author: WEIMER, Justice. WEIMER, Justice,

text:
    STATE of Louisiana v. Timothy BAZILE.
    No. 2011-KK-2201.
    Supreme Court of Louisiana.
    Jan. 24, 2012.
    James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, David Gardner deBlieux, Assistant District Attorney; for applicant.
    Antwine Law Firm, LLC, Baton Rouge, Jarvis Martez Antwine, for respondent.
   WEIMER, Justice.

hln an effort to prevent what were perceived as abusive practices by defendants in criminal cases exercising waivers of jury trials in order to disrupt trial schedules, the legislature enacted a proposed constitutional amendment which was submitted to the electorate. The constitutional amendment, which was approved by voters and is now contained in La. Const, art. I, § 17(A), provides in pertinent part: “Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.”

We granted a writ of certiorari in this case to determine whether the district court erred in sua sponte declaring that the jury waiver procedure described in La. Const, art. I, § 17(A) is unconstitutional for “depriving [defendant] of his due process guaranteed under the 5th and 14th Amendments to the United States Constitution.” Because the constitutionality of the jury waiver procedure was never raised by the ^defendant, we find the district court erred in declaring the jury waiver procedure unconstitutional.

BACKGROUND

The defendant, Timothy Bazile, was indicted for second degree murder. Trial was set for October 3, 2011. At the September 19, 2011 hearing, after a colloquy with the district court judge in which the defendant indicated that he wished to waive his right to a jury trial, the state objected:

[T]his waiver is coming less than forty-five days away from our jury trial we have set for October 3rd, so it will not apply to that trial date.... Again, this waiver does not come forty-five days before that jury trial setting, so it will be a jury trial on that date. And if for some reason the trial doesn’t go then this waiver would be [in]applicable once the forty-five days [has] run.[]

The district court expressed doubt as to whether “the United States Constitution allows [the state] to tell [defendant] that he can’t have a jury trial, even on the day that it’s set for trial.” However, it does not appear from the record that the issue was fully resolved at this hearing.

Instead, on the trial date of October 3, the defense complained that discovery was incomplete and asked for a continuance. A bench trial was re-set for October 11, 2011, over the state’s objection. To overcome the state’s complaint that the October 11 trial date was also less than 45 days from September 19, the date on which the defendant first attempted to waive a jury trial, defense counsel offered that the district court could simply continue trial until a date in November, which would be | oinore than 45 days from when defendant requested a waiver of a jury in September. The state objected that the defense, by obtaining a continuance, “doesn’t get the benefit of racing to the outside [of] the forty-five days to escape the jury.” In other words, the state argued that if a defendant fails to exercise his right to waive a jury outside the 45-day period from the initial trial date, a continuance does not extend the 45-day period. Because a 45-day period had already run from the original trial date, “that extends this trial setting as a jury trial and it makes whatever trial setting you make a jury trial,” the state further argued.

However, the district court found that it would be unnecessary to continue the trial date to provide the defendant with another 45-day time limit because the right to a bench trial is implicit in the federal constitutional right to a jury trial and, therefore, a defendant can waive a jury trial at any time before trial. Subsequently, the district court provided additional, written reasons for its ruling. The district court explained that La. Const, art. I, § 17(A) effectively allowed the state to “force” a defendant into deciding whether to be tried by judge or jury. However, “[t]he decision to have a bench trial or jury trial rests with the defendant,” and if the state does not provide discovery materials before 45 days from trial, the information not provided “could have influenced the defendant’s decision in which mode of trial he would have chosen, but his decision has been made and is now irrevocable, thus depriving him of his due process guaranteed under the 5th and 14th Amendments to the United States Constitution.”

I/Fhe court of appeal denied the State’s request for supervisory review without comment. State v. Bazile, 11-1848 (La. App. 1 Cir. 10/7/11) (unpub’d). The dissenting judge stated:

The amendment to La. Const. art. I, § 17(A) clearly requires that the defendant waive his right to a jury trial at least 45 days before the trial. I note, however, that the issue of whether the waiver problem could be cured by a continuance is not squarely before this court.

The state then applied to this court for review, and this court granted the application. State v. Bazille, 11-2201 (La.10/14/11), 74 So.3d 728.

DISCUSSION

Both the right to a jury in criminal cases and guidance on waiving that right are provided in La. Const. art. I, § 17(A):

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A ease in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

Here, the defendant did not challenge the constitutionality of the jury waiver procedure contained in La. Const, art. I, § 17(A). Instead, the district court sua sponte raised the issue of whether Article I, § 17(A) conflicted with the U.S. Constitution. The district court next concluded a conflict existed with the due process rights of the U.S. Constitution, and that Article I, § 17(A) must yield. The district court then ruled that the 45-day period contained in Article I, § 17(A) did not bar the | ¡jCourt from setting the case for a bench trial, notwithstanding that the matter was set for trial by jury less than 45 days from the date the defendant first purported to waive trial by jury. In sum, although the district court recognized that Article I, § 17(A) applied such that the district court was required to present the state’s case against the defendant to a jury, the district court did not enforce Article I, § 17(A) because the court found Article I, § 17(A) unconstitutional.

This court has previously examined whether a district court may refuse to enforce a law on the grounds that the court on its own motion finds the law unconstitutional. In Greater New Orleans Expressway Com’n v. Olivier, 04-2147, pp. 1-2 (La.1/19/05), 892 So.2d 570, 572, two parish court judges were not collecting costs from certain traffic violators as required by statute. The judges had refused to collect the costs, believing the statute directing them to do so was unconstitutional. This court ruled that the judges lacked standing to themselves raise a constitutional challenge to the laws the judges were charged by their judicial oaths to enforce. Judges “owe an equal duty to apply and enforce [a] presumptively constitutional legislative act as they do the state constitution,” this court explained. Id. 04-2147 at 10, 892 So.2d at 577. See also Ring v. State, DOTD, 02-1367, p. 5 (La.1/14/03), 835 So.2d 423, 427 (noting that the role of a judge in our system of justice is such that “a judge should not judicially declare a statute unconstitutional unless it is essential to the decision of a case or controversy”).

In Olivier, not only did the judges’ oaths to uphold the Louisiana Constitution prohibit them from raising a constitutional challenge to the fee statute on their own, there were also procedural barriers prohibiting the judges from refusing to apply the statute. A court may consider a constitutional challenge only upon a showing that “the [law] ‘seriously affects’ ” the rights of the person challenging it. Olivier, 04-21476 at 4, 892 So.2d at 573. This is so because “legislative acts are presumed constitutional ‘until declared otherwise in proceedings brought contradictorily between interested persons.’ ” Id., quoting State v. Bd. of Supervisors, La. State Univ. & Agric. & Mechanical College, 228 La. 951, 84 So.2d 597, 600 (1955).

A constitutional provision is a more basic, fundamental provision than a statutory enactment. See La. Const. art. Ill, § 1(A) (indicating that the power to enact legislation, such as statutes, is a power itself conferred by the constitution). A constitutional provision begins as a legislative enactment and, therefore, also requires enforcement by the district court. See La. Const. art. XIII, § 1(A) and (C) (discussing procedure for amending the constitution as being initiated by the legislature and submitted to the electorate, which is the procedure by which the particular law at issue here was promulgated; see 2010 La. Acts 1053, § 1, approved Nov. 2, 2010). The district court, therefore, erred in declaring that the jury waiver procedure described in La. Const. art. I, § 17(A) is unconstitutional without the issue being properly raised. See State v. Schoening, 00-0903, p. 3 (La.10/17/00), 770 So.2d 762, 764, quoting Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65 (“This court has stated that, while there is no single required procedure or type of proceeding for attacking a statute’s constitutionality, ‘the longstanding jurisprudential rule of law is ... the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.’ ”). Among the dangers we cited in Schoening of a court raising a constitutional question on its own were that “none of the parties were given an opportunity to research and fully brief the issue for the trial court. While the trial judge allowed brief and spontaneous oral arguments on the issue of the victim’s sequestration, the parties were prejudiced in 17that they were not prepared to argue, nor did they directly argue, the constitutionality of the statute.” Schoening, 00-0908 at 5, 770 So.2d at 766.

Similarly, because the constitutionality of Article I, § 17(A) was not brought by the defendant to the district court, neither the issue of constitutionality nor a fully developed record on that issue is properly before this court. See Olivier, 04-2147 at 11, 892 So.2d at 577 (“Because we find that the threshold requirement of standing [of judges to raise constitutional challenge to enforcement of a law] is not met in this case, we do not consider the correctness of the district court’s judgment that the statute is unconstitutional”). We have previously explained that “[a]lthough this court generally possesses the power and authority to decide the constitutionality of [statutory] provisions ..., it is required to decide a constitutional issue only ‘if the procedural posture of the case and the relief sought by the appellant demand that [it] do so.’ ” State v. Mercadel, 03-3015, p. 7 (La.5/25/04), 874 So.2d 829, 834, quoting Ring, 02-1367 at 6-7, 835 So.2d at 428.

In conclusion, the constitutionality of La. Const, art. I, § 17(A) was not raised by the parties in the district court. As such, the procedural posture of this case precludes a decision being made regarding the constitutionality of this provision of the Louisiana Constitution.

DECREE

For the reasons assigned, the judgment of the district court is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WEIMER, Justice,

concurs and assigns additional reasons.

LAs the author of this opinion, a brief explanation of my concurrence in the case of Greater New Orleans Expressway Com’n v. Olivier, 04-2147 (La.1/19/05), 892 So.2d 570, bears mention. In Olivier, I stated that “I would not establish a rule which prohibits a judge from invoking a defense of unconstitutionality in all cases, but would limit our holding that these judges lack standing in this case.” Olivier, 04-2147 at 1, 892 So.2d at 580. My concurrence in Olivier was based on my concern that a judge should be allowed to raise as a defense to a lawsuit, alleging that a judge has not enforced a law, that the particular law is unconstitutional. Such might be the case if this court had declared a statute unconstitutional, but the statute had not been formally withdrawn by the legislature, and someone sought to compel a judge to enforce the statute. My concurrence in Olivier was based on my belief that a judge in that instance should be able to raise the defense of unconstitutionality. Nevertheless, a judge’s oath to uphold the Louisiana Constitution prohibits a judge from declaring a statute unconstitutional without a litigant with standing properly raising the issue. The record here simply does not present the issue separately identified in my concurrence in Olivier; instead, it is the majority’s opinion in | ^Olivier; with which I concurred and which is cited in this opinion, that applies to the present case.

      . See 2010 La. Acts 1053.

      . As excerpted infra pp. 2-3, the state’s argument during another hearing, on October 3, 2011, clearly establishes that the word "inapplicable” was either misstated or erroneously transcribed as "applicable” in the transcript of the September 19, 2011 hearing.

      . Specifically, the defense complained that it had not received a copy of the recorded 911 call or the arrest records of the state’s witnesses. The state responded to this complaint by noting the defense was given open file discovery and asserting that it did not have, and the defense was not entitled to, the remaining information.

      .The district court further explained that, through an amendment to the Louisiana Constitution, an attempt was made to limit the ability of a defendant to waive a trial by jury and that the amendment to the state Constitution was unconstitutional because rights under "the United States Constitution trump[ ] the Louisiana Constitution."

      . The spelling of the defendant's surname name was incorrect when the writ grant was reported; the correct spelling from the record is reflected in the caption of this opinion.


source: Caselaw Access Project

author: WEIMER, Justice. VICTORY, J.,

license: Public Domain

text:
    In re Justice of the Peace Herbert G. WILLIAMS, Jr., Parish of Plaquemines, Ward 2, State of Louisiana.
    No. 2011-O-2243.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Office of Special Counsel, Henry Nathan Bellany, Special Counsel, Michael Bewers, Assistant Special Counsel, for applicant.
    Scandurro & Layrisson, LLC, New Orleans, Stephen O’Brien Scandurro, Timothy David Scandurro, for respondent.
   ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

WEIMER, Justice.

11 This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana (Commission), pursuant to La. Const, art. V, § 25(C), that Herbert G. Williams, Jr., a Justice of the Peace for the Parish of Plaquemines, Ward 2, State of Louisiana (JP Williams), be publicly censured and ordered to reimburse the costs incurred in the Commission’s investigation and prosecution of this case. Following an investigatory hearing, the Commission made findings of facts and conclusions of law and determined that JP Williams had violated Canons 1, 2(A), 2(B), 3(A)(1), and 3(B)(1) of the Code of Judicial Conduct. After a thorough review of the facts and law in this matter, we agree with that determination and accept the Commission’s disciplinary recommendation.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In his capacity as an ex officio notary public by virtue of his position, JP Williams notarized an act of donation on February 4, 2003, purporting to transfer ^ownership of immovable property located in Plaquemines Parish from the “Family of JOSEPH W. LARCHE” (Donor) to JP Williams’ son and daughter-in-law, Herbert T. Williams and Constance S. Williams (Donees). The act of donation was not recorded in the conveyance records until May 15, 2007. Upon discovering the purported donation in 2009, the purported Donor filed a complaint with the Federal Bureau of Investigation (FBI) and a lawsuit in a Louisiana federal district court to clear the title to the property at issue.

In light of an article that appeared in the local newspaper concerning the complaint, the Commission opened a file in this matter. JP Williams was notified that a file had been opened. After receiving JP Williams’ response, the Commission filed a formal charge (No. 0303) against JP Williams on December 9, 2010, alleging that he engaged in judicial misconduct by notarizing an act of donation of land to his son and daughter-in-law, which transaction was beyond his limited ex officio notarial powers, and without witnessing the Donor’s signature in violation of Canons 1, 2(A), 2(B), 3(A)(1), and 3(B)(1) of the Code of Judicial Conduct. The Commission further 1 .-¡alleged that JP Williams engaged in willful misconduct relating to his official duty and in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of La. Const, art. V, § 25(C).

Subsequently, a hearing officer was appointed to conduct proceedings pursuant to Supreme Court Rule XXIII, § 29. Following a hearing, the hearing officer filed a report with the Commission, containing proposed findings of fact and conclusions of law. JP Williams was then ordered to appear before the Commission to answer questions and to make any statement he desired regarding the formal charge and the hearing officer’s findings and conclusions. Afterwards, the Commission issued a report with its findings of fact, conclusions of fact and law, and recommendation.

Adopting most of the hearing officer’s findings of fact, the Commission initially found that it was unclear from the testimony at the hearing what training regarding his ex officio notarial functions JP Williams had received at the annual justice of the peace training sessions conducted by the Louisiana Attorney General’s Office. The Commission further found that on February 4, 2003, JP Williams notarized an act of donation by which the “Family of JOSEPH W. LARCHE” purported to donate certain immovable property in Plaquemines Parish, Louisiana, to JP Williams’ son and daughter-in-law, “in consideration of the love and affection Donor has for the [Donees] and for the gratitude felt by Donor for the services and assistance rendered unto them [sic] by [Do-nees].” JP Williams notarized the act of I ¿donation even though he was not a commissioned notary public and the purported Donor of the property had not appeared before him to sign the act of donation.

Following the filing of a malfeasance complaint with the FBI by Mr. Larché, these facts were made known to the public by The Times-Picayune in an article titled “Man complains to FBI about JP-Williams notarized fake transfer, he says.” The article reported that Mr. Larché alleged that JP Williams “abused his powers as an elected official to benefit relatives” by “notarizing a bogus real estate document purporting to donate two vacant lots the man owns to the justice’s son.”

At the time that JP Williams notarized the act of donation in favor of his son and daughter-in-law, JP Williams was not aware of the statutory limitations on the powers of a justice of the peace as an ex officio notary public. Nonetheless, this was “the only [immovable] property document that [he had] ever notarized.” Furthermore, although JP Williams knew that he should not notarize a person’s signature unless the person placed his or her signature on a document in JP Williams’ presence, he did so in this case because he trusted his son who told him that the Donor had signed the document. JP Williams has never notarized any other document when the person signing the document was not present.

IfiThe Commission further found that the act of donation was fraudulent and was not signed by or on behalf of Mr. Larché. In hindsight, JP Williams acknowledged that because he was not sure about the “squiggly little sign” that purported to be the Donor’s signature, he “should have followed [his] first mind” and “not have messed with that paper, period.” JP Williams has learned his lesson and has promised never to engage in such conduct again. In closing the proceedings before the Commission, JP Williams stated:

[I]t wasn’t that I was coaxed into this. It was just something that I thought I was doing right. I thought my son and daughter-in-law was legitimate and real about what they were doing.
I wasn’t trying to acquire or ... scrounge up no property or land or whatever for anybody because we [are] always doing something for the community.
So it wasn’t really [that] I was trying to acquire anything for my family or me personally. It was just something that happened.

When JP Williams and his son began receiving correspondence in connection with the lawsuit involving the act of donation, JP Williams questioned his son about the document. JP Williams’ son said “as far as he was concerned this was donated to |fihim by the Larché family.” However, since JP Williams did not have the authority to notarize the act of donation, his son was “willing to consent and let Mr. Larché have his property back.” Subsequently, Mr. Larché’s suit against JP Williams, the Donees, and the Clerk of Court for Plaquemines Parish to clear title to the property was resolved by a consent judgment, which declared the act of donation to be a nullity and ordered that the act be stricken from the public records. Mr. Larché agreed to settle his monetary demands for the sum of $1,250, which JP Williams paid.

Based on the facts of this case, the Commission concluded that by notarizing the act of donation purporting to transfer immovable property to his son and daughter-in-law without witnessing the Donor execute the act of donation, JP Williams violated Canons 1, 2(A), 2(B), 3(A)(1), and 3(B)(1) of the Code of Judicial Conduct. JP Williams did not have legal authority to notarize the act of donation because he was not a commissioned notary and he was prohibited by law from using his ex officio notarial powers as a notary public to notarize any document affecting immovable property. See LSA-R.S. 13:2586.1(B)(1). The knowledge — that he should not notarized a document containing the signature of a party who did not sign in his presence — should have been enough to prevent him from notarizing the signature of the Donor in the act of donation despite his lack of knowledge about the limitation of his notarial authority.

Although JP Williams may not have actually known that he was prohibited by law from notarizing documents affecting immovable property, he was nevertheless charged with the responsibility of knowing what the ex officio notarial duties of a | ^justice of the peace are. See In re Wilkes, 403 So.2d 35, 44 (La.1981). By notarizing a document that he had no legal authority to notarize and by disregarding the law in doing so, JP Williams violated the Code of Judicial Conduct. JP Williams did not observe the high standards of conduct as required by Canon 1 and he did not comply with the law as required by Canon 2(A)(1) or maintain competence in the law as required by Canon 3(A)(1).

In the newspaper article in The Times-Picayune, JP Williams was portrayed in a very negative light giving rise to concerns among his constituents. Therefore, JP Williams failed to act in such a way that the integrity and independence of the judiciary would be preserved as required by Canon 1, and he failed to act in a manner that promoted public confidence in the integrity and impartiality of the judiciary as required by Canon 2(A). By acknowledging that he would have handled the matter differently had his son not been involved, JP Williams acknowledged that he allowed family relationships to influence both his judicial conduct and judgment in violation of Canon 2(B), and he showed bias in favor of his family members in violation of Canon 3(B)(1).

The Commission, however, observed that JP Williams realized the impropriety of his actions and that he cooperated in the resolution of the lawsuit brought by Mr. Larché to clear title to the property described in the act of donation.

DISCUSSION

Article V, § 25(C) of the Louisiana Constitution provides the substantive grounds for disciplinary action against a judge. The Code of Judicial Conduct, [^adopted by this court under its supervisory authority, supplements the constitution’s substantive grounds for disciplinary action against a judge. The Code is binding on all judges, including justices of the peace. In re Justice of the Peace Alfonso, 07-0120 (La.5/22/07), 957 So.2d 121, 125. Violations of the Canons contained in the Code can serve as a basis for the disciplinary action provided for by La. Const. art. V, § 25(C). Alfonso, 957 So.2d at 125. Furthermore, a justice of the peace is governed by the same constitutions and laws that govern all courts and judges of this state, and a justice of the peace is bound to apply the law as written by the legislature and construed by the various courts. Id. That a justice of the peace is untrained in the law does not relieve a justice of the peace of the responsibility to follow the rule of law. Id.; see In re Adams, 11-0121 (La.5/10/11), 68 So.3d 948, 954.

An act by a judge or justice of the peace need not be intentional to support judicial discipline. Alfonso, 957 So.2d at 125, citing In re Hunter, 02-1975 (La.8/19/02), 823 So.2d 325, 336. A lack of conscious intent can still support the imposition of judicial discipline. See Alfonso, 957 So.2d at 126, citing In re Elloie, 05-1499 (La.1/19/06), 921 So.2d 882, 902.

13Based on a thorough review of the record in this case, we agree with the Commission’s factual findings and conclusions of fact and law. JP Williams unknowingly exceeded his authority as a justice of the peace by notarizing the act involving the transfer of an immovable in violation of La. R.S. 13:2586.1(B)(1). More disappointing is the fact that he allowed his family members to take advantage of his position by having him notarize a document without having all of the parties appear before him, which he knew was a violation of the law. See La. C.C. arts. 1833 and 1839. Undoubtedly, his actions resulted in a violation of Canons 1, 2(A), 2(B), 3(A)(1), and 3(B)(1) of the Code of Judicial Conduct as found by the Commission. Thus, we must decide the appropriate discipline.

In recommending discipline, this court has set forth a non-exclusive list of factors to be considered in imposing discipline on a judge. See In re Chaisson, 549 So.2d 259 (La.1989). Utilizing these factors, the Commission concluded that this was an isolated instance of misconduct, which did not occur in court but did occur in connection with JP Williams’ official duties. JP Williams acknowledged his wrongful | Tnacts and assured the Commission that they would not recur. The Commission considered his statements in this regard to be sincere in light of JP Williams’ efforts in resolving his conflict with Mr. Larehé, as well as his cooperation in the disciplinary proceedings. Despite the fact that he had been in office for five years, JP Williams was not aware at the time of his misconduct that he could not notarize documents involving immovable property. Nonetheless, JP Williams knew that he was not supposed to notarize a document that was not signed in his presence. He made a conscious decision to deviate from the latter rule in this instance in spite of having doubts about doing so.

JP Williams has no history of prior ethical misconduct. However, JP Williams’ misconduct caused harm to Mr. Larehé and to the public by placing a cloud on the title to the property that rendered it unmarketable until Mr. Larché’s federal lawsuit was resolved. Furthermore, JP Williams’ actions had a significant effect on the integrity of and respect for the judiciary, particularly in light of the negative publicity received in the news media. The fact that the transaction benefitted members of his family exacerbated the negative perception of the judiciary that was created when his actions were reported in the news media. However, there was no evidence that JP Williams exploited his judicial position for personal gain.

In determining an appropriate sanction, we are mindful that the primary purpose of the Code is the protection of the public rather than simply to discipline judges. In re Marullo, 96-2222 (La.4/8/97), 692 So.2d 1019, 1023. The discipline to be imposed depends on the facts of each case and the totality of the circumstances, and is guided by the factors identified in Chaisson. See Chaisson, 549 So.2d at 266.

Factors contributing to the seriousness of JP Williams’ violation of the Code are that his misconduct occurred in the performance of his judicial duties; he was not | nnew to his position as justice of the peace, having served one complete term prior to this violation; and his misconduct caused harm to Mr. Larehé and negatively impacted the public’s confidence in and respect for the judiciary.

Obviously, the hearing officer and Commission, who saw and heard JP Williams, believed that he did not act with fraudulent intent. If we thought that JP Williams had deliberately engaged in such action in bad faith, the disciplinary action of public censure as recommended by the Commission would be insufficient for the misconduct involved. However, this was an isolated instance of misconduct by JP Williams for which he is remorseful. JP Williams had no prior complaints against him. Furthermore, upon receiving notice of his misconduct, JP Williams worked with Mr. Larehé to remedy the situation and demonstrated cooperation with the Commission. Finally, his commitment to the Commission was that he would not notarize any act without requiring the parties to appear and sign in his presence and would not notarize an act involving immovable property in the future. Apparently, the Commission was convinced he would not repeat the mistake made in this matter.

Under the circumstances of this case, we conclude that public censure would adequately serve the purpose of this disciplinary proceeding. Accordingly, we will accept the recommendation of the Commission and publicly censure JP Williams, as well as order him to pay the costs of these proceedings.

DECREE

For the reasons assigned, it is ordered that Justice of the Peace Herbert G. Williams, Jr., be publicly censured for violating Canons 1, 2(A), 2(B), 3(A)(1), and 8(B)(1) of the Code of Judicial Conduct. It is further ordered that Justice of the Peace ^Herbert G. Williams, Jr., reimburse the Judiciary Commission of Louisiana $1,657.56 in costs.

VICTORY, J.,

dissents.

hi dissent and would impose a harsher sanction.

      . JP Williams, who is presently 81 years of age, was first elected as a justice of the peace in 1997 and assumed his office on January 1, 1998. Thereafter, he was re-elected twice, including most recently in 2008, for a term of office commencing on January 1, 2009. Since the year 2008, there has been a maximum qualification age of 70 for justices of the peace. See La. R.S. 13:2582(A)(2)(a). However, those persons who were serving as a justice of the peace or elected to the office of justice of the peace on or before August 15, 2006, are excluded from this age requirement. See La. R.S. 13:2582(A)(2)(b).
      JP Williams is not an attorney and never qualified to be a notary public with full authority under La. R.S. 35:1, et seq.

      . A separate file was opened when Mr. Larché filed a complaint with the Commission regarding the act of donation.

      . See La. R.S. 13:2586.1(B)(1) (as an ex offi-cio notary public, JP Williams did not have authority to "[rjeceive or notarize any document effecting, transferring, conveying, encumbering, or mortgaging immovable property.”).

      .Canon 1 requires that a judge uphold the integrity and independence of the judiciary. Canon 2(A) commands that a judge respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2(B) provides that a judge shall not allow family or other relationships to influence judicial conduct or judgment, nor shall a judge lend the prestige of his judicial office to advance the private interest of the judge or others. According to Canon 3(A)(1), a judge shall be faithful to the law and maintain professional competence in it, while Canon 3(B)(1) requires that a judge diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration.

      .JP Williams attended the attorney general’s training program in 1997, 1999, 2001, 2003, and subsequent years, which fulfilled the attendance requirements of La. R.S. 49:251.1(B). However, the program agendas for those years do not include a specific reference to notarial duties of a justice of the peace.

      . The signature purporting to be that of the Donor is illegible, and there is no name typed below the signature indicating the name of the Donor.

      . There is no indication that any criminal charges were ever brought against JP Williams as a result of his actions.

        .See La. R.S. 13:2586.1(B)(1).

      .JP Williams objected to this finding, contending there is no evidence that he believed the Donor’s signature was invalid at the time he notarized the act of donation. The Commission acknowledged this may be true, but stated:
      [T]he fact remains that someone forged what purported to be Mr. Larché’s signature, but was not, to a legal document falsely representing that he was donating land to relatives of JP Williams. JP Williams’ lack of familiarity with the limitations imposed upon him as an ex officio notary, and his willingness to make an exception to the rule he did know — that he should not notarize any document that was not signed in [his] presence — contributed to the negative consequences to Mr. Larché.

      . It appears from the public records of Plaquemines Parish that title to the property was still in the name of Mr. Larché’s deceased parents. Nevertheless, for purposes of this proceeding, the Commission found it is irrelevant how the title to the property appeared in the public records when JP Williams notarized the donation, as neither Mr. Larché nor anyone else purporting to be the Donor signed the document in JP Williams’ presence.

      . Since the codal violations were sufficiently serious to warrant a recommendation of public discipline, the hearing officer did not determine whether JP Williams’ conduct also violated the provisions of La. Const, art. V, § 25(C) (pertaining to "willful misconduct relating to his official duty”), as charged. The Commission likewise declined to make such a finding.

      . La. Const. art. V, § 25(C) provides:
      On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pen-dency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.

      . As previously mentioned, the Commission’s formal charge against JP Williams alleged violations of Canons 1, 2(A), 2(B), 3(A)(1), and 3(B)(1).

      . "[A] judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.” Hunter, 823 So.2d at 336, quoting In re Quick, 553 So.2d 522, 524 (Miss.1989).

      . A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 1839. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. La. C.C. art. 1833(A).

      .The non-exclusive list of factors to be considered by a court in imposing discipline on a judge are:
      "(a) whether the misconduct is an isolated instance or evidenced a pattern of conduct; (b) the nature, extent and frequency of occurrence of the acts of misconduct; (c) whether the misconduct occurred in or out of the courtroom; (d) whether the misconduct occurred in the judge's official capacity or in his private life; (e) whether the judge has acknowledged or recognized that the acts occurred; (f) whether the judge has evidenced an effort to change or modify his conduct; (g) the length of service on the bench; (h) whether there have been prior complaints about this judge; (i) the effect the misconduct has upon the integrity of and respect for the judiciary; and (j) the extent to which the judge exploited his position to satisfy his personal desires.”

        Chaisson, 549 So.2d at 266, quoting Matter of Deming, 108 Wash.2d 82, 736 P.2d 639, 659 (1987).

      . The Office of Special Counsel had urged the Commission to recommend a 60-day suspension without pay in this case.


author: PER CURIAM.

text:
    In re Herman W. ROBINSON, Jr.
    No. 2010-OB-2789.
    Supreme Court of Louisiana.
    Jan. 24, 2012.
    Pascal F. Calogero, Jr., New Orleans, Elie, Jones & Associates, Ernest Lake Jones, Lolis E. Elie, for Applicant.
    Monique Rene Drake, Lawrence Joseph Centola, Jr., for Respondent.
   PER CURIAM.

| petitioner, Herman W. Robinson, Jr., successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions advised petitioner that it was unable to certify his character and fitness to this court, citing his lack of candor in submitting both his application for admission to law school and his applications for admission to the bar. On petitioner’s application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence.

During the character and fitness hearing, the commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law. Petitioner objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we agree with the commissioner that petitioner lacks the requisite good moral character to be admitted to the bar. Petitioner failed to disclose his prior criminal offenses when he applied to law school, and failed to accurately disclose the criminal charges on three separate applications for admission to the bar. While ^petitioner characterized the omissions on his bar applications as good faith mistakes (an explanation rejected by the commissioner), he has acknowledged that he intentionally omitted the information on his law school application because he feared he would not be admitted to law school in the face of an accurate disclosure. We agree with the commissioner that such conduct by petitioner is fundamentally inconsistent with a lawyer’s duties of truth and honesty.

Under the circumstances, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(D). Accordingly, it is ordered that the application for admission be and hereby is denied.

ADMISSION DENIED.


text:
    In re Johnnie JONES, Sr.
    No. 2011-B-1038.
    Supreme Court of Louisiana.
    Jan. 24, 2012.

      Charles Bennet Plattsmier, Batton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for Applicant.
    Dumas Law Firm, LLC, Walter Clayton Dumas, Travis J. Turner, for Respondent.
   PER CURIAM.

|, This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Johnnie Jones, Sr., an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1958. In 1978, respondent received a private reprimand. In 1979, this court suspended respondent from the practice of law for six months after he engaged in a pattern of commingling client funds over the course of several years. Louisiana State Bar Ass’n v. Jones, 372 So.2d 1186 (La.1979) (“Jones I”).

In 2001, we considered a disciplinary proceeding involving respondent’s misconduct in wrongfully disbursing funds belonging to his client and failing to provide an accounting of his fee to another client. For this misconduct, we imposed a one-year suspension from the practice of law. We further ordered respondent to submit to fee arbitration for resolution of the client matters and to refund any improper or unearned fees. In re: Jones, 00-1939 (La.4/3/01), 787 So.2d 271 (“Jones II”). After serving his suspension, respondent was reinstated to the practice of law on April 6, 2004.

12Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

In July 2006, Hannah Lee Douglas Childs hired respondent to handle the succession of her deceased father, Wade Douglas. On July 13, 2006, Ms. Childs paid respondent $5,000 and provided him with ten documents related to her father’s properties. On July 31, 2006, Ms. Childs provided respondent with additional documents relative to the estate’s property located in DeSoto Parish. Included in this initial information provided by Ms. Childs was a notice about mineral activity on the property.

On August 9, 2006, respondent wrote to the Commissioner of Conservation for the State of Louisiana advising of his representation of Ms. Childs and other family members for the purposes of attending a conservation hearing on August 15, 2006. On August 16, 2006, respondent wrote to Ms. Childs providing information he received during the hearing and advising her that he would order a “title abstract” with respect to the DeSoto Parish property. The following day, Ms. Childs paid respondent an additional $5,000. On August 23, 2006, respondent received the title abstract he had requested, for which he was billed $275.

In mid-September, respondent telephoned Ms. Childs and proposed that she give him a percentage of the oil, gas, and mineral royalties from the estate’s property as his legal fee. However, Ms. Childs declined such an agreement. On September 25, 2006, respondent provided Ms. Childs with copies of orders issued by the Office of Conservation and conveyed to her an offer from Winchester Production Company to enter into an oil, gas, and mineral lease. On October 25, 2006, Ms. Childs wrote to respondent to terminate his representation and request a [ ¡¡copy of her file and an itemization of the work he performed on her behalf. At this time, respondent still had not filed pleadings to open the succession.

On November 2, 2006, respondent wrote to Ms. Childs advising that “preparation of the succession proceedings is moving forward” and discussing the appointment of an administration for purposes of executing an oil, gas, and mineral lease with Winchester Production Company, who had contacted respondent the day before seeking assistance in opening the succession and having an administrator appointed for the purpose of executing the lease. On November 3, 2006, Ms. Childs wrote to respondent to confirm a telephone conversation wherein she demanded a refund of the fees paid, a return of documents she provided to him, and a copy of her file. Respondent did not comply with any of these requests, and on November 17, 2006, Ms. Childs filed a complaint with the ODC.

DISCIPLINARY PROCEEDINGS

In April 2009, the ODC filed formal charges against respondent, alleging he violated Rule 1.5(f)(5) (failure to refund an unearned fee) of the Rules of Professional Conduct. Respondent answered the formal charges, denying any misconduct. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made factual findings consistent with the chronology of events set forth in the underlying facts section above. The committee also made the following additional factual findings:

Respondent agreed to undertake the representation of Ms. Childs in connection with the succession of Wade Douglas. There was no written 14agreement, but Ms. Childs paid respondent $5,000, which respondent retained as an earned fee despite describing it as a “retainer.” Ms. Childs also sent respondent a significant amount of information regarding the Wade Douglas family and the estate’s property, including a notice about mineral activity on the property. Although respondent testified that he “discovered” there were minerals on the property, his knowledge came from information provided by Ms. Childs. Everything respondent did in connection with the representation focused on mineral rights and mineral interests instead of opening the succession, having an administrator appointed, compiling the detailed descriptive list, and sending the heirs into possession. No records were produced that established that, other than having the abstract prepared, respondent did anything except focus on the minerals.

Respondent principally communicated with Ms. Childs by letters dealing with the mineral interests, although occasional telephone conversations took place. Respondent’s assertion in his November 2, 2006 letter that the succession proceedings were progressing, at least in the sense of judicial activity to open the succession and having an administrator appointed, is not accurate. Furthermore, respondent either did not understand or disregarded the communication from Ms. Childs on October 25, 2006 that his services had been terminated.

Regarding the funds paid to respondent by Ms. Childs, none of the funds were deposited into respondent’s trust account. Respondent was unequivocal in his testimony that he was entitled to consider the funds his when they were paid, despite the fact that he expected to charge an eventual fee based on the value of the succession. Even if respondent had not taken this position, he had no trust account in which to deposit the funds or to deposit the unearned portion of a disputed fee. Because respondent himself characterized the funds as a “retainer” and testified that he did not know what the ultimate fee would have been because the value of the succession was never determined, his argument that he earned the entire | r,amount is inconsistent with the provision of Rule 1.5 that requires attorneys to place client funds into a trust account until a fee is earned.

Respondent admitted that he has not provided Ms. Childs with an itemization of his work, nor has he returned her file. He testified that he does not keep itemized records of time spent working on a legal matter, but he kept Ms. Childs informed of the work he was doing. He also testified that he did not return Ms. Childs’ file because she already had all of the papers and information that were in his file. Neither of these explanations justifies respondent’s refusal to comply with these requests.

Respondent and Ms. Childs provided conflicting testimony regarding whether the $10,000 should be refunded. There is a clear dispute as to whether (or what amount of) the fee was earned in this case, what amount (if any) should be refunded, and what amount remains in dispute and should be placed in a trust account pending resolution of the dispute.

Based on the documentary evidence and respondent’s testimony, the committee determined that Ms. Childs did not receive $10,000 worth of work. While respondent did undoubtedly do some work in the matter, he never filed documents to open the succession, never sought appointment of an administrator, never filed a detailed descriptive list, and never petitioned the court for a judgment of possession. At the very least, having an administrator appointed should have been accomplished early on. Based on the documentary evidence and testimony, respondent earned, at best, a fee of $2,500. Ms. Childs and the other heirs, in all likelihood, received a higher royalty percentage from mineral production than they might have otherwise received due to respondent’s involvement. However, the succession was never opened or completed. Thus, upon termination, respondent should have returned Ms. Childs’ file, provided her with the requested itemization, and either returned at least $7,500 to Ms. Childs or deposited that sum into his trust | (¡account and undertaken efforts to resolve the fee dispute. Respondent did none of this. Thus, the committee determined he violated Rule 1.5(f)(5) of the Rules of Professional Conduct, as alleged in the formal charges.

Turning to the issue of an appropriate sanction, the committee determined that suspension is the baseline sanction for respondent’s misconduct, based on the ABA’s Standards for Imposing Lawyer Sanctions. In aggravation, the committee cited respondent’s prior disciplinary history, a pattern of misconduct, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1953), and respondent’s failure to maintain a trust account. In mitigation, the committee found respondent lacked a dishonest or selfish motive and had no intent to convert his client’s funds.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for three years, with all but one year and one day deferred. Additionally, the committee recommended the following as conditions to the filing of any petition for reinstatement by respondent:

1. Respondent engage in fee dispute arbitration through the program provided by the Louisiana State Bar Association and satisfy in full any award in favor of Ms. Childs;
2. Respondent demonstrate that he has established a trust account;
3. Respondent complete Trust Accounting School; and
4. The court authorize the ODC, at its discretion, to audit respondent’s financial records to ensure future compliance with the Rules of Professional Conduct.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. However, in his brief to the disciplinary board, respondent admitted that although he may have “technically” violated Rule 1.5(f)(5), the violation does not warrant discipline.

_J¿Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous. The board also determined the factual findings support the conclusion that respondent violated Rule 1.5(f)(5) of the Rules of Professional Conduct as alleged in the formal charges. Whether the fee was an advanced fee (as respondent described it) or a fixed fee (as Ms. Childs described it), respondent would be responsible for returning any unearned portion pursuant to the provisions of Rule 1.5(f)(5). The record contains only a few letters prepared by respondent, respondent’s testimony that he attended one or two mineral conservation hearings, Ms. Childs’ notes of several telephone conversations with respondent, and a title abstract requested by respondent. Respondent did not file any pleadings to open the succession, which was the purpose of the representation. Therefore, the board determined respondent did not earn the entire $10,000 fee. Because he did not refund the unearned portion or place the disputed portion in a trust account, respondent violated Rule 1.5(f)(5).

The board further determined respondent knowingly, if not intentionally, violated duties owed to his client. He caused substantial harm to Ms. Childs in that she paid him a significant amount of money, but he did not complete the legal work she wanted done. Respondent has refused to refund any portion of the fee or attempt to resolve the fee dispute, and Ms. Childs testified that she cannot hire another attorney until she receives a refund from respondent. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct (in light of his prior misconduct), refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. |RThe sole mitigating factor found by the board was remoteness of prior offenses, which only applies to respondent’s 1978 private reprimand and his misconduct in Jones I.

In light of these circumstances, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be ordered to participate in the fee arbitration process provided by the Louisiana State Bar Association and refund any portion of the fee as ordered by the arbitrator.

Respondent filed an objection to the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent was hired to complete a succession but was discharged before doing so. In fact, at the time his services were terminated, respondent had not yet filed the pleadings to open the succession. Nevertheless, he refused to refund any portion of the $10,000 the client paid him, claiming he earned the entire amount despite having no evidence of how much time he spent |9working on the succession. Based on these facts, respondent has violated Rule 1.5(f)(5) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly, if not intentionally, violated duties owed to his client. In failing to resolve the fee dispute, respondent has deprived Ms. Childs of her funds for several years, causing significant harm. The baseline sanction for this type of misconduct is suspension.

Numerous aggravating factors are present, including prior disciplinary offenses, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and indifference to making restitution. The sole mitigating factor present is the remoteness of prior offenses but only with respect to respondent’s 1978 private reprimand and his misconduct in Jones I.

We find the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law, with all but one year deferred. Following the active portion of his suspension, respondent shall be placed on supervised probation for a period of two years. As a condition of probation, respondent is ordered to submit to fee dispute arbitration in the Childs matter and refund any unearned fees as determined by the arbitrator. We caution respondent that any | mviolation of the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Johnnie Jones, Sr., Louisiana Bar Roll number 8329, be and he hereby is suspended from the practice of law for three years. It is further ordered that all but one year of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for two years. As a condition of probation, respondent is ordered to submit to fee dispute arbitration in the Childs matter and refund any unearned fees as determined by the arbitrator. 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 portion of the suspension executory, or imposing additional discipline, as appropriate. 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.

JOHNSON, Justice, dissents.

      . Ms. Childs’ father died intestate in 1982.

      . Evidence in the record, namely the signed certified mail return receipt card, indicates respondent received this letter on November 3, 2006.