author:
PER CURIAM.
     WEIMER, J.,

text:
    STATE of Louisiana v. Terrence C. HALL.
    No. 2009-OK-2660.
    Supreme Court of Louisiana.
    Oct. 19, 2010.

      James D. Caldwell, Attorney General, Paul D. Connick, Jr., Dist. Atty., Desired Marie Valenti, Terry Michael Boudreaux, Asst. Dist. Attys., for Applicant.
    Joseph Anthony Marino, Jr., Gretna, for Respondent.
   PER CURIAM.

We granted the writ application for the sole issue of deciding whether a notice to seek a writ of review made orally by the State in open court should be treated as a motion for appeal for timeliness purposes pursuant to Louisiana Code of Criminal Procedure article 914. However, after considering the record and the oral argument before the Court, it was discovered the trial judge set a return date for the writ, by which the State did not comply. Louisiana Code of Criminal Procedure article 915 instructs “the return date shall be seventy-five days from the date the motion for appeal is granted, unless the trial judge fixes a lesser period.” Therefore, even if we were to treat the notice to seek a writ as a timely-filed motion for appeal, the State did not adhere to the lesser period fixed by the trial judge. Accordingly, we recall the writ as improvidently granted.

WRIT GRANT RECALLED; WRIT DENIED.

WEIMER, J., concurs in part and dissents in part.

WEIMER, J.,

concurring in part and dissenting in part.

|jl concur in the ultimate disposition of this matter, but would not recall the writ. As the majority notes, the record reflects that the trial judge set a return date with which the State did not comply. I would resolve the case on that basis.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.


source: Caselaw Access Project

author:
PER CURIAM.
     WEIMER, J., VICTORY, J.,

license: Public Domain

text:
    Dennis ALBRITTON, Mona Albritton and Timothy Albritton o/b/o Donald Albritton (D) v. Greg SALARD, M.D., John Reeves, M.D. and Glenwood Regional Medical Center.
    No. 2009-CC-2645.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Hudson, Potts & Bernstein, LLP, Gordon L. James, Amanda Jill Futch, Monroe, for Applicant.
    Nelson & Hammons, APLC, John Layne Hammmons, Cornell Rushing Flournoy, Shreveport, Roedel, Parsons, Koch, Blache, Balhoff & MeCollister, David Alva Woolridge, Jr., Carlton Jones, III, Baton Rouge, for Respondent.
   PER CURIAM.

We granted defendant’s application for a writ of certiorari in this case on April 23, 2010. After hearing oral arguments and reviewing the record of the matter, we conclude the judgment below does not require the exercise of this court’s supervisory authority. Accordingly, we recall our order of April 23, 2010 as improvidently granted, and we deny defendant’s writ application.

VICTORY and WEIMER, JJ., dissents and assign reasons.

WEIMER, J.,

dissenting.

hi respectfully dissent. Although I believe the trial court and court of appeal did not err, I would not recall the writ after it had been granted.

VICTORY, J.,

dissenting.

hi dissent from the per curiam opinion recalling our prior grant of defendant’s writ application. In my view, the Court should have authored a full opinion to consider the issues presented in this case.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.


author: PER CURIAM.

text:
    STATE of Louisiana v. Terry L. CLARKSON.
    No. 2010-KK-1625.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   PER CURIAM.

h Granted. The order of the court of appeal is vacated to the extent that it determined that the non-capital offenses charged in the grand jury indictment had prescribed as a matter of La.C.Cr.P. art. 578(A)(2), and the trial court’s judgment denying defendant’s motion to quash in its entirety is reinstated.

In the grand jury indictment returned on November 26, 2007, the state joined a capital charge of first-degree murder with five other counts charging non-capital felonies. The joinder was improper at the outset. State v. Strickland, 94-0025, p. 10 (La.11/1/96), 683 So.2d 218, 225 (To the extent that a capital charge requires a unanimous 12-person verdict and a non-capital charge necessarily punishable at hard labor requires a concurrence only of 10 of 12 jurors, “the joinder of capital and non-capital charges in a single indictment violates the terms of La.C.Cr.P. art. 493 and La. Const, art. 1, § 17.”) (citing State v. McZeal, 352 So.2d 592, 601 (La.1977)). However, defendant did not move immediately to |2quash the indictment on grounds of misjoinder of offenses, La. C.Cr.P. art. 495, and the state thereafter elected to forego capital punishment on the count of first degree murder. The election had the effect of rendering joinder of the offenses proper under La.C.Cr.P. art. 493.2, which permits joinder of non-capital felonies, even if they are not separately triable by the same mode of trial, provided that trial of the joined offenses is conducted before a jury of 12 persons, 10 of whom must concur to render a lawful verdict. See La.R.S. 14:30(0(2) (2007 La. Acts 125) (“If the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The provisions of C.Cr.P. Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.”); La.C.Cr.P. art. 782(A) (“Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”).

However, the state’s election to forego capital punishment did not change the time period for bringing the charge of first degree murder to trial, or three years from institution of prosecution, “in capital cases.” La.C.Cr.P. art. 578(A)(1). That charge began as a capital prosecution, and “[t]he offense charged shall determine the applicable limitation.” La.C.Cr.P. art. 578(B). As a result, all of the charges now properly joined with the first-degree murder count in a single proceeding are subject to the three-year time limit for the case, although if charged separately at the outset, they were subject to the two-year time limit imposed by La.C.Cr.P. art. 578(A)(2) for trial of non-capital felonies. The trial court therefore properly denied defendant’s motion to'quash on March 4, 2010, several months before the three-year limit on the prosecution was set to expire.


text:
    STATE of Louisiana v. Anthony MORGAN, et al.
    No. 10-KK-1728.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

| iWrit granted; relief denied. We agree with the Fourth Circuit that the trial court erred in denying defendants’ motion for release or remand to the Department of Health and Hospitals pursuant to La. C.Cr.P. art. 648(B)(3), as amended by 2008 La. Acts 861, and therefore affirm the court of appeal’s order that the defendants are remanded “to the custody of the Department of Health and Hospitals for further proceedings consistent with the current La.Code Crim. Proc. art. 648(B)(3).” State v. Morgan, et al., 09-1395, p. 11 (La.App. 4th Cir.6/23/10), 44 So.3d 292.

However, the 2008 amendment of art. 648 did not by implication repeal R.S. 13:1336(0(2), 2005 La. Acts 174, which provides the Criminal District Court in Orleans Parish with exclusive jurisdiction over civil commitment proceedings involving defendants found by that court, in the exercise of its criminal jurisdiction, incompetent to stand trial, not likely to regain their competency, and who are a danger | ato themselves or others. Cf. State v. Piazza, 596 So.2d 817, 819 (La.1992)(“[T]here is a presumption against implied repeal, based on the theory that the legislature envisions the whole body of law when it enacts new legislation.”). In that same act, the legislature also enacted R.S. 13:1338(A), authorizing transfer of any pending commitment proceeding filed in Civil District Court in Orleans Parish, involving a defendant charged in pending criminal cases in the Criminal District Court found to be permanently incompetent and a danger to themselves or others, to the Criminal District Court, to “hear and dispose of the case with the same legal effect as if it had been instituted in that court in the first instance.” The legislature thereby gave the Criminal District Court in Orleans Parish limited civil jurisdiction and venue to conduct commitment proceedings under Title 28 of the Louisiana Revised Statutes of 1950.

The legislature has set a date specific for repeal of R.S. 13:1336 and R.S. 13:1338 in their entirety, December 31, 2014, also the effective date of 2006 La. Acts 621, consolidating the civil and criminal district courts in Orleans Parish. In the interim, any civil commitment proceedings involving those permanently incompetent defendants who are a danger to themselves or others, as determined by the Criminal District Court exercising its jurisdiction over pending criminal cases, shall be instituted by the Department of Health Hospitals, pursuant to the provisions of Title 28, in the Criminal District Court for Orleans Parish, exercising its limited civil jurisdiction over such proceedings as a matter of R.S. 13:1336(0(2).

      . Kimball, C.J., not participating.


text:
    STATE of Louisiana v. Terri COX.
    No. 2010-KK-2072.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

l,The motion for new trial is based on the supposition that injustice has been done to the defendant, and, unless such injustice is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded. La.Code Crim. Proc. art. 851. The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Humphrey, 445 So.2d 1155, 1160 (La.1984).

In this aggravated rape case, the trial judge stated that he granted the motion for new trial because he believed that his decision to allow the five-year-old victim to testify via closed-circuit television under Louisiana Revised Statutes 15:288 violated the defendant’s right to confront the witness. The Confrontation Clause does not guarantee criminal defendants an absolute right to meet their accusers face-to-face, and the state’s interest in protecting child witnesses from the trauma of testifying in a child abuse case justifies a procedure such as use of closed-circuit television when the state has made an adequate showing of necessity. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

The trial judge originally found, based upon expert testimony, that the victim would be likely to suffer serious emotional distress if forced to give testimony in open court and that the victim could not reasonably communicate her testimony to the court 12or jury without using closed-circuit television, as required by Louisiana Revised Statutes 15:283. The trial judge granted the motion for new trial on his observation that the child victim testified outside the courtroom and away from the presence of her mother, the defendant, without serious emotional distress. The purpose of the law is to allow witnesses to testify without suffering serious emotional distress. The fact that the law worked as intended does not provide a defendant with evidence that “an injustice has been done.” The defendant was able to confront the child victim through cross-examination via closed-circuit television, as allowed by Louisiana law and both the Louisiana and Federal Constitutions. The trial judge abused his discretion in granting the defendant’s motion for new trial.

REVERSED.

       Chief Justice Kimball not participating in this opinion.


text:
    In re Dreola M. GUYTON.
    No. 2010-OB-2416.
    Supreme Court of Louisiana.
    Nov. 22, 2010.
   ORDER

The Office of Disciplinary Counsel (“ODC”) has filed formal charges against respondent alleging that she committed serious attorney misconduct, the most significant of which involves commingling and conversion of client funds and failing to maintain a client trust account. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Dreola M. Guyton, Louisiana Bar Roll number 17628, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Dreola M. Guyton for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Dreola M. Guyton shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which she is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which she is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

FOR THE COURT:

/s/ Jeannette T. Knoll Justice, Supreme Court of Louisiana


text:
    In re Kenya Lavender MARSHALL.
    No. 2010-B-2117.
    Supreme Court of Louisiana.
    Nov. 24, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iPursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Kenya Lavender Marshall, an attorney licensed to practice law in the States of Louisiana and Alabama, based upon an interim suspension imposed by the Disciplinary Commission of the Alabama State Bar.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On August 3, 2010, the Disciplinary Commission of the Alabama State Bar issued an order immediately suspending respondent’s license to practice law pending a final determination of disciplinary proceedings against her. In the Matter of Kenya Lavender Marshall, an attorney at law in the State of Alabama, Pet. No. 2010-1205. In its order, the Disciplinary Commission concluded that respondent had engaged in professional misconduct demonstrating that she poses a significant threat of harm to the public, based upon evidence that respondent had recently misappropriated client funds by using settlement proceeds to pay for her own personal expenses rather than to pay outstanding medical liens on behalf of her client.

|2After receiving notice of the order of interim suspension, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Disciplinary Commission of the Alabama State Bar was attached to the motion. On September 21, 2010, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

Based upon evidence that respondent converted client funds in a personal injury matter, the Disciplinary Commission of the Alabama State Bar has suspended her from the practice of law in that state pending further proceedings. The imposition of identical discipline in Louisiana is clearly appropriate, and there is no suggestion otherwise upon the face of the record. Accordingly, we will impose the same discipline against respondent as was imposed in Alabama.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Kenya Lavender Marshall, Louisiana Bar Roll number 29327, be and she hereby is suspended from the practice of law on an interim basis, pending further orders of this court.

       Chief Justice Kimball not participating in the opinion.

      . Pursuant to Rule 20 of the Alabama Rules of Disciplinary Procedure, the Disciplinary Commission of the Alabama State Bar has the authority to issue orders of interim suspension.


text:
    In re John W. MILTON.
    No. 2010-B-2409.
    Supreme Court of Louisiana.
    Nov. 24, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent maintained incomplete records of his client trust account, which resulted in a negligent commingling and conversion of funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that John W. Milton, Louisiana Bar Roll number 19066, be suspended from the practice of law for a period of one year and one day, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Jarrett BRINSON.
    No. 2010-KK-2386.
    Supreme Court of Louisiana.
    Oct. 25, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 497-262; to the Court of Appeal, Fourth Circuit, No. 2010-K-1462.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Brett COX.
    No. 2010-KK-2280.
    Supreme Court of Louisiana.
    Oct. 25, 2010.
   In re Cox, Brett; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 495-253; to the Court of Appeal, Fourth Circuit, No. 2010-K-1251.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Charles GREENWOOD.
    No. 2010-KK-2359.
    Supreme Court of Louisiana.
    Oct. 25, 2010.
   In re Greenwood, Charles; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 09-6549; to the Court of Appeal, Fifth Circuit, No. 10-K-901.

Granted. The district court’s ruling granting the defendant’s motion in limine is reversed. The evidence sought to be admitted is admissible as other crimes, wrongs or acts under La.Code Evid. Art. 404(B), and is relevant to prove the defendant’s requisite knowledge and intent with respect to the charged offenses, La.Rev. Stat. 14:95.1 and La.Rev.Stat. 40:967(F). Furthermore, under La.Code Evid. art. 403, the probative value is not substantially outweighed by the danger of unfair prejudice.

JOHNSON and WEIMER, JJ., would deny.


text:
    STATE of Louisiana v. Larry LOYA.
    No. 2010-KK-2350.
    Supreme Court of Louisiana.
    Oct. 27, 2010.
   In re Loya, Larry; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, Nos. 3385-87, 7371-87; to the Court of Appeal, Third Circuit, No. KW 10-01080.

Denied.


text:
    STATE of Louisiana v. Michael BROWN.
    No. 2010-KK-2285.
    Supreme Court of Louisiana.
    Oct. 27, 2010.
   In re Brown, Michael; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. C, No. 10-CR-000001; to the Court of Appeal, First Circuit, No. 2010 KW 1548.

Denied.

WEIMER, J., recused.


text:
    Darlene WASHINGTON-WAPEGAN, et al. v. CITY OF NEW ORLEANS.
    No. 2010-CC-2297.
    Supreme Court of Louisiana.
    Oct. 27, 2010.
   In re City of New Orleans; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2010-9732; to the Court of Appeal, Fourth Circuit, No. 2010-C-1399.

Recall Stay. Writ denied.


text:
    STATE of Louisiana v. Edon LEVINE.
    No. 2010-KK-2170.
    Supreme Court of Louisiana.
    Oct. 28, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 496-930; to the Court of Appeal, Fourth Circuit, No. 2010-K-1056.

Denied.

VICTORY, GUIDRY and CLARK, JJ„ would grant.


text:
    STATE of Louisiana v. William YANCY.
    No. 2010-KK-2435.
    Supreme Court of Louisiana.
    Oct. 28, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 491-632; to the Court of Appeal, Fourth Circuit, No. 2010-K-1520.

Denied.


text:
    STATE ex rel. Anthony JOHNSON v. STATE of Louisiana.
    No. 2009-KH-2291.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Johnson, Anthony; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 02-06-0296; to the Court of Appeal, First Circuit, No. 2009 KW 1240.

Writ granted in part; otherwise denied. The district court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, Section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. In all other respects, the application is denied.

CLARK, J., would deny.


text:
    STATE of Louisiana v. Vernon KENNEDY.
    No. 2010-KK-2181.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 11-09-714; to the Court of Appeal, First Circuit, No. 2010 KW 1353.

Denied.

KNOLL, GUIDRY and CLARK, JJ., would grant.


text:
    STATE of Louisiana v. Michael ROTHMAN.
    No. 2010-KK-1898.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Rothman, Michael; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, Denham Springs City Court, Nos. 242697, 242698, 242699; to the Court of Appeal, First Circuit, No. 2010 KW 0880.

Denied.


text:
    Duane BARBER v. Jacob RUSSELL, et al.
    No. 2010-CC-1887.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Barber, Duane; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 07-14647; to the Court of Appeal, Fourth Circuit, No. 2010-C-0695.

Denied.


text:
    Peggy E. ACOSTA, et al. v. Kevin ELLIOT, et al.
    No. 2010-CC-1890.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Essex Insurance Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 09-2248; to the Court of Appeal, Fourth Circuit, No. 2010-C-0675.

Denied.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Layman FOSTER.
    No. 2010-KK-1891.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Foster, Layman; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 488-188; to the Court of Appeal, Fourth Circuit, No. 2010-K-0521.

Denied.


text:
    STATE of Louisiana v. Alphonso WILLIAMS.
    No. 2010-KK-1842.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Williams, Alphonso; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 4, No. 281,292; to the Court of Appeal, Second Circuit, No. 45,-807-KW.

Denied.


text:
    Patrick Craig MORROW, Jr. and Nicole B. Morrow v. WELLINGTON INSURANCE COMPANY, et al.
    No. 2010-CC-1845.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Catlin Specialty Insurance Company; Wellington Insurance Company et al; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. B, No. 08-C^342-B; to the Court of Appeal, Third Circuit, No. CW 10-00538.

Denied.


text:
    Williams E. PETERS, Individually and on Behalf of the Minor Children, Adrian Morgan Brown, and Jacob Ryan Brown v. ALLEN PARISH SCHOOL BOARD, et al.
    No. 2010-CC-1880.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Allen Parish School Board et al.; Louisiana Public School Risk Management Agency; Thompson, Linda; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Allen, 33rd Judicial District Court Div. A, No. C-2005-603; to the Court of Appeal, Third Circuit, No. CW 10-00565.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Dylan R. CHARLES, et al. v. CANAL INDEMNITY COMPANY, et al.
    No. 2010-CC-1830.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Canal Indemnity Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 20081470; to the Court of Appeal, Third Circuit, No. CW 10-00548.

Denied.


text:
    STATE of Louisiana v. Cathy BENNETT.
    No. 2010-KK-1827.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Bennett, Cathy; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. B, Nos. 023845, 92899; to the Court of Appeal, First Circuit, No. 2010 KW 0729.

Denied.


text:
    RFP, INC. v. MORGAN BUILDINGS & SPAS, INC.
    No. 2010-CC-1824.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Morgan Buildings & Spas Inc.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. A, No. 76238-A; to the Court of Appeal, Third Circuit, No. CW 10-00621.

Denied.


text:
    Richard L. REYNOLDS v. Robert BORDELON III, Robert Bordelon Jr., Usagencies Casualty Insurance Company, Automobile Club Inter-Insurance Exchange, and/or Called Auto Club Family Insurance d/b/a “Triple A Insurance,” Nissan North America with Nissan being a Parent Company of Infinity Division of North America, Inc., a Luxury Car Division of Nissan Motors, Insurance Auto Auctions Corp., ABC Insurance, DEF Insurance Company, XYZ Insurance Company.
    No. 2010-CC-1711.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Insurance Auto Auctions Corp.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2009-11451; to the Court of Appeal, First Circuit, No. 2010 CW 0227.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Richard L. REYNOLDS v. Robert BORDELON III, Robert Bordelon Jr., USAgencies Casualty Insurance Company, Automobile Club Inter-Insurance Exchange, and/or Called Auto Club Family Insurance d/b/a “Triple A Insurance,” Nissan North America with Nissan Being a Parent Company of Infinity Division of North America, Inc., A Luxury Car Division of Nissan Motors, Insurance Auto Auctions Corp., ABC Insurance, DEF Insurance Company, and XYZ Insurance Company.
    No. 2010-CC-1719.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Automobile Club Inter-Insurance Exchange; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2009-11451; to the Court of Appeal, First Circuit, No. 2010 CW 0379.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Jamall ARMSTEAD v. Burl CAIN, Warden, Louisiana State Penitentiary.
    No. 2010-KP-1033.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Armstead, Jamall; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 03-2592; to the Court of Appeal, Fifth Circuit, No. 10-KH-148.

Denied.


text:
    STATE of Louisiana v. Kerry MYERS.
    No. 2010-KP-0770.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Myers, Kerry; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 87-3280; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-902, 09-KH-345.

Denied.


text:
    STATE of Louisiana v. Robert Ernest MACK, Jr.
    No. 2010-KP-0766.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Mack Jr., Robert Ernest; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caldwell, 37th Judicial District Court Div., No. 67656; to the Court of Appeal, Second Circuit, No. 45434-KW.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Dylan J. FAZZIO.
    No. 2010-K-0756.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Fazzio, Dylan J.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 555260; to the Court of Appeal, Fifth Circuit, No. 09-KH-1055.

Denied.


text:
    STATE of Louisiana v. John DEVILLIER.
    No. 2010-KO-0742.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Devillier, John; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 6106-06; to the Court of Appeal, Third Circuit, No. 09-995.

Denied.


text:
    STATE ex rel. Ira Joe MIMS v. STATE of Louisiana.
    No. 2009-KH-2497.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Mims, Ira Joe; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. No. 129,511B; to the Court of Appeal, Second Circuit, No. KH 09-44967.

Denied. Untimely, non-eognizable, and repetitive. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; cf. La. C.Cr.P. art. 930.4(D).

VICTORY, J., recused.


text:
    STATE ex rel. Ronald WALTON v. STATE of Louisiana.
    No. 2009-OK-2495.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Walton, Ronald; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lasalle, 28th Judicial District Court Div 0, No. 70,802; to the Court of Appeal, Third Circuit, Nos. 09 00682-KH, KH 09-00709.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Gregg STANLEY v. STATE of Louisiana.
    No. 2009-KH-2494.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Stanley, Gregg; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 97-3635; to the Court of Appeal, Fifth Circuit, No. 09-WR-227.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Anthony JEFFERSON v. STATE of Louisiana.
    No. 2009-KH-2484.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Jefferson, Anthony; —Plaintiff; Applying For Supervisory and/cr Remedial Writs, Parish of Jefferson, to the Court of Appeal, Fifth Circuit, Nos. 08-WR-910, 08-KH-1252.

Denied.


text:
    STATE ex rel. William PECK v. STATE of Louisiana.
    No. 2009-KH-2483.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Peck, William; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 372-794; to the Court of Appeal, Fourth Circuit, No. 2009-K-1222.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Dwayne SIMMS v. STATE of Louisiana.
    No. 2009-KH-2481.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Simms, Dwayne; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 00-6313; to the Court of Appeal, Fifth Circuit, No. 08-WR-928.

Denied.


text:
    STATE ex rel. Jeromie Alan BENSON v. STATE of Louisiana.
    No. 2009-KH-2480.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Benson, Jeromie Alan; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 05-F3114; to the Court of Appeal, Second Circuit, No. 44,945-KH.

Denied.


text:
    STATE ex rel. Lionel EDWARDS v. STATE of Louisiana.
    No. 2009-KH-2474.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Edwards, Lionel; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 80-1261.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 93C.4(D).


text:
    STATE ex rel. Kevin STEWART v. STATE of Louisiana.
    No. 2009-KH-2473.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Stewart, Kevin P.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 06-5195; to the Court of Appeal, Fifth Circuit, No. 09-KH-763.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Austin DYER.
    No. 2009-KP-2460.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Dyer, Austin; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 98-4147; to the Court of Appeal, Fifth Circuit, No. 09-WR-629.

Denied.


text:
    STATE ex rel. Michel DIXON v. STATE of Louisiana.
    No. 2009-KH-2443.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Dixon, Michel; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 39,136; to the Court of Appeal, First Circuit, No. 2009 CW 1694.

Denied.


text:
    STATE ex rel. Larry B. JONES v. STATE of Louisiana.
    No. 2009-KH-2442.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Jones, Larry B.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 386-088; to the Court of Appeal, Fourth Circuit, No. 2009-K-1318.

Denied. Untimely and not cognizable on collateral review. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana v. Jason MATTHIS.
    No. 2009-KP-2440.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Matthis, Jason; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 405-829; to the Court of Appeal, Fourth Circuit, No. 2009-K-1213.

Denied.


text:
    STATE ex rel. Daniel TAYLOR, Jr. v. STATE of Louisiana.
    No. 2009-KH-2438.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Taylor Jr., Daniel; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. F, No. 04-CR-1106; to the Court of Appeal, Third Circuit, No. KH 09-00702.

Denied.


text:
    STATE ex rel. Arthur Stephens CAMPBELL v. STATE of Louisiana.
    No. 2009-KH-2436.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Campbell, Arthur Stephens; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 238,185; to the Court of Appeal, Second Circuit, No. 45,017-KH.

Denied.


text:
    STATE ex rel. Bladimir Antonio Lazo OROZCO v. STATE of Louisiana.
    No. 2009-KH-2435.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Orozco, Bladimir Antonio Lazo; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 01-06-0416; to the Court of Appeal, First Circuit, No. 2009 KW1430.

Denied.


text:
    STATE ex rel. Charlonda HYMES v. STATE of Louisiana.
    No. 2009-KH-2430.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Hymes, Charlonda; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 88-3779; to the Court of Appeal, Fifth Circuit, No. 08-WR-924.

Denied.


text:
    STATE of Louisiana v. Emanuel A. JOHNSON.
    No. 2009-KP-2375.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re State of Louisiana; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 05-F0017; to the Court of Appeal, Second Circuit, No. 45,023-KH.

Denied.


text:
    STATE of Louisiana v. Tony Lavelle HUNTER.
    No. 2009-KP-2212.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Hunter, Tony L.; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 02-F-2021; to the Court of Appeal, Second Circuit, No. 44992-KW.

Denied.


text:
    Jose Munoz MARTINEZ v. REPFUND HAYWOOD APARTMENTS, L.L.C. Repipmd, Inc., Entergy Louisiana, L.L.C. and State Roofing Company, Inc.
    No. 2010-CC-2357.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re State Roofing Company, Inc.; — Defendant; . Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 640-361; to the Court of Appeal, Fifth Circuit, No. 10-C-497.

Not considered; not timely filed. See State v. Crandell, 05-1060 (La.3/10/06), 924 So.2d 122; Morris v. Stueben, 01-0137 (La.3/16/01), 781 So.2d 1220.


text:
    BCM, L.L.C. and Nawlins Kajun Foods, L.L.C. v. Roy C. CHEATWOOD, et al.
    No. 2010-CC-1901.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re BCM L.L.C. et ah; Nawlins Kajun Foods L.L.C; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. J, No. 2009-2807; to the Court of Appeal, Third Circuit, No. CW 10-00493.

Not considered, not timely filed. See Supreme Court Rule X, Section 5.


text:
    In re Appeal of the DECISION OF the DISCIPLINARY BOARD NOS. 2009-ADMIN-953 AND 2009-Admin-954.
    No. 2010-OB-2018.
    Supreme Court of Louisiana.
    Oct. 29, 2010.
   In re Johnson, Elfrida W.; —Plaintiff; Applying For Applying For Appeal of De-cisión of the Disciplinary Board Office of Disciplinary Counsel, Nos. 2009-ADMIN-954, 2009-ADMIN-953.

Denied.


author: McDonald, j.

text:
    Kenneth TOLIVER v. Warden Jeffery TRAVIS, Chaplain Wayne Cook, Secretary of Department of Public Safety and Corrections, John Does, Regional Wardens, et al.
    No. 2010 CA 0279.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.
    Kenneth Toliver, Angie, Louisiana, Plaintiff/Appellee Kenneth Tolliver in Proper Person.
    Debra A. Rutledge, Baton Rouge, Louisiana, for Defendanf/Appellant, Department of Public Safety and Corrections, John Does, Regional Wardens, et al.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| ¡..This is an appeal by the Department of Corrections (Department) of a judgment of the Nineteenth Judicial District Court reversing a decision of the Department that certain religious publications could not be received by the petitioner. For the following reasons, the district court judgment is reversed.

The petitioner in this matter, Kenneth Toliver, is an inmate housed at Rayburn Correction Center (RCC). In October 2007, Toliver filed a grievance, Administrative Remedy Procedure No. RCC-2007-480, complaining that publications addressed to him at RCC from a religious organization, “Yahweh Ben Yahweh” had been improperly rejected by prison officials. Information contained in the publications was determined to be racist in nature and detrimental to security, a violation of Department Regulation C-02-009, and Toliver was not allowed to receive them.

On November 8, 2007, Toliver appealed the First Step decision of the Administrative Remedy Procedure denying relief to the Secretary of the Department. On January 2, 2008, the Secretary issued the Second Step Response again denying Toliver relief. Toliver then sought judicial review of the Department’s action in the Nineteenth Judicial District Court.

In accordance with legislatively-established procedure, LSA-R.S. 15:1171, et seq., the matter was referred to a commissioner for screening. In a Preliminary Report, it was recommended that the matter proceed to review of Administrative Decision RCC-2007-480 and that the petition be served on the Department in accordance with law. The Commissioner’s Preliminary Report was adopted, and the matter was ordered to proceed as an appeal of the Administrative Record of RCC-2007-480.

|sIn June 2008, the Commissioner issued a Stay Order and Remand to the Warden’s level to supplement the record with a copy of Regulation C-02-009 and additionally, to supplement the record with specific information in the materials or about the group that would promote racial unrest or to be a danger to the security of the prison. Additional information was filed in compliance with this remand. Also, the Department filed a Motion for Leave to File Documents Under Seal for documents submitted that were supplements to the administrative remedy under review, but that contained information that the Department asserted is denied to all inmates. The motion was granted, and this record contains those documents under seal.

After review of the matter, the Commissioner issued a recommendation that the Department’s decision be affirmed as neither arbitrary, manifestly erroneous, or in violation of the petitioner’s rights and the appeal be dismissed with prejudice. A Traversal of the Commissioner’s Recommendation was filed by Toliver. After de novo review of the record and the traversal filed by Toliver, and for the reasons stated in Toliver’s traversal, the Department’s decision was found to be in violation of the petitioner’s First Amendment rights. Judgment reversing the Department’s decision was rendered and signed on December 29, 2009. This appeal timely followed.

The Department asserts that it is an error of law for the district court to find that the Department violated Toliver’s First Amendment rights by refusing to allow him to receive “Yahweh” publications. Also, the Department asserts that the district court erred in not applying the test outlined in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

The recognition and protection of prisoners’ constitutional rights is well-established in law. See Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (Per Curiam). However, it is equally well-established that when a prison regulation Uimpinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. at 89, 107 S.Ct. 2254. As noted by the Turner court, “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Turner v. Safley, 482 U.S. at 84, 107 S.Ct. 2254, citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). The Turner court reiterated the concerns addressed in Martinez:

[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.

Turner v. Safley, 482 U.S. at 84-85, 107 S.Ct. 2254 (Citations Omitted)

The Turner court went on to formulate a standard of review for prisoners’ constitutional claims that is responsive both to the “policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.” Turner v. Safley, 482 U.S. at 85, 107 S.Ct. 2254, citing Procunier v. Martinez, 416 U.S. at 406, 94 S.Ct. 1800. More recently, in Johnson v. California, 543 U.S. 499, 509-515, 125 S.Ct. 1141, 160 L.Ed.2d 949. 543 U.S. 499, 125 S.Ct. 1141, 1148-1152, 160 L.Ed.2d 949 (2005), the Supreme Court affirmed that the Turner standard is appropriate for determining the question of infringement of prisoners’ fundamental rights, while holding that a strict scrutiny standard of review was applicable to a prisoner’s equal protection challenge of a state department of corrections’ policy of initially housing prisoners double-celled with inmates of the same race.

In reviewing the law in this matter, we note that the federal Fifth Circuit Court of Appeal addressed the identical issue in Chriceol v. Phillips, 169 F.3d 313, (5th Cir.1999). Applying the Turner factors that had been discussed and|selaborated in O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the Chnceol court found that the prison’s policy of withholding mail that advocates racial, religious, or national hatred, that creates a serious danger of violence is valid. Chriceol, 169 F.3d at 316-317. The O’Lone court specifically addressed the issue in the context of prison regulations that impinge on prisoners’ First Amendment rights. Considering the court’s holding in O’Lone we find that it was legal error for the district court to fail to recognize that when a prison regulation impinges on prisoners’ First Amendment rights, the regulation is valid, if it is reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S. at 353, 107 S.Ct. 2400.

After careful de novo review of the record, we find that the Commissioner’s report clearly set forth the law and accurately represented the facts in this case. Specifically, we note the following statement in the report that addresses Department Regulations, No. C-02-009, Procedures For Publications, Section C, Item 1(f):

The regulation at issue in the matter allows for refusal of certain printed material that includes racially inflammatory material or material that could cause a threat to the inmate population, staff, and security of the facility. Clearly, the goal in this case is a constitutionally valid one — security and racial harmony. Additionally, a publication that contains advice or assertions that would threaten racial harmony or more importantly, incite one race against another within the prison, should be considered as “racially inflammatory”. Thus, if the Department’s determination — that the language in the publications meets that standard — is not arbitrary or erroneous, then it must be affirmed.

We note that the material received in the mail room from the Yahweh Ben Yahweh group was determined by at least two prison chaplains and by consensus of the Regional Wardens to be racist in nature and to pose a security threat to the institution. We have reviewed the materials submitted under seal and agree with the determination made by the prison personnel. Further, decisions of this nature | fimade by prison officials should be given deference by the courts in light of the law as cited above and in recognition of the nature of their duties.

Accordingly, we reverse the judgment of the district court and render judgment in favor of the Department of Corrections, dismissing Toliver’s appeal with prejudice at his cost.

REVERSED AND RENDERED.

      . The judgment so ordering also dismissed a claim for damages that had been improperly cumulated with the record before the court.


author: CARTER, C.J.

text:
    Clara HARRELL v. DEPARTMENT OF HEALTH AND HOSPITALS, OFFICE FOR CITIZENS WITH DEVELOPMENTAL DISABILITIES, PINECREST SUPPORTS AND SERVICES CENTER Brenda Prater v. Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Pinecrest Supports and Services Center.
    Nos. 2010 CA 0281, 2010 CA 0282.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Daniel E. Broussard, Jr., Alexandria, LA, Attorney for Plaintiffs-Appellants, Clara Harrell and Brenda Prater.
    William F. Coco, Alexandria, LA, Attorney for Defendant-Appellee, Department of Health & Hospitals.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

|3In these consolidated cases, Clara Harrell and Brenda Prater were permanent-status civil service employees of the Louisiana Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, at the Pinecrest Supports and Services Center (hereinafter referred to as “Pinecrest”). Ms. Harrell and Ms. Prater appeal an adverse ruling by the State Civil Service Commission (the Commission) upholding their termination by the appointing authority from their previous state employment as Residential Services Specialists at Pinecrest. After a thorough review of the record and the applicable law and jurisprudence, we affirm the Commission’s decision, finding Ms. Harrell’s and Ms. Prater’s terminations were based on legal cause and commensurate with the infractions.

BACKGROUND

Prior to their terminations, Clara Harrell and Brenda Prater were both serving in supervisory positions with permanent civil service status, having been employed as Residential Services Specialists (RSS-6 and RSS-5, respectively) on Home 315 at Pinecrest. Pinecrest is a state institution for the care of persons with serious mental and physical disabilities, and Home 315 is an assisted living facility for special needs residents at Pinecrest, many of whom are nonverbal. After written notice, Ms. Harrell and Ms. Prater were terminated for cause on September 26, 2008. They were charged with physically, emotionally, and psychologically abusing Pinecrest |4Home 315 residents in a variety of specifically outlined ways. The main allegations of abuse involved the use of two-pound hand weights placed in the day hall, the bathroom, and on Ms. Harrell’s desk in June, July, and August 2008. Allegedly, Ms. Harrell and Ms. Prater hit several residents in the knees with the hand weights in an attempt to stop residents from “acting out,” and they instructed subordinate employees to display the hand weights to control the behavior of residents while at Home 315 and on trips away from the Pinecrest facility.

Ms. Harrell and Ms. Prater each denied all of the charges against them and each requested an appeal of their dismissals to the Commission, alleging that their terminations were in retaliation for their having filed a grievance in June 2008. The appeals were consolidated for a three-day public hearing before the Commission’s duly-appointed referee, during which testimony and evidence were presented. The evidence included the written statements of two former Pinecrest employees who did not testify at the hearing and the results of Ms. Harrell’s polygraph test. At the end of the hearing, the matter was taken under advisement; and on September 15, 2009, the referee rendered a decision denying Ms. Harrell’s and Ms. Prater’s appeals. The referee found that Pinecrest had satisfied its burden of proof by proving legal cause for discipline in that Ms. Harrell and Ms. Prater physically, emotionally, and psychologically abused Pinecrest residents. The referee further concluded that the disciplinary action of termination was Incommensurate with the proven infractions involving abuse of the Pinecrest residents whom Ms. Harrell and Ms. Prater were responsible for caring and supporting. Ms. Harrell and Ms. Prater filed an application for review of the referee’s decision, which was denied by the Commission on November 5, 2009. This appeal followed.

ASSIGNMENTS OF ERROR

Ms. Harrell and Ms. Prater assert that the Commission, through its referee, erred when the referee: (1) rejected their appeal since the evidence did not support the conclusion; (2) admitted hearsay statements of former employees; (3) rejected un-rebutted evidence of Ms. Harrell’s polygraph test; and (4) improperly cross-examined the polygraph expert.

STANDARD OF REVIEW

In civil service disciplinary cases, decisions of the Commission and its referees are subject to the same standard of review as a decision of a district court. Lasserre v. Louisiana Public Service Com’n, 04-0615 (La.App. 1 Cir. 4/8/05), 903 So.2d 474, 477. Factual findings of the Commission referee are subject to the clearly wrong or manifest error standard of review. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. It is the province of the Commission referee to determine the weight to be given to evidence in an administrative hearing. Evans v. DeRidder Mun. Fire, 01-2466 (La.4/3/02), 815 So.2d 61, 69, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003). As to the determination of whether the disciplinary action is based on legal cause and commensurate with the offense, the Commission’s decision should not be modified unless it is arbitrary, capricious, or characterized by abuse of discretion. Lasserre, 903 So.2d at 477. An administrative agency’s determination is “capricious” |fiwhen it has no substantial evidence to support it; it is “arbitrary” when the evidence has been disregarded or not given the proper weight. Marsellus v. Dept. of Public Safety and Corrections, 04-0860 (La.App. 1 Cir. 9/23/05), 923 So.2d 656, 661.

DISCUSSION

A classified employee with permanent status may not be subjected to disciplinary action except for cause expressed in writing. LSA-Const. art. 10, § 8(A). Cause sufficient for the imposition of discipline means conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Wopara v. State Employees’ Group Benefits Program, 02-2641 (La.App. 1 Cir. 7/2/03), 859 So.2d 67, 69. The appointing authority (Pinecrest in this case) must prove by a preponderance of the evidence that the employee’s conduct did, in fact, impair the efficient and orderly operation of the public service. Id. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved as more probable than not. Brown v. Dept. of Health & Hospitals Eastern Louisiana Mental Health System, 04-2348 (La.App. 1 Cir. 11/4/05), 917 So.2d 522, 527, writ denied, 06-0178 (La.4/24/06), 926 So.2d 545.

Pinecrest imposed the sanction of termination based upon the written charge that Ms. Harrell and Ms. Prater had physically, emotionally, and psychologically abused Pi-necrest residents. Ms. Harrell and Ms. Prater deny they were abusive and argue that Pinecrest failed to prove by a 17preponderance of the evidence that they were abusive to Pinecrest residents. Ms. Harrell and Ms. Prater also maintain that their dismissal was due to retaliation because they had filed a grievance against Pinecrest administration. However, the Commission’s referee found that the retaliation theory was not supported by any evidence adduced at the hearing, and the Commission’s referee rejected Ms. Harrell’s and Ms. Prater’s self-serving- testimony denying any abusive conduct. The Commission referee’s comprehensive findings of fact specifically focusing on the abusive actions demonstrated by Ms. Harrell and Ms. Prater included:

7. Two-pound hand weights were in the Home 315 day hail, bathroom and on Ms. Harrell’s desk. These hand weights should have been kept in a locked cabinet, but were not.
8. In approximately June, 2007, Ms. Harrell was talking to her subordinate Kemberly Kidd Freeman, an RSS-2 at Pinecrest. Ms. Harrell picked up a two-pound hand weight that was located to the right of the television in the Home 315 day hall, and Ms. Harrell stated to the effect that, “I’m going to show you how to deal with Pinecrest resident number 5012, when he gets out of hand.”
9. Ms. Freeman understood Ms. Harrell to mean that she harmed resident 5012 with the hand weight. Ms. Freeman walked away as she did not want to hear any more.
* * *
13. After Ms. Harrell, Ms. Prater and Roger Guidry, an RSS-1, went in the Home 315 bathroom with resident number 4303, Ms. Freeman heard resident number 4303 begin to holler repetitively like “Scooby Doo.” The hollering was not a happy sound and was especially unusual as resident number 4303 is nonverbal. Ms. Freeman was not allowed to go into the bathroom.
15. Pinecrest staff are obligated to promptly report the abuse of Pinecrest residents.
16. Although Ms. Freeman made reports of abuse, she was reluctant to report abuse involving Ms. Harrell because she had been told she was “out of line,” “to mind her own business,” and that Ms. Harrell was Mike Lienhop’s [a Regional | ^Administrator 4 at Pinecrest] “baby” and that anything said about Ms. Harrell would not be acted on.
18. In July, 2008, Mr. Simon, then an RSS-2, walked in on Ms. Harrell and Ms. Prater, who were alone in the Home 315 bathroom with resident number 5012. Both Ms. Harrell and Ms. Prater were actively participating in striking resident number 5012 in the knees with a hand weight. According to Mr. Simon the force of the blows was a 6 on a scale of 1 to 10. At the hearing on June 1, 2009, Mr. Simon could not recall whether Ms. Harrell or Ms. Prater had the hand weight.
19. In July or August, 2008, Mr. Simon saw Ms. Harrell and Ms. Prater standing over resident number 5012, who was seated in his recliner in the Home 315 day hall. A hand weight was visible on a table and resident number 5012 was making defensive gestures with his hands over his knees.
20. In July or August, 2008, Mr. Simon saw Ms. Harrell and Ms. Prater standing by resident number 4377 in the Home 315 day hall. A hand weight was visible on a table. Resident number 4377 was moving his knees and saying “ok.”
21. Ms. Harrell told Mr. Simon that if resident number 5012 acted out, the hand weight would keep him straight.
* * *
23. On August 11, 2008, Mr. Simon gave a statement to Barbara Ashworth, an Adult Protection Specialist 3, with the Office of Aging and Adult Services regarding abuse of Pinecrest residents by Ms. Harrell and Ms. Prater. Initially, Mr. Simon stated that he had seen the hand weights in Ms. Harrell’s and Mrs. Prater’s hands, but he did not know what they intended, that he had not seen the hand weights used for anything other than exercise and that he had never threatened a client with a weight.
24. As Mr. Simon proceeded with the written statement he provided to Ms. Ashworth he went on to advise that: 1) Renetha Cheatam gave resident number 6029 prune juice that he had heated up, 2) that he had seen Ms. Harrell and Ms. Prater hit residents numbers 5012 and 4377 with the ends of hand weights, that this occurred in the bathroom and day hall, that Ms. Harrell and Ms. Prater were together both times this occurred, 8) that Ms. Harrell and Ms. Prater instructed him to hold up a hand weight to stop residents from acting out, and 4) that he held up a hand weight once to resident number 5012 to stop him from taking the food of another resident.
J|g25. Mr. Simon admitted at the hearing that he lied when he wrote in his statement that he had not seen the hand weights used for anything other than exercise and that he had never threatened a client with a weight.
26. Mr. Simon did not initially report the abuse because he was new to Home 815, both Ms. Harrell and Ms. Prater were his supervisors, and it was his understanding that if you crossed Ms. Harrell you would lose your job.
27. Ms. Harrell and Ms. Prater denied hitting Pinecrest residents with hand weights or telling others to threaten Pi-necrest residents with hand weights. Ms. Harrell further denied giving Pine-crest resident number 6029 an excessive amount of prune juice.
28. On August 7, 2008, Roger Guidry [an RSS-1] provided Ms. Carlisle [an Adult Protection Specialist 3 with the Office of Aging and Adult Services] a written statement wherein he declared:
“I have witnessed Ms. Harrell abuse resident 5012 using a 2 pound hand weight. Ms. Harrell would beat resident 5012 on his knee until he could not stand up, also resident 4,377. The first time I started working on the home I noticed resident 5012 had a couple of huge knots on his knee at which time I informed Ms. Harrell and she responded that it was nothing, he got those from falling down ... Regarding why these incidents were never reported was because Ms. Harrell using her supervisor position never allowed any incidents that happened to the individuals to be reported. Also to stop anyone from noticing these bruises that the individuals received, she always made sure it was done to a lower part of the body where sometimes she would have the employees dress the men in long pants so no one would see their bruises to their knee caps ... I called the Pine-ville Police department to get advice from them at which time I was transferred to a lady who was supposed to handle abuse reports and I informed her regarding the abuse ... I was informed that they were going to look into it on Monday August 4, 2008, if not it would be on that Tuesday. I spoke with them on Sunday.”
29.On August 8, 2008, Renetha Chea-tam, an RSS-5 at Pinecrest, provided Ms. Ashworth a written statement wherein she declared:
110‘7 have seen Clara Harrell hit resident number 4377, resident number 5012, and resident number 4303 on the knees with a hand weight, about 3 or 4 times. The first time I became aware of it was about 2 months ago it was 4 or 5 on a scale of 110. The only time I saw it was in group 1 day hall. I have seen Brenda Prater, RSS-5, hit resident 4377, resident 5012 and resident 4303 on the knees 4 or 5 times with a weight about 2 months ago it was a í or 5 on a scale of 1-10. A couple of Saturdays ago Ms. Harrell instructed me to give resident number 6029 prune juice before he left to go home.
31. Pinecrest resident number 6029 was supposed to receive only two, 4 ounce glasses of prune juice per day.
32. In July, 2008, at Ms. Harrell’s instruction, resident number 6029 was given about 18 ounces of prune juice, prior to his being picked up by his mother, who was taking him to her home for the weekend. Resident number 6029 had a severe bout of diarrhea while in his mother’s care.
35. Neither Ms. Carlisle nor Ms. Ash-worth work for Pinecrest. The Office of Aging and Adult Services is independent of Pinecrest.
39. On August 6, 2008, Mr. Guidry telephoned Ms. Carlisle and told her that his August 1, 2008 statement [about missing money at Home 315] was not accurate, in that Ms. Cheatam left at 5:30 p.m. on the day in question, not 10 p.m. and Mr. Guidry did not witness Ms. Cheatam count the money in the lock box. Mr. Guidry further advised that he had witnessed abuse of Pinecrest residents.
41. Mr. Guidry resigned from Pine-crest, perhaps to avoid disciplinary action.
42. On June 27, 20Ó8, Ms. Harrell and Ms. Prater filed a grievance complaining that Pinecrest was allowing the mother of Pinecrest resident number 6029 to harass them and the Pinecrest staff with her demands, difficult nature, racial prejudice and too frequent contact with Pinecrest staff.
43. Mike Lienhop, Pinecrest’s MRDD Regional Administrator, and David Gill[,] Pinecrest’s Associate Administrator, responded to the grievance.
44. In response to the grievance, resident 6029 was moved from Home 315 to Home 313. In addition, the parents of resident 6029 were advised that they were not to discuss the |nrace or skin color of Pinecrest staff, that race or skin color is never considered in placing staff on any Home and it is inappropriate and a violation of federal law for them to ask that employment decisions be based on these factors.
45. Neither Mr. Lienhop nor Mr. Gill participated in the investigation or the disciplinary actions taken against Ms. Harrell and Ms. Prater.
46. No evidence established that the disciplinary actions were taken against Ms. Harrell and/or Ms. Prater because they filed a grievance.
47. Mr. Guidry's- report of abuse, first to the Pineville Police Department and then to Ms. Carlisle, led to the disciplinary actions taken against Ms. Harrell and Ms. Prater.

(Footnote omitted.)

Additionally, the Commission referee found that during the investigation of the abuse allegations, the Pinecrest residents at Home 315 were examined for evidence of physical abuse, but none was found. And in contrast to Pinecrest’s evidence, Ms. Harrell and Ms. Prater presented the testimony of fifteen other employees that worked in some capacity at Home 315, all of whom declared that they saw no signs of abusive behavior by Ms. Harrell or Ms. Prater toward Pinecrest residents. Because of the conflicting accounts, credibility determinations were paramount to the referee’s factual findings.

After careful review of the record as a whole, we conclude that the factual findings of the Commission’s referee were not manifestly erroneous. We do not re-weigh the evidence, or make our own credibility determinations regarding the witnesses, or substitute our findings for those of the Commission and its referee. See Louisiana Household Goods Carriers v. Louisiana Public Service Com’n, 99-3184 (La.6/30/00), 762 So.2d 1081, 1085. Our function is to determine whether a reasonable factual basis exists in the record to support the Commission referee’s determination |12that it was more likely than not that the abuse occurred as detailed by Pinecrest. Although two of the eyewitnesses’ testimony was admitted into evidence through written statements given to the investigators, hearsay evidence is admissible in administrative hearings if competent and relevant. See Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 382. The general rule in administrative hearings is to allow hearsay evidence and to recognize that the inability to cross-examine the de-clarant affects the weight that the evidence carries. Id.

Moreover, ex parte statements are acceptable in a hearing before the Commission or its referee in order to discredit a witness. See Civil Service Rule 13.19(g). Therefore, the Commission’s referee did not err in admitting the eyewitnesses’ statements into evidence. Ms. Harrell and Ms. Prater denied the charges of abuse, and the written statements of Roger Gui-dry and Renetha Cheatam discredited Ms. Harrell’s and Ms. Prater’s testimony. The statements were certainly relevant to the charges against Ms. Harrell and Ms. Prater because they led to the actual investigation of the abuse. Plus, the statements had some degree of reliability and trustworthiness in that they were offered to investigators that were independent from the appointing authority.

In addition, the testimony of Johnny Simon and Kemberly Freeman directly contradicted Ms. Harrell’s and Ms. Prater’s testimony. The evidence in the record reveals a more than sufficient factual basis to support the factual findings of the referee, which were adopted by the Commission. Specifically, we find reasonable the referee’s decision to credit more weight 11sto the testimony of the independent investigators, as well as the four eyewitnesses that actually performed their jobs involving direct care for Home 315 residents under Ms. Harrell’s and Ms. Prater’s supervision, because they had an opportunity to observe the abuse. Accordingly, the Commission’s referee committed no manifest error and we find no merit to Ms. Harrell’s and Ms. Prater’s first two assignments of error.

Ms. Harrell and Ms. Prater also assert that the Commission’s referee erred in rejecting the un-rebutted testimony of their polygraph expert’s opinion that Ms. Harrell’s denial of the allegations was not deceptive. The referee allowed the introduction of Ms. Harrell’s polygraph test results into evidence through the expert testimony of James D. Kavanaugh, a licensed polygraph operator in Louisiana. Additionally, Ms. Harrell and Ms. Prater complain that the referee erred by improperly cross-examining Mr. Kavanaugh regarding his testing method, study, and peer review of polygraph examinations. However, we find no merit to either of these arguments.

The Commission referee may examine and cross-examine any witness in any civil service hearing. See Civil Service Rule 13.19(h); Goudeau v. Dept. of Public Safety, Div. of State Police, 349 So.2d 887, 889-890 (La.App. 1 Cir.), writ denied, 351 So.2d 165 (La.1977). And while the results of a properly administered polygraph examination are admissible under certain conditions in an administrative hearing, the polygraph test is merely a tool to assist the fact finder; it is the Commission referee’s responsibility to determine the weight of the evidence after determining if it is competent and relevant. See Evans v. DeRidder Mun. Fire, 815 So.2d at 67-68 & 71. We note that contrary to the factual scenario presented in Evans, Ms. Harrell 114and Ms. Prater never questioned the admissibility of the polygraph evidence in this case. They offered the evidence to support their position that they did not abuse the Pinecrest residents. Instead, Ms. Harrell and Ms. Prater maintain that the Commission’s referee improperly rejected the expert testimony regarding the polygraph evidence.

It is well settled in Louisiana that the fact finder is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. The fact finder may accept or reject in whole or in part the opinion expressed by an expert. Harris v. State ex rel. Dept. of Transp. and Development, 07-1566 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 08-2886 (La.2/6/09), 999 So.2d 785. Furthermore, the fact finder may accept or reject the uncontradicted opinions expressed by an expert as to ultimate facts, based upon the other evidence that is admitted. The effect and weight to be given expert testimony is within the broad discretion of the fact finder, and the decision reached by the fact finder regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion. Louisiana State Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 171, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292. Having thoroughly reviewed the polygraph evidence and the related expert testimony, we find no abuse of the Commission referee’s discretion in declining to assign any weight to the testimony of Mr. Kavanaugh and/or the results of the polygraph test after allowing the evidence to be admitted.

We also note that although the Commission referee failed to make an express finding of detriment to the efficient and orderly operation of the public service for which Ms. Harrell and Ms. Prater were employed (the care |isand supervision of Pinecrest residents), such a finding is clearly implicit in the decision and abundantly reflected in the record. See Brown, 917 So.2d at 531. Common sense dictates that hitting or threatening nonverbal, mentally and physically-disabled people with hand-weights in order to control their behavior is clearly prejudicial and detrimental to the efficient and orderly operation of the public service that involves the care and support of special-needs residents in an institution specifically designed for that purpose.

A reviewing court should not reverse the Commission’s conclusions as to the existence of legal cause for dismissal and that a punishment is commensurate with the infraction, unless the decision is arbitrary, capricious, or an abuse of discretion. Sterling v. Dept. of Public Safety & Corrections, Louisiana State Penitentiary, 97-1959, 97-1960, 97-1961 (La.App. 1 Cir. 9/25/98), 723 So.2d 448, 455. The Commission has much discretion in determining the appropriate disciplinary action when legal cause for such action has been established. Id. And even considering the lack of any prior disciplinary history for Ms. Harrell or Ms. Prater, we find that the Commission referee’s decision to uphold their termination was not arbitrary, or capricious, or characterized by abuse of discretion. Once it was established that the physical and emotional abuse took place, the egregiousness of these two supervisors’ abusive conduct while handling the disabled residents entrusted to their care is sufficient grounds to support their terminations. Thus, the record overwhelmingly demonstrates a real and substantial relation between Ms. Harrell’s and Ms. Prater’s abusive actions and the impairment of the efficiency and goals of the public civil service.

| ^CONCLUSION

For the above-outlined reasons, we find the record fully supports a finding of legal cause and the disciplinary action of termination. Therefore, the decision of the State Civil Service Commission terminating Clara Harrell and. Brenda Prater from their permanent positions at Pine-crest Supports and Services Center is hereby affirmed. All costs of these consolidated appeals are equally assessed to Clara Harrell and Brenda Prater.

AFFIRMED.

GAIDRY, J., concurs.

      .Ms. Harrell had supervisory responsibility over Home 315 residents and staff, including Ms. Prater, who managed Home 315 and supervised residents and staff as well. Because of privacy and confidentiality concerns, any reference to Pinecrest residents in this opinion will be by number, rather than by name.

      . Other allegations involved the separate abuse of resident 6029 because of actions taken by the resident’s parent.

      . The grievance was related to the allegedly demanding and inappropriate behavior of the parents of resident 6029 and Pinecrest's administrative response to the parents’ demands.

      . Civil Service Rules have the force and effect of law. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268, 1271 (La.App. 1 Cir.), writ denied, 364 So.2d 122 (La.1978).