author: MARCUS, Justice. CALOGERO, Justice,

text:
    SUCCESSION OF Charles Haskel GRICE.
    No. 84-CA-1761.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied Feb. 21, 1985.
    Dissenting Opinion Feb. 20, 1985.

      H. Sanders O’Neal, Houma, for appellant.
    Sam J. D’Amico, Ashton S. Stewart, Baton Rouge, Keith Whipple, Ernest Kelly, Houma, for appellee.
   MARCUS, Justice.

This case presents a challenge to the constitutionality of La.Civ.Code art. 209 which requires illegitimate children who would inherit from their fathers by intestate succession to institute filiation proceedings within certain time limitations. Legitimate children are not subject to the same requirement.

Susan Marie Boudreaux was born Susan Marie Breaux on June 27, 1951, to Velma Vivian Breaux. The father’s name was left blank on her birth certificate. Charles Haskell Grice was married but once and then to Agnes Boutte Grice on November 17, 1953. No children were born of the marriage. Mr. Grice died intestate on March 8, 1983. He was predeceased by his parents and survived by his wife and brothers and sisters. Less than one month later, Susan Marie Boudreaux, then thirty-one years of age, filed a petition claiming that Charles Haskell Grice was her father and she was his sole surviving heir and asking to be appointed provisional administratrix of his estate. She was duly appointed provisional administratrix and, after complying with law, letters of administration were issued to her. Mr. Grice’s widow, Agnes Boutte Grice, thereupon filed a rule against Susan Marie Boudreaux to show cause why she should not be barred by the time limitations of La.Civ.Code art. 209 from establishing filiation to Charles Haskell Grice and why she should not be disqualified from serving as administratrix. Susan Marie Boudreaux countered that art. 209 was unconstitutional on equal protection grounds insofar as it requires that proceedings to establish filiation be brought within nineteen years of birth and furthermore that lack of legitimacy was not one of the grounds enumerated in La.Code Civ.P. art. 3097 for disqualification of an administra-trix. After considering the pleadings and memoranda submitted by both parties, the trial judge held art. 209 unconstitutional and dismissed the rule to bar Susan Marie Boudreaux from establishing proof of filiation and to disqualify her as administratrix. Mrs. Grice applied to this court for writs. Her application was granted and docketed as an appeal.

La.Civ.Code art. 209 provides:

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.
D.The right to bring this proceeding is heritable. (Emphasis added.)[]

The equal protection clause of the fourteenth amendment of the federal constitution and article 1 § 3 of our state constitution provide that no person shall be denied equal protection of the laws. Although classifications based on illegitimacy are not “suspect” or subject to “strict scrutiny” under equal protection analysis, the scrutiny applied to them “is not a toothless one-” Trimble v. Gordon, 430 U.S. 762 (1977); Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976). Such classifications are unconstitutional unless they are substantially related to permissible state interests. Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

Our inquiry is focused narrowly. We are asked to decide whether the requirement of art. 209 that filiation proceedings be brought “within nineteen years of the child’s birth” is substantially related to permissible state interests when the illegitimate child is seeking paternal inheritance by intestate succession.

The decisions of the United States Supreme Court in Trimble v. Gordon, supra, and Lalli v. Lalli, supra, are particularly relevant to our determination. In Trimble, the Court reviewed an Illinois statute which provided that a child born out of wedlock could inherit from his intestate father only if the father had “acknowledged” him and the child had been legitimated by the intermarriage of the parents. The Court recognized that the state has an interest in “the orderly disposition of property at death” and that devising an appropriate legal framework in furtherance of that interest “is a matter particularly within the competence of the individual States.” An important aspect of that framework, the Court recognized, is a response to the often difficult problem of proving paternity and the related danger of spurious claims. These difficulties, the Court said, “might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally.” However, the Court found that the Illinois statute was constitutionally flawed because its reach “extended well beyond [these] asserted purposes.” By insisting upon not only an acknowledgment by the father but also the intermarriage of the parents, the statute excluded “at least some significant categories of illegitimate children of intestate men” whose inheritance rights could be recognized without jeopardizing the state’s interest.

In Lalli, the Court upheld a New York statute which allows an illegitimate to inherit from his intestate father, but only if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity. The Court found that this single statutory requirement, a judicial order of filiation declaring paternity before the father dies, is eviden-tiary in nature and does not “inevitably disqualify] an unnecessarily large number of children born out of wedlock.” The Court further found that this statutory requirement is substantially related to the state’s justifiable purposes in that (1) resolution of claims of paternity is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father, giving him an opportunity to defend his reputation, and (2) the administration of an estate is facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. In upholding the statute, the Court emphasized that its focus was on the statute’s relation to state interests, not on its “abstract fairness.” Few statutory classifications, the Court noted, are entirely free from the criticism that they sometimes produce inequitable results, and it is not the Court’s function “to hypothesize independently on the desirability or feasibility of any possible alternative[s]” to the statutory scheme formulated by the state.

From Trimble and Lalli, we conclude that (1) the state has a substantial, permissible interest in providing for the just and orderly disposition of property at death where intestate paternal inheritance of illegitimate children is concerned, an area involving unique and difficult problems of proof, and (2) the means adopted by the state to further that interest may result in some inequity and still be constitutional, provided it is substantially related to that interest. Given a recognized permissible state interest, we must now determine whether the means adopted in art. 209 to further that interest is substantially related to it. From Trimble, we further conclude that this substantial relation requirement will not be met if the statute inevitably and unnecessarily excludes some significant categories of illegitimate children.

Like the statute in Lalli and unlike that in Trimble, art. 209 does not inevitably exclude significant categories of illegitimate children from intestate paternal inheritance. The New York statute in Lalli allowed inheritance provided the child obtained a judicial order of filiation declaring paternity before his father died. Article 209 allows intestate paternal inheritance by an illegitimate not filiated by the initiative of the father, but only if proceedings to establish filiation are instituted within nineteen years from birth or, should the alleged father die within that time, then within one year of his death. Since under art. 209 the child will never have more than nineteen years to institute filiation proceedings, whereas under the New York statute the child has until the father’s death to obtain a judicial declaration of paternity, the question remains whether this difference makes art. 209 unconstitutional, i.e., creates unnecessary discrimination where the statute in Lalli did not.

In answering this question, we draw our guidance by analogy from the United States Supreme Court’s recent decisions concerning time limitations on the support rights of illegitimate children. In Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), the Court considered the sufficiency of a “one year from birth” statute of limitation on paternity suits. The Court’s equal protection analysis focused on two related requirements. Although the procedures for illegitimate children need not be coterminous with those accorded legitimate children, (1) the period for obtaining paternal support has to be long enough to provide a reasonable opportunity for those with an interest in illegitimate children to bring suit on their behalf, and (2) any time limit on that opportunity has to be substantially related to the state’s interest. The Court held that the “one year from birth” limitation in Mills failed to satisfy either requirement. In Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), the Court analyzed a “two years from birth” limitation on paternity and child support actions and found that that time period also failed to satisfy the two requirements in Mills.

We now consider whether the nineteen years from birth limitation contained in art. 209(C) satisfies the two requirements set forth by the United States Supreme Court in Mills. Under Mills, the first question is whether the nineteen year limitation is sufficiently long to provide a reasonable opportunity to those with an interest in illegitimate children to bring suit on their behalf. We consider that the financial, emotional and family difficulties that often attend the birth of an illegitimate child should be sufficiently resolved within nineteen years to enable the child’s mother or other interested party to institute filiation proceedings against an alleged father. The legislature could reasonably conclude that those interested in illegitimate children should be required to exercise such foresight on their behalf and that nineteen years gives them ample opportunity to do so. Additionally, we note that the nineteen year limitation gives the child one year after minority to institute filiation proceedings on his own behalf, so that proof of his paternity and preservation of his rights stemming therefrom are not totally dependent on others.

The second inquiry under Mills is whether the nineteen year limitation of art. 209(C) is substantially related to the state’s interest. The recognized state interest in this case is the just and orderly disposition of a decedent’s property where intestate paternal inheritance is concerned, an area involving unique and difficult problems of proof. We find that the nineteen year limitation is substantially related to this interest. A nineteen year limitation can be justified by the problems of proof surrounding paternity actions. The result in paternity suits frequently turns upon sketchy, conflicting testimony from only two witnesses. It is certainly conceivable that evidence essential to paternity suits will be lost in nineteen years and it is evident that the passage of nineteen years will appreciably increase the likelihood of fraudulent claims. Additionally, scientific advances in blood testing have not yet negated the relation between the nineteen year limitation and the state’s need to handle the proof problems it encounters in paternity suits. Traditional blood tests only prove nonpater-nity, not the fact of paternity.

We consider that the 1984 amendment to art. 209(C) creating an exception to the nineteen year limitation “for the sole purpose” of establishing a right to recover damages under La.Civ.Code art. 2315, does not undermine the substantial relation between that limitation period and the state’s interest where intestate paternal inheritance by an illegitimate is concerned. In fact, this limited exception illustrates that the state’s interest in providing for the just and orderly disposition of property at death is greater than its interest in the distribution of an award for damages under art. 2315. Additionally, a claim of filiation raised in the context of an action under art. 2315 becomes part of, and is unlikely to prolong, already ongoing litigation or settlement negotiations. By requiring that filiation proceedings be brought within nineteen years, art. 209 facilitates the administration of estates and minimizes the possibility of delay and uncertainty. Entitlement of the illegitimate child to notice and participation will be a matter of judicial record before administration of the estate commences, except in the limited case where the alleged father dies within nineteen years, in which case filiation proceedings will have to be brought within one year.

Hence, we conclude that (1) the nineteen year limitation contained in La. Civ. Code art. 209(C) is sufficiently long to provide a reasonable opportunity to those with an interest in illegitimate children to bring suit on their behalf and (2) the nineteen year limitation on that opportunity is substantially related to the state’s interest in providing for the just and orderly disposition of a decedent’s property where paternal inheritance is concerned, an area involving unique and difficult problems of proof. We therefore uphold the constitutionality of art. 209 of the Civil Code. In view of this holding, Susan Marie • Boudreaux is barred from proving paternal filiation to Charles Haskell Grice and is therefore disqualified from appointment as provisional administratrix of his estate under La.Code Civ.P. art. 3097.

DECREE

For the reasons assigned, the rulings of the trial judge are reversed. The case is remanded to the district court for further proceedings in accordance with the views expressed herein.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion which upholds the constitutionality of La.C.C. art. 209, limiting the right of an illegitimate to prove his filiation, for succession purposes, to proceedings “brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, which ever first occurs.”

The United States Supreme Court has held that classifications based on birth (illegitimacy) are unconstitutional unless they are substantially related to important state interests. Pickett v. Brown, 461 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Our own state constitution, Article I, Section 3, provides that “[n]o law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth.” This provision includes within its scope unreasonable discrimination against a person because of illegitimacy. Accordingly, the scrutiny given a provision which does draw a classification based on birth is a heightened one.

Our inquiry in this case is whether the limitation set in La.C.C. art. 209, that filiation proceedings, when an illegitimate child is seeking paternal inheritance by intestate succession, be brought “within nineteen years of the child’s birth,” is substantially related to permissible state interest (chiefly in the orderly disposition of property at death) or whether it goes beyond what is necessary to accomplish the purpose.

A range has already been established by the United States Supreme Court within which we should work. In Lalli v. Lalli, supra, the Court upheld a New York provision which required proof of paternity prior to the death of the alleged father of the child. The Court found that that provision substantially related to the state’s interest in promoting the orderly disposition of property at death. At the other end of the spectrum, the Court struck down provisions which required such proof (in support cases) within respective periods of one and two years from birth. Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) and Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983) respectively.

Thus, the question presented is whether the limitation set by La.C.C. art. 209, “within nineteen years of the child’s birth” falls closer to the acceptable end of the range established in Lalli (before the death of the alleged father), or the unacceptable range established in Mills and Pickett (within two years of birth in support eases). In my view it falls closer to the latter.

The state purpose behind the statute is the state’s interest in the orderly disposition of property at death. In my view, that interest is sufficiently fostered by a requirement that the illegitimate prove his filiation before the death of the alleged father even if that is beyond the child’s 19th birthday. A child between the ages of 1 and 19 more often than not has no interest in, or thought concerning his potential inheritance rights. This is a different situation from that concerning support rights, where paternity and the obligation to support take on real significance immediately upon birth and in the outset years thereafter. The requirement that the proceedings must be brought “within nineteen years of the child’s birth” goes beyond what is necessary to give effect to the legitimate state interest in the orderly disposition of property at death and falls into the category of unnecessary discrimination based on birth prohibited by our state constitution as well as the United States Constitution.

For these reasons, I dissent from the majority opinion upholding the constitutionality of La.C.C. art. 209.

      . At the hearing on the rule, after a discussion at the bench, the trial judge granted both parties leave to submit memoranda after which the matter would be taken under advisement.

      . 454 So.2d 1122 (La.1984). See La. Const, art. 5, § 5(D)(1).

      . Article 209 was amended and reenacted by La. Acts 1980, No. 549, eff. Sept. 12, 1980, to provide a procedure and time limitations for proceedings to establish filiation and to provide that failure to institute timely such a proceeding would bar the claims of such persons in the successions of their alleged parents. Section 4 provided, however, that any illegitimate child nineteen years or older would have one year from the effective date of the act to bring a civil proceeding to establish filiation.
      Article 209 was further amended by La. Acts 1981, No. 720, eff. Sept. 11, 1981, and Section 2 thereof provided that any person against whom the time period provided in the Act would otherwise have accrued would have one year from its effective date to bring a filiation proceeding. Children who did not file suit within the one-year grace period of the prior statute were not precluded from attempting to prove filiation within this new one-year grace period. Succession of Theriot, 428 So.2d 1017 (La.App. 1st Cir.1983).
      A newly created statute of limitations or one which shortens existing periods of limitation does not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Lott v. Haley, 370 So.2d 521 (La.1979); Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950).
      Thus, Susan Marie Boudreaux had two separate one-year grace periods within which she could have, but failed to, institute proceedings to prove paternal filiation. Article 209, as amended, allowed a reasonable time for her to assert her right to prove paternal filiation.

      .We do not address the constitutionality of La.Civ.Code art. 209 vis-a-vis the illegitimate child’s right to inherit from his mother, as that issue is not before us. Cf. Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) (issue raised by implication).
      Nor do we address the constitutionality of art. 209 where an illegitimate child is seeking support from an alleged parent. Cf. Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Hableutzel, 456 U.S. 91, 102 S.Ct. 1549, 91 L.Ed.2d 770 (1982); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Daniel v. Collier, 317 N.W.2d 293 (Ct. of App. of Mich.1982), vacated — U.S. -, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983), on remand, 130 Mich.App. 345, 343 N.W.2d 16 (Ct. of App.1983); Astemborski v. Susmarski, 499 Pa. 99, 451 A.2d 1012 (1982), vacated — U.S. -, 103 S.Ct. 3105, 77 L.Ed.2d 1360 (1983), on remand, 502 Pa. 409, 466 A.2d 1018 (1983).

      . See also, Matthews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).

      . Hence, in Succession of Brown, 388 So.2d 1151 (1980), this court held unconstitutional La.Civ. Code art. 919 which completely excluded acknowledged illegitimates from participating in the succession of their father when he was survived by other relatives, since the legislature could have given such children "some way” to obtain paternal inheritance while still anticipating and solving the problems facing the state.

      . The New York statute in Lalli required not only that the order of filiation be made during the lifetime of the father, but that the proceeding in which it is sought be commenced “during the pregnancy of the mother or within two years from the birth of the child.” The New York Court of Appeals declined to rule on the constitutionality of the two-year limitation and therefore the question was not before the United States Supreme Court. See Lalli, n. 5.

      . In this latter situation, the proceedings to establish filiation should be cumulated with the petition asserting succession rights and be made a part of the succession proceedings. (See La. Civ.Code art. 209(C) as to filiation proceedings "cumulated” with action to recover damages under La.Civ.Code art. 2315.)
      Under Section B of art. 209, the child will be required to meet a higher burden of proof, to offset the fact the alleged father will no longer have an opportunity to defend himself.

        .See also, Daniel v. Collier, supra, and Astemborski v. Susmarski, supra, cited in footnote 4. Both cases involved six year statutes of limitation. The state courts upheld the statutes. Directed by the United States Supreme Court to reconsider the statutes in light of Pickett, supra, the courts affirmed their original findings of constitutionality. No appeals were taken from the final state decisions.

      . Mills, supra, n. 4.

      . La. Acts 1984, No. 810.

      . Having reached this conclusion, a fortiori, we reject Susan Marie Boudreaux’s contention, raised in brief to this court, that art. 209 is unconstitutional because it discriminates against illegitimate children as compared to their parents with regard to their respective rights of inheritance.

      .La.Code Civ.P. art. 3097 provides in pertinent part:
      No person may be appointed dative testamentary executor, provisional administrator, or administrator who is not the surviving spouse, heir, legatee, legal representative of an heir or legatee, or a creditor of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee of the deceased.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    HARRY E. WOOD AND ASSOCIATES v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS and the Office of/and Department of Health and Human Resources.
    No. 84-C-1303.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied Feb. 21, 1985.

      Philip Harding Kennedy, Staff Atty., Dept, of Health & Human Resources, New Orleans, for defendants-applicants.
    Philip S. Brooks, Metairie, Bruce M. Dan-ner, New Orleans, for plaintiffs-respondents.
   LEMMON, Justice.

We granted certiorari in this breach of contract case primarily to review the lower courts’ methods of measuring damages. We now conclude that the award of the trial court, as amended by the court of appeal, fairly represents the damages contemplated by the parties at the inception of the contract, and we accordingly affirm.

Plaintiff contracted with defendant to install at Charity Hospital an energy-saving device known as an “Eldon Heater”. The device was designed to capture exhaust gases and to use the captured gases for the purpose of heating water that would otherwise require consumption of natural gas purchased from a utility company. The ultimate objective of the device was to replace the hospital’s conventional hot water system.

In consideration for the use of the heater for the two-year term of the contract, plaintiff was to receive one-half of the monthly savings realized by defendant from decreased gas consumption. Plaintiff agreed to bear the cost of installation and to remove the equipment at the termination of the contract. Plaintiff further guaranteed that the equipment would result in a savings of at least 20%.

After one week of operation, defendant shut down the equipment, complaining that the hospital’s potable water system had become contaminated. When defendant refused to allow the heater to be placed back in operation, plaintiff filed this action.

After a lengthy trial on the merits, the trial court resolved conflicting expert testimony and determined that the cause of the contamination was incomplete combustion of one of the hospital’s boilers that had gone into operation just a few hours before the problem appeared. However, the court rejected plaintiff’s claim that he would have earned $170,000 over the two-year term of the contract, the projected gross earnings being based on the amount of savings generated during the one week of operation. Observing that plaintiff’s computation of his lost earnings was not a precise figure, the court “exereise[d] its discretion” and awarded $75,000 as the “[l]oss of net earnings”. The court further awarded $8,500 in attorney’s fees.

On appeal, the intermediate court affirmed the trial court’s determination that the heater was not the cause of the contamination and that plaintiff was entitled to damages for breach of contract. 451 So.2d 1120 (La.App. 4th Cir.1984). However, the court increased the award to reflect plaintiff’s total loss by adding $53,121 for cost of installation, $5,133 for cost of insurance, and $6,700 for cost of removal to the $75,-000 loss of net earnings granted by the trial court. This court granted defendant’s application for certiorari to consider defendant’s contention that plaintiff was not entitled to recover the costs of installation and removal (costs which plaintiff was contractually obliged to expend) in addition to the award for loss of earnings. 457 So.2d 1185 (La.1984).

The debtor who breaches the contract without fraud or bad faith is liable only for such damages as the parties may reasonably be supposed to have contemplated at the time of the contract. La.C.C. Art. 1934(1). At the inception of the present contract, the parties contemplated that plaintiff would install and remove the equipment at his cost and would receive as his gross earnings one-half of the savings realized from 'decreased gas consumption by the hospital over a two-year period.

The trial court concluded that the limited experience in one week of operation did not provide a sufficient basis for calculating with mathematical certainty the amount of earnings plaintiff would have been entitled to over a two-year period. The court exercised discretion and fixed the sum of $75,-000 as the net earnings which plaintiff lost on account of the breach. While we cannot disagree, after a review of the record, with the trial court’s determination of that element of damages (loss of net earnings), the parties’ contemplation at the time of the contract was that plaintiff would be entitled to one-half of the gross amount that resulted from energy savings. Thus, the agreement that plaintiff was to bear substantial installation and other costs contemplated that he would be compensated by gross earnings over and above those costs. The trial court, in estimating plaintiff’s loss of earnings, apparently determined some amount of gross earnings and then subtracted some amount of costs from estimated gross earnings in order to arrive at $75,000 in net earnings. The court of appeal corrected the trial court’s calculation so as to arrive at plaintiff’s total loss which was within the contemplation of the parties at the time of the contract.

Viewed another way, plaintiff at the execution of the contract bound himself to spend almost $65,000 for installation and removal of the equipment and the required insurance coverage. While only a limited amount of savings were guaranteed, the parties obviously contemplated that plaintiff’s gross earning would return the $65,-000 investment plus net profits to justify such an investment. The trial court’s award of $75,000 for net earnings would barely have returned the investment, when a reasonable rate of interest for two years is considered. The judgment of the court of appeal, although at first blush appearing to allow double recovery, more accurately reflects the damages for breach of contract that the parties contemplated in reaching their agreement.

Accordingly, the judgment of the court of appeal is affirmed.

      . Awards for cost of modification and expert witness fees are not disputed.


author: WATSON, Justice. CALOGERO, J.,

text:
    Vincent J. BRUNO v. DEPARTMENT OF POLICE.
    No. 84-C-1294.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    Rehearing Denied Feb. 21, 1985.

      John Levy, Laplace, John H. Brooks, Gretna, Frank DeSalvo, New Orleans, for applicant.
    Salvador Anzelmo, City Atty., Bruce E. Naecari, Asst. City Atty., Bernette J. Johnson, Deputy City Atty., for defendants-respondents.
   WATSON, Justice.

Plaintiff, Vincent J. Bruno, is contesting his discharge as a civil service employee of the New Orleans Police Department. After the Civil Service Commission upheld his dismissal, Bruno appealed to the Fourth Circuit Court of Appeal, which affirmed the Commission, with one judge dissenting. A writ was granted to review the judgment.

While serving as a police officer assigned to the Urban Squad, Bruno also held a union office, being president of the Policeman’s Association of New Orleans (PANO). However, the reasons for his discharge outlined in the Superintendent’s letter of termination dated March 14, 1980, were unrelated to Bruno’s union activities. He was charged with:

(1) violation of. ASOP 75.2, relating to sick leave regulations;
(2) violation of Rule 4, paragraph 2, in refusing to obey a lawful instruction to return to work; and
(3) violation of Civil Service Rule IX, § 1.1 by being unable or unwilling to perform the duties of his position.

Bruno allegedly violated these regulations between October 21, 1979 and March 10, 1980.

The Civil Service Commission concluded that the City carried its burden of proving that Bruno did not report absences from his place of confinement and that the reasons for his absences were not those allowed by ASOP 75.2. The Commission did not deal with the charge of disobeying an order but did question whether Bruno was actually ill during the entire period from October 21, 1979 to March 14, 1980.

The Court of Appeal concluded that Bruno had violated D.R. 630-3, paragraph 9, as modified on October 25,1978, by not receiving departmental permission through the chain of command for leaving his place of confinement. However, violation of this regulation is not specified in the letter of termination which was sent to Bruno by Superintendent Parsons.

LSA-R.S. 33:2423 provides in pertinent part:

“In every case of removal or reduction in pay of any employee in a competitive position in the classified service or of involuntary retirement or demotion of the employee, the appointing authority shall furnish the employee and the director a statement in writing of the reasons therefor.”

The Court of Appeal erred in affirming the Commission on the basis of Bruno’s violation of a regulation of which Bruno was not notified in his letter of termination. See Department of Public Safety v. Rigsby, 401 So.2d 1017 (La.App. 1 Cir.1981), writ denied, 406 So.2d 626.

Review of the Commission’s decision extends to both the law and facts. LSA-Const.1974, Art. X, § 12. The Commission’s findings of fact should be given the same deference as those made by a judge or jury. Walters v. Dept. of Police of New Orleans, 454 So.2d 106 (La.,1984). Thus, the standard of review does not differ from that in other civil eases, and the Commission’s determination should be affirmed unless it is manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.,1978).

The question is whether Bruno was validly discharged for violating ASOP 75.2. While this regulation was not enacted until November 4,1979, while Bruno was on sick leave, Bruno stated that he was aware of ASOP 75.2.

At the Civil Service Commission hearing, Bruno essentially admitted that he did not work from October 21, 1979, until his discharge on March 14, 1980. His initial complaint on October 21 was an ear infection. This diagnosis remained on record through November 28. On November 29, the diagnosis became prostate gland trouble and this illness is reflected on the Police Department’s records until February 12, 1980, the last day Bruno is shown on sick leave. However, Bruno testified he also had a congenital “heart seizure problem” (Tr. 40).

Bruno admitted most of the activities enumerated in the letter of termination, to-wit: he went to Detroit on business around November 24, 1979; acted as a judge for a talent contest in Metairie on December 13, 1979; gave an interview at the WWL-TV studio on December 28,1979; failed to meet an appointment with Sergeant Thompson on January 6, 1980; met the City’s Chief Administrative Officer, Reynard J. Rochon, at the Warwick Hotel on January 12, 1980; gave an interview to Sally Ann Roberts of WWL-TV on January 16, 1980; addressed the Krewe of Endymion at the Fountain Bay Hotel on January 22, 1980; attended a PANO meeting on January 23, 1980; attended a fund raiser for President Carter at the Hilton Hotel on January 31, 1980; attended a PANO meeting on February 5, 1980; and gave an interview at the WDSU studio on February 29, 1980. Bruno also admitted a trip to New York on union business in March and periodic visits to Florida for union business and relaxation. He also went to Detroit, Philadelphia, and Cincinnati, Ohio, the last trip being on March 14, the date he was terminated. According to Bruno, he was not mentally or physically capable of doing street duty with a gun during the period that he was absent from work.

Bruno initially listed his place of confinement as “35 North Clareoning Avenue, Margate, New Jersey, outside Philadelphia” (Tr. 108). On November 11,1979, his place of confinement was changed to a New Orleans address, 1721 Abadie Avenue. On January 6, 1980, Bruno’s place of confinement became 237 Penfold Street, Hara-han.

According to Sergeant Liniel W. Thompson, who was assigned to the Urban Squad and worked as Bruno’s supervisor, Bruno did not report for an interview on January 6 at 10:30 P.M. and could not be reached by telephone. Subsequently, on January 8, Bruno told Thompson he had not reported to make a statement on the advice of his psychiatrist. Bruno testified that there was merely a misunderstanding about the appointment.

On January 20, 1980, Bruno requested Lieutenant Rinial Martin to place him on furlough instead of sick leave status. Martin advised that this would require Bruno to report to work. Bruno also called Deputy Chief David Kent about changing his sick leave status. Kent said he would not entertain an application for a furlough until Bruno returned to work because Bruno had abused his sick leave. Reynard J. Rochon testified that Bruno asked him to intercede and get him placed on retroactive annual leave. Bruno denied this. On February 1, 1980, Bruno’s status was changed to “annual leave — sick” (Tr. 81). Bruno was changed from sick leave to annual leave status because he had run out of sick leave.

Bruno was called in to give a statement on March 7 because he was not at home when policemen checked his house on November 30 and an investigation had been initiated. After a hearing, Superintendent of Police Parsons ordered that Bruno be taken for a physical examination. Bruno was examined by a physician at the Tulane Medical Center and pronounced fit for duty. Parsons then ordered Bruno to return to work. When he did not report the following Monday, March 10, Lieutenant Martin told Bruno he was ordering him back to work. Bruno advised that he had had a heart seizure on Saturday and had been taken to the hospital and Martin did not insist that Bruno report. Bruno had appeared on a radio talk show earlier that day. Lieutenant Martin was previously unaware that Bruno had any type of heart problem.

Sergeant Marion Coker testified that the practice of the Department for eight or nine years had been to require personnel on sick leave to be confined unless absent for a medical reason. When Sergeant Coker had been on sick leave with a broken shoulder, he received special permission to leave his home after his doctor issued a letter which was approved by the Deputy Superintendent.

Dr. Harry H. Philibert, a specialist in family practice who operates the New Orleans Pain Clinic, testified that he had treated Bruno and was familiar with his medical situation. He first saw the patient on March 28, 1978, and has seen him periodically since that time. Bruno suffers from recurrent attacks of paroxysmal tachycardia, or rapid heart beats, which Dr. Philibert treated with medication. On March 10, 1980, Dr. Philibert examined Bruno. Although his EKG showed a normal sinus rhythm, i.e. his heart was beating normally, an exercise test produced the onset of paroxysmal tachycardia. Medication was prescribed. According to Dr. Philibert, “Bruno ... can’t play cops and robbers, ... I just don’t think he can tolerate that stress.” (Tr. 323) He can perform limited duty but his condition is potentially “lethal” (Tr. 325). According to Dr. Philibert, it would be easy for another physician in a routine examination to be unable to diagnosis Bruno’s paroxysmal tachycardia because of the unpredictability of the condition.

James C. Parsons, Superintendent of the New Orleans Police Department, testified that he held a disciplinary hearing concerning Bruno on March 7, 1980, in regard to allegations that Bruno was violating the rules regarding sick leave. After Parsons ordered Bruno to go back to work, he was advised on March 10, 1980, that Bruno had not returned to work because of a heart seizure.

Policeman Hubert J. Badeaux drove with Bruno to the radio talk show interview on March 10. During a subsequent lunch, Bruno received a call on his beeper, went to the phone and told Badeaux he had been ordered back to duty. Bruno then said he was going to his physician. According to Badeaux, Bruno had reported his absence from home to the police department on several occasions when Badeaux was with him.

Bruno said he had always called in when he left his residence and that this was regarded as compliance with the rule, but some of his testimony was evasive. According to Bruno, he was following his doctors’ orders and the department’s procedures and was never advised that he was in violation of the regulations. Although he was willing to perform his duties in a limited capacity, he was not permitted to do so and was told that anxiety or stress would bring on his tachycardia problem. Bruno said his heart seizure on March 8 was documented at East Jefferson Hospital and that he had another seizure on March 10. The Urban Squad patrolled the projects, very high crime rate areas, and he was unable to perform that duty. According to Bruno, Sergeant Liniel Thompson advised him on December 7, 1979, that his absences would be all right as long as he called and let someone know where he would be.

Captain Richard B. Martin, a twenty-two year veteran of the Police Department, testified that he was familiar with the sick leave regulations. He confirmed Bruno’s testimony that when someone called to say he was leaving his residence, a notation would be made on a slip of paper which was discarded when the caller returned home.

In a statement given to Sergeant Thompson on December 7, 1979, Bruno admitted to being familiar with New Orleans Police Department ASOP 75.2, supra. (Joint Exhibit, No. 2) In regard to his alleged misconduct on November 30 in not being home, Bruno said he had visited two doctors and his druggist. He twice received a busy signal when he attempted to notify the Urban Squad office and had then called the Health Services Section.

Bruno argues that there was no legal cause for his termination; that discharge is too severe a penalty for violation of the sick leave regulations; that the regulations restricting those on sick leave to a place of confinement violate fundamental constitutional rights; and that the regulation in question was enforced against him in a discriminatory manner.

The record leaves some question about whether Bruno reported absences from his place of confinement. However, the Commission was not clearly wrong in finding that the Department carried its burden of proving that Bruno was not reporting those absences. There is no question, as the Commission found, that all of Bruno’s absences from his place of confinement were not for the specified purposes allowed by the sick leave regulation.

In view of the period of time involved and the flagrant nature of Bruno’s violations, termination cannot be classified as too severe a penalty. It is clear that his misconduct must have had a real and substantial relationship to the efficient operation of the service. Newman v. Department of Fire, 425 So.2d 753 (La.,1983).

The constitutionality of the provision restricting those on sick leave to confinement presents a serious question. The Seventh Circuit Federal Court of Appeals held in Pienta v. Village of Schaumburg, Ill., 710 F.2d 1258 (1983) that a similar provision infringed on the fundamental constitutional rights to vote, attend church, go to court, attend political or family gatherings and travel. Pienta concluded that such a stringent regulation could only be justified by a compelling state interest. The Police Department’s interests in avoiding abuse of sick leave, protecting the public fisc, efficiently allocating man power, requiring those on leave to stay by the phone in case they are needed, and maintaining the morale of those serving did not suffice, because they could be achieved without such a blanket restriction on freedom of movement. On rehearing, the majority in the Court of Appeal analyzed the applicability of Pienta to this situation and concluded that its strict scrutiny analysis was not appropriate. Such rules are not per se arbitrary and irrational and can be enforced unless, as applied, they unreasonably restrict constitutional rights. See (Cacace v. Seniuk, 104 Misc.2d 560, 428 N.Y.S.2d 819 (1980).

The Pienta plaintiffs sought a declaratory judgment and an injunction against enforcement of the confinement regulations. Bruno, however, did not challenge this re-gulationuntil his discharge was under consideration in the Court of Appeal. His only complaints concerning constitutionality are made now retroactively, and there is no showing of a deprivation of rights. In considering his good faith as an employee, it is significant that Bruno did not attempt compliance with the Department’s regulations for extended sick leave. D.R. 630-3, paragraph 9, as amended on October 25, 1978. See Footnote 6, supra.

Although Bruno was advised by his physician that he could undertake certain outside activities, he never attempted to obtain departmental permission for those endeavors. Had Bruno unsuccessfully sought permission for appropriate activity during his rehabilitation, he could then legitimately raise the constitutional issue of the over-breadth of ASOP 75.2. See Loughran v. Codd, 432 F.Supp. 259 (1976). Bruno chose, instead, to completely disregard the regulations of the Police Department even after he had been advised that his conduct was under investigation.

It is suspicious that Bruno’s heart condition did not surface until he was actually ordered to return to work. While there was testimony that outside activities which were not stressful were compatible with that condition, there was no evidence those activities were compatible with the stated reasons for his sick leave, to-wit: an ear infection and prostate trouble.

There is no evidence that Bruno was singled out for disciplinary action on a discriminatory basis.

While the regulation may present serious constitutional problems in other contexts, Bruno’s flagrant violations over a period of almost five months were prejudicial to the conduct of the New Orleans Police Department and justified his discharge. As applied to Bruno, the regulation did not arbitrarily or unreasonably restrict his constitutional rights.

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

MARCÜS, J., dissents.

CALOGERO, J.,

dissents. Dismissal of relator from this Department is a patently excessive disciplinary penalty, in my opinion.

      . Bruno v. Department of Police, 451 So.2d 1082 (La.App. 4 Cir.1984).

      . 457 So.2d 1184 (La.,1984).

      . “A sick leave period commences at the time the member notifies the Desk Officer. A member on sick leave shall remain in his residence or other approved place of confinement for the entire sick leave period, except to visit a physician, hospital, clinic, purchase meals or purchase medicine. The member shall notify his Unit of assignment before leaving and upon returning from such a visit (exceptions below). If the member is assigned to a unit that is not open on a 24 hour basis, notification shall be made by telephone to Health Services Section or that section’s Code-A-Phone." (Appellant Exhibit A)

      ."A member shall professionally, promptly, and fully abide by or execute instructions issued from any authoritative source. If the instructions are reasonably believed to be in conflict with the Rules and Procedures of the Department or other issued instructions, this fact shall respectfully be made known to the issuing authority. If the issuing authority elects to insist upon execution of the instructions which are reasonably believed to be in conflict with Department Rules and Procedures, then the member receiving the instructions shall have the right to request and is entitled to receive, IMMEDIATELY, said instructions in writing, except as determined by the supervisor. The issuing authority shall be held responsible should any conflict materialize; however, no instructions shall be issued or executed which are in violation of law.” (Appellant Exhibit A)

      . "Section 1. MAINTAINING STANDARDS OF SERVICE 1.1 When any regular employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may extend to (1) removal from the service, (2) retirement, (3) reduction in pay to the next lower rate in the range for the class, (4) demotion to any position of a lower class that the employee is deemed by the appointing authority and the Director to be competent to fill, (5) suspension without pay not exceeding in the aggregate one hundred twenty (120) days in any period of twelve (12) consecutive calendar months, (6) fine, (as amended February 9, 1955 and August 9, 1979).” (Appellant Exhibit A)

      . D.R. 630-3, paragraph 9, formerly provided: “Employees on extended sick leave, for an illness or any injury, may arrange for advance approval from the Medical Section for activities related to continued treatment, convalescence and rehabilitation so that notification of each instances of leaving the place of confinement will not be necessary.”
      On October 25, 1978, this regulation was modified to state:
      "An employee who has permission from his attending physician to leave his place of confinement shall secure departmental permission through the chain of command from the Superintendent or Deputy Superintendent of Polibe. Such request must be secured prior to the employee actually leaving his place of confinement.”
      Bruno testified that he was unaware of the amendment promulgated on October 25, 1978.

      . Bruno said he had received a medical discharge from the military on April 17, 1967, because of this condition.

      . Dr. Philibert’s testimony establishes justification for Bruno’s refusal to obey Parsons' order to return to work.

      . After a revision on November 4, 1979, the extended sick leave provision was as follows:
      "ASOP 75.12: EXTENDED SICK LEAVE— Members on extended sick leave for illness or injury (including IOD) may arrange for advance approval for activities related to continued treatment, convalescence and rehabilitation in the following manner, so that notification is not necessary:
      "a. written request must be made to the respective Bureau Chief, via the Chain of Command. Basis for this request must be clearly stated and must be accompanied with a letter from the individual’s attending physician, stating the necessity for his request and an approximate duration of treatment, convalescence or rehabilitation.
      "b. The Commanding Officer of the individual making the request must review this request recommending approval or disapproval, and forward same to the respective Bureau Chief.
      “c. All approvals will be for a maximum of 14 days (unless waived by the Bureau Chief). At the end of each 14 day period, the case shall be re-evaluated by the individual’s Commanding Officer and submitted to the Bureau Chief before any extension is granted for the additional time.”


author: MARCUS, Justice.

text:
    HONEYWELL, INC. v. JIMMIE B. GUINN, INC., Jesse F. Heard & Sons, Inc. and the Travelers Indemnity Company.
    No. 84-C-1130.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      David P. Spence, Michael L. Glass, Prov-osty, Sadler & deLaunay, Alexandria, for plaintiff-applicant.
    Jesse S. Heard, Jr., West Monroe, for defendant-respondent.
   MARCUS, Justice.

Honeywell, Inc. (Honeywell) initiated this proceeding seeking to recover from Jimmie B. Guinn, Inc. (Guinn), Jesse F. Heard & Sons, Inc. (Heard), and the latter’s surety, The Travelers Indemnity Company (Travelers), monies allegedly remaining due for work performed in constructing the LaSalle General Hospital. After trial, the district court rendered judgment in favor of Honeywell and against Guinn for the sum of $11,513 together with interest and costs and dismissed Honeywell’s demands against Heard and Travelers. Honeywell appealed. The court of appeal affirmed holding that Honeywell was not entitled to recover from Heard and Travelers under the provisions of the Public Works Act or under the terms of the labor and material payment bond issued by Travelers to Heard. We granted Honeywell's application for writs, reversed the decision of the court of appeal, and remanded the case to that court for reconsideration in light of Hauserman v. Roussel-Hart, Gen. Contr., 395 So.2d 800 (La.1981). After reconsideration, the court of appeal adhered to its original opinion and again affirmed the judgment of the district court. On Honeywell’s application, we granted certiorari to review whether the dismissal of Honeywell’s demands against Heard and its surety, Travelers, was proper.

In October of 1977, Heard entered into a contract with the Board of Commissioners of the LaSalle General Hospital whereby Heard was to furnish all materials and perform all labor according to specifications in the renovation and construction of additions to the LaSalle General Hospital in Jena, Louisiana. As required by public contract law, Heard obtained, in addition to a performance bond, a labor and material payment bond from Travelers guaranteeing payment by the general contractor or any subcontractor for all work done, labor performed and materials furnished. See La.R.S. 38:2241. In performing its contract, Heard subcontracted with Guinn for the installation of the plumbing, heating and air-conditioning. Thereafter, Guinn subcontracted with Honeywell for the furnishing and installation of a pneumatic system of automatic temperature control. The Board of Commissioners accepted the construction work as substantially complete on May 9, 1980, and its acceptance was recorded in the parish mortgage records on May 12, 1980. No claims were filed within forty-five days of the recordation of acceptance and Heard obtained a clear lien certificate on June 27, 1980. Honeywell completed its installation of the temperature control system on August 18, 1980. However, on the contract price owed by Guinn to Honeywell, $11,513 remained unpaid, and on October 7,1980, Honeywell gave written notice to Heard of its claim to the unpaid portion of the contract price and requested payment. Honeywell was, thereafter, unable to secure payment and on August 28, 1981, Honeywell sued Guinn, Heard and its surety, Travelers, for the amount remaining due on the work it performed in the construction of the hospital.

In Hauserman, Inc. v. Roussell-Hart, Gen. Contr., 395 So.2d 800 (La.1981), an unpaid subcontractor, having a direct contractual relationship with the general contractor, sued both the general contractor and its surety for the balance due on its subcontract. This court held that the subcontractor’s claims were governed by La. R.S. 38:2189, the general prescriptive period contained in Part I, entitled “General Provisions,” of the chapter on public contracts. Because the facts of the instant case require us to determine what provisions of public contract law govern the right of an unpaid subcontractor, who is not in contractual privity with the general contractor, to proceed against the general contractor and its surety for the balance due on its subcontract, we feel compelled to reconsider our decision in Hauserman.

Hauserman drew a distinction between the claims of subcontractors and ma-terialmen or laborers. This court stated that the one year prescriptive period of La.R.S. 38:2247, contained in Part III entitled “Claims of Materialmen and Laborers on Public Works,” governed the claims of a supplier of material or labor. However, a subcontractor, who supplies both labor and material, was not a materialman or laborer; hence, his claims were governed by the general prescriptive period (five years) of La.R.S. 38:2189, which provides:

Any action against the contractor on the contract or on the bond, or against the contractor or the surety or both on the bond furnished by the contractor, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards or subdivisions shall prescribe 5 years from the substantial completion, as defined in R.S. 38:2241.1, or acceptance of such work, whichever occurs first, or of notice of default of the contractor unless otherwise limited in this Chapter. (Emphasis added.)

On re-examination of this section, we consider that it was intended to apply to actions brought by the state (or its agencies, boards, or subdivisions) against the contractor on the contract or its surety in connection with public works “let by the state or any of its agencies.” This conclusion is supported by the parallel provision of La.R.S. 38:2189.1 which applies to the reverse situation by providing the same prescriptive period (five years) for actions brought by the contractor on the contract or its surety against the state in connection with public works “let by the state or any of its agencies.” In other words, these provisions provide a prescriptive period for actions arising out of disputes between the state or any of its agencies and the general contractor and/or its surety in connection with the public contract between them.

Alternatively, our examination of La.R.S. 38:2247 indicates that it was intended to apply to the claims of subcontractors as well as materialmen or laborers. Section 2247 provides in part:

Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond which shall accrue at any time after maturity of his claim, which said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any person having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall record his claim as provided in R.S. 38:2242 or give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner of the work....

Applying this section to the facts presented in Hauserman, an unpaid subcontractor having a direct contractual relationship with the contractor may sue on the contractor’s bond without filing and recording a sworn claim or giving written notice to the contractor. Although the action against the contractor is subject to the ten-year prescriptive period ordinarily applied to actions in contract, La.Civ.Code art. 3499, the action against the surety on the bond must be brought within one year from the registry of acceptance of the work by the governing authority. Although not a contested issue of the case, this was the solution reached by this court in E. L. Burns Co. v. Cashio, 302 So.2d 297 (La.1974), which was overlooked by our decision in Hauserman involving similar facts.

However, where a person has a direct contractual relationship with a subcontractor, but no contractual relationship with the contractor, this section requires that such a person either record his claim as provided in La.R.S. 38:2242 or give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner prior to bringing action against the contractor or the surety within one year from the registry of acceptance. The instant case involves the claims of an unpaid subcontractor (Honeywell) of a subcontractor (Guinn) against the general contractor (Heard) and its surety (Travelers) and would come within this provision. Moreover, under this interpretation, an unpaid subcontractor would have the same right as a materialman or laborer to preserve a claim against the governing authority pursuant to La.R.S. 38:2242 which would not follow from our decision in Hauserman.

For the foregoing reasons, we conclude that La.R.S. 38:2247 governs the claims of subcontractors as well as materi-almen or laborers. Accordingly, we overrule Hauserman.

Applying La.R.S. 38:2247 to the facts of the instant case, the governing authority’s acceptance of the work was recorded on May 12, 1980. Since Honeywell had a direct contractual relationship with Guinn but no contractual relationship with Heard, it was necessary under section 2247 that Honeywell either record its claim as provided by La.R.S. 38:2242 or give written notice to Heard within forty-five days from the recordation of the notice of acceptance prior to bringing suit within one year from the registry of acceptance. Honeywell’s suit against Heard and its surety, Travelers, was filed on August 28, 1981, more than one year after the registry of acceptance of the work. Hence, the demands against Heard and Travelers were properly dismissed as they were barred by the one-year prescription of La.R.S. 38:2247.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

WATSON, J., concurs but disagrees with the necessity for overruling Hauserman.

      . 440 So.2d 973 (La.App. 3d Cir.1983).

      . 445 So.2d 427 (La.1984).

      . 449 So.2d 1382 (La.App. 3d Cir.1984).

      . 457 So.2d 6 (La.1984).

      . Two certificates of substantial completion were issued by the Board. The first, issued on January 25, 1980, covered only a part of the total work to be performed under the contract. However, as Heard entered into one contract with the Board for all renovation and construction work to be performed on the hospital, we consider the second certificate of substantial completion, issued on May 9, 1980, to be controlling as far as the applicable notice and prescriptive provisions are concerned.

      . La.R.S. 38:2189.1 provides:

        Any action by the contractor on the contract or on the bond, or by the contractor or the surety or both on the bond furnished by the contractor, against the state, or any of its agencies, boards or subdivisions, all in connection with the construction, alteration, or repair of any public works let by the state or any of its agencies, boards, or subdivisions, shall prescribe five years from the completion, the substantial completion, as defined in R.S. 38:2241.1, or acceptance of such work, whichever occurs first, or of notice of default of the contractor or other termination of the contract, unless otherwise limited in this Chapter_ (Emphasis added.) Added by La. 1982 Acts No. 544 § 1.

      .La.R.S. 38:2242 provides in part:
      Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works ... may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recordation of claims, any payment made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claim....

      . The bond issued by Travelers contained a ninety (90) day notice requirement. Whether or not the notice requirements of La.R.S. 38:2247 can be extended by private agreement and whether notice would have been timely under the provisions of the bond need not be decided by us since Honeywell did not bring its action against Heard and Travelers within one year from the registry of acceptance.

      . The bond issued by Travelers contained a provision that arguably would have extended the one-year prescription of La.R.S. 38:2247. In E. L. Burns Co. v. Cashio, 302 So.2d 297 (La.1974), we held that a contractual extension of the one-year prescriptive period set forth in La.R.S. 38:2247 constituted an anticipatory renunciation of prescription as prescribed by La.Civ. Code art. 3449 and could not be given effect.


author: CALOGERO, Justice.

text:
    Henry A. SIBLEY, III, Curator of Jane Elizabeth Sibley, Interdict v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural & Mechanical College.
    No. 84-C-0571.
    Supreme Court of Louisiana.
    Jan. 14, 1985.

      David W. Robinson, Dué, Dodson, de-Gravelles, Robinson & Caskey, Steve Marks, Marks & Lear, Baton Rouge, for applicant.
    Vincent P. Fornias, Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, for respondent.
   CALOGERO, Justice.

In this medical malpractice case, relatives on behalf of Jane Sibley seek damages from the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, administrators of the LSU Medical Center in Shreveport, in excess of the $500,000 limitation of liability which is imposed by La.Rev.Stat. 40:1299.39(B). Neither the trial court nor the First Circuit Court of Appeal had any difficulty finding liability. In fact, liability was not an issue on appeal. Rather, plaintiff attacked the application and the constitutionality of La.Rev.Stat. 40:1299.39 et seq. Relying on their own earlier decision in Williams v. Lallie Kemp Charity Hospital, 428 So.2d 1000 (La.App. 1st Cir.1983), cert. denied 434 So.2d 1093 (La.1983), the First Circuit affirmed the district court and found the Act applicable to the state, and the limitation of liability constitutional.

Miss Sibley suffered severe brain damage as a result of cardio-pulmonary arrest while a patient in the psychiatric ward at LSU Medical Center in Shreveport in September of 1980. Prior to her admission to this teaching hospital, administered by the LSU Board of Supervisors, Miss Sibley had been a patient in a private psychiatric hospital, where she was diagnosed as having, and treated for, severe depression. Although she purportedly improved somewhat with this conservative treatment (counseling and psychotherapy without medication), for financial reasons, she was transferred to the public facility. At LSU Medical Center, she was re-diagnosed by the staff physician of the treatment team as psychotic, and anti-psychotic medications were administered. Side effects apparently triggered by the neuroleptic drugs were treated by other medication, which caused an anticho-linergic reaction, culminating (after 39 days in the hospital) in cardio-pulmonary arrest with resultant massive brain damage. Since then, Miss Sibley has been in intensive care at various hospitals — currently Baton Rouge General — and, at time of trial in January, 1983, her medical expenses had already exceeded $423,000. Testimony of attending nurses and physicians at Baton Rouge General indicates that Miss Sibley has made progress. This young woman who was preparing to enter college before her hospitalization, presently has an IQ of 77 and functions between 8 and 10 years in the intelligence area, with an estimated emotional age of 4 years. Although testimony indicates that she is a candidate for further rehabilitation and improvement and can expect to attain a normal life expectancy, Miss Sibley will not likely achieve any significant degree of self-sufficiency and the significant cost of a lifetime of custodial care remains ahead.

APPLICABILITY OF LA.REV.STAT. 40:1299.39

Plaintiff contends that whatever the constitutionality of La.Rev.Stat. 40:1299.39 and its $500,000 limitation, the act is simply not applicable as regards the liability of the State of Louisiana. She contends that that statute applies by its terms only to the health care providers therein designated, for there is no reference in the act to its coverage being extended to the state or the state institutions providing medical services.

The Court of Appeal dismissed plaintiffs argument by gleaning a legislative intent (to cloak the state with a $500,000 limitation) from broad public policy considerations (the medical malpractice crisis of the 1970’s which threatened continued medical care in both the public and private sectors) and an expansive interpretation of R.S. 40:1299.39A(l)’s definition of “person”. “Person” is defined in the act as “any individual acting in a professional capacity ... and shall include but not be limited to” physicians and other kinds of designated health care provider specialists. The Court of Appeal interpreted the language “but not be limited to” as an indication of the Legislature’s intent for the statute to provide broad coverage, including the State of Louisiana. While those reasons standing alone are not entirely convincing, we nonetheless agree with the Court of Appeal’s conclusion, with these additional reasons.

La.Rev.Stat. 40:1299.39, A through G, constitutes the entirety of Part XXI-A, “Malpractice Liability for State Services”, a division within Chapter 5 “Miscellaneous Health Provisions” (of Title 40). That very title of Part XXI-A, which prefaces R.S. 40:1299.39, relates to liability for state services, an indication that the section is not designedly applicable only to the health care providers listed in the definition of “persons” at 1299.39(a), but to all liability arising out of state services, including liability of the State of Louisiana. The title to Part XXI-A forms part of the law, as it was specifically included in the substance of Act 66 of 1976, an act later repeatedly amended and reenacted without deletion or omission of Part XXI’s title.

That malpractice claims against the state as well as against health care providers are covered by 1299.39, is clearly evident from subsection D which prescribes the procedure for the handling of all such claims. It provides that “[a]ll malpractice claims against the state shall be submitted to and administered by the Division of Administration.” (Emphasis provided)

And, most pointedly, subsection B, which imposes the limitation of liability, is very broad and general. It does not cloak only the health care providers specified in the Sec. 1299.39A(1) definition of “person”; rather it provides in no uncertain terms:

B. Limitation of liability. Notwithstanding any other provisions of the law to the contrary, no judgment shall -be rendered, and no settlement or compromise shall be entered into for the injury or death of any patient in any action or claim for an alleged act of malpractice in excess of five hundred thousand dollars plus interests and costs.

For these reasons and those given by the Court of Appeal, we Conclude that La.Rev. Stat. 40:1299.39, Malpractice Liability for State Services, is applicable to the state and therefore to those state agencies for which it is financially responsible.

ASSERTED THEORY OF CORPORATE NEGLIGENCE

Plaintiff’s contention is that her mistreatment occurred as a result of inherent weaknesses in a team system treatment approach utilized at this teaching hospital. It is urged that inadequacies in supervision, monitoring structures, techniques and practices, and consultation policies constituted independent or corporate negligence on the part of the state institution, which is not within the coverage of the statute.

The theory of corporate negligence would permit the plaintiff to seek damages because of the negligence of the hospital’s administrators, separate and apart from such defendants’ vicarious liability for the negligence of the hospital’s medical personnel. According to A. Nadel, “Hospital’s Liability for Negligence in Failing to Review or Supervise Treatment Given By Doctor, or to Require Consultation,” 12 A.L.R. 4th 57 (1982), this theory “recognizes the existence of a duty owed directly by a hospital to a patient in connection with the care and treatment given to him, and which accordingly holds that a hospital can be held liable for its own negligence....” The article continues, that “liability has been imposed on a hospital on the theory of independent negligence in failing to review, supervise, or require consultation about the treatment given by the physician where the situation indicates that the hospital had the opportunity for such review.”

However, we are not called upon to assess the liability of a hospital in the private sector, which might be held liable for its own negligence. We simply have to decide whether the defendant, LSU Board of Supervisors, or the State of Louisiana, has financial responsibility for malpractice claims against it. Since the LSU Board of Supervisors is a constitutionally created corporate body of the state formed to administer the institutions and programs within its system, we must conclude that it is an agency of the State of Louisiana. Because of that we do not see how it makes a difference whether plaintiff wants to assert the fault of the administrators rather than the administrators’ vicarious liability for the negligence of state medical personnel. The state and its agency, the LSU Board of Supervisors, are covered by the act.

SOVEREIGN IMMUNITY

Plaintiff contends that the limitation of liability statute applicable to the state (R.S. 40:1299.39) offends the limited Louisiana constitutional proscription against sovereign immunity.

Article XII, Section 10(A) of the Louisiana Constitution of 1974 provides:

Section 10. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

Plaintiff would have us read the constitutional proscription as not only denying the state immunity from suit and immunity from liability in contract or tort, but also as guaranteeing in such lawsuits against the state, such compensatory damages as were prevalent in the law (C.C. art. 2815 included), at the time of passage of the 1974 Louisiana Constitution. Plaintiff contends that any statute which reduces the value of an award against the state for damages operates unconstitutionally to relieve the state of a part of its liability, in violation of Article XII, Section 10A. In support of that argument plaintiff cites Segura v. Louisiana Architects Selection Board, 362 So.2d 498, 499 (La.1978). The Court of Appeal correctly responded when it noted that

Segura struck down the offending statute, LSA-R.S. 13:4521, only because it attempted to favor the state with a privilege, that is, exemption from payment of court costs, unavailable to other defendants in similar suits, not because it was “limiting” the state’s liability with respect to the plaintiff’s recovery to the full extent of his injury. 446 So.2d 760, 767 (La.App. 1st Cir.1983).

We would also point out that Article XII, Section 10(A) does not make the sweeping proscription for which plaintiff contends (i.e., statutes reducing recovery quantum offend Article XII, Section 10(A)), either explicitly or implicitly. Nor is that interpretation supported by the constitutional debates. Transcripts from the 1973 Constitutional Convention indicate that the original provision, tracking that of Article III, Section 35 of the 1921 Constitution, required legislative authorization before a lawsuit could be initiated against the state, its agencies or political subdivisions. Eight different amendments, however, each including the concept of a waiver or abolition of sovereign immunity, were offered in opposition to the committee proposal and rejected. On their ninth attempt, the delegates approved a limited waiver of sovereign immunity, a compromise which now comprises Article XII, Section 10 of the Louisiana Constitution. The transcripts indicate that the proponents of this waiver were primarily interested in eliminating the unnecessary, burdensome and costly first step of getting legislative approval in order to bring suit against the state or its subdivisions. Among those reciting this objective was the then Supreme Court Justice Albert Tate, Jr. who said:

The effect of the removal of a legislative judgment whether to permit someone to file a suit is simply to eliminate one step ... and it’s simply to let it go to the Court system ...
See State of Louisiana Constitutional Convention Verbatim Transcripts, July 26 and 27, Volume V, pages 397 through 433.

Therefore, we simply find no basis to support plaintiff’s contention that the Louisiana Constitution by denying the state immunity from suit in contract or tort or for injury to person or property, prohibits the Legislature’s limiting in any respect recoverable tort damages.

EQUAL PROTECTION AND DUE PROCESS

Plaintiff argues that modification or limitation of a cause of action may infringe on constitutional guarantees or violate constitutional prohibitions. More particularly, plaintiff asserts that this statute (La.Rev. Stat. 40:1299.39) and its counterpart in the Medical Malpractice Act (La.Rev.Stat. 1299.41) grant to a special elass of citizens (malfeasant doctors) an exclusive privilege or immunity by relieving them of a substantial part of their liability under La.C.C. art. 2315. Furthermore, it is argued, the limitation applicable to state medical services favors this class of citizens at the expense of those least able to afford the effect of this discrimination — the indigent who must utilize the services provided by these health care providers. On this basis, plaintiff urges that the statutory limitation must be subjected to strict scrutiny. Plaintiff would probably settle for a “means scrutiny” test, a middle tier between strict scrutiny and rational basis, as enunciated in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) in the assessment of these constitutional considerations. And she takes comfort in Detraz v. Fontana, 416 So.2d 1291 (La.1982), which presumably imposed something of a middle tier approach. The Detraz court asserted that statutes which affect the process of redress of injury in a discriminatory manner must be reasonable, not arbitrary, resting upon some ground of difference having a fair and substantial relation to the legislative objective. Plaintiff submits that the limitation of recovery, creating classifications of seriously injured medical tort victims versus those not as seriously injured (and victims of medical torts versus victims of other torts), is unreasonable and arbitrary and rests upon grounds of difference which have no fair and substantial relationship to the legislative objective.

Equal protection and due process guarantees of the state and federal constitutions, however, protect only against the violation of individual rights by unreasonable statutory limitations. In the area of equal protection, a two-stage process of analysis is employed. Initially, a determination is necessary as to whether the subject Act disadvantages a “suspect class” or infringes upon a fundamental right. If so, a strict scrutiny analysis is required; if not, it is only necessary to determine whether the act rationally furthers some legitimate, articulated state purpose or goal. Bazley v. Tortorich, 397 So.2d 475, 483 (La.1981). We reaffirm, just as in Baz-ley, that a victim’s right to sue in tort for full recovery for an injury is not a fundamental right. Classifications based on race, religion or political beliefs are, of course, absolutely prohibited, but other classifications are tested on a less rigorous basis, depending on the character of the classification involved and the strength of the state interest supporting the distinction. Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution of 1974, 43 La.L.Rev. 647, 670 (1983).

Obviously, this statute does not involve a classification prohibited by equal protection considerations. Nor does it limit the exercise of a fundamental constitutional right. Rights found to be fundamental include the following: freedom of expression and association, NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); right to vote and participate in the electoral process, Harper v. Virginia Board of Election, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); right to fairness in the criminal process, e.g., Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); right to fairness in procedures concerning governmental deprivations of life, liberty or property, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); right to privacy, e.g., Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). See generally, Nowak, Rotunda & Young, Constitutional Law, 418 (1978). The right to full tort recovery which plaintiff seeks to exercise is not within these fundamental categories.

Furthermore, we disagree that De-traz is an analogous situation and thus see no basis for the application of a middle-ground “means scrutiny” test to the Act. The court’s decision in Detraz was required by the recognition that the unquestioned motive behind that statute made it constitutionally infirm. And, if a mere rational basis analysis is applicable, the United States Supreme Court has declared that the constitutional safeguard of equal protection is invoked “only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan, 366 U.S. at 425, 81 S.Ct. at 1105. Such a statement confirms the obvious fact that the legislative process is a difficult task and legislative solutions will be accorded great latitude and deference by the judiciary when dealing with an equal protection assessment. Assuming a legitimate state objective (and assuring the continued availability of quality health care is surely legitimate), the question is not “[wjhether in fact the Act will promote (the legislature’s objective) [but] the Equal Protection Clause is satisfied by our conclusion that the Legislature could rationally have decided that (it) ... might_” Minn. v. Cloverleaf Creamery, 449 U.S. 456, 466, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981).

Despite plaintiff’s assertion that courts of more than one-half of the states with statutes limiting medical malpractice recoveries have refused to uphold their constitutionality or have declared this type of legislation violative of the equal protection guarantees of their state, this does not appear to be the case. Although the California Supreme Court originally found its limitation on payment of future damages to be constitutionally infirm, on rehearing in July, 1984, it reversed its earlier decision and stated that “[s]o long as the measure is rationally related to a legitimate state interest, policy determinations as to the need for, and desirability of, the enactment are for the Legislature.” Even more significantly, the Supreme Court of Indiana upheld its statute, upon which the Louisiana Act was probably modelled, in the face of constitutional challenge. Johnson v. St. Vincent Hospital, 273 Ind. 374, 404 N.E.2d 585 (1980). In so doing, the Indiana Supreme Court relied heavily on Duke Power Co. v. Carolina Environmental Study, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). Duke Power Co. involved a dollar limitation upon the recovery in cases of nuclear accidents resulting from the operation of federally licensed nuclear plants. The stated purpose of the Price-Anderson Act was to protect the public and encourage the development of the nuclear energy industry. Analogously, the Louisiana Legislature acted to insure that the general public would be protected from the consequences of what they perceived to be a malpractice insurance crisis and assured of continued affordable health care. In summary, plaintiff cites only one case which we can conclude supports his claim that a court of another jurisdiction has refused to uphold the constitutionality of a statute limiting medical malpractice recoveries as violative of equal protection guarantees. To the contrary, however, we have the high courts of Indiana and California, as well as the United States Supreme Court, upholding a dollar limitation upon recovery.

On the basis of the above authority, we conclude that the Act need only be subjected to a rational basis analysis. Such an analysis does not render La.Rev. Stat. 40:1299.39 constitutionally infirm.

Plaintiff also attacks La.Rev.Stat. 40:1299.39 as a violation of Art. I, Sec. 22 of the State Constitution, which deals with access to the courts, a matter of procedural due process. Art. I, Sec. 22 provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to his person, property, reputation, or other rights.

Plaintiff would interpret this provision as requiring a remedy unrestricted by any unreasonable or arbitrary limitation or obstruction and would demand heightened judicial scrutiny with regard to a statute’s achievement of a stated legislative goal since the provision has constitutional sanctity.

This Court, however, has already set the analytical standard to be applied. In Baz-ley and Everett v. Goldman, 359 So.2d 1256 (La.1970), we said:

This provision, like the Fourteenth Amendment to the United States Constitution, protects an individual’s access to the judicial process. Where access to the judicial process is not essential to the exercise of a fundamental constitutional right, the legislature is free to allocate access to the judicial machinery or any system or classification which is not totally arbitrary. Bazley, 397 So.2d at 485.

We concluded in Everett v. Goldman that the right of malpractice claimants to sue for damages caused them by medical professionals does not involve a fundamental constitution right and, as such, is tested only by the lesser standard of rational basis. Everett, 359 So.2d at 1268-69. We agree with the Court of Appeal conclusion that a limitation of liability on medical malpractice claims is at least reasonably related to the state’s attempt to minimize its costs and maintain its medical services to the citizens of Louisiana at low or no costs.

Similarly, an analysis of statutes for substantive due process reveals that cases involving economic and social welfare legislation are to be distinguished from cases involving fundamental civil rights. A statute enacted to limit liability on malpractice claims for state medical services cannot be classified as an infringement of a fundamental civil right. For legislation involving economic and social welfare interests, the test of substantive due process is whether the regulation is reasonable in relation to the goal sought to be attained and is adopted in the interest of the community as a whole. Everett v. Goldman, 359 So.2d 1256, 1268 (La.1978) (citing West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937)). Chief Justice Burger, writing for the United States Supreme Court in Duke Power Co. found a limitation of liability provision to be a classic example of a legislative effort to structure and accommodate the burdens and benefits of economic life. As has been stated by this Court in past decisions, our state and federal constitutions do not empower us to second-guess legislators in their heavy responsibility of weighing competing interests. We are not asked to decide whether this or any legislation is wise or best fulfills the relevant social and economic objectives that our state might ideally espouse. Thus, we can only conclude that a limitation of liability on state medical malpractice claims is reasonably related to the goal of assuring the availability of affordable public health care to citizens of this state.

Decree

We find La.Rev.Stat. 40:1299.39 to be applicable to the state and its agencies; its provisions do not unconstitutionally violate either the equal protection or due process clauses of the state or federal constitutions, nor Article XII, Section 10 of the Louisiana Constitution of 1974, the provision on sovereign immunity. We therefore affirm the judgment of the trial court and the Court of Appeal.

JUDGMENTS OF THE TRIAL COURT AND THE COURT OF APPEAL AFFIRMED.

WATSON, J., dissents.

LEMMON, J., dissents on the equal protection issue.

      . These neuroleptic drugs chemically affect the central nervous system, altering thought processes and producing dramatic physical affects in the body.

      . ACT No. 66
      tenate Bill No. 801. By: Mr. Williamson, Chairman, Senate Committee on Health and Welfare, etc.
      AN ACT
      To amend Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950 to add thereto a new part ....
      Be it enacted by the Legislature of Louisiana:
      Section 1. Part XXI — A of Chapter 5 of Title 40 of the Louisiana Revised Statutes of 1950, comprising Section 1299.39 thereof, is hereby enacted to read as follows:

      PART XXI-A. MALPRACTICE LIABILITY FOR STATE SERVICES
      1299.39. Medical malpractice liability ... (emphasis provided)

      . See, e.g., Hargrave, “'Statutory' and ‘Hortatory’ Provisions of the Louisiana Constitution of 1974”, 43 La.L.Rev. 647, 650 (1983):
      “In short, the convention did not adopt broad sovereign immunity in all suits, but did assume that sovereign immunity existed in some areas. These areas were never defined.”
      ******
      "One might wonder why the convention did not clearly abrogate all sovereign immunity. The simple answer is that there were not enough votes to do so — attempts to do so were rejected.”

      . In Detraz, this Court found unconstitutional a statute granting public officials the right to require persons bringing suit against them to furnish a bond for attorney fees before proceeding with trial. It should be noted that the statute at issue created a classification of governmental tortfeasors entitled to demand such a bond, whereas private tortfeasors could not, and that the result was to make it extremely costly, if not prohibitive, for minority groups or individuals to bring suit against public officials such as school board members, police officers, or police jurors for the redress of grievances, suffered, in the case there under consideration, because of race. Quoting McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), this Court noted that wide discretion is normally afforded legislative classifications, but added that racial classifications are suspect and subject to the "most rigid scrutiny.” Detraz v. Fontana, 416 So.2d at 1294 (quoting Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)).

      . American Bank & Trust Co. v. Community Hospital, 36 Cal.3d 359, 204 Cal.Rptr. 671, 683 P.2d 670 (S.Ct.Calif.1984).

      . According to Comment, 50 Tul.L.Rev. 655 (1976) and a comparison of the statutes, sections of the Indiana plan, Ind.Ann.Stat. §§ 16— 9.5 et seq. (Burns Supp.1975), were enacted verbatim into Louisiana law.

      . Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980).

      .Several of the cases cited by the plaintiff in support of this proposition were not the highest courts of the jurisdiction. Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903 (Ohio C.P. Montgomery Cty.1976); Graley v. Satayatham, 343 N.E.2d 832 (Ohio C.P. Cuyahoga Cty.1976). Others made a specific finding of fact that no actual medical malpractice crisis existed in those states and therefore the legislative solution obviously could not further the stated aims of the statutes. Arneson v. Olson, 270 N.W.2d 125 (N.D.1978); Boucher v. Sayeed, 459 A.2d 87 (R.I.1983). For instance, evidence had been presented in the North Dakota case to establish that the state had the sixth lowest insurance rates in the country for medical malpractice insurance and that one of the largest insurance companies was accepting application for malpractice insurance at lower rates. The Idaho court applied a heightened level of scrutiny (which we have not found to be a valid method of analysis for this type of social economic legislation) in reviewing its statute, and even so, simply remanded to the district court for further factual findings. Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). In Illinois, the high court struck down a recovery limitation on medical malpractice claims, but the decision was based on a violation of a provision of the Illinois constitution prohibiting special laws. Wright v. Central Dupage Hospital Assoc., 63 Ill.2d 313, 347 N.E.2d 736 (1976). Since the Louisiana Constitution does not contain this particular provision, there can be no claim that a similar result should be reached in our courts.


author: PER CURIAM.

text:
    STATE of Louisiana v. Otis BATES.
    No. 84-KA-0406.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Asst. Dist. Atty., for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, for defendant-appellant.
   PER CURIAM.

Defendant’s conviction for possession of pentazocine in violation of La.R.S. 40:969 is affirmed. His sentence of 20 years at hard labor, imposed after the trial court adjudicated him a third offender, La.R.S. 15:529.-1, is, however, vacated and this case is remanded for resentencing. At the time of the offense in 1980, pentazocine occupied Schedule IV in La.R.S. 40:964, as amended by Acts 1979, No. 659, and carried a maximum penalty of 5 years at hard labor for a first offender, or 10 years at hard labor for a second or third offender sentenced under La.R.S. 15:529.1. Defendant’s multiple offender sentence is therefore illegal and subject to correction at any time. La.C. Cr.P. art. 882; State v. Thomas, 447 So.2d 1053 (La.1984); State v. Wiggins, 432 So.2d 234 (La.1983).

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.