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

text:
    Don AGUILLARD, et al. v. David C. TREEN, et al.
    No. 83-CQ-0581.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Nov. 18, 1983.

      Andrew Weltchek, Bachmann, Weltchek & Powers, New Orleans, Jack D. Novik, Jay Topkis, Andre R. Jaglom, Alan Pfeffer, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Ronald L. Wilson, New Orleans, for plaintiffs.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Patricia Nalley Bowers, Maureen J. Feran, Cynthia D. Young, Asst. Attys. Gen., Baton Rouge, Samuel I. Rosenberg, Polack, Rosenberg, Rittenberg & Edom, New Orleans, John Di Giulio, Baton Rouge, Marion B. Farmer, Dist. Atty., Roy K. Burns, Jr., Asst. Dist. Atty., Covington, David A. Hamilton, Baton Rouge, John W. Whitehead, Wendell R. Bird, Ware, Parker, Johnson, Cook & Dunlevie, Atlanta, Ga., Sp. Asst. Attys. Gen., Thomas T. Anderson, for defendants.
   CALOGERO, Justice.

The following question has been certified to this Court by the United States Fifth Circuit Court of Appeals:

“Whether Louisiana Revised Statutes Annotated Sections 17:286.1 through 17:286.-7, the ‘Balanced Treatment for Creation-Science and Evolution-Science Act’ violate Article 8 of the Louisiana Constitution?”

For the reasons which follow, we find that insofar as this statute, La.R.S. 17:286.1-286.7, represents a legislatively-mandated course of study it is in keeping with Article VIII, Section l’s charge to the Legislature to establish and maintain a public education system. It does not violate Article VIII, Section 3 which creates the Board of Elementary and Secondary Education (BESE) and defines that Board’s powers, duties and responsibilities. And, of course, under our state constitution, unlike the federal constitution, legislation not prohibited is allowed.

Various plaintiffs filed suit in federal district court against the State of Louisiana, BESE and others. Plaintiffs asked that Louisiana Act 685 of 1981, the “Creation-Science” Act, be declared unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and its implementation enjoined.

Subsequently, BESE was realigned as a party plaintiff and moved for summary judgment, contending that La.R.S. 17:286.1 through 17:286.7 violates the 1974 Louisiana Constitution. In response to that motion, the United States District Court for the Eastern District of Louisiana decided that La. Const, art. VIII vested responsibility for educational policy in BESE rather than in the Legislature and declared that Act No. 685 of 1981 thus violated the 1974 Louisiana Constitution. After appeal, the Fifth Circuit Court of Appeals certified the question quoted above to this Court. Certification was accepted. 430 So.2d 660 (La.1983).

The issue to be decided is whether the 1974 Louisiana Constitution by vesting the responsibility exclusively in BESE prohibits the Legislature from prescribing courses of study in elementary and secondary public schools.

Whether the Legislature requires the teaching of a course, the establishment of a particular curriculum or a balanced treatment between a pair of concepts, it is essentially a question of the Legislature’s plenary authority to establish and maintain education within the state. Irrespective of other problems of a legal or constitutional nature that may or may not infect this Act, for our present purposes and for the limited question which we are here called upon to answer, we are focusing just on the Louisiana constitutional authority of the Louisiana Legislature to provide for educational policy to be carried out by BESE.

A brief review of the history of BESE’s predecessor, the Louisiana State Board of Education, is in order. The public education article, Art. 224 et seq. of the 1879 Louisiana Constitution did not include any provision for a state board. Art. 250 of the Constitutions of 1898 and of 1913 provided only for the creation of a State Board of Public Education. La. Const, art. XII § 4 (1921) created a State Board of Education, but stated in pertinent part: that “[t]he legislature shall prescribe the duties of said board and define its powers.... ” This single board was charged with the “supervision and control of all free public schools.” [La. Const, art. XII, § 6 (1921) ] and “supervision of all other higher educational institutions, subject to such laws as the Legislature may enact.” [La. Const, art. XII, § 7 B (1921)]

The State Board, under the 1921 Constitution, wielded little authority. See Jackson v. Coxe, 208 La. 715, 23 So.2d 312 (1945). Even though the Board was given the task of overseeing education at all three levels, the delegates to the 1973 Constitutional Convention believed that the State Board of Education had theretofore devoted the majority of its time to the problems of higher education. The proposed solution was the creation of an independent constitutional board with jurisdiction over public elementary and secondary schools. In introducing the educational proposals that would accomplish that end, Mr. Aertker told the 1973 convention delegates: “[T]he power that is given to this body [BESE] is budgetary power. They will go to the legislature directly with the problems of elementary and secondary education.” 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2251. (November 9,1973). In adopting the educational article the delegates to the 1973 Constitutional Convention did not further define BESE’s function, apart from the language of La. Const, art. VIII, § 3 itself.

State constitutional provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. Hainkel v. Henry, 313 So.2d 577 at 579 (La.1975). As a result, the Louisiana Legislature may enact any laws that the state or federal constitutions do not prohibit. In re Oxygen Welders’ Supply Profit Sharing Plan, 297 So.2d 663 (La.1974). So, in this case, only if the 1974 Louisiana Constitution took away the Legislature’s authority to prescribe courses of study in elementary and secondary public schools can this Court properly find that the Legislature was not empowered to adopt the so-called “balanced treatment laws.”

Constitutional provisions are to be construed and interpreted by the same rules as are other laws. Barnett v. Develle, 289 So.2d 129 (La.1974); Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958). When a constitutional provision is plain and unambiguous, its language must be given effect.

As adopted, La. Const, art. VIII, § 1 provides: “The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system.”

La. Const, art. VIII, § 3(A) provides: The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees. (Emphasis provided.)

An examination of the second sentence of La. Const, art. VIII, § 3(A) (highlighted above) shows that the language could not be more plain or unambiguous.

The phrase “all as provided by law” follows two clauses which concern supervision, control and budgetary responsibility relative to four categories of schools, clearly indicating that the phrase is intended to apply to both clauses and all of their content. Applying the modifying clause to the first part of the sentence, it states: “It shall supervise and control the public elementary and secondary schools ... as provided by law.”

Justice Tate, chairman of the Committee on Style and Drafting at the 1973 Louisiana Constitutional Convention, defined the phrase “as provided by law” while writing for this Court in Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977). Justice Tate wrote:

This section [La. Const, art. VIII, § 3(A)] provides that the board ‘shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law.
When used in this context, as it was in 103 other instances in the 1974 constitution, the term “provided by law” means “provided by legislation.” “Law is the solemn expression of legislative will.” Louisiana Civil Code, Art. 1. (emphasis in original) 347 So.2d at 151.

Thus the Board shall supervise and control the public elementary and secondary schools as provided “by the legislature” or “by statute.” 347 So.2d at 152. BESE’s supervision therefore is not unfettered, but subject to laws passed by the Legislature.

Furthermore, La. Const, art. VIII, § 3(A) of the 1974 Louisiana Constitution is not a self-executing provision. To quote Professor Hargrave, Co-ordinator of legal research for the 1973 Constitutional Convention:

[I]t is accurate to say that the legislature cannot abolish the board or change its method of composition and selection, for those matters are fixed by constitutional provision. But the constitution enumerates no powers unqualified by the as-provided-by-law formula. Any constitutional powers in the board would have to be developed by some argument based on inference and structure and cannot rest on text, for the text only grants powers that are “all as provided by law.” L. Hargrave, 38 La.L.Rev. 438 at 441-445 (1978). (Emphasis added.)

BESE’s non-exclusive authority is made even more apparent when the BESE constitutional provision is placed side by side with the constitutional provision establishing and empowering the Board of Regents for higher education. Such comparison shows the sharp contrast between BESE’s authority and that of the Board of Regents. Whereas La. Const, art. VIII § 3(A) provides that BESE “shall supervise and control the public elementary and secondary schools ... as provided by law,” La. Const, art. VIII § 5(A) provides in pertinent part that the Board of Regents “shall plan, coordinate, and have budgetary responsibility for all public higher education ...,” without the restrictive qualification “as provided by law.”

Therefore the authority of the Board of Regents to plan, coordinate and have budgetary responsibility for public higher education, and to exercise the five specified powers, duties and responsibilities set out in La. Const, art. VIII, § 5(D), are constitutionally defined and “not as provided by law,” whereas BESE’s authority to supervise, control and have budgetary responsibility for public schools is “all as provided by law.”

If the delegates had undertaken to confer upon BESE powers and responsibilities not subject to legislative control, they could have deleted the phrase “as provided by law” in the second sentence of La. Const, art. VIII § 3(A) and could have enumerated unqualified powers for BESE comparable to those in the Board of Regents provision, La. Const, art. VIII § 5. Instead La. Const, art. VIII § 3 balances the constitutional creation of an independent board for elementary and secondary education with the Legislature’s ultimate responsibility for public education. It is a symbiotic relationship in which neither the Legislature nor BESE has exclusive authority over public elementary and secondary education. However, given the express language of the constitutional provision, in a contest between the two, BESE’s supervision and control must yield to the legislative will as expressed by the elected representatives of the people.

We conclude therefore that BESE is given the power to supervise and control the state’s public schools, which includes the determination of educational policy, but that power is subject to the direction of the legislature by virtue of the clear language of the constitutional article which, creates BESE and defines the scope of its power. LSA-Const. Art. VIII, § 3(A).

The plaintiffs nonetheless suggest that language in BESE v. Nix, supra supports their position that BESE is to be given the exclusive power to prescribe courses of study for elementary and secondary education in Louisiana. We do not agree. The exclusiveness or non-exclusiveness of BESE’s authority to formulate educational policy for the state through prescribing a course of study was not at issue in Nix. Nor was there at issue a weighing of the constitutional rights (or spheres), respectively, of the Legislature and BESE. Nix involved assessment of the respective powers of BESE and the State Superintendent of Education, both constitutional entities, and the Legislature’s constitutional role or function in the allocation between those two entities of administrative duties with regard to budgetary responsibilities. The Court in Nix decided at 347 So.2d 150 that

the legislature is given the power by the constitution to provide for the allocation, as between the board and the superintendent, of administrative duties with regard to budgetary responsibility for, and supervision and control of, the public schools of the state.

This power of the Legislature to prescribe duties of the Board is no foreign concept. It was the situation that prevailed in the 1921 Louisiana Constitution. In Jackson v. Coxe, 208 La. 715, 23 So.2d 312 (1945) which admittedly preceded the 1974 Constitution, but was cited approvingly in Nix, supra, it was decided that the power of the Board to supervise and control “all free public schools” in the 1921 Constitution was “qualified by the power of the legislature to prescribe duties of the board.” 347 So.2d 152.

Although as discussed earlier in this opinion, the delegates to the 1973 Constitutional Convention were concerned with creating in BESE an independent constitutional body, the language of the constitutional provision adopted by the delegates does not justify the conclusion that BESE was to have the exclusive power to prescribe courses of study for the public elementary and secondary schools of Louisiana. That portion of the opinion in Nix which represents the strongest argument on behalf of BESE’s exclusive authority was only dicta and is not controlling, The dispositive holding in Nix concerned only the allocation of administrative and budgetary responsibility between BESE and the State Superintendent of Public Education.

The plaintiffs suggest further that another constitutional provision, La. Const, art. VIII, § 13, grants to BESE the exclusive power to dictate, direct and ordain the content of the educational material used in our public elementary and secondary schools. The argument is not persuasive. La. Const, art. VIII, § 13(A) requires that the Legislature

appropriate funds to supply free school books and other materials of instruction prescribed by the State Board of Elementary and Secondary Education to the children of this state at the elementary and secondary levels.

Even though this provision, by implication, recognizes that school books and other materials of instruction may be prescribed by BESE, there is nothing therein nor elsewhere to suggest that BESE has the exclusive power in that regard nor that the materials prescribed by BESE cannot be in part so done at the Legislature’s direction.

La. Const, art. VIII § 1 plainly and unambiguously recognizes the power of the Legislature to provide for, establish and maintain a public educational system in Louisiana. This power includes the right to select courses of study for schools in this state. La. Const, art. VIII § 3(A) creates the Board of Elementary and Secondary Education but expressly qualifies the power of that board to “supervise and control the public elementary and secondary schools” with the phrase “as provided by law.” Therefore La. Const, art. VIII § 3(A) does not take away from the Legislature its inherent and plenary authority to pass laws, including those prescribing courses of study in the elementary and secondary schools of this state, but affirmatively respects that authority.

For the foregoing reasons, the answer to the question certified to this Court by the United States Fifth Circuit Court of Appeals is:

No. La.R.S. 17:286.1 through 17:286.7, the “Balanced Treatment for Creation-Science and Evolution-Science Act” does not violate Article VIII, of the Louisiana Constitution of 1974.

CERTIFIED QUESTION ANSWERED.

DIXON, C.J., and WATSON, J., dissent and assign reasons.

LEMMON, J., dissents.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Contrary to my earlier opinion that the certified question can be decided without resort to the ultimate question at issue in this litigation, I now believe that we should decide what “creation-science” is before we can give a valid answer.

In general, I might subscribe to the majority opinion. It holds that the 1974 Constitution, in Article 8, has not removed the power of the legislature to require a certain course of study in the primary and secondary schools. Even that question is not without doubt, because of the provisions of § 13A of Article 8, which require the legislature to supply books and materials of instruction prescribed by the State Board of Elementary and Secondary Education.

Perhaps because the litigants have not forcefully presented the issue, and have submitted to a division of the question, this court avoids the hard issue at the root of that one certified to us. It assumes that “creation-science” is a “course of study.”

Since this case was decided on exceptions, there is no record. From all that I have read in the past, “creation-science” is a religious doctrine, not a course of study. R.S. 17:286.1-7 provides:

“§ 286.1. This Subpart shall be known as the ‘Balanced Treatment for Creation-Science and Evolution-Science Act.’
§ 286.2. This Subpart is enacted for the purposes of protecting academic freedom.
§ 286.3. As used in this Subpart, unless otherwise clearly indicated, these terms have the following meanings;
(1)‘Balanced treatment’ means providing whatever information and instruction in both creation and evolution models the classroom teacher determines is necessary and appropriate to provide insight into both theories in view of the textbooks and other instructional materials available for use in his classroom.
(2) ‘Creation-science’ means the scientific evidences for creation and inferences from those scientific evidences.
(3) ‘Evolution-science’ means the scientific evidences for evolution and inferences from those scientific evidences.
§ 286.4. A. Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth, or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.
B. Public schools within this state and their personnel shall not discriminate by reducing a grade of a student or by singling out and publicly criticizing any student who demonstrates a satisfactory understanding of both evolution-science or creation-science and who accepts or rejects either model in whole or part.
C. No teacher in public elementary or secondary school or instructor in any state-supported university in Louisiana, who chooses to be a creation-scientist or to teach scientific data which points to creationism shall, for that reason, be discriminated against in any way by any school board, college board, or administrator.
§ 286.5. This Subpart does not require any instruction in the subject of origins but simply permits instruction in both scientific models (of evolution-science and creation-science) if public schools choose to teach either. This Subpart does not require each individual textbook or library book to give balanced treatment to the models of evolution-science and creation-science; it does not require any school books to be discarded. This Sub-part does not require each individual classroom lecture in a course to give such balanced treatment but simply permits the lectures as a whole to give balanced treatment; it permits some lectures to present evolution-science and other lectures to present creation-science.
§ 286.6. Any public school that elects to present any model of origins shall use existing teacher inservice training funds to prepare teachers of public school courses presenting any model of origins to give balanced treatment to the creation-science model and the evolution-science model. Existing library acquisition funds shall be used to purchase nonreligious library books as are necessary to give balanced treatment to the creation-science model and the evolution-science model.
§ 286.7. A. Each city and parish school board shall develop and provide to each public school classroom teacher in the system a curriculum guide on presentation of creation-science.
B. The governor shall designate seven creation-scientists who shall provide resource services in the development of curriculum guides to any city or parish school board upon request. Each such creation-scientist shall be designated from among the full-time faculty members teaching in any college and university in Louisiana. These creation-scientists shall serve at the pleasure of the governor and without compensation.” (Emphasis added).

Evolution, like gravity a scientific fact, must be taught as a theory. Balanced treatment must be given evolution and creation-science in lectures, textbooks, library materials and educational programs whenever the subject of the origin of man, life, earth or universe is treated.

Furthermore, it does not appear that the legislature reserved to itself the power to decide this question of educational policy.

Article 8 of the 1974 Constitution was treated in Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977), in which the constitutionality of Act 455 of 1976 was treated. Section 2 of that act was declared unconstitutional because it deprived a constitutional board (BESE) of its staff, infringing on a constitutional agency’s ability to perform its constitutional function. Other sections of the act were held constitutional. In deciding these questions it was necessary to analyze Article 8. We decided “... [t]he board (BESE) is given the constitutional power to determine educational policy for the public schools of the state...” Board of Elementary and Secondary Education v. Nix, supra at 150. The legislature, we held, was “given the power” to provide for the allocation of the administrative duties “... with regard to budgetary responsibility for, and supervision and control of, the public schools of the state.” 347 So.2d at 150. “The ultimate resolution of the delegates ... was to recognize the board’s ultimate responsibility for educational policy, free of legislative control over the composition and existence of the board ...” 347 So.2d at 151.

We continued:

“Stated another way, the most reasonable interpretation of Article 8, Section 3(A) is that the legislature shall provide by law for the supervision, control, and budgetary power of the board over elementary and secondary education. However, the constitutional provision cannot be interpreted to mean that the legislature can regulate and limit the constitutional power of the board to supervise, control, and budget elementary and secondary education.” 347 So.2d at 153.

Whether Article 8 must be interpreted to prohibit any legislative requirement that a course of study or a subject matter be taught may be put aside until another day, but we have already decided that educational policy is the function of BESE, under the authority of Article 8, La. Const. of 1974.

WATSON, Justice,

dissenting.

The majority errs in holding that the legislature has absolute power: to order the teaching of course materials; prescribe textbooks; limit library materials; and restrict educational programs in our public schools. However, this is the inevitable conclusion if all of the following aspects of this case are thoroughly considered. First, the facts:

FACTS

Various plaintiffs filed suit in federal court against the State of Louisiana, its Board of Elementary and Secondary Education (BESE), and others. Plaintiffs asked that Louisiana Act 685 of 1981, the “Creation-Science” Act, be declared unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States and its implementation enjoined.

Subsequently, the Louisiana State Board of Elementary and Secondary Education was realigned as a party plaintiff. BESE moved for summary judgment, contending that the Act (LSA-R.S. 17:286.1-17:286.7) violates the Louisiana Constitution. The federal district court correctly decided that Article VIII of the state constitution vests responsibility for educational policy in BESE rather than the legislature and declared that the Act violated the Louisiana Constitution. After appeal, the Fifth Circuit Court of Appeals certified the question to the Louisiana Supreme Court. Certification was accepted. 430 So.2d 660 (La.1983).

A similar Arkansas Act violated the First Amendment to the United States Constitution. McLean v. Arkansas Board of Education, 529 F.Supp. 1255 (1982). As the educational amici observe in their brief, “[political agitation over the teaching of evolution in the public schools ... has created a good deal of unhappy history,” citing McLean, Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), and Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). For similar constitutional problems, cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) and People v. Sandstrom, 279 N.Y. 523, 18 N.E.2d 840 (1939).

THE ISSUE

The issue is whether the Constitution of 1974 denied the legislature authority to prescribe courses of study in elementary and secondary public schools by vesting that responsibility in BESE.

CONSTITUTIONAL BACKGROUND

To fully appreciate the problem, it is necessary to review briefly the history of state educational boards in Louisiana. The Constitution of 1921 in Article XII, provided for public education and established a state board of education, as well as the office of Superintendent of Public Education, but pointedly mandated:

“The legislature shall prescribe the duties of said board and define its powers....”

The State Board, under the 1921 Constitution, wielded little authority. See Jackson v. Coxe, 208 La. 715, 23 So.2d 312 (1945).

The framers of the Constitution of 1974 adopted a different tack; a Board of Elementary and Secondary Education was created, as were a Board of Regents for “public higher education” (Art. 8, § 5), a Board of Trustees for State Colleges and Universities (Art. 8, § 6) and Boards for L.S.U. and Southern University (Art. 8, § 7). Significantly, the Constitution of 1974 omitted any proviso that the legislature was to prescribe the powers of BESE, including only the phrase “all as provided by law”, which will be discussed below.

LAW

Louisiana Constitution of 1974, Article VIII, § 1 states:

“The legislature shall provide for the education of the people of the state and shall establish and maintain a public educational system.”

Article VIII, § 3(A) provides:

“The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools, vocational-technical training and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a parish or city school board or the selection or removal of its officers and employees.”

Article VIII, § 13(A) specifies:

“The legislature shall appropriate funds to supply free school books and other materials of instruction prescribed by the State Board of Elementary and Secondary Education to the children of this state at the elementary and secondary levels.” The heart of Act 685 is found in LSA-

R.S. 17:286.4(A) as follows:

“Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.”

DEFENDANTS’ ARGUMENTS

Essentially the defendants argue that (1) the phrase “as provided by law” contained in Article VIII, § 3(A) gives the legislature authority to prescribe courses of study; (2) the different scheme provided for the Board of Regents supports this theory; (3) the acts requiring the teaching of sixteen other subjects prior to the Creationism Act demonstrates the authority claimed; and (4) many other states have recognized judicially the authority of legislatures to prescribe courses of study.

This court has previously addressed the meaning of the phrase “as provided by law”. Board of Elementary and Secondary Ed. v. Nix, 347 So.2d 147 (La., 1977). Further study reinforces the conclusion stated in Nix:

“The constitutional scheme evidenced by these provisions is:
“The board is given the constitutional power to determine educational policy for the public schools of the state. In this regard, the superintendent’s responsibility is to implement the policies adopted by the board. The superintendent is the administrative head of the department of education. However, for reasons to be set forth more fully below, the legislature is given the power by the constitution to provide for the allocation, as between the board and the superintendent, of administrative duties with regard to budgetary responsibility for, and supervision and control of, the public schools of the state.” 347 So.2d at 150.

The constitutional provisions concerning the Board of Regents fail to support defendants’ argument. Although they differ slightly from the provisions for BESE, it does not follow that BESE’s powers are subordinate to the legislature.

Likewise, the fact that the legislature has made other provisions for curricula in the past is not decisive as to the legislature’s authority. Several of the acts were passed prior to the adoption of the 1974 Constitution; some after. For example, the Kindness to Dumb Animals Act (LSA-R.S. 17:266) and the Military Science and Tactics Act (LSA-R.S. 17:267) were passed in 1916 and 1924, respectively; the Civics Act (LSA-R.S. 17:274.1) was adopted in 1976 and the Breast Self-Examination Act (LSA-R.S. 17:275) in 1980. In the past, BESE has not challenged various legislative directives concerning subjects to be taught in the schools. This acquiescence has no legal significance. BESE is dependent on the legislature for funding and obviously must give some deference to the legislature’s actions.

Defendants’ brief cites a multitude of jurisprudence from other jurisdictions upholding legislative authority over curricula under constitutional provisions said to be similar to Louisiana’s. However, it is conceded that the Louisiana scheme is unique: a constitutional board to “supervise and control” the public schools. No contention is made by either side that there is another state with precisely the same system. The ultimate conclusion implicit in defendants’ arguments and the majority’s decision is that the establishment of BESE as a constitutional agency had no purpose.

THE JUNEAU AMENDMENT

The theory that the legislature retained the right to dictate courses of study is seriously impaired by a review of the proceedings of. the Louisiana Constitutional Convention, and particularly the defeat of the “Juneau Amendment”. On November 9, 1973, Delegate Juneau proposed an amendment as follows:

“ ‘Section 4. Educational Boards
“ ‘Section 4. The legislature shall establish such board or boards as may be necessary to meet the educational needs of the state. The duties and responsibilities of such board or boards shall be provided by law.’ ” 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2260.

After considerable debate and many questions, the amendment was defeated 23-78. The defeat of the proposal indicates clearly that the legislature was denied plenary authority over state educational boards.

What the Constitution of 1974 adopted was a system whereby the legislature was given financial responsibility for primary and secondary education and BESE, a constitutional board, was given supervision and control.

CONCLUSION

BESE has the constitutional power to supervise and control educational policy at the elementary and secondary levels. LSA-Const. Art. VIII, § 3(A). Having “... the constitutional power to determine educational policy for the public schools of the state”, (Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 at p. 150), the BESE Board is not required to share that authority with the legislature. The content of the schools’ curricula is a matter of educational policy.

There must have been some purpose in giving BESE, an elected board, constitutional status. BESE was intended to exercise an independent function. If this function were purely ministerial, BESE’s constitutional status would be meaningless. Funding and the allocation of administrative duties between BESE and the Superintendent of Education are “as provided by law”. Nix, supra. The Constitution does not delineate the exact parameters of BESE’s authority, but the constitutional division of powers between BESE and the legislature is implicit in Article VIII, § 13.

Article VIII, § 13, provides that “school books and other materials of instruction” are to be “prescribed” by the State Board of Elementary and Secondary Education. Thus, BESE, rather than the legislature, has the power to dictate, direct and ordain the content of the educational materials used in the elementary and secondary schools.

The legislature, by prescribing the teaching of “Creation-Science” in Act 685 of 1981, attempted to dictate educational policy in violation of Article VIII of the Louisiana Constitution.

Therefore, I respectfully dissent.

      . Admittedly, the Balanced Treatment Act involves more than merely a course of study since it requires that a balanced treatment be given to evolution science and to creation science whenever the subject of origins arises within the established science and humanities curricula of the public schools. However, for the purposes of brevity in this opinion, we refer to this act as one which establishes a “course of study.”

      . Plaintiffs are: Don Aguillard; Reverend Phillip Allen; Dr. Paul Biesenherz; Rabbi Murray Blackman; Quentin Dastugue; Charles B. Don-nellan, Individually and as father and next friend of Mary and Kathleen Donnellan; Dr. Milton Fingerman; Anthony J. and Gayle Gag-liano, Individually and as parents and next friends of Lisa Gagliano; Reverend William W. Hatcher; Louisiana Federation of Teachers; Louisiana Science Teachers Association; Father George Lundy; Reverend James H. Monroe; National Association of Biology Teachers, Inc.; National Coalition for Public Education and Religious Liberty; National Science Supervisors Association; National Science Teachers Association; Rabbinical Council of New Orleans; Reverend F.T. Schumacher; Nancy Schweitzer; Bishop Kenneth Shamblin; Reverend Lonnie M. Sibley; Keith Sterzing, Individually and as Father and next friend of Lara and Peter Sterzing; Reverend James L. Stovall; University of New Orleans Federation of Teachers; Dr. Malcolm Coffin Webb, Individually and as Father and next friend of Peter and Joel Webb; Reverend Charles S. Womelsdorf; and American Association for the Advancement of Science.

      . Other defendants are: Governor David C. Treen; Attorney General William J. Guste, Jr.; the State Department of Education; the Orleans Parish School Board (later realigned as plaintiff); the St. Tammany Parish School Board; and J. Kelly Nix, in his official capacity as State Superintendent of Education.

      . The heart of Act 685 is found in La.R.S. 17:286.4(A) as follows:
      Commencing with the 1982-1983 school year, public schools within this state shall give balanced treatment to creation-science and to evolution-science. Balanced treatment of these two models shall be given in classroom lectures taken as a whole for each course, in textbook materials taken as a whole for each course, in library materials taken as a whole for the sciences and taken as a whole for the humanities, and in other educational programs in public schools, to the extent that such lectures, textbooks, library materials, or educational programs deal in any way with the subject of the origin of man, life, the earth or the universe. When creation or evolution is taught, each shall be taught as a theory, rather than as proven scientific fact.

      . La.R.S. 13:72.1; Louisiana Supreme Court Rule-XII.

      . As ably stated by the state in its brief to this Court, this certification does not involve the constitutionality of Act 685 under the First Amendment to the U.S, Constitution which is an issue solely to be decided by the U.S. District Court, where plaintiffs lawsuit has been filed. Nor does this certification involve any scientific or religious question related to creation-science or evolution-science.

      . La. Const, art. VIII, § 5(D) reads in pertinent part:
      D. Powers.... The Board of Regents shall have the following powers, duties, and responsibilities relating to public institutions of higher education:
      (1)To revise or eliminate an existing degree program, department of instruction, division, or similar subdivision.
      (2) To approve, disapprove, or modify a proposed degree program, department of instruction, division, or similar subdivision.
      (3) To study the need for and feasibility of any new institution of post secondary education. ...
      (4) To formulate and make timely revision of a master plan for higher education....
      (5) To require that every higher education board submit to it, at a time it specifies, an annual budget proposal....

      . The Court said at 347 So.2d 152:
      In summary, therefore, as expressly recognized by Section 3(A), the legislature may determine, as between the superintendent and the board, the administrative budgetary responsibility for, and administrative supervision and control of, the public educational facilities and programs within their jurisdiction.
      Then the Court continued at 347 So.2d 153.
      However, in view of the constitutional intent to confer ultimate policy-making power upon the board, the legislature may not in the guise of administrative regulation deprive the board *of its constitutional policy-making duties and powers.
      Stated another way, the most reasonable interpretation of Article 8, Section 3(A) is that the legislature shall provide by law for the supervision, control, and budgetary power of the board over elementary and secondary education. However, the constitutional provision cannot be interpreted to mean that the legislature can regulate and limit the constitutional power of the board to supervise, control, and budget elementary and secondary education.

      . The only other court to consider whether La. Const, art. VIII § 1 included the right to select curriculum was the Third Circuit Court of Appeal in Faul v. Superintendent of Education, 367 So.2d 1267 (La.App. 3rd Cir.1979). In Faul, a local school board was challenging the constitutionality of a state statute which mandated that the French language be taught in the public schools. The appellate court found at 367 So.2d 1273:
      that the general grant of power found in LSA-Const. Art. 8, § 1 encompasses the right on the part of the legislature to select the courses of study for schools in this state. Therefore, we find that there has been no usurpation of the school board’s authority by LSA-R.S. 17:273.

      . Note the confusion. Origins of life, earth and universe are theories.

      .Shall we bum the books which do not give creationism and evolution balanced treatment “... in textbook materials taken as a whole for each course...”? LSA-R.S. 17:286.4(A) says yes, but LSA-R.S. 17:286.5 says no. See Footnote 7, infra.

      . LSA-R.S. 13:72.1; Louisiana Supreme Court Rule XII.

      . LSA-Const. of 1921, Art. 12, § 4 in part.

      . Emphasis added.

      . An able example of written appellate advocacy.

      . During the discussion of this amendment, delegate Kelly stated in opposition:
      “[W]e’re not just talking about higher education. We’re not even going to have a basic plan for elementary and secondary education under this particular amendment....” 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2264.
      Delegate Champagne commented:
      “[Ejducation in this great state is far too expensive and too great a proposition to submit to the changing whims of the people who represent the State of Louisiana.” 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2265.
      Delegate Graham added his opposition:
      “I personally think that the worst thing we could do regarding the entire concept of governance of education for the children of our state, and for the people of this state would be to completely leave in the hands of the legislature all facets concerning education. I think that it is very important that we do provide some basic framework in our constitution — a framework that cannot be changed each year with each session of the legislature .... ” 8 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 2266'.

      . Act 685 is ambivalent on the subject of textbooks. In § 286.4(A), it strongly implies that the schools would be required to obtain and use text books teaching “creation-science”, an invasion of BESE’s constitutional authority, while § 286.5 disclaims a requirement for each individual textbook to give balanced treatment or for school books to be discarded.


source: Caselaw Access Project

author:
BAILES, Justice Pro Tem.
     WATSON, Justice, LEMMON, Justice, CALOGERO, Justice, BLANCHE, Justice

license: Public Domain

text:
    STATE of Louisiana v. Don JORDAN.
    Nos. 83-KD-1392, 83-KD-1393.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    Rehearing Denied Dec. 9, 1983.

      Dwight Doskey, John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for Don Jordan.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, William R. Campbell, Jr., Asst. Dist. Attys., for the State.
   BAILES, Justice Pro Tem.

The defendant was convicted of first degree murder for which the jury recommended the death sentence on its finding the aggravating circumstance in La.Code Crim.P. art. 905.4(a), i.e., that defendant committed the murder while engaged in the perpetration or attempted perpetration of an armed robbery or aggravated burglary. On appeal, this court affirmed the defendant’s conviction, however, the death penalty was set aside on the ground that an arbitrary factor had been injected into the jury’s deliberations during the sentencing hearing. See State v. Jordan, 420 So.2d 420 (La.1982).

As provided by La.Code Crim.P. art. 905.-1, this court remanded to the district court for the empaneling of a new jury to determine the penalty.

By motion filed in limine, the defendant sought a ruling of the trial court prohibiting the state from using defendant’s prior record of criminal convictions against him as evidence of an aggravating circumstance in the sentencing hearing. In support thereof, the defendant urged the trial court that La.Code Crim.P. art. 905.4(c) had been amended subsequent to the commission of the offense for which the defendant had been convicted to add an aggravating circumstance: “(c) the offender ... has a significant prior history of criminal activity.” Additionally, the defendant had not been Boykinized by the courts which accepted the pleas that led to his convictions that constituted his prior criminal record. %

The trial court ruled that the state could not argue the past criminal convictions of defendant as an aggravating circumstance. Additionally, the court ruled the state could anticipatorily introduce evidence of defendant’s prior convictions. To this latter ruling, the defendant objected and sought writs in No. 83-KD-1392; the state objected to the first ruling and sought writs in No. 83-KD-1393. We granted both writs and both issues are before us at this time.

The 1979 amendment to art. 905.4(c) amended subparagraph (c) to read

(c) the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping or has a significant prior history of criminal activity; (The underscored portion is the amendment added in 1979.)

Before this amendment, the prior criminal record of the defendant unless specifically provided for did not constitute an aggravating circumstance. In other words, the amendment added to and enhanced the enumerated aggravating circumstances which prevailed at the time of the commission of the crime on April 8, 1979.

We find the amendment of La.Code Crim.P. art. 905.4(c), which provides an additional factor, is a substantive change in the law. Arguendo, let us assume that at the time this murder was committed, none of the then existing aggravating circumstances was applicable to this defendant, and consequently no ground existed for a jury to consider the death penalty. However, subsequent to the commission of this crime but before the conviction of this defendant, the legislature did add another factor, namely, “the offender ... has a significant prior history of criminal activity,” which is provable as to this defendant and which the jury may find beyond a reasonable doubt to exist. By the addition of this aggravating factor, this defendant is now exposed to the death penalty whereas, factually, prior to the commission of this murder, he was not so exposed. This change is ex post facto.

To apply this enhancing amendment to the aggravating circumstances to the sentencing procedure of this defendant for this crime is an ex post facto application of the law. Such is proscribed by the constitution. See State v. English, 367 So.2d 815 (La.1979) and State v. Collins, 370 So.2d 533 (La.1979).

Now, addressing the trial court’s ruling that the state could anticipatorily introduce evidence of defendant’s prior convictions obviously for the purpose of demonstrating the character and propensities of the offender, we consider the ruling correct.

La.Code Crim.P. art. 905 states:

Following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing as provided herein.

Article 905.2, the interpretation of which is determinative of the issue before us, provides:

The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.

The first sentence of art. 905.2 puts at issue the defendant’s character and his propensities. It is the law which initiates the inquiry into the facts relating to the character of the defendant. With the defendant’s character at issue, along with whatever else is germane to the determination of sentence, this article then mandates that the (sentencing) hearing shall be conducted according to the rules of evidence. Because of the gravity of this sentencing hearing, as distinguished from a penalty-determining process in a lesser offense conviction initiated and conducted by a judge as the sentencer, the safeguard is statutorily provided that this entire hearing shall be conducted according to the rules of evidence. These rules include the general rules on relevancy, documentary evidence, competency of witnesses, character evidence, impeaching and corroborative evidence.

Legitimate inquiry must include the character and propensities of the convicted defendant. No reported case questions the validity of the judge-sentencer’s inquisitiveness of an offender’s character. The character of the convicted offender is very much bound up in the process of determining sentence. See La.Code Crim.P. art. 894.1. Because of the uniqueness of the process by which the jury determines punishment, the legislature saw fit to premise the procedure on the statement that the focus shall be on the circumstances of the offense and the character and propensities of the offender. For very good reasons, the defendant-offender would gainsay the jury the right to focus on his character. With a procedure which denies to the sentencer, be it judge or jury, a full disclosure and assessment of the character of the offender, a finding short of substantial justice could well be the result.

While the character of the defendant is put at issue by art. 905.2, in presenting evidence on any mitigating circumstances by the defendant, the law of character evidence may conceivably be apropos vis-a-vis the defendant’s witnesses, or even his own character if he should testify in his own behalf. The character per se of the defendant is not at issue in the guilt determining phase of the capital case (nor in any other criminal trial) as a factor to be considered as proof of guilt but only as it affects his credibility as a witness if he assumes the status of a witness in his own defense.

If the law were otherwise, there would not be a sure way for the sentencing jury to fulfill the mandates of this article of the code in the event the defendant elected not to testify or offer any witness who put his (the offender’s) character at issue as to the mitigating circumstances or through other testimony. Not all of the mitigating circumstances are such that put at issue the defendant’s character. To construe art. 905.2 in the manner urged by the defendant would be tantamount to holding that the convicted offender shall have the right to determine whether his character should be considered. Such a holding would fly right in the teeth of the clear and unequivocal first sentence which states: “The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender.” (Emphasis added.)

It is axiomatic that the conviction per se puts the convicted offender’s character at issue. Article 905.2 underpins that precept. To say that in such hearing the character of the defendant cannot be further developed unless he, the offender, first puts it at issue is to read out. of the statute its plain unambiguous language and to ignore the basic purpose of the sentencing hearing, i.e., a sentence tailored to the offense committed in keeping with the verdict, the character and the propensities of the offender.

The third sentence of art. 905.2 states: “Evidence relative to aggravating and mitigating circumstances' shall be relevant irrespective of whether the defendant places his character at issue.” This provision has no restraining effect on the issue of evidence of the offender’s character, and it complements the first sentence of the article. To hold otherwise would effectively hamstring the efficacy of the capital sentencing procedure.

From the relator’s (Jordan) application for writs, it appears that the trial judge ruled the state could anticipatorily introduce evidence of defendant’s prior convictions. We hold that the state may introduce prior convictions in its case-in-chief in the penalty phase of the case. See State v. Sawyer, 422 So.2d 95 (La.1982).

The defendant further argues that the state is prohibited from using prior convictions as evidence of his character for the reason those convictions are not based on proper Boykinized pleas. This issue is settled by our ruling in State v. Mattheson, 407 So.2d 1150 (La.1982), wherein we stated:

Nor do we find any merit in defendant’s related argument that the trial judge erred in permitting introduction of the prior convictions without a showing by the state that defendant was represented by counsel or had waived same. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the United States Supreme Court recognized that while uncounseled felony convictions could not be used for certain purposes, the Court stated that it had “never suggested that an uncounseled conviction was invalid for all purposes.” In the instant case, the prior convictions were used in the sentencing phase of the trial. The convictions were not being used to enhance punishment; rather, defendant’s past criminal history was merely a part of the total picture of his “character and propensities.” It did not of itself trigger added penalties. Hence, we do not consider the sentencing hearing to be one of those instances where the state is required to affirmatively show that defendant was represented by counsel or had waived same before a prior conviction may be used to show the character and propensities of the defendant.

DECREE

Accordingly, for the reasons assigned, the rulings of the trial court are maintained and the trial court is to proceed with the sentencing hearing.

CALOGERO, J., concurs in part, dissents in part and assigns reasons.

DENNIS, J., dissents with reasons.

BLANCHE, J., concurs and assigns reasons.

WATSON, J., subscribes to the opinion and assigns additional reasons.

LEMMON, J., subscribes to the opinion and assigns additional reasons.

WATSON, Justice,

concurring.

As the United States Supreme Court has recently held, there is a fundamental difference between the guilt/innocence determination at issue in the first phase of a bifurcated trial and the life/death choice at the penalty phase of trial. In sentencing, a jury must have before it all relevant information “regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition, and physical condition.” California v. Ramos, - U.S. - at -, 103 S.Ct. 3446 at 3455, 77 L.Ed.2d 1171 at 1184 (1983).

The “record” of the offender is a constitutionally indispensable consideration in inflicting the death penalty. Woodson v. North Carolina, 428 U.S. 280 at 304, 96 S.Ct. 2978 at 2991, 49 L.Ed.2d 944 at 961 (1976). See Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) and Barclay v. Florida, - U.S. -, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). Nothing is more factually or legally relevant to a defendant’s sentence than his criminal record.

I respectfully concur.

LEMMON, Justice,

concurring.

The critical issue is whether the introduction of competent evidence of defendant’s seven prior felony convictions, during the prosecution’s case-in-ehief in the penalty phase of a capital case and before the defendant either takes the stand or otherwise puts his character at issue, constitutes a statutory violation of La.C.Cr.P. Art. 905.2.

At the outset, it is important to note that there is absolutely no constitutional prohibition against introduction of competent evidence of prior convictions during the prosecution’s case-in-chief in the penalty phase of a bifurcated capital sentence proceeding. Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Therefore, the decision turns on our determination of whether the statute clearly prohibits such evidence or, if the statute is unclear, whether the Legislature intended the prohibition of such evidence.

As the first sentence of Article 905.2 notes, the focus of the sentencing hearing is on the circumstances of the crime and the character and propensities of the defendant. Since the evidence as to the circumstances of the crime has already been introduced at the guilt phase of the trial, it is obvious that the primary purpose of the hearing in the sentencing phase is the introduction of additional evidence relating to the character and propensities of the defendant, which will enable the jury to determine which murderers should receive the death penalty and which should not. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed. 859 (1976). It is therefore highly doubtful that the Legislature intended for the defendant to control the decision on which evidence of his character and propensities will be introduced at the penalty hearing. Yet this is exactly what the adoption of defendant’s argument would permit.

The defendant in this particular case, who has seven prior felony convictions, would be delighted to prevent the introduction of that evidence simply by not taking the stand or otherwise putting his character at issue, thereby leaving the jury to determine the appropriateness of the death penalty under the impression that his prior criminal record is “lily white.” If defendant succeeds, the worst offenders will never take the stand and will seldom get the death penalty. An equally distorted result would be that the jurors, whose function is to recommend the sentence based on channeled discretion, are never made aware of the pertinent evidence which should channel their discretion. Surely this was not intended by the Gregg decision or by the Legislature in enacting Article 905.2 after the Gregg decision.

The second sentence of Article 905.2 provides that the sentencing hearing shall be conducted according to the rules of evidence. While this provision could be interpreted narrowly to mean all rules of evidence, it is much more likely that the intent of the provision was to conduct the hearing under the rules of evidence applicable to the determination of sentence, rather than to the determination of guilt. Thus, the rules designed to insure that evidence is competent and reliable, such as the rules of authenticity, competency, and other such rules, are clearly applicable to the capital sentencing hearing. However, the very purpose of the rule of evidence prohibiting character evidence in a normal trial before the defendant puts his character at issue is designed to prevent the jury from determining guilt on the basis of character, rather than on the basis of evidence of the particular crime. In the usual trial, the character of the defendant is usually irrele- ' vant, or only marginally relevant, to the issue of guilt. But in a sentencing hearing, capital or otherwise, the character of the defendant is perhaps the most relevant issue for which evidence (in addition to the evidence introduced at the guilt trial) should be introduced. Furthermore, in a normal trial, the probative value of character evidence is almost always outweighed by its prejudicial effect. But in the sentencing phase of a trial, capital or otherwise, the probative value of character evidence is extremely high, since the character and propensities of the defendant is the principal inquiry, and the unquestionably devastating prejudicial effect does not outweigh such high probative value.

Article 905.2 should not be interpreted to require that a sentencing hearing shall be conducted according to rules of evidence which are not applicable to sentencing hearings. At the very least, Article 905.2 is unclear in this respect, and when a statute is unclear, it should be interpreted according to the legislative intent. It is evident that the Legislature clearly did not intend to permit this defendant to control the question of whether or not evidence of his seven prior felony convictions gets before this jury, whose sole purpose in the sentencing phase is to determine whether the circumstances of this particular crime and whether the character and propensities of this particular defendant warrant recommendation of the death penalty.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it holds that the amendment to La.C.Cr.P. art. 905.4(c) cannot be applied retroactively to crimes committed before its effective date and insofar as it holds that the state may introduce, under La.C.Cr.P. art. 905.2, prior convictions of the defendant in its case-in-chief in the penalty phase of the trial. Not the least of my reasons is that the issue has been settled by a majority of this Court. State v. Sawyer, 422 So.2d 95 (La.1982); State v. Mattheson, 407 So.2d 1150 (La.1982).

However, I dissent from that part of the opinion which holds that the state may use prior convictions that were either uncoun-seled or unconstitutional under Boykin. The majority relies on State v. Mattheson, supra, in support of its result. In Matthe-son, this Court in an opinion from which I dissented, held that uncounseled convictions could be used in the penalty phase of defendant’s trial, affirming defendant’s conviction and death sentence. Since that decision, the United States Fifth Circuit Court of Appeals has granted a stay of defendant’s execution and remanded the case to the district court for a hearing on this very issue. Thus, it seems ill advised, at this point, to rely on our Mattheson decision, which has been called into question in federal court, in advising our state district court on how to conduct an ongoing sentencing hearing. It is of little comfort to have relied on a state case if such reliance interjects a federal constitutional reversible error.

Furthermore, in my view there is strong reason to believe that the federal courts will disagree with our Court on this issue, whether uncounseled convictions can be used in the sentencing phase of a defendant’s trial. The Court’s reliance in Matthe-son, on Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) was misplaced. Lewis involved a prosecution for possession of a specified firearm by a convicted felon in violation of 18 U.S.C.A. § 1202(a)(1). Although the Court therein permitted the use of uncounseled convictions in such prosecution, it expressly referred to two other cases: United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), “where it was held that such a conviction [invalid under Gideon ] could not be considered by a court in sentencing a defendant after a subsequent conviction;” and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), “where the Court disallowed the use of the conviction to impeach the general credibility of the defendant.” In my view, the question of whether uncounseled guilty pleas can be used in the penalty phase of a capital case in determining the appropriate sentence is much more closely related to these latter two cases than it is to the issue in Lewis. Accordingly, I think the use of prior convictions that were uncounseled is prohibited under the United States Constitution. I likewise think the same result would obtain in the case of a prior conviction which would be invalid under Boykin. Therefore, I dissent from that portion of the majority opinion which advises the trial court that such prior convictions can be utilized in the penalty phase of defendant’s trial.

In any event when this case is tried in the district court, the trial judge is at liberty, notwithstanding this majority opinion, in my view, to require the state before attempting to introduce defendant’s conviction, to show that they were counseled and Boykinized. Such a ruling, designed to avoid reversible error in this death penálty case, would certainly be within the sound discretion of the trial judge.

BLANCHE, Justice

(concurring).

In a dissent in State of Louisiana v. Antonio James, 431 So.2d 399, this writer wrote that although C.Cr.P. art. 905.2 directs that the sentencing hearing focus on the “character propensities of the offender” that it also required that the formal hearing on that matter be “conducted according to the rules of evidence”. C.Cr.P. art. 905.2. The rules of evidence would not permit the introduction of other crimes committed by the defendant unless he took the witness stand and put his character at issue.

As Justice Watson noted in his concurrence, the jury must have before it the individual characteristics and his offenses, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition and physical condition. California v. Ramos, - U.S. - at -, 103 S.Ct. 3446 at 3455, 77 L.Ed.2d 1171 at 1184 (1983). Should the court have followed this writer’s dissent in Antonio James, Justice Lemmon’s remark in his concurrence, that the defendant would be able to control a decision on which evidence of his character and propensities could be introduced at the penalty hearing would have become fact. As noted in the majority opinion, “it is axiomatic that the conviction per se puts the convicted offender’s character at issue”.

This writer admits that his error in James, supra resulted from his failure to take into account the real purpose of the hearing.

I respectfully concur.

       Bailes, J. sitting for Justice Marcus.

      . In the absence of a codification of the law of evidence, the principal source of statutory evidence law is found in La.R.S. Title 15, Criminal Procedure, Chapter 2.

      . Article 905.5 provides:
      The following shall be considered mitigating circumstances;
      (a) The offender has no significant prior history of criminal activity;
      (b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;
      (c) The offense was committed while the offender was under the influence or under the domination of another person;
      (d) The offense was committed under circumstances which the offender reasonably believed to provide moral justification or extenuation for his conduct;
      (e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;
      (f)The youth of the offender at the time of the offense;
      (g) The offender was a principal whose participation was relatively minor;
      (h) Any other relevant mitigating circumstance.


author: BLANCHE, J.,

text:
    Carolyn Ann Brown, widow of George Henry SCHMIDT, Individually and on behalf of the minor, Christian Zachary SCHMIDT v. Henry HOLMES, Jr., Cheryl L. Butts, Commercial Union Insurance Company, Michael L. Christopher, Mississippi River Bridge Authority, Boh Bros. Construction Co., Inc., and Government Employees Insurance Company.
    No. 83-C-2000.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In Re Boh Bros. Construction Company, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. 12734; Civil District Court, Parish of Orleans, No. 599-072, Orleans Parish, 435 So.2d 1022.

Denied.

BLANCHE, J.,

would grant the writ being of the opinion that the Court should examine the record as to the cause of the accident.

LEMMON, J., would grant the writ.


text:
    Kenneth G. SONIAT and Frederick Parsons v. Michael L. CHRISTOPHER, Cheryl L. Butts, Commercial Union Insurance Company, Henry Holmes, Jr., Carolyn Ann Brown Schmidt, Administratrix For/And the Estate of George Henry Schmidt, Government Employees Insurance Company, Mississippi River Bridge Authority and their insurer, Employer’s Fire Insurance Company, part of Employer’s Group and Boh Brothers Construction Company.
    No. 83-C-2001.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In Re Boh Bros. Construction Company, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. 12735; Civil District Court, Orleans Parish, No. 599-577, 435 So.2d 1022.

Denied.

BLANCHE, J.,

would grant the writ being of the opinion that the Court should examine the record as to the cause of the accident.

LEMMON, J., would grant the writ.


text:
    Henry HOLMES, Jr., et al. v. Michael CHRISTOPHER, et al. Carolyn Ann Brown SCHMIDT, et al. v. Henry HOLMES, Jr., et al. Kenneth G. SONIAT, et al. v. Michael CHRISTOPHER, et al.
    No. 83-C-2027.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In Re Mississippi River Bridge Authority and Employers Fire Insurance Co., applying for Certiorari, or Writ of Review, to the Court of Appeal, Fourth Circuit, Nos. 12733, 12734,12735; Civil District Court, Parish of Orleans, Nos. 597-062, 599-072, 599-577, 435 So.2d 1022.

Denied.

BLANCHE, J.,

would grant the writ being of the opinion that the Court should examine the record as to the cause of the accident.

LEMMON, J., would grant the writ.


author: LEMMON, J.,

text:
    INTERNATIONAL MATEX TANK TERMINALS v. SYSTEM FUELS, INC. SYSTEM FUELS, INC., v. INTERNATIONAL TANK TERMINALS, LTD.
    No. 83-C-2006.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In Re: International Matex Tank Terminals, and International Tank Terminals, Ltd., applying for Certiorari, or writ of review, to the court of Appeal Fourth Circuit, Number 13346 C/W CA-0060, from the Civil District Court, Parish of Orleans, Numbers 13346 and 81-16420.

Denied.

LEMMON, J.,

concurs. While the Court of Appeal’s interpretation of Paragraph 22 may be incorrect, the issue can be better reviewed on appeal after the trial of the eviction suit.


author: DIXON, C.J.,

text:
    Alexis A. ST. AMANT v. Al TALLEY, et ux.
    No. 83-OC-2032.
    Supreme Court of Louisiana.
    Nov. 11, 1983.
   In Re: A1 Talley, et ux, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CM-0536, from the City Court of Baton Rouge, Parish of East Baton Rouge, No. 8112-7001.

Denied.

DIXON, C.J.,

would grant the writ. There appears to be a hiatus in C.C.P. 5003 and 4919.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 83-KD-2054.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re James E. Copeland, applying for writ of certiorari, prohibition and mandamus. Twenty-first Judicial District Court, Parish of Tangipahoa. No. 44713.

Granted. Application transferred to the Court of Appeal, First Circuit, for its consideration.


text:
    Linda T. WHIPPLE v. Keith M. WHIPPLE.
    No. 83-C-1684.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Keith M. Whipple, applying for writ of certiorari and review. Court of Appeal, First Circuit. Thirty-second Judicial District Court, Parish of Terrebonne. No. 58719.

Denied.


text:
    Donald J. THORESON, et al. v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83-C-1704.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
    Reconsideration Denied Nov. 18, 1983.
   In re Department of State Civil Service, applying for certiorari and/or review. Court of Appeal, First Circuit Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 2404.

Denied.


text:
    Mildridge BROUSSARD v. CONTINENTAL OIL COMPANY, et al.
    No. 83-C-1701.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Mildridge Broussard, applying for writ of certiorari or review. Third Circuit Court of Appeal. Parish of Cameron, Thirty-Eighth Judicial District Court. No. 8067.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. James KENT.
    No. 83-K-1697.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re James Kent, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 5-82-617.

Denied. The result is correct.


text:
    STATE of Louisiana v. Lionel BROOKS.
    No. 83-K-1696.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Lionel Brooks, applying for certio-rari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court. No. 10-81-90. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Alvin Troy MACK.
    No. 83-K-1693.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Alvin Troy Mack, applying for cer-tiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 9-81-646.

Denied.


text:
    Donald J. THORESON, et al. v. DEPARTMENT OF STATE CIVIL SERVICE, et al.
    No. 83-C-1692.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Donald E. Thoreson, et al., applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of East Baton Rouge. State Civil Service Commission. No. 2404.

Denied.


text:
    SUCCESSION OF Edna Lacroix, Widow of Walter F. POYNOT.
    No. 83-CC1691.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Gerald G. Pfister, Trace Pfister, Trist Pfister, and Keith Pfister, applying for writ of certiorari and/or supervisory writ. Civil District Court, Parish of Orleans. No. 80-6746. Fourth Circuit Court of Appeal. No. C 1071.

Denied, on showing.


text:
    Frank G. KLUKA v. LIVINGSTON PARISH SCHOOL BOARD.
    No. 83-C-1690.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Frank G. Kluka, applying for certio-rari, or writ of review. Court of Appeal, First Circuit, Parish of Livingston. Twenty-first Judicial District Court. No. 30387 Division “D".

Denied. The result is correct.


text:
    David M. VALENTINE v. Dr. John THOMAS & ABC Insurance Company.
    No. 83-C-1682.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David M. Valentine, applying for writ of certiorari and review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. Nos. 254, 897, Division J.

Denied.


text:
    STATE of Louisiana v. Thomas Y. GREEN.
    No. 83-KK-2061.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re Thomas Y. Green, applying for writ of certiorari, prohibition, and mandamus and for stay of proceedings. Fourteenth Judicial District Court, Parish of Calcasieu. No. 14757-82. Third Circuit Court of Appeals. No. K83-455.

Denied.


text:
    STATE of Louisiana v. David R. HARRIMAN.
    No. 83-KK-1847.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   In re David R. Harriman, applying for supervisory writ and for a stay order. Fourth Judicial District Court, Parish of Ouachita. 40757 and 40778. Court of Appeal, Second Circuit.

Denied.


text:
    STATE of Louisiana v. John E. BORRAS, Jr.
    No. 83-KD-2144.
    Supreme Court of Louisiana.
    Oct. 14, 1983.
   In re John E. Borras, Jr., applying for writs of certiorari, prohibition and mandamus. Twenty-Fourth Judicial District Court, Parish of Jefferson. No. 81-839 Division “D”.

Denied.


text:
    STATE of Louisiana ex rel. Gerald CARNES v. Honorable Robert Y. BUTLER, Judge 2nd Judicial District Court.
    No. 83-KH-1760.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Gerald Carnes, applying for remedial writ. Second Judicial District Court, Parish of Bienville. No. 20053.

Denied. Moot.


text:
    STATE of Louisiana v. Lloyd R. LACHNEY.
    No. 83-K-1708.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Lloyd R. Lachney, applying for cer-tiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Rapides. Ninth Judicial District Court. No. 199581.

Denied.


text:
    Wilbert LeBLANC Jr. v. CONSOLIDATED ALUMINUM COMPANY.
    No. 83-C-1713.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Wilbert LeBlanc, Jr., applying for remedial or supervisory writs of certiorari, review and mandamus. Third Circuit Court of Appeal, Parish of Calcasieu. No. 82-104. Fourteenth Judicial District Court. No. 82-2257.

Denied.


text:
    STATE of Louisiana v. Lowell W. "Sonny" CONNELLA.
    No. 83-K-1718.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Lowell W. “Sonny” Connella, applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Rap-ides, Ninth Judicial District Court. No. 204696.

Denied.


text:
    Johnny DETERS v. COMMERCIAL UNION INSURANCE COMPANY.
    No. 83-C-1720.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Johnny Deters, applying for certio-rari, or writ of review. Court of Appeal, Third Circuit. Ninth Judicial District Court. No. 122400. Parish of Rapides.

Denied.


text:
    STATE of Louisiana v. Malcolm R. GOMEZ.
    No. 83-K-1722.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re State of Louisiana, applying for writ of certiorari and review. Court of Appeal, First Circuit. Parish of St. Tammany, Twenty-Second Judicial District Court. No. 93357.

Denied.


text:
    Symeon SYMEONIDES, Curator of Frangiskos Hajigeorgiou v. COSMAR COMPANIA NAVIERA, S.A., Celestial Maritime Corporation and the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited.
    No. 83-C-1723.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Cosmar Compañía Naviera, S.A., Celestial Maritime Corporation and the United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Limited, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court. No. 235894. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Jarrell Delano FRITH.
    No. 83-K-1724.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Jarrell Delano Frith, applying for writ of certiorari and review. Court of Appeal, Third Circuit. Parish of St. Martin, Sixteenth Judicial District Court. No. 58687.

Denied.


text:
    STATE of Louisiana v. Timothy Eugene WROTEN.
    No. 83-K-1725.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Timothy Eugene Wroten, applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 8-81460.

Denied.


text:
    Alexander A. THIENEMAN, Jr. v. Seligman J. KAHN.
    No. 83-C-1731.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Seligman J. Kahn, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit; Twenty-fourth Judicial District Court. No. 262-321. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana v. Lawrence RITTER, Jr.
    No. 83-KK-1733.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Lawrence Ritter, Jr., applying for writ of review. Nineteenth Judicial District Court. 1-82-673. Parish of East Baton Rouge, First Circuit Court of Appeal. No. 83-KW-0407.

Denied.


text:
    SUCCESSION OF Adelia Broussard DUPREE Dolza Dupree v. Amos MILLER.
    No. 83-C-1739.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Amos Miller, applying for certiorari, or writ of review. Court of Appeal, Third Circuit, Parish of Calcasieu. Fourteenth Judicial District Court. No. 22116.

Denied.


text:
    STATE of Louisiana v. Kenneth HUGHES.
    No. 83-K-1752.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Kenneth Hughes, applying for cer-tiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Criminal District Court. No. 289-536, Section “I”.

Denied.


text:
    Felton BOYD v. FARMERS-MERCHANTS BANK, W.O. Clause, Individually and As a Member of the Board of Directors of the Farmers-Merchants Bank, George J. Champagne, Jr., Jack E. Davenport, Pat Huval, John Herman LaGrange, Fred H. Mills, Sr., Alvin Joseph Guidry, Vance J. Theriot, James Domengeaux, Leroy J. Molbert, George Dupuis, Chester L. Simon, Jesse J. Guidry, Thomas J. Periot, All In Their Capacity as Members of the Board of Directors of the Farmers-Merchants Bank, and Ethel Demouchet Boyd.
    No. 83-C-1754.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Farmers-Merchants Bank, et al., applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Sixteenth Judicial District Court. No. 31645. Parish of St. Martin.

Denied.


text:
    SOUTHERN RENTAL AND LEASING COMPANY v. BARRY'S TOWING, INC.
    No. 83-C-1755.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Southern Rental and Leasing Company, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of Jefferson. First Parish Court. No. 56-313, Division “B”.

Denied.

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


text:
    ACADIAN HERITAGE REALTY, INC. v. The CITY OF LAFAYETTE.
    No. 83-C-1751.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re The City of Lafayette, applying for writ of certiorari or review. Court of Appeal, Third Circuit. Fifteenth Judicial District Court, Parish of Lafayette. No. 79-3350 “G”.

Denied.

CALOGERO and MARCUS, JJ., would grant the writ.


text:
    ACADIAN HERITAGE REALTY, INC. v. CITY OF LAFAYETTE.
    No. 83-C-1797.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Beulah Guilbeau, Louis Guilbeau, Clara Baudoin, Joseph Baudoin, John Desh-otels, Janelle Deshotels, Gable Augillard, Wayne Baudoin, Abby Noel, and Anne Noel, applying for writ of certiorari and/or review. Third Circuit Court of Appeal. Fifteenth Judicial District Court. No. 79-3350, Section “G”.

Denied.


text:
    STATE of Louisiana, ex rel., Gary JEFFERSON v. STATE of Louisiana.
    No. 83-KH-1814.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Gary Jefferson, applying for remedial writs. Parish of Bossier.

Denied.


text:
    SAVE OUR SELVES, INC., et al. v. The LOUISIANA ENVIRONMENTAL CONTROL COMMISSION and the Louisiana Department of Natural Resources.
    No. 83-C-1480.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Save Our Selves, Inc., et al., applying for certiorari, or writ of review. Court of Appeal, First Circuit, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 243-970, Division “F”.

Granted.


text:
    June Nell Courtney BABIN, et al. v. James Thomas IVY.
    No. 83-CC-1295.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re June Nell Courtney Babin, et al, applying for writs of certiorari, or review. Twenty-third Judicial District Court. No. 29868. Parish of Ascension; Court of Appeal, First Circuit. No. 83-CW 0542.

Relator’s motion to dismiss writ application is granted.


text:
    STATE of Louisiana v. Carl Sidney FOSTER.
    No. 83-OK-2043.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Carl Sidney Foster, applying for motion for untimely writ application. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Ouachita. No. 40584.

Motion denied.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. Frank SHEA.
    No. 83-KH-1255.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Tyronne J. Forrest, applying for Remedial Writ from Criminal District Court, Parish of Orleans, No. 269-672.

Denied. Moot.


text:
    LOUISIANA PAVING COMPANY, INC. and Barriere Construction Company, Inc. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83-C-1331.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Louisiana Paving Company, Inc., and Barriere Construction Company, Inc., applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. Nineteenth Judicial District Court. No. 228353, Division “L”.

Denied.

DIXON, C.J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Lonnie R. GIVENS.
    No. 83-KH-1504.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Lonnie R. Givens, applying for remedial writs. Parish of Sabine. No. 27745.

Denied.


text:
    STATE of Louisiana v. Larry SHARPER.
    No. 83-KH-1505.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Larry Sharper, applying for writ of mandamus. Parish of East Baton Rouge. No. 5-87-751.

Denied. Moot.


text:
    STATE of Louisiana v. Franklin DAVIS.
    No. 83-KH-1552.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Franklin Davis, applying for motion for trial transcript. Seventh Judicial District Court, Parish of Concordia. No. 81-KA-3296.

Denied.


text:
    STATE of Louisiana, ex rel., Clifton SEARS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1576.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Clifton Sears, applying for supervisory writs. Parish of Orleans. No. 261-298.

Denied. Moot.


text:
    Joe R. FOOTE, et al. v. Diran SARAFYAN.
    No. 83-C-1623.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Joe R. Foote, et al, applying for writ of certiorari and/or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans, No. 576-262, Division “A”.

Denied.

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


text:
    STATE of Louisiana v. Martin CARTER.
    No. 83-K-1706.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Martin Carter, applying for certio-rari, or writ of review. Court of Appeal, Third Circuit. Fourteenth Judicial District Court, No. 8072-82. Parish of Calcasieu.

Denied.


text:
    STATE of Louisiana v. Joseph Russell SHEA.
    No. 83-K-1707.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Joseph Russell Shea, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Thirty-eighth Judicial District Court. No. 34183. Parish of Cameron.

Denied.


text:
    Joe R. FOOTE, et al. v. Diran SARAFYAN.
    No. 83-C-1640.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   In re Niagara Fire Insurance Company, Third Party, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit, Parish of Orleans. Civil District Court. No. 576-262, Division “A”.

Denied.

MARCUS, J.,'would grant the writ.


text:
    STATE of Louisiana, ex rel. Isaac SWEENEY v. Donald HATHAWAY and William Guste, Jr.
    No. 83-KH-1045.
    Supreme Court of Louisiana.
    Oct. 18, 1983.
   In re Isaac Sweeney, applying for writ of habeas corpus. First Judicial District Court, Parish of Caddo. No. 118028.

Denied. Appeal is pending.


text:
    STATE of Louisiana ex rel., Russell J. GATLIN v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 83-KH-0054.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Russell J. Gatlin, applying for remedial writs of certiorari and habeas corpus. Parish of Orleans. No. 276-050.

Denied.


text:
    STATE of Louisiana, ex rel., J.P. MC ELROY, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0121.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re J.P. McElroy, Jr., applying for writ of habeas corpus. Parish of Union.

Denied.


text:
    STATE of Louisiana v. Norris Patrick FRANCIS.
    No. 83-KH-0223.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Norris Patrick Francis, applying for writs of certiorari, mandamus and prohibition. Parish of Lafayette. No. 44083.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Edward Charles MORRIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0232.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Edward Charles Morris, applying for writ of habeas corpus. Calcasieu Parish. No. 13264-79.

Denied.


text:
    STATE of Louisiana ex rel. Richard A. PASS v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1990.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Richard A. Pass, applying for remedial writ. Criminal District Court, Parish of Orleans. Nos. 259-318 and 256-975.

Granted. The sentence imposed in the multi-bill proceedings is voided and set aside and the case is remanded to the district court for resentencing pursuant to R.S. 15:529.1. (The original sentence must be set aside before resentencing.)


text:
    STATE of Louisiana, ex rel., Eugene ROUSSO v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary State of Louisiana.
    No. 83-KH-1536.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Eugene Rousso, applying for writ of mandamus. Parish of Orleans. No. 195— 812.

Granted and transferred to the district court to act on this application and the supplement filed in the district court on 3/9/83.


text:
    STATE ex rel., Alvin DARNELL v. GUILLORY, Warden.
    No. 82-KH-2931.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Alvin Darnell, applying for writ of certiorari and review. Parish of Ouachita. No. 39374.

Denied.


text:
    STATE ex rel., McArthur JOHNSON v. Ross MAGGIO, Warden.
    No. 82-KH-2955.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re McArthur Johnson, applying for writs of certiorari, habeas corpus, prohibition and mandamus. Parish of Bossier. No. 54874.

Denied.


text:
    Harry LEE v. Richard ANGELICO and Gaylord Broadcasting Company.
    No. 83-CC-1779.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Richard Angelico and Gaylord Broadcasting Company, applying for supervisory writs. Twenty-Fourth Judicial District Court. No. 271-508. Parish of Jefferson, Fifth Circuit Court of Appeal. No. 83-C-563.

Granted.


text:
    STATE of Louisiana ex rel., Mose REED v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-1644.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Mose Reed, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 249-470.

Granted. Trial court is ordered to furnish Boykin transcript forthwith.


text:
    STATE of Louisiana ex rel. Roy T. MEJIA v. 19TH JUDICIAL DISTRICT COURT.
    No. 83-KH-1414.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Roy T. Mejia, applying for writ of mandamus. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 57774.

Granted. Relator’s sentence is vacated and the case remanded to the district court to be resentenced to life imprisonment in accordance with law.


text:
    STATE of Louisiana ex rel., Kelvin Ray SMITH v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-0263.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Kelvin Ray Smith, applying for writ of certiorari and habeas corpus. Parish of East Baton Rouge. No. 2-80-296.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph Lamar DEAN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0283.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Joseph Lamar Dean, applying for writ of habeas corpus. Parish of St. Mary. No. 106934.

Denied.


text:
    STATE of Louisiana, ex rel. Shari Lynn LOGAN v. Honorable John R. JOYCE, Judge Fourth JDC, Parish of Ouachita.
    No. 83-KH-0286.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Shari Lynn Logan, applying for writs of certiorari or review. Parish of Ouachita. No. 40-476.

Denied.


text:
    STATE of Louisiana, ex rel., Floyd A. ST. ANDRE v. Ross MAGGIO Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-0338.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Floyd A. St. Andre, applying for writ of certiorari on habeas corpus. Parish of East Baton Rouge. No. 72380.

Denied.


text:
    STATE of Louisiana ex rel., Frank R. WILLIAMS v. Edwin A. LOMBARD, Clerk of Court.
    No. 83-KH-0859.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Frank R. Williams, applying for writ of mandamus. Parish of Orleans. No. 275-308.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana v. Matthew ROBY.
    No. 83-KK-1741.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Matthew Roby, applying for writ of certiorari and review. Court of Appeal, Fourth Circuit. No. K-1017. Parish of Orleans, Criminal District Court. No. 293-342.

Denied. Result is correct.

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


text:
    STATE of Louisiana v. Charles E. BARRETT, Jr.
    No. 83-KK-1773.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Charles E. Barrett, Jr., applying for supervisory writs of review, certiorari, prohibition and mandamus. Fourth Judicial District Court, Parish of Ouachita. No. M:41278. Court of Appeal, Second Circuit. No. 15805-KW.

Denied.


text:
    STATE of Louisiana, ex rel. Keith Kevin HORTON v. CLERK OF COURT, DIVISION "G", CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 83-KH-1785.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Keith Kevin Horton, applying for writ of mandamus. Criminal District Court. No. 274-566. Parish of Orleans.

Denied.


text:
    FIRST HOMESTEAD FEDERAL SAVINGS AND LOAN ASSOCIATION v. Russell C. TAYLOR, et al.
    No. 83-C-1787.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Russell C. Taylor, applying for writ of certiorari and/or review. Fifth Circuit Court of Appeal. No. 82-CA-194. Second Parish Court, Parish of Jefferson. No. 34555.

Denied.

CALOGERO, J., would grant the writ.


text:
    Barbara Jean BROWN v. SEWELL PLASTICS, INC.
    No. 83-C-1822.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Barbara Jean Brown, applying for certiorari, or writ of review. Court of Appeal, Fifth Circuit, Parish of St. John the Baptist. No. 83-CA-287. Twenty-Ninth Judicial District Court. No. 12575.

Denied.


text:
    STATE of Louisiana v. Vincent J. BOOTH.
    No. 83-KK-1848.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Vincent J. Booth, applying for writs of certiorari, prohibition and mandamus. Fourth Judicial District Court. No. M:50231. Parish of Ouachita, Second Circuit Court of Appeal. No. 15817-KW.

Denied.


text:
    STATE of Louisiana ex rel., Leslie Ray HOLLAND v. Honorable Samuel T. ROWE, Judge Presiding, 21st Judicial District Court, Parish of Tangipahoa.
    No. 83-KH-1917.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Leslie Ray Holland, applying for writ of habeas corpus. Parish of Tangipa-hoa, Twenty-first Judicial District Court.

Denied.


text:
    STATE of Louisiana, ex rel., Dennis SEARS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1927.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Dennis Sears, applying for writ of mandamus on habeas corpus. Parish of Orleans. No. 219-807.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Billy Louis SIMPSON v. STATE of Louisiana, 11th Judicial District Court, C.R. Guillory, Warden, Wade Correction Center, Board of Pardons and Paroles.
    No. 83-KH-1933.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Billy Louis Simpson, applying for writ of mandamus. Eleventh Judicial District Court, Parish of De Soto. No. 47401.

Denied.


text:
    STATE of Louisiana ex rel., Robert C. COLLINS v. 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA State of Louisiana.
    No. 83-KH-1943.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Robert C. Collins, applying for writ of mandamus. Twentieth Judicial District Court, Parish of West Feliciana. No. W-76-1-9.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Douglas KNIGHTEN v. Carl GUIDRY, District Judge.
    No. 83-KH-1944.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Douglas Knighten, applying for writ of mandamus. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 3-79-334.

Denied.


text:
    STATE of Louisiana, ex rel. Richard OFFRAY v. Honorable John SHEA and Clerk of Court, et al. Orleans Judicial District Court, Parish of Orleans, State of Louisiana.
    No. 83-KH-1964.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Richard Offray, applying for writ of mandamus. Criminal District Court. No. 258-836. Parish of Orleans.

Denied.


text:
    STATE of Louisiana, ex rel., John L. BROWN, Sr. v. Honorable Edward M. MOUSER, Judge & Clerk of Court, Division "33rd" JDC Criminal District Court Parish of Allen State of Louisiana.
    No. 83-KH-1965.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re John L. Brown, Sr., applying for writ of mandamus. Parish of Allen. No. CR87-83.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Christopher J. WATKINS v. CRIMINAL DISTRICT COURT SECTION "E", Hon. Rudolph F. Becker, III.
    No. 83-KH-2030.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Christopher J. Watkins, applying for remedial writ. Criminal District Court, Parish of Orleans. No. 285590.

Denied.


text:
    STATE of Louisiana ex rel., Daniel BEZAR v. Honorable Edward B. DUFRECHE, District Judge, Division "E", 21st Judicial District Court, Parish of Livingston.
    No. 83-KH-2039.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Daniel Bezar, applying for writs of prohibition and mandamus. Twenty-first Judicial District Court, Parish of Livingston. No. 2003.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Betty Jo DOBIN v. Honorable Gayle K. HAMILTON, Judge Clerk of Court Division "G" Parish of Caddo State of Louisiana.
    No. 83-KH-2051.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Betty Jo Dobin, applying for writ of mandamus. Parish of Caddo. No. 104303.

Denied. Moot.


text:
    STATE of Louisiana, ex rel., Allen Ray DAWSON, Petitioner, v. J. Al AMISS, Criminal Sheriff Parish of East Baton Rouge, Baton Rouge, Louisiana.
    No. 83-KH-2056.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Allen Ray Dawson, applying for writ of mandamus. Parish of East Baton Rouge. No. 4-79-176.

Denied.

BLANCHE, J., Recused.


text:
    STATE of Louisiana ex rel. Bruce CHOYCE v. STATE of Louisiana.
    No. 83-KH-2127.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re Bruce Choyce, applying for writ of prohibition, certiorari and mandamus. Criminal District Court, Parish of Orleans. Nos. 279-940 and (M-106041).

Denied.


text:
    STATE of Louisiana v. Rudolph E. SCHEXNAYDER, Jr.
    No. 83-KK-2181.
    Supreme Court of Louisiana.
    Oct. 28, 1983.
   In re State of Louisiana, applying for writ of certiorari and stay order. Criminal District Court. No. 296-740. Parish of Orleans, Fourth Circuit Court of Appeal. No. K-1373.

Denied.