will cost him additional money to have his system properly tested and approved. We also find no merit in either of these arguments. Louisiana Board of Examiners in Watchmaking v. Morrow, 188 So.2d 160 (La.App.4th Cir. 1966); Mitchell v. Louisiana State Board of Optometry Examiners, 146 So.2d 863 (La.App.3rd Cir.1962).

DECREE

For the reasons assigned, the judgment of the trial court declaring the Louisiana Sanitary Code unconstitutional is reversed. Judgment is further rendered herein reinstating the defendant’s reconventional demand for an injunction and the matter is remanded to the trial court for further proceedings in accordance with law.

REVERSED AND REMANDED '

DIXON, C.J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

This statute adequately expresses the ultimate intent of the legislature; but when it comes to standards for the delegated legislative power, it only directs that the health officer in his sanitary code establish “standards for the quality of sanitary sewerage discharged.”

The legislature ought not be able to meet the “standards” requirement for delegating the legislative power by directing the administrative agency to establish standards.

      . Since the DHHR seeks only to enjoin Mr. Adams from the future sale of- his sewerage treatment plants, it should be noted that we are only asked to decide in this case the constitutionality of the civil provisions of the Sanitary Code. In State v. Broom, supra, this court held that the legislature cannot delegate the right to define felony offenses to administrative bodies. Therefore, there may be some doubt as to the constitutionality of R.S. 40:6 which provides for misdemeanor criminal penalties for violations of the Sanitary Code. Nonetheless, we are not required to pass on the constitutionality of that provision in order to reach our result in this case.

      . Section 6 requires the arithmetic mean of all effluent samples collected in a period of 30 consecutive testing days to be less than or equal to 30 milligrams per liter and greater than or equal to 85% removal. Also the arithmetic mean of all effluent samples collected in a period of 7 consecutive days should be less than or equal to 45 milligrams per liter. Effluent values of pH shall remain between the limits of 6.0 and 9.0.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. John JOHNSON.
    No. 84-KA-1115.
    Supreme Court of Louisiana.
    Nov. 26, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Theodore J. Johnson, William Campbell, Asst. Dist. Attys., for plain'tiff-appellant.
    Dean Yellin, Jefferson, for defendant-ap-pellee.
   CALOGERO, Justice.

The state has appealed from a district court judgment holding La.C.Cr.P. art. 493.1 unconstitutional. For the reasons which follow, we find that the court erred in doing so. Accordingly we reverse and remand the case for further proceedings.

On December 16, 1983, defendant John Johnson was charged in a single bill of information with two misdemeanors, resisting an officer in violation of La.R.S. 14:108, and possession of marijuana in violation of La.R.S. 40:966. The maximum authorized penalty for each of the two offenses is six months imprisonment. If sentenced to consecutive terms, defendant thus faced a possibility of one year in jail.

Defendant sought a jury trial. The state opposed, citing and relying on La.C.Cr.P. art. 493.1 and La.C.Cr.P. art. 779. La.C. Cr.P. art. 493.1 (added by Act No. 149 of 1983) provides:

Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than $500.00, or both.

La.C.Cr.P. art. 779 provides

A. A defendant charged with a misdemeanor in which the punishment may be a fine in excess of five hundred dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

The effect on this defendant of these two statutory provisions is to limit his penalty exposure to six months imprisonment, and deny him a trial by jury. But for the 1983 enactment of La.C.Cr.P. art. 493.1, and the state’s charging the two misdemeanor offenses in the same information (See State v. Odell, 458 So.2d 1304 (La.1984) (handed down this date), defendant would have been entitled to a jury trial because his penalty exposure in the “case” exceeds six months imprisonment. La. Const, art. I, § 17; State v. McCarroll, 337 So.2d 475 (La.1976). The trial judge effectively declared La.C.Cr.P. art. 493.1 unconstitutional (presumably only insofar as it was used as a means of denying defendant Johnson a jury trial.)

This appeal by the state followed.

The only argument or reason asserted as to why La.C.Cr.P. art. 493.1 should be declared unconstitutional is that the statute gives the state an opportunity to deprive a defendant of a jury trial to which he might otherwise be entitled because charged with a crime or crimes for which the punishment may be confinement for more than six months. La. Const, art. I, § 17; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); State v. McCarrol, supra.

In response to this argument it should be noted that the state is always in a position to affect a defendant’s right to trial by jury simply by charging a defendant with a crime which carries a six month maximum penalty rather than one which carries a longer penalty. A defendant cannot be heard to complain that he should be charged with a crime which has an authorized penalty of over six months rather than one with an authorized penalty of six months or less simply because thus charged he is not entitled to a jury trial. The state may also charge a defendant separately with crimes which each carry a maximum penalty of six months and thereby avoid a jury trial, rather than charge him with such crimes in a single indictment or information.

So too, should defendant not be heard to complain because the state joins two or more six month misdemeanors in a single information, thus limiting, under La.C.Cr.P. art. 493.1, the total maximum authorized punishment for all the offenses to six months imprisonment and/or $500.00.

It should also be noted that neither crime with which defendant is charged, alone, entitles him to a trial by jury. Defendant only reaches the penalty exposure which, under La.C.Cr.P. art. 779, would entitle him to a jury trial by combining the two offenses in one information. Charged separately, defendant would not be entitled to a jury trial in either of the two cases. Defendant is not being deprived of a right to a jury trial to which he would otherwise be entitled. Defendant suffers no adverse effects from the statute (at this point in time in any event), but to the contrary gains a limit on his penalty exposure of six months imprisonment for all the offenses.

Accordingly, we hold that La.C.Cr.P. art. 493.1 is not unconstitutional.

Decree

The district court judgment holding that La.C.Cr.P. art. 493.1 is unconstitutional is reversed and the ease is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED; REMANDED.

      . La.C.Cr.P. art. 779 is the legislative implementation of La. Const, art. I, § 17, which provides in pertinent part that “[a] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons ...."

      . Appeals were filed in three similar cases. The three cases were consolidated in this Court and argued together. Separate opinions are being handed down today. See State v. Odell, 458 So.2d 1304 (La.1984) and State v. Hynes, 458 So.2d 1303 (La.1984).

      . Actually the trial judge simply chose to follow a ruling by the chief judge of the criminal district court wherein he had declared unconstitutional a similar statute, R.S. 13:2501.1(J), passed in the same 1983 legislative session. State v. Odell, supra.

      . 1974 Louisiana Constitution, Article 5, Section 5(D) provides: "Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; ...”

      . A defendant charged, for example, with two separate DWI offenses or two separate marijuana offenses may have cause to complain that a single non-jury trial makes it easier for the state to secure two convictions which, because of accumulation under recidivist statutes, will expose defendant, on conviction of a later offense, to a more severe penalty than that to which he might otherwise have been exposed. Whether, in such a case, the earlier convictions will be treated as one or two convictions under the recidivist statute is a question that can be examined when that arises.


text:
    STATE of Louisiana v. Edward T. HYNES.
    No. 84-KA-1116.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Theodore J. Johnson, William Campbell, Asst. Dist. Attys., for plaintiff-appellant.
    Maurice Hattier, Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellee.
   CALOGERO, Justice.

The state has appealed from a district court judgment holding La.C.Cr.P. art. 493.1 unconstitutional. This is a companion case to State v. Johnson, 458 So.2d 1301 (La.1984), the cases having been consolidated for argument in this Court.

The legal issue and procedural posture in two cases are identical. In each the defendant has requested a jury trial because the cumulative penalty exposure he faces for the crimes with which he has been charged exceeds six months imprisonment. La. Const, art. I, § 17; State v. McCarroll, 337 So.2d 475 (La.1976). The state opposes the jury trial request, relying on La.C.Cr.P. art. 493.1. The trial court, relying on a ruling by the chief judge of that court in another case, State v. Odell, 458 So.2d 1304 (La.1984), effectively found the provision was unconstitutional. For the reasons assigned in the companion Johnson case, we hold that the lower court erred in its ruling.

Decree

The district court judgment holding that La.C.Cr.P. art. 493.1 is unconstitutional is reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED; REMANDED..

      . The charges, of course, are different. Defendant Hynes was charged in one information with three counts of battery on a police officer in violation of La.R.S. 14:34.2.


author: CALOGERO, Justice. MARCUS, Justice DIXON, Chief Justice

text:
    STATE of Louisiana v. David S. ODELL.
    No. 84-KA-0921.
    Supreme Court of Louisiana.
    Nov. 26, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert Jones, III, William Campbell, Theodore J. Johnson, Asst. Dist. Attys., for plaintiff-appellant.
    Brian M. Begue, New Orleans, for defendant-appellee.
   CALOGERO, Justice.

The state has appealed from a district court judgment holding La.R.S. 13:2501.1(J) unconstitutional. We find that such a determination was not necessary for resolving the issue before the district court. Accordingly, we reverse the district court judgment.

Defendant David S. Odell was charged in the Traffic Court of New Orleans by eight separate affidavits, with the commission of eight separate traffic offenses which he allegedly committed on April 2, 1983. The two most serious charges against the defendant were the state misdemeanor offenses of driving while intoxicated in violation of La.R.S. 14:98, and reckless operation of a vehicle in violation of La.R.S. 14:99. On April 5, 1983, Odell was arraigned and pled not guilty to each charge. Thereafter, on October 6, 1983, defendant, through counsel, moved to have all the charges consolidated for trial. The motion was granted. Then, on October 7, 1983, defendant moved to quash the charges against him in Traffic Court on the grounds that he was entitled to a trial by jury, and Traffic Court lacked jurisdiction over jury trial matters. La.R.S. 13:2501.-1(F). The motion was denied without reasons.

Defendant then applied to the appeals division of Criminal District Court to review the ruling of the Traffic Court denying his motion to quash. Although not entirely clear from the record of the proceedings in the Criminal District Court, it appears that whether defendant was or was not entitled to a jury trial was perceived to turn on the application of La.R.S. 13:2501.1(J) (added by Act No. 176 of 1983). That subsection of the statute provides:

Whenever two or more misdemeanors or ordinance violations are joined by affidavit or information for trial in the Traffic Court of New Orleans, the maximum aggregate penalty that may be imposed shall not exceed a fine of five hundred dollars or imprisonment for six months, or both, (emphasis provided)

La. Const, art. I, § 17 provides in pertinent part that “[a] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons .... ”

Accordingly, one effect of La.R.S. 13:2501.1(J) would seemingly be to obviate an accused’s right to a jury trial by limiting his penalty exposure to six months imprisonment. Since the accused is then not exposed to the possibility of over a six month prison sentence, he is not entitled to a jury trial.

The trial court made the following ruling:

The Court finds that Act 176 (1983) of the Louisiana Legislature, as applied to this Defendant, unconstitutionally deprives him of the right to a trial by jury. The Court hold[s] therefore, that the act is unconstitutional. The Court in considering this, takes into consideration, not only the memos filed by both counsel, but also, State of Louisiana v. Joseph Sepulvado, 42 So.2d p. 630.

Although not expressly stated, the court’s ruling by its reference to Sepulva-do seems to have been prompted by a belief that La.R.S. 13:2501.1(J) was being applied to this defendant in a ex post facto manner. Defendant committed the alleged offenses prior to the effective date of the provision. Accordingly, as applied to this defendant, presumably because of the ex post facto problem, the court declared the statute unconstitutional.

While the trial court may have been correct relative to its conclusion concerning the unconstitutional retroactive application of R.S. 13:1501.1(J), we find that it unnecessarily reached that constitutional question in disposing of this case.

The question presented to the trial court was whether the Traffic Court erred in denying defendant’s motion to quash. The motion was grounded on the Traffic Court’s lack of jurisdiction over matters which require a trial by jury. It is not disputed that absent the recent enactment of La.R.S. 13:2501.1(J), defendant would have been entitled to a jury trial because the cummulation of offenses exposed him to a penalty in excess of six months imprisonment. La. Const, art. I, § 17; La.C.Cr.P. art. 779; State v. McCarroll, 337 So.2d 475 (La.1976). Thus, he would have been beyond the jurisdiction of Traffic Court. La. R.S. 13:1501.1(F). The question presented, therefore, is whether or not La.R.S. 13:2501.1(J) applies to this case so as to affect defendant’s entitlement to a jury trial. We find that it does not.

The provision, La.R.S. 13:2501.-1(J), is very specific and only extends the benefits of a reduced sentence exposure “(w)henever two or more misdemeanors or ordinance violations are joined by affidavit or information for trial .... ” The decision of whether to charge an accused in one bill of information with multiple offenses, or in separate bills of information for each offense, is within the discretion of the district attorney alone (or, in the New Orleans Traffic Court, the city attorney). It is only when the district attorney exercises that discretion and joins the violations in one affidavit or information that a defendant is entitled to the reduced sentencing exposure. Here, this defendant was charged in eight separate affidavits with eight separate offenses. The offenses were consolidated by the trial judge on defendant’s motion. They were not “joined by affidavit or information.” As a consequence, La.R.S. 13:2501.1(J) does not apply to this case.

The Legislature, in enacting subsection J of La.R.S. 13:2501.1, was surely cognizant of the Court’s decision in State v. McCarroll. That decision tied the jury trial right to the penalty exposure in a “case” irrespective of whether charges were joined by the charging document or by the court in response to defendant’s motion. Thus, had the Legislature intended to do so, it could simply have made the provision applicable, “whenever two or more misdemeanors or ordinance violations are joined” in a case, rather than when joined “by affidavit or information.” However, it did not do so. Instead, it left the application of the favorable sentencing limits, by implication, within the discretion of the prosecutor, who alone has the function of, or responsibility for, filing charges.

Accordingly, La.R.S. 13:2501.1(J) is not applicable to this case and defendant, being exposed to the possibility of a sentence which exceeds six months imprisonment is entitled to a jury trial and in this regard beyond the jurisdiction of the Traffic Court of New Orleans. The motion to quash was erroneously denied by the judge of New Orleans Traffic Court.

Decree

For the foregoing reasons, the district court judgment declaring La.R.S. 13:2501.-1(J) unconstitutional is reversed. The case is remanded to the district court for such further proceedings as may be consistent with the views expressed herein.

REVERSED; REMANDED

MARCUS, J., concurs and assigns reasons.

LEMMON, J., dissents and will assign reasons.

DIXON, C.J., dissents with reasons.

MARCUS, Justice

(concurring).

In footnote number four the majority indicates that “[t]he district attorney has the option to dismiss the charges and recharge the defendant under one bill of information if he wants to, but he has not as yet chosen to do so.” Likewise, the district attorney could dismiss the charges, recharge defendant by separate affidavits, and proceed thereafter to separate trials. Defendant’s motion to consolidate need not be granted by the trial judge. However, defendant could move to consolidate and expressly waive trial by jury.

Accordingly, I respectfully concur.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

A court with jurisdiction over each case cannot be deprived of jurisdiction by the defendant’s moving to consolidate.

We decided in 1970 that “the right to a jury trial is tested by the punishment authorized for the particular offense. The consolidation of the cases for trial does not alter this rule. Consolidation is a procedural device to conserve trial time.” City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 585, 536 (1970), cert. den. 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970).

The consolidation for trial of separate non-jury cases gives no right to a jury trial in either district court or city court.

      . La.R.S. 13:2501.1(F) provides in pertinent part:
      The traffic court shall have no other jurisdiction, and shall not have jurisdiction over the trial of any state offense that now or hereafter may require a trial by jury.

      . In State v. Sepulvado, 342 So.2d 630 (1977) the Court considered the question of whether an amendment to La.C.Cr.P. art. 493, which allowed the charging of multiple crimes in one indictment instead of by separate indictments as had formerly been the law, could be applied retroactively to Sepulvado who had committed the offenses prior to the effective date of the provision. In concluding that the application of the change in the law to Sepulvado was permissible, the Court discussed at length when the retroactive application of statutes constitutes a constitutional violation as an ex post facto law.

      . In State v. McCarroll, supra, this Court held that where a person is charged with two or more offenses in a "case” and the combination of the penalties exceeds six months imprisonment, the person is entitled to a jury trial notwithstanding that had he been tried separately for each offense he would have not been emi-tied to a jury trial. In McCarroll we effectively overruled Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970) (actually we determined that "we must disregard the holding in Wilhite in light of Codispoti v. Pa., 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974).”

      . The district attorney has the option to dismiss the charges and recharge the defendant under one bill of information if he wants to, but he has not as yet chosen to do so.

      . It may be that even if the violations against this defendant had been joined by affidavit or information, defendant would still be beyond the jurisdiction of traffic court. As cited supra, La.R.S. 13:2501.1(F) which confers jurisdiction on the traffic court provides in pertinent part that traffic court "shall not have jurisdiction over the trial of any state offense that now or hereafter may require a trial by jury." (emphasis provided) This statute was added by Acts 1975, No. 127, § 1. It may well be that because of its wording, jurisdiction over matters which may require a trial by jury is tied to the law at the time the provision was enacted.

      . La.C.Cr.P. art. 493.1, enacted in the same Legislative Session as La.R.S. 13:2501.1(J), and an apparent complementary provision applicable to district court, provides:
      Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than five hundred dollars, or both.
      This statute, with its reference to La.C.Cr.P. art. 493 (which concerns when offenses can be joined in the same indictment or information), clearly indicates the Legislative intent that the favorable sentencing limitation be dependent upon how the district attorney charges the offender and not on how the case is eventually tried. See State v. Johnson, 458 So.2d 1301 (La. 1984) and State v. Hynes, 458 So.2d 1303 (La. 1984) for this Court’s consideration of the validity of La.C.Cr.P. art. 493.1.

      . La.Code Crim.P. art. 706 provides that the trial judge "may” order consolidation for trial upon motion of defendant.


text:
    Myriam Guidroz LEMIRE v. NEW ORLEANS PUBLIC SERVICE, INC. and Sewerage and Water Board of New Orleans.
    No. 84-CC-1031.
    Supreme Court of Louisiana.
    Nov. 26, 1984.

      Thomas Keasler Foutz, Law Offices of John R. Martzell, New Orleans, for relator.
    John D. Lambert, Jr., Special Counsel, Jacob Taranto, III, Gerard M. Victor, General Counsel, Mary Elizabeth Paltron, Senior Counsel, New Orleans, for respondent.
   CALOGERO, Justice.

The chief issue presented in this ease concerns the application of a procedural statute (La.C.C.P. art. 1812 C(2)) in a lawsuit by an injured plaintiff against both a private corporation (New Orleans Public Service Incorporated, hereinafter N.O.P. S.I) and a public agency (Sewerage and Water Board of New Orleans, hereinafter S & WB).

Plaintiff is entitled to a jury trial against the private corporation (La.C.C.P. art. 1731) but not the public agency (R.S. 13:5105). With the adoption of comparative fault (C.C. art. 2323, effective August 1, 1980), the fault or non-fault, and the percentage of fault attributable to each person whether party to the lawsuit or not, has become relevant in the determination of damages to which an injured plaintiff is entitled. To facilitate these resolutions La.C.C. art. 1812, as amended in 1983 provides in part that:

He * * * * *
C. In cases to recover damages for injury, death, or loss the court may submit to the jury, unless waived by all parties, special written questions inquiring as to:
Ht He # * He *
(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:
(a) Whether such fault was the legal cause of the damages, and, if so:
(b) The degree of such fault, expressed in percentage.

While La.C.C.P. art 1812 C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions. See 1983 Revision Comments, Section (b).

In this lawsuit both N.O.P.S.I and S & W B are parties defendant. The suit is to be tried simultaneously tó the jury (Lemire v. N.O.P.S.I) and to the judge (Lemire v. S & WB).

Plaintiff wants the judge to submit to the jury special written questions inquiring as to whether S & W B was at fault, and if so whether such fault was a legal cause of the damages, and if so, the degree of such fault expressed in percentage.

The trial judge granted plaintiffs motion, but the Court of Appeal summarily reversed, being of the view that “using a jury to suggest an appropriate finding concerning the liability of the Sewerage and Water Board is in essence a trial by jury” which is prohibited, by R.S. 13:5105, in a lawsuit against public entities like the Sewerage and Water Board.

We granted writs sought by plaintiff to review these conflicting rulings of the district court and the Court of Appeal. 450 So.2d 1319.

The judgment of the Court of Appeal will be reversed and the ruling of the district court, insofar as it would include the Sewerage and Water Board in the written questions to be posed to the jury concerning fault and the percentage of fault, is reinstated.

La.C.C.P. art. 1812 C(2) does not offend R.S. 13:5105’s prohibition of jury trial against public agencies. It is a procedural statute which implements Louisiana’s comparative fault scheme (C.C. 2323) and which the legislature determined was necessary to the appropriate determination of damages to which plaintiff is entitled against the private defendant, (in this case N.O.P.S.I.).

It is not an advisory opinion in that it is not designed to advise, counsel, or compel the trial judge in his independent judicial obligation as regards plaintiffs claim against the public agency. Rather La.C.C.P. art. 1812 merely facilitates the court’s confecting a judgment consistent with the jury determination relative to plaintiff’s entitlement in his claim against the private defendant.

At best it might be argued that the jury’s answers concerning Sewerage and Water Board’s fault and percentage of contributing fault might influence the trial judge in his determination in plaintiff’s suit against the public agency.

That problem, however, is present in every case where simultaneous trials are conducted, one to the jury and one to the judge, where a private party and a public agency are defendants in a case arising out of a single incident. That has not been deemed an insurmountable obstacle by this Court.

In Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974), we said:

The possibility of different decisions on the same point by judge and jury should not affect the decision in this case. The judge already has the power to set aside a jury decision with which he is not in accord, C.C.P. Arts. 1812, 1813; and appellate courts have the right to review findings of fact of both judge and jury, La. Const. Art. 7, § 29.
While one may speculate as to the practical difficulties in cases where judge and jury disagree, these difficulties would be no more severe than those which might arise in separate actions against the State and individual defendants. Nor are these difficulties of such magnitude as to defeat the right to trial by jury.

This same reasoning was followed in Jones v. City of Kenner, 338 So.2d 606 (La.1976), rehearing denied.

If the jury result in plaintiff v. N.O.P.S.I and the judge result in plaintiff v. S & W B differ, the disparity can be accommodated by a judgment notwithstanding the verdict and/or motion for new trial. Through the use of these, the trial court can restructure the jury decision so that it best reflects the law and the facts.

For these reasons we conclude that the trial judge ruled properly when, essentially, he responded to plaintiff’s motion by determining that he would follow La.C.C.P. art. 1812 C(2) in the plaintiff v. N.O.P.S.I. trial and submit to the jury special written questions inquiring as to whether Sewerage and Water Board was at fault, whether such vault was a legal cause of the damages, and, if so, the degree of such fault expressed in percentage.

The only assertions initially made by plaintiff in his response to the S & W B’s application in the Court of Appeal and in his assignment of error in the writ application to this Court was that the trial judge correctly determined that he should follow La.C.C.P. art. 1812 in the plaintiff versus N.O.P.S.I. trial. Now, in this Court, in brief, he asserts for the first time that he should be permitted a jury trial against S&WB for the reason that La.R.S. 13:5105, barring jury trials against a governmental subdivision, is unconstitutional.

For the following reasons that argument will not be considered here. The constitutionality of a statute must first be questioned in the trial court, not the appellate court. Johnson v. Welsh, 334 So.2d 395 (La.1976); Becker v. Allstate Insurance Co., 307 So.2d 101 (La.1975); Summerall v. Phillips, 247 So.2d 542 (La.1971) and cases cited therein. The plea of uneon-stitutionality must be specially pleaded to be considered by the court. Johnson v. Welsh, 334 So.2d 395 and cases cited therein. No assertion of unconstitutionality was pleaded prior to the brief filed in this Court. Further, where the constitutionality of a statute is at issue, the Attorney General must be served and is an indispensable party. La.C.C.P. art 1880. The Attorney General was not served nor was he made a party to this action. Accordingly, we do not reach the issue of the constitutionality of La.R.S. 13:5105.

Absent a waiver by all parties, pursuant to La.C.C.P. art. 1812, the court is required to submit to the jury written questions to determine the percentages of fault of all involved persons, even nonparties such as the S&WB. This determination does not offend La.R.S. 13:5105’s prohibition of jury trials against public agencies.

Decree

Accordingly, the judgment appealed from is reversed and the judgment of the Civil District Court reinstated. The case is remanded to the Civil District Court for further proceedings in accordance with the views expressed herein.

DIXON, C.J., concurs.

LEMMON, J., concurs.

      .La.C.C. art. 2323 provides:
      When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

      . 1983 Revision Comments (b) to La.C.C.P. art. 1812 provides in part:
      [N]ew Art. 1812 requires the court to submit these written questions to the jury unless there is a waiver by all parties.

      . Plaintiffs pleading couches it as a motion for an advisory opinion. His choice of language is ill advised. Plaintiff is not entitled to have the jury render an advisory opinion to the judge. Nonetheless we construe the object of the motion in light of its obvious intent and the applicable law.

      . He will no doubt also submit to the jury special written questions inquiring as to
      (1) whether NOPSI was at fault, whether such fault was a legal cause of the damages, and, if so the degree of such fault, expressed in percentage.
      (2) whether plaintiff was negligent; whether this negligence was a legal cause of the damages, and, if so the degree of such negligence expressed in percentage.
      (3) the total amount of damages sustained as a result of the death expressed in dollars.
      La.C.C.P. art. 1812(C).


author: DIXON, Chief Justice. DENNIS, Justice, BLANCHE, Justice LEMMON, Justice,

text:
    Elizabeth WUERTZ v. David CRAIG: John Doe and Mary Doe.
    No. 84-C-0925.
    Supreme Court of Louisiana.
    Nov. 26, 1984.
    Concurring Opinion Nov. 30, 1984.
    Rehearing Denied Jan. 4,1985.
    Concurring Opinion Jan. 7,1985.

      Mack E. Barham, Robert E. Arceneaux, Barham & Churchill, New Orleans, Robert T. Garrity, Jr., Harahan, for plaintiff-applicant.
    Anthony J. Russo, Mark P. Burton, Fav-ret, Favret, Demarest & Russo, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

On February 11, 1982 Elizabeth Wuertz signed an act of surrender of her child for purpose of adoption by unnamed adoptive parents represented by David Craig. Eight days later Ms. Wuertz attempted to revoke her consent. She then filed suit against Craig and his clients to revoke the surrender, enjoin the adoption and regain custody of her child. The trial court found the act of surrender valid, but held the revocation invalid because Ms. Wuertz’ attorney had not sent it by certified mail. Ms. Wuertz appealed and the court of appeal affirmed the trial court. Wuertz v. Craig, 449 So.2d 673 (La.App.1984). From that affirmance the mother applied for a writ of certiorari, which we granted. Wuertz v. Craig, 452 So.2d 169 (La.1984). We reverse.

On December 20, 1980 Elizabeth Wuertz gave birth to a child, Christina Wuertz. At that time Ms. Wuertz was nineteen years old and unmarried. Initially she and the child lived with her mother. When the latter was imprisoned for simple burglary, Ms. Wuertz and the child lived in a motel room with another couple. At this time, Ms. Wuertz asked her grandmother to help care for the child, since she needed to obtain work. On February 11, 1982 the grandmother took Ms. Wuertz to the office of an attorney, Usprich. The grandmother paid for the attorney’s services. Usprich explained to Ms. Wuertz the consequences of surrendering a child for adoption. There was some discussion of the possibility that a child abuse charge might be brought against Ms. Wuertz, which could result in the loss of custody of the child to the state. Usprich further informed her that she would have thirty days in which she could revoke her consent. Ms. Wuertz signed the consent form and the child was surrendered to Craig, an attorney representing an unnamed adoptive couple. Craig’s address was not on the act of surrender as required by R.S. 9:422.6. Soon after this meeting, Ms. Wuertz contacted another attorney, Garrity, who sent a letter of revocation to Craig, dated February 19, 1982. Craig, however, did not recognize the revocation because it had not been sent registered or certified mail, as required by R.S. 9:422.10. Craig acknowledged receipt but said he could not remember whether he had received the document within thirty days from the act of surrender, the time limit for revocation set by R.S. 9:422.10.

LOWER COURT DISPOSITION

The trial court rendered judgment in favor of Craig and the adoptive parents. It found that Ms. Wuertz had freely consented to the surrender because she had signed it, understanding the consequences of her act. It found insufficient evidence of coercion or duress. The court further found the act of revocation invalid because it had not been sent by certified mail, as required by R.S. 9:422.10.

The court of appeal affirmed, holding that the trial court had been within its discretion in determining that the act of surrender had been signed freely and voluntarily. It affirmed the trial court in holding the act of revocation invalid because it was not sent certified mail and because there was no certain proof that it had been executed timely. The court of appeal further found the failure of the act of surrender to include the address of the person to whom the child was surrendered, as required by R.S. 9:422.6, to be a “harmless error.” As such it found that the defect did not invalidate the act of surrender.

ISSUES

In her appeal to this court, plaintiff assigned four errors committed by the trial court: (1) the court erred in finding the act of surrender was executed freely and voluntarily; (2) the court erred in failing to enforce the statutory requirement that Ms. Wuertz be represented by an attorney; (3) the court erred in not finding the act of surrender legally defective on its face, and therefore invalid; (4) the court erred in not finding that the act of surrender was validly revoked. Plaintiff further asks the court to consider the issue of the best interest of the child.

EXECUTION UNDER DURESS

R.S. 9:422.6 requires “(2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption.”

The evidence presented at the trial showed that the attorney, Usprich, did explain to Ms. Wuertz the consequences of signing the act of surrender. He also informed her that she would have thirty days in which she could revoke her consent. The testimony also showed that the grandmother spoke to Ms. Wuertz about the possibility that a criminal charge of child abuse might be brought against her, with the result that she might lose custody of her child to the state. (No such charge was ever brought). Usprich admitted that a substantial amount of the time during which the parties were at his office was spent discussing the matter of the possible charges.

Ms. Wuertz claims that she signed the act of surrender only because of the threats of prosecution and with the intention of revoking her consent within the statutory thirty days. Her subsequent actions supported her claim that she intended to revoke her consent. She admitted that her consent was freely given. But she testified that she thought her only hope for keeping her child was to sign the act of surrender and avoid prosecution for child abuse, then revoke the surrender within thirty days.

The use of “threats only of doing that which the party using them had a right to do” will not invalidate a contract. C.C. 1856. However, use or threats of “the mere forms of law to cover coercive proceedings for an unjust and illegal cause” will invalidate the consent to contract. C.C. 1857. In an adoption case, this court held that:

“... An authentic act may be set aside where a party thereto has been induced to execute it through fraud, error, duress or threats, and he is permitted to introduce parol testimony in support of allegations to that effect. ...” Ball v. Campbell, 219 La. 1076, 1088, 55 So.2d 250, 254 (1951).

Ms. Wuertz was threatened with possible criminal charges. There is no evidence that such charges were justified. She signed the act of surrender under the immediate influence of this threat. Such a threat by law invalidates the consent procured.

REPRESENTATION BY AN ATTORNEY

R.S. 9:422.7 states that “[t]he surrendering parent or parents shall be represented by an attorney at the execution of the act of surrender.”

The trial testimony shows that Ms. Wuertz did not retain Usprich to represent her; her grandmother did. The grandmother paid Usprich’s fees. She transported Ms. Wuertz to Usprich’s office. Usprich had been employed to prepare the act of surrender and “to inform Ms. Wuertz of her rights.” Ms. Wuertz testified that she was unaware of what was going to transpire at Usprich’s office. Usprich admittedly discussed the “ramifications” of a' child abuse case, and told Ms. Wuertz she could renounce the act of surrender within thirty days. Soon after the act of surrender, Ms. Wuertz did seek legal counsel and retained Garrity as her attorney.

Adoption statutes are to be strictly complied with. In re Ackenhausen, 244 La. 730, 154 So.2d 380, 383 (1963). Since adoption is in derogation of the natural right of a parent to his or her child, the courts of appeal have consistently interpreted this rule in favor of the natural parent. Steed v. McKenzie, 344 So.2d 689 (La.App.lst Cir.1977); Rodden v. Davis, 293 So.2d 578 (La.App.3d Cir.1974). R.S. 9:422.3 states that: “The formal act [of surrender] shall be evidence of a legal and voluntary surrender only if it is executed in accordance with the provisions of this Sub-part.” R.S. 9:422.7 requires that the parent shall be represented by an attorney.

In this case Usprich had two clients: the mother and the great grandmother of the child. Their interests were conflicting. ¿Representation of the surrendering parent is more than a formal requirement, and should, at the very least, be free from conflict^ On the record before us, good representation of the mother would have prevented the surrender.

Because we find the act of surrender was not executed “freely and voluntarily,” and that Ms. Wuertz lacked effective representation by an attorney at the execution of the act of surrender, it is unnecessary to consider the remaining assignments (that the surrender is invalid for lack of the address of the person or representative of the person to whom the surrender is made; that the act of revocation must be sent by registered or certified mail).

Therefore, the judgments of the lower courts are reversed and vacated. There is now judgment in favor of plaintiff Elizabeth Wuertz and against defendants David Craig, John Doe and Mary Doe, declaring the act of surrender of Christina Rae Wuertz, dated February 11, 1982, null and void and of no effect. The case is remanded to the district court for further proceedings not inconsistent with this opinion. All costs are allocated to defendants.

MARCUS, J., concurs.

DENNIS, J., concurs with reasons.

BLANCHE, J., concurs and will assign reasons.

WATSON, J., dissents, finding the charges of duress and lack of representation to be unconvincing.

LEMMON, J., concurs and will assign reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

I agree with the opinion of the court in concluding that the surrender of the child was not free and voluntary. I disagree, however, with its decision that the surrendering parent was not represented by an attorney.

BLANCHE, Justice

(concurring).

The plaintiff was represented by a qualified attorney who adequately informed her of her rights. Furthermore, if the best interests of the child is any consideration, good representation would have encom> aged the surrender of the child to parents who could have provided the child with a good home.

The trial court found that the act of surrender was freely and voluntarily executed by the mother with full understanding of her rights. This finding was not manifestly erroneous and we should have reached the issue of whether the statutory requirements were complied with.

On that issue this writer believes that adoption procedures are sacremental and would require the parties applying for adoption to strictly comply with the procedures set forth in this statute. Neither party strictly complied with the procedures which were mandated by the statute and I would have set the act of surrender aside. I consider it improper to compare one failure to comply as harmless and another not harmless as was done by the Court of Appeal.

Accordingly, I would have reversed the judgment of the Court of Appeal. For these reasons, I respectfully concur in the majority opinion.

LEMMON, Justice,

concurring.

I disagree that the mother proved either that the act of surrender was not executed freely and voluntarily or that she was not adequately represented by an attorney. Nevertheless, I concur in the result because the undisputed evidence established execution of a written declaration of revocation within 30 days of the act of surrender, as well as actual mailing and actual receipt in due course.

The purpose of the certified mail requirement is to obviate disputes concerning the mailing of a copy of the written declaration of the revocation. The surrendering mother’s evidence established that the revocation was executed and mailed by regular mail within eight days of the act of surrender, and no dispute as to the mailing was raised by other evidence. Indeed, the attorney for the adoptive parents admitted a telephone conversation about the revocation and receipt in the mail in due course after his conversation with the surrendering mother’s attorney. Under these circumstances, the failure to use certified mail should not invalidate the revocation.