author:
GUIDRY, Justice.
      KIMBALL, Chief Justice,

text:
    Karen KING v. ILLINOIS NATIONAL INSURANCE COMPANY, et al.
    No. 2008-C-1491.
    Supreme Court of Louisiana.
    April 3, 2009.
    Rehearing Denied May 22, 2009.

      The Sentell Law Firm, C. Sherburne Sentell, III, Minden, For Applicant.
    Degan, Blanchard & Nash, Sidney Wallis Degan, III, Travis Louis Bourgeois, Baton Rouge, For Respondents.
   GUIDRY, Justice.

| We granted certiorari in this matter to address the res nova issue of whether an individual’s unexercised right to institute litigation through the filing of a lawsuit can be seized by a writ of fieri facias. For the reasons that follow, we find the court of appeal properly concluded a cause of action on which suit has not yet been filed is a strictly personal right and, as such, not subject to seizure. Accordingly, the court of appeal’s ruling reversing the trial court and granting summary judgment in favor of and dismissing the defendants, Illinois National Insurance Company (hereafter, “Illinois National”) and American International Group, Inc., a/k/a AIG Specialty Auto (hereafter, “AIG”), is affirmed.

FACTS AND PROCEDURAL HISTORY

Rendering of Excess Judgment

On January 13, 1998, Annessa Monique Theus, while operating a vehicle insured by Illinois National, made a left turn in front of and collided with a vehicle in which the plaintiff, Karen King, was a guest passenger. Less than four months after the accident, the plaintiff provided to AIG, Illinois National’s independent adjuster, medical documentation evidencing soft tissue and extensive dental injuries sustained when she was thrown into the windshield of the vehicle she was | ¡^occupying. The plaintiff was subsequently unsuccessful in her proactive efforts to settle her bodily injury claim with Illinois National for the $10,000.00 policy limits in exchange for a full release of the insurer and Ms. Theus from any further liability.

Following a bench trial on the merits, Ms. Theus was assessed total liability for the accident. The plaintiff was awarded a judgment in the amount of $74,111.86. Since Illinois National was given a $10,000.00 credit representing the policy limits tendered shortly before the trial, an excess judgment was rendered against Ms. Theus in the amount of $64,111.86. On appeal, the general damages portion of the award was increased by an additional $15,000.00, thereby making the excess amount owed by Ms. Theus $79,111.86. King v. Illinois Nat’l Ins. Co., 34,473 (La. App. 2 Cir. 2/28/01), 782 So.2d 1104.

Issuance of Writ of Fieri Facias

Subsequently, this Court denied supervisory writ applications filed by the plaintiff seeking an increase in the general damage award and Ms. Theus contesting the issue of liability. See King v. Illinois Nat’l Ins. Co., 01-1244 (La.6/22/01), 794 So.2d 788 and 01-1245 (La.6/22/01), 794 So.2d 788, respectively. Thereafter, in accordance with Louisiana Civil Procedure article 2253, the plaintiff formally requested the Webster Parish Clerk of Court to issue a writ of fieri facias in an attempt to collect on the excess judgment rendered against Ms. Theus. The following day, the plaintiff obtained a writ of fieri facias directing the Sheriff of Webster Parish to seize, among other things:

All rights, causes of action, or other claims that Annessa Monique Theus may have against Illinois National Insurance Company for its failure to |a;protect her from personal liability by settling Karen K. King’s claim, within the policy limits and obtaining a full release for Annessa Monique Theus. This is an excess claim that Annessa Monique Theus has against her own insurance company, Illinois National Insurance Company, and all rights and incidental actions that Annessa Monique Theus may have to bring legal action against Illinois National Insurance Company related to the automobile accident that took place on January 13, 1998 in Minden, Webster Parish, Louisiana. The rights herein seized include, but are not limited to, the right to sue Illinois National Insurance Company in the name of and on behalf of Annessa Monique Theus.

(Emphasis added.)

Subsequently, on July 24, 2001, the Webster Parish Sheriff filed a notice indicating that the property described in the writ had been seized.

On June 13, 2002, the plaintiff, in her alleged capacity as transferee of Ms. Theus’s inchoate rights, instituted suit against Illinois National and AIG for damages, penalties, and attorney’s fees due Ms. Theus under Louisiana Revised Statutes 22:658 and 22:1220. Essentially, the plaintiff alleged the defendants subjected Ms. Theus to the excess judgment through the breach of their contractual obligations to adjust promptly and in good faith the plaintiff’s bodily injury claim through the defendants’ adamant refusal to settle within the policy limits in exchange for Ms. Theus’s release from liability.

Motion for Summary Judgment

On August 24, 2007, the defendants filed a motion for summary judgment seeking dismissal of the plaintiff’s action on the basis that no genuine issue of material fact exists. Specifically, the defendants urged the plaintiff did not have ajjcause of action against them to seek recovery of the excess judgment or recover penalties and attorney’s fees. The defendants maintained any inchoate rights Ms. Theus possessed to bring an action against them were neither transferable, nor subject to involuntary seizure, pursuant to a writ of fieri facias. In opposition, the plaintiff advanced, because Ms. Theus’s claims against the defendants may be transferred by assignment, they could be subject of seizure by writ of fien facias. Following a hearing, the trial court denied the motion for summary judgment, citing in its oral reasons the existence of a genuine issue of material fact as to whether the plaintiff had actually acquired the rights of Ms. Theus to file the petition and whether the defendants inappropriately failed to settle the plaintiffs earlier claim.

The court of appeal reversed the trial court’s denial of summary judgment and dismissed the plaintiffs action. King v. Illinois Nat’l Ins. Co., 43,237 (La.App. 2 Cir. 6/4/08), 986 So.2d 839. In doing so, the appellate court maintained, since Ms. Theus’s potential cause of action against the defendants was not subject of a pending lawsuit, the parties erred in relying on, as the controlling law in the case, Louisi-ána Civil Code article 2652 relative to the assignment of litigious rights. In addressing the legality of the seizure of an inchoate right, the court of appeal referenced treatise commentary suggesting that a mere potential claim for damages can be seized even | ¿before the cause of action becomes subject of a pending lawsuit. The court specifically referred to the discussion of Professors William Shelby McKenzie and H. Alston Johnson, III pertaining to an insured’s claim against his insurer for excess exposure, which provides an “insured’s claim may be seized and asserted by the judgment creditor.” 15 W.S. McKenzie & H.A. Johnson, Louisiana Civil Law Treatise: Insurance Law and Practice, Excess Liability Procedures § 222 (3d ed.2006). The court of appeal also acknowledged Professor A.N. Yianno-poulos’s discussion of the common pledge of creditors, maintaining that “[i]t would seem the creditor should be allowed to seize or exercise any right of the debtor which may qualify as patrimonial unless this right is strictly personal.” 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise: Property § 197 (4th ed.2001). Based on its review, the court of appeal recognized the absence of any case law directly supporting the position of Professors McKenzie and Johnson. It also found Professor Yiannopoulos’s conditional language reflected the lack of clear and definitive jurisprudence on the subject.

While conceding the lack of clear guidance from Louisiana jurisprudence, the court of appeal concluded a mere right to potentially bring a lawsuit is a non-transferable, strictly personal right and, as such, not subject to seizure by a writ of fieri facias. Accordingly, the trial court judgment was reversed and the plaintiffs petition dismissed.

We granted certiorari to review the correctness of the court of appeal’s ruling granting summary judgment in favor of the defendants. King v. Illinois Nat’l Ins. Co., 08-1491 (La.10/10/08), 993 So.2d 1271.

| ¿DISCUSSION

Standard of Review

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910; Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342, 345 (La.1991). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. La. C.C.P. art. 966(A)(2). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966; Duncan v. USAA Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 546-547. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-766.

Because the court of appeal granted summary judgment based upon its conclusion that the plaintiff had no legal basis to file suit against the defendants, we must first examine whether an unexercised right to institute a lawsuit is subject to 17seizure by writ of fien facias. From that determination, we shall decide whether summary judgment in favor of the defendants is appropriate under the facts.

Assignment of Rights

In support of summary judgment, the defendants contend the plaintiff cannot assert her bad faith claims because they are premised on a defective seizure of Ms. Theus’s inchoate rights to bring an action against them. By contrast, the plaintiff alleges Ms. Theus’s claims against the defendants were assignable and, as such, also subject to seizure by writ of fieri facias. Notably, neither party’s position is premised on conclusive statutory or jurisprudential law. In deference to the litigants, our research also corroborates the court of appeal’s observation that there is a lack of definitive jurisprudence on the subject of the seizure of inchoate rights.

In addressing this novel issue, we are guided by the principle of assignment of rights, another vehicle for the transfer of rights. The term “assigns” is defined in the Louisiana Civil Code as “those to whom rights have been transmitted by particular title; such as sale, donation, legacy, transfer or cession.” La. C.C. art. 3506(5) (emphasis added). Black’s Law Dictionary 228-229 (6th ed.1990) defines “cession” as “[t]he act of ceding; a yielding or giving up; surrender; relinquishment of property or rights ... In the civil law, an assignment. The act by which a party transfers property to another. The surrender or assignment of property for the benefit of one’s creditors.” (Emphasis in original.)

Considerable jurisprudence exists on the issue of assignment of rights. The law is clear that a litigious right, a cause of action which is the subject of pending litigation, is transferable by assignment pursuant to Louisiana Civil Code article 2652. While this Court has never pointedly entertained the issue of the legality of an assignment of a cause of action prior to an assignor’s filing suit on that cause of |8action, our state appellate courts have concluded such is permissible. See, e.g., Falco Lime, Inc. v. Plaquemine Contracting Co., Inc., 95-1784 (La.App. 1 Cir. 4/4/96), 672 So.2d 356; Maryland Casualty Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1st Cir.1993); Keith v. Comco Ins. Co., 574 So.2d 1270 (La.App. 2nd Cir.1991). The cases that arise in the insurance context impliedly recognize that, although the obligations with respect to excess exposure flow from the insurer to the insured, claims for breaches of those duties may be asserted by assignees of the insured (i.e., judgment creditors), irrespective of whether the bad faith suit is filed by the insured or the assignee.

Similarly, our Louisiana federal courts have addressed on several occasions the issue of whether an inchoate right to file suit is subject of assignment under Louisiana law. See, e.g., Woodfield v. Bowman, 193 F.3d 354 (5th Cir.1999); Pontchartrain Gardens, Inc. v. State Farm General Ins. Co., 2009 WL 86671 (E.D.La.1/13/09); Steirwald v. Phoenix Ins. Co., 2001 WL 617542 (E.D.La.5/30/01); Sanderson v. H.I.G. P-XI Holding, Inc., 2001 WL 245788 (E.D.La.3/9/01). In the more recent cases, the courts reject the earliest proposition articulated in Parich v. State Farm Mutual Auto. Ins. Co., 919 F.2d 906 (5th Cir.1990), that a dispute not the subject of litigation is non-transferable by assignment. In finding inchoate rights subject to assignment, |9the courts each rely on Louisiana Civil Code article 2642, which provides, in relevant part, that “[a]ll rights may be assigned, with the exception of those pertaining to obligations that are strictly personal.... ” The courts found a judgment debtor’s reliance on Louisiana Civil Code article 2652, as the basis that only litigious rights can be assigned, to be misplaced. Essentially, the courts reasoned article 2652 articulates only the rules regarding the redemption or extin-guishment of litigious rights, and does not apply in any respect to the transfer of rights before a suit is filed.

In addressing the plaintiffs argument that Ms. Theus’s claims are subject to seizure because they are assignable, the court of appeal also considered the issue of the assignment of inchoate rights. It found such rights assignable for reasons similar to those expressed by the federal courts. Notwithstanding the court of appeal’s conclusion in this regard, we do not venture to specifically address whether an unexercised right to institute a lawsuit may be assigned, as that issue is not presently before this Court. As initially raised, we decide today only whether the court of appeal was erroneous in rendering summary judgment premised on its conclusion that a potential right to file suit may not be seized pursuant to a writ of fieri facias.

Seizure of Inchoate Rights

Nature of Relinquishment

Applying the principles relative to assignment, it is undisputed that, had Ms. Theus assigned her rights to the plaintiff, the transfer would be indicative of Ms. 110Theus’s intent to voluntary surrender her interests in litigating her bad faith claims against the defendants. However, as plaintiff concedes, this proceeding involves an involuntary seizure of inchoate rights. It is our position that it is the nature of the relinquishment of the judgment debtor’s interests, whether voluntary or involuntary, that is the pivotal consideration in determining the validity and legality of the vehicle chosen for the transfer of inchoate rights.

Writs of Fieri Facias and Constitutional Implications

The general rules relative to writs of fieri facias are set forth in articles 2291, et seq. of the Louisiana Civil Code of Procedure, Book IV entitled “Execution of Judgments.” An essential requirement to the issuance of a writ of fieri facias is a money judgment. Madere v. Modere, 95-088 (La.App. 5 Cir. 5/30/95), 656 So.2d 1108, 1109 (“A necessary prerequisite to a writ of fieri facias is a money judgment.”), rev’d on other grounds per curiam, 95-1635 (La.10/16/95), 660 So.2d 1205 (“Absent a money judgment, there was nothing for plaintiff to execute through a writ of fieri facias”). Louisiana Code of Civil Procedure article 2291 provides “[a] judgment for the payment of money may be executed by a writ of fieri facias directing the seizure and sale of property of the judgment creditor.” (Emphasis added.) While the terms “seize” and “seizure” are not defined under the applicable section of the Louisiana Code of Civil Procedure, their definitions are provided in Black’s Law Dictionary 1389 (8th ed.2004). Pertinent to the instant matter, “seize” is defined as “to forcibly take possession (of a person or property).” The relevant definition of “seizure” provides “the act or instance of taking possession of a person or property by legal right or process.” Contrary to the principle of assignment where there is a voluntary surrendering of personal rights, these definitions illustrate the act of seizing through the execution of a judgment constitutes an involuntary relinquishment of a | t Judgment debtor’s interests. It implies a conscious reluctance on the part of a judgment debtor in renouncing his personal rights.

Due to the inherent nature of the involuntary cession of a judgment debtor’s property interests, this Court has held statutes relative to seizure are to be strictly construed. Pelican v. Winder, 253 La. 697, 219 So.2d 500, 502 (1969). Strict construction and application of the provisions relating to writs of fieri facias, as with other provisions pertaining to the execution of judgments, are warranted insofar as the seizure process implicates the constitutional due process protections afforded to the judgment debtor. See U.S. Const, amend. XIV; La. Const, art. I, § 2; 42 U.S.C.A. § 1983. There is no dispute that the Louisiana procedures for issuing and executing a writ of fieri facias are constitutional as written. However, misapplication of the procedural protections provided in the codal provisions can give rise to constitutional violations. Doyle v. Schultz, 97 F.Supp.2d 763, 767-768 (E.D.La.2000) (“In Louisiana, state officials are directly involved in the issuance and the execution of the writ of fi fa. The writ of fi fa is strictly a state-created and state-executed mechanism. This is sufficient to establish action under color of state law for purposes of the fourteenth amendment.... If the defendants, in conjunction with the State, violated plaintiffs’ due process rights in issuing and executing the writ of fi fa, plaintiffs would, have a cognizable [due process] claim....”). Generally, most cases relating to the assertion of due process violations involve a judgment debtor’s lack of notice and opportunity to be heard prior to the execution of a writ of fieri facias. See, e.g., Cobb v. Miller, 818 F.2d 1227, 1239 (5th Cir.1987) (“[0]ne of the concerns about writs of execution such as fieri facias is that the party whose property is to be seized has notice and opportunity to be heard before seizure.”).

|12We are cognizant Ms. Theus has not raised an objection to the validity of the seizure process which is the subject of these proceedings. However, due to the novel question at issue, this Court is nevertheless required to address the appropriateness of the plaintiffs forcible taking of Ms. Theus’s inchoate rights and causes of action against the defendants and, ultimately, whether the seizure is violative of the judgment debtor’s interests. More directly, it is the constructive seizure of Ms. Theus’s individual choice to file a lawsuit on the causes of action against her- insurance carrier that warrants our full consideration.

A decision whether to file a lawsuit is premised on an individual's subjective judgment. Fundamentally, such a conscious determination is dictated by one’s mind and will, exhibited exclusively through the exercise of his or her own volition by actively filing or refraining from filing suit. As such, it is a strictly personal right not subject to involuntary relinquishment, such as seizure by writ of fieri facias, unless expressly provided for under the law. To hold otherwise, a seizure of a strictly personal right under these facts would be a deprivation of property without due process of law.

Treatise Not Controlling

The plaintiff advances, as her primary authority in support of the legality of the seizure of Ms. Theus’s inchoate rights and causes of action against the defendants, the following commentary relative to excess liability procedures:

| ^Claims against insurers, however, have been asserted in several different ways. The insureds have settled the excess judgments and brought suit for the amount of the settlement. Insureds have assigned their rights to the judgment creditor in settlement of the excess judgment, and the claims have been asserted by the assignee. Also, the insured’s claim may be seized and asserted by the judgment creditor. None of these procedures has been questioned in the jurisprudence.

15 W.S. McKenzie & H.A. Johnson, Louisiana Civil Law Treatise: Insurance Law And Practice, Excess Liability Procedures § 222 (3d ed.2006) (emphasis added).

Relying solely on this excerpt, which was referenced in part by the court of appeal, the plaintiff maintains that she, in her capacity as a judgment creditor, was expressly empowered to obtain the issuance of a writ of fieri facias and seize any of Ms. Theus’s assets, including the rights to file an excess claim against her insurer for bad faith.

Addressing the plaintiffs legal basis for the seizure, we acknowledge treatises can be useful in the absence of clear guidance from Louisiana statutory and case law. However, while the cited treatise commentary is germane to the question at bar, it is not controlling and does not provide sufficient authoritative basis for the seizure of such an innately personal right as that involving the choice to institute litigation against a third party.

Potential Abuse in Execution of Money Judgments

In concluding that an unexercised right to file suit is not subject to seizure, we are confident that we have reached a practical and just result in this matter. To hold otherwise, we would be inviting potential abuse in the execution of money judgments. In support, we are cautioned by the fact there is no judicial proceeding involved in the issuance of a writ of fieri facias wherein the legality of the proposed seizure is |Maddressed. Rather, the clerk of court is vested with the sole ministerial authority regarding the issuance of a writ of fieri facias under ordinary process. La. C.C.P. art. 2253. In the instant case, the language in the writ issued by the Webster Parish Clerk of Court relevant to the property subject of seizure, and that which was subsequently executed on, was verbatim that which the plaintiff articulated in her formal written request for the issuance of the writ. The order was rather limited in scope regarding the seizure of inchoate rights, insofar as it only confiscated, albeit without legal basis, the potential claims Ms. Theus had against the defendants stemming from their alleged misconduct giving rise to the excess judgment.

With this in mind, in allowing the seizure of inchoate rights, we foresee misuse of the executory procedure wherein the language pertinent to that being seized is overly broad and vague. Inclusion of language articulating the seizure of “any claims, rights or causes of action a judgment debtor may have against any party” would not be too far removed from the instant matter. Under such circumstances, the execution of money judgments would be left to the unfettered and unbridled discretion of judgment creditors taking any measure through ordinary process to seek recovery under the guise of a legally executed writ of fieri facias. We will not endorse the potential abuse of an artfully crafted procedural mechanism enacted by the Louisiana Legislature to provide proper redress to creditors for their monetary losses. See Johnson, v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216, 218 (1970) (“Fundamental and elementary principles recognize that certainty and constancy of the law are indispensable to orderly social intercourse, a sound economic climate, and a stable government.”), overruled on other grounds, Jagers v. Royal Indem. Co., 276 So.2d 309 (La.1973).

While we are sympathetic to the fact the plaintiff has a real and actual interest 11sin collecting on the excess judgment rendered in her favor against Ms. Theus, her claims are not without limitation and are only enforceable within the confines of the law. The mere existence of the money judgment does not, in and of itself, afford the plaintiff the right of action to institute litigation premised on a constructive seizure of a judgment debtor’s strictly personal right that would have otherwise been barred in the absence of the judgment. In sum, we find no error in the court of appeal’s conclusion that an inchoate right to file suit is not subject to seizure by writ of fieri facias.

Remaining Procedural Claims

In her third and fourth assignments of error, the plaintiff contends the court of appeal failed to acknowledge that she acquired by acquisitive prescription Ms. Theus’s rights and claims to file suit against the defendants. In support, she urges the inchoate right to file suit is an incorporeal movable subject to a three-year acquisitive prescriptive period. She relies on Louisiana Civil Code article 3490, which states “[o]ne who has possessed a movable as owner, in good faith, under an act sufficient to transfer ownership, and without interruption for three years, acquires ownership by prescription.” Based on such, the plaintiff maintains she has had uninterrupted and continuous possession of Ms. Theus’s inchoate rights since July 18, 2001, the day she sought issuance of the writ of fieri facias. Further, she alleges due to the defendants’ six-year delay in procedurally objecting to her right to file suit, they should be estopped and/or have acquiesced in the seizure.

We find no merit in the plaintiffs contentions. Particularly, we find her reliance on Louisiana Civil Code article 3490 to be misplaced. Louisiana Civil Code article 3446 provides “[ajcquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” Generally, it applies to real | lfirights, which confer direct and immediate authority over a thing. La. C.C. art. 476 (comment (a)). However, as we have already stated, the right to institute suit is a strictly personal, inchoate right not susceptible to involuntary relinquishment. As such, it logically follows that it is not subject to adverse possession and the tolling of acquisitive prescription in the manner asserted by the plaintiff.

Furthermore, the plaintiff cites no legal basis to support her estoppel argument. By contrast, the law provides a defendant’s motion for summary judgment “may be made at any time.” La. C.C.P. art. 966(A)(1). It is undisputed the summary judgment procedure is favored, so as to achieve a just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The appellate review of the defendants’ claims in response to the petition was in furtherance of and accomplished these procedural ends. Therefore, we find no error on the part of the court of appeal in this regard.

Finally, in the alternative to their argument as to the impropriety of the seizure, the defendants contend the plaintiff has no cause and/or right of action because the bad faith claims asserted pursuant to Louisiana Revised Statutes 22:658 and 22:1221 are contractual in nature, and can only be raised by their insured, Ms. Theus. Our determination that the suit was improperly brought, based on the defectiveness of the seizure of Ms. Theus’s inchoate rights, pre-termits a discussion of the merits of the defendants’ procedural claims.

CONCLUSION

Accordingly, we conclude the defendants sustained their burden of proof under Louisiana Code of Civil Procedure article 966 for purposes of summary judgment. There was no legal basis for the seizure of Ms. Theus’s inchoate rights to file suit and, consequently, the absence of a legal foundation for the plaintiffs action against the 117defendants. Because no genuine issue of fact warranting trial exists, the defendants are entitled to judgment as a matter of law. La. C.C.P. art. 966.

DECREE

For the reasons stated herein, the judgment of the court of appeal is affirmed and the case is remanded for further proceedings in accordance with this ruling.

AFFIRMED AND REMANDED.

KIMBALL, J., dissents and assigns reasons.

JOHNSON, J., dissents.

KIMBALL, Chief Justice,

dissents.

|,I dissent from the majority’s conclusion that an unexercised right to institute a lawsuit is not subject to seizure by a writ of fieri facias. In my view, the majority’s position is untenable and without adequate support. Moreover, there is no legal basis for the majority’s position that “it is the nature of the relinquishment of the judgment debtor’s interests, whether voluntary or involuntary, that is the pivotal consideration in determining the validity and legality of the vehicle chosen for the transfer of inchoate rights.” At pp. 786-87. In my view, whether the judgment debtor voluntarily or involuntarily relinquished her interest in the action is a distinction without a difference in the proper legal analysis of the issue presented.

The majority concludes that because the decision to file a lawsuit is based on an individual’s subjective judgment and will, the right to file a lawsuit is a strictly personal right. As such, the majority reasons, the right is not subject to involuntary relinquishment by seizure by writ of fieri facias. I disagree with the majority’s classification of the judgment debtor’s claim against her insurer as strictly personal.

The Civil Code distinguishes between strictly personal and heritable obligations. Article 1766 provides in part, “An obligation is strictly personal when |2its performance can be enforced only by the obli-gee, or only against the obligor.” Article 1765 states in part, “An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.” Thus, the distinguishing factor between a heritable obligation and a strictly personal obligation is who can enforce performance. The comments to Article 1766 cite as examples of strictly personal obligations the obligation to fulfill a marriage engagement, the obligation of a musician under a contract to record music, and a contract for dancing lessons. La. C.C. art. 1766 cmt. (c). See also 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise § 197 (4th ed. 2001) (“In this context [of creditors exercising all rights and actions of their debtor unless they are strictly personal], strictly personal means rights and actions which, though patrimonial in nature, are so closely connected with the personality of the debtor that they cannot be exercised by third persons.”). In contrast to these examples, the obligation of an insurer to pay damages to its insured for breach of its duties is not uniquely personal to the insurer or the insured. Concomitantly, in my view, the right of the insured to institute a lawsuit to recover the damages is not uniquely personal to the insured. As such, I believe the right to recover damages and the obligation to pay them is heritable rather than strictly personal. See, e.g., Guidry v. Theriot, 377 So.2d 319, 324 (La.1979) (“[A] victim’s action for recovery of tortious damages is not strictly personal because it is a right to recover money damages that result in a benefit for the victim’s heirs.”). Because I believe the insured’s right is not strictly personal, it is my opinion that the insured’s right to institute a lawsuit can be seized by a writ of fieri facias. See 15 William Shelby McKenzie & H. Alston Johnson III, Louisiana Civil Laxo Treatise § 222 (3d ed. 2006) (“[T]he insured’s claim may be seized and asserted |sby the judgment creditor.”); and 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise § 197 (4th ed. 2001) (“It would seem that creditors should be allowed to seize or exercise any right of the debtor which may qualify as patrimonial unless this right is strictly personal.”).

In addition to incorrectly concluding that the insured’s unexercised right to file suit is strictly personal, the majority’s opinion is filled with dicta and inaccuracies. For example, while the majority explicitly declines to address whether an unexercised right to institute a lawsuit may be assigned, it clearly assumes that because an assignment is voluntary, it is allowed under our law. Additionally, while acknowledging that the insured did not object to the validity of the seizure process, the majority nevertheless addresses whether the seizure violated her interests and raises constitutional issues not raised by the parties or the courts below. See State in the Interest of Sapia, 397 So.2d 469, 475 (La.1981) (“We specifically do not address constitutional issues as they might apply to the case at hand because none have been raised here or in the courts below.”). Finally, the majority imagines hypotheticals and “foresees misuse of the executory procedure,” at p. 789, by the use of overly broad and vague language to support its result. Such scenarios are simply not before us today.

The majority’s conclusion that an unex-ercised right to institute a lawsuit is not subject to seizure by a writ oí fieri facias is not supported by the law. In the absence of support for the contrary position, I believe that the insured’s right to institute a lawsuit against her insurer to recover damages for breach of its duties is not strictly personal. As such, I believe it is subject to seizure by a writ of fieri facias. ^Consequently, I would reverse the court of appeal’s grant of summary judgment in favor of defendants.

      . As a result of the collision, the plaintiff fractured eleven (11) teeth, which warranted ■ twelve (12) crowns and eleven (11) root canals. She was also prescribed occlusal splint therapy to alleviate her temporomandibular joint ("TMJ”) symptoms (i.e., chronic headaches, pain).

      . Specifically, the trial court apportioned damages in the amounts of $14,111.86 for past medical expenses, $5,000.00 for dental expenses, and $55,000.00 for general damages.

      . In addition to the seizure of any interest Ms. Theus may have had in instituting suit against Illinois National, the writ of fieri facias included the seizure of three tracts of immovable property owned by Ms. Theus, but allegedly adjudicated to the Webster Parish Police Jury for non-payment of taxes. The seizure encompassed Ms. Theus's redemption rights for the tracts of land, as well as any resulting ownership rights. Further, the writ of fieri facias seized Ms. Theus’s interest in a succession proceeding pending in the 26th Judicial District Court for the Parish of Webster, State of Louisiana.

      . "Inchoate right” is defined in Black’s Law Dictionary 777 (8th ed.2004) as "[a] right that has not fully developed, matured or vested.”

      .Louisiana Civil Code article 2652, entitled "Sale of litigious rights,” provides:
      When a litigious right is assigned, the debt- or may extinguish his obligation by paying to the assignee the price the assignee paid for the assignment, with interest from the time of the assignment.

        A right is litigious, for that purpose, when it is contested in a suit already filed. Nevertheless, the debtor may not thus extinguish his obligation when the assignment has been made to a co-owner of the assigned right, or to a possessor of the thing subject to the litigious right.
      (Emphasis added.)

      . In Parich, the court related:

        Under Louisiana law, a right to recover from another, whether it is a debt, an account receivable, a judgment, or a cause of action, may be sold or assigned to a third party. However, a mere dispute may not be. See generally La. Civ.Code, Title VII, ch. 12 (“Of the Assignment or Transfer of Credits and Other Incorporeal Rights”). When the right to be assigned is only a cause of action, the law recognizes the incentive to foment litigation and the possibilities of barratry and champerty, and thus places special limitations on the ability to transfer these litigious rights. Clement v. Sneed Bros., 238 La. 614, 116 So.2d 269 (1959) (purpose of these articles is prevention of unnecessary litigation). A nascent cause of action for a tort that is nothing more than a dispute between two parties is not transferable. Hawthorne v. Humble Oil & Refining Co., 210 So.2d 110 (La.App. 1st Cir.), cert. denied, 252 La. 832, 214 So.2d 160 (1968). See U.S. Fidelity & Guaranty Co. v. Richardson, 486 So.2d 929 (La.App. 1st Cir.1986) (under La. Civ.Code art. 2653, where no contestation has developed, the right is not litigious; radrer, it is only an incorporeal right more in the nature of a dispute). Once a dispute has developed into an actual lawsuit with a contestation or denial of liability by the defendant, however, it becomes a litigious right. Id. Such a litigious right is freely assignable. See La. Civ.Code Ann. art. 2652.

        Id., 919 So.2d at 917, n. 3 (emphasis added).

      7. In the jurisprudence, a writ of fieri facias is often referred to as a “writ of fi fa.”

      . The law does provide for the seizure of a litigious right by writ of fieri facias. See La. R.S. 13:3863, et seq. As to the seizure of litigious rights, a seizing creditor is generally prohibited from interfering with the progress of the suit, acquiring control of the action or selling the rights and interests under the seizure. Essentially, the seizure only gives the judgment creditor a lien or preference on what the debtor realizes from the suit. La. R.S. 13:3865.
      However, the seizure of a litigious right is different from a seizure of an inchoate right. The former is subsequent to the debtor's exercise of his right to file suit, unlike the seizure of an inchoate right where the debtor’s intent to file suit is not evidenced until the actual filing of the lawsuit or the expiration of the filing delay.

      . Logically, our conclusion that Ms. Theus’s inchoate causes of action at issue are strictly personal rights discredits any reliance on the treatise excerpt authored by Professor Yian-nopoulos, and referenced by the court of appeal, that any patrimonial right of the debtor should seemingly be subject to seizure by a creditor, unless it is strictly personal. See Yiannopoulos, supra.

      . During a stage in the trial court proceedings, Ms. Theus filed a petition for intervention joining in the plaintiff’s claims. Following the court of appeal's ruling granting summary judgment, the defendants filed in the trial court numerous procedural exceptions to defeat Ms. Theus's interest in the action. While the fact of the filing of the petition was raised in brief and at oral argument in this Court, the record does not include any of the pleadings pertaining to the intervention. According to the parties, all actions in the trial court have been suspended pending a ruling by this Court in the instant proceeding.

      . The majority discounts this treatise as not providing sufficient authoritative basis for the seizure of the “innately personal right,” slip op. at p. 788, at issue. While I agree that such treatises are not controlling, I believe the considered view of the scholarly authors should not be rejected in such an out-of-hand manner, especially considering the lack of definitive statutory and jurisprudential guidance on this issue.


source: Caselaw Access Project

author: KIMBALL, Chief Justice. WEIMER, J., GUIDRY, Justice,

license: Public Domain

text:
    LOCAL NUMBER 1442, PROFESSIONAL FIREFIGHTER’S ASSOCIATION, et al. v. City of CROWLEY.
    No. 2008-C-1392.
    Supreme Court of Louisiana.
    May 5, 2009.
    Rehearing Denied May 29, 2009.

      Broussard, Halcomb & Vizzier, Daniel Elmo Broussard, Jr., Alexandria, for applicant.
    Law Offices of Thomas K. Regan, Thomas Keith Regan, Crowley, for respondent.
   KIMBALL, Chief Justice.

IjThe voters of the City of Crowley (“the City”) approved a sales tax proposition authorizing the City to levy and collect a sales tax of one-half of one percent whose proceeds are to be used for the purpose of City employees’ salary increase with 33 1/3% to all fire personnel. Once an election is held wherein citizens approve a tax dedicated to one purpose, the tax proceeds cannot be used for any other purpose. The voters directed that the proceeds of the sales tax are to be used for salary increases for fire personnel. However, the City is using some of the proceeds for increases in pay that are not true salary increases, and for costs that are related to salary increases, but are obligations of the City rather than true salary increases. We find, therefore, the City is improperly using the tax proceeds when it uses them for promotional increases, overtime pay, holiday pay, and costs related to the increases, such as the 12City’s contribution to the retirement system, FICA taxes, and the City’s cost of insurance for workers’ compensation and unemployment compensation.

Facts and Procedural History

On November 28, 1981, a special tax election was held in the City of Crowley wherein the voters approved a sales tax proposition authorizing the City to levy and collect a tax of one-half of one percent “upon the sale at retail, the use, the lease or rental, the consumption for storage, or use, or consumption of tangible personal property and on sales of services in the City....” The voters also chose that the proceeds of the additional tax be dedicated and “used for the purpose of City employees [sic] salary increase to be equally divided with ... 33 1/3 % per cent to all Fire personnel....” These tax propositions were renewed by the voters of the City in 1991 and 2001. It is undisputed that the sales tax proceeds have been used to fund increases above the base pay for fire personnel, including an across-the-board raise, promotional increases, and longevity increases, and costs related to the increases, including the City’s contributions to the Firefighters’ Retirement System, the City’s FICA taxes, workers’ compensation insurance premiums, and payment of unemployment compensation taxes. Additionally, the City funds overtime and holiday pay from the sales tax proceeds.

On April 2, 2001, plaintiffs, Local Number 1442 of the Professional Firefighter’s Association and several firefighters employed by the City, filed a ^petition for declaratory judgment asserting that the City is using the tax proceeds for purposes other than those approved by the voters. In their petition, plaintiffs requested a declaration that the City must use the tax proceeds only for salary increases for fire personnel and for no other purposes. Following a bench trial, the trial court dismissed the petition for declaratory judgment at plaintiffs’ cost. In oral reasons for judgment, the trial court stated that the funds generated from the 1981 tax initiative are being used in accordance with the law and the intent of the voters. The court further stated the trial testimony revealed that the firefighters’ base salaries are being paid out of the City’s general fund, and not out of the tax proceeds. Accordingly, the trial court denied the petition for declaratory judgment.

The court of appeal affirmed the judgment of the trial court. Local Number 1142, Professional Firefighter’s Ass’n v. City of Crowley, 08-110 (La.App. 3 Cir. 5/28/08), 983 So.2d 1031 (unpub’d opinion). The court of appeal found the testimony presented established that the firefighters are receiving their full base pay and any raises not covered by the sales tax proceeds from the general fund. It concluded there was no error in the trial court’s conclusion that the proceeds of the sales tax are being used as contemplated by the sales tax initiative. One judge concurred in part and dissented in part, stating that he would reverse the trial court’s judgment to the extent it allows the City to use the funds generated from the sales tax for overtime pay, holiday pay, worker’s compensation insurance premiums, the City’s retirement fund obligations, and the City’s share of the cost of insurance or unemployment contributions. In his opinion, the City has expanded the language of the proposition to include the ancillary costs associated with increases in the firefighters’ salaries.

We granted certiorari to consider the correctness of the court of appeal’s ^interpretation of the phrase “used for the purpose of ... salary increase” as employed in the City’s tax proposition and applied to fire personnel. Local Number 1142, Professional Firefighter’s Ass’n v. City of Crowley, 08-1392 (La.10/10/08), 993 So.2d 1270.

Discussion

Local governments possess the right to impose taxes only when such power has been granted to them by the state constitution or by statute. Denham Springs Economic Development Dist. v. All Taxpayers, 04-1674, p. 7 (La.2/4/05), 894 So.2d 325, 331, Radiofone, Inc. v. City of New Orleans, 93-0962, p. 2 (La.1/14/94), 630 So.2d 694, 696. Article VI, § 29 of the Louisiana Constitution grants the governing authority of any local governmental subdivision the authority to “levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use or consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose.” In enacting these sales taxes, the legislature has directed that the proceeds of the tax be dedicated and used solely for the purposes approved by the voters. See La. R.S. 33:2714, La. R.S. 33:2721.6(D)(5). Thus, once an election is held wherein citizens approve a tax dedicated to one purpose, the tax proceeds cannot be used for any other purpose. Denham Springs Economic Development Dist, 04-1674 at p. 14, 894 So.2d at 335.

In the instant case, the sales tax proposition approved by the voters provided that the proceeds and avails of the tax, after the payment of reasonable and necessary expenses for the purpose of collection and administering the tax, shall be dedicated and used under one of two possible propositions. The proposition chosen by the voters provided that the sales tax be used for the purpose of City employees’ “salary 15increase,” with 33 1/3 percent going to all fire personnel. No other use was permitted in the proposition submitted and approved by the voters. Consequently, the tax proceeds at issue can only be used for salary increases for fire personnel.

Plaintiffs contend the City has been using the tax proceeds for things other than “salary increases” as envisioned by the electorate. In order to determine whether the City’s use of the sales tax proceeds is appropriate, we must determine what the voters intended when they approved the proposition dedicating the tax revenues to City employees’ salary increases with a portion going to fire personnel. In making this determination, the controlling factor is the understanding that can reasonably be ascribed to the voting population as a whole. Denham Springs Economic Development Dish, 04-1674 at p. 15, 894 So.2d at 335. The common understanding of a salary increase is additional or take-home pay for performing the same job duties. When the voting public is asked to tax itself to give a salary increase to fire personnel, it is reasonable to believe that the voters intended to give the firefighters additional compensation, or salary, to provide for themselves and their families. The intention of the voters was not necessarily purely altruistic, for it can be assumed the voters passed the tax and dedicated a portion of its proceeds to salary increases for fire personnel to attract and retain qualified firefighters to protect themselves, their property, and their community.

|fiIn the case at bar, it is undisputed that any payments made to or on behalf of a fire employee above his base pay at the time he was hired or, if he was hired before the effective date of the tax, at the time the sales tax went into effect are paid from the sales tax proceeds. The proceeds of the sales tax are thus being used to fund longevity salary increases, an across-the-board pay raise, promotional increases required by La. R.S. 33:1992, anticipated overtime and holiday pay, and costs associated with the increases, such as the City’s contributions to the Firefighters’ Retirement System, the City’s FICA taxes, workers’ compensation insurance premiums, and payment of unemployment compensation taxes. Plaintiffs agree that the use of the sales tax revenues to fund the 2% longevity salary increase mandated by La. R.S. 33:1992 and the pay raise given to all firefighters on April 15, 2002, is proper. Consequently, these uses of the proceeds are not before us.

The trial testimony of the Crowley City Clerk revealed that an employee’s base, or beginning, salary or the salary he was earning when the sales tax went into effect is paid from the City’s general fund. Any increases above that base amount, along with associated costs and overtime and holiday pay, are funded by the sales tax proceeds. If there are not enough proceeds to cover the entire amount, the leftover amount is paid from the City’s general fund. The City Clerk confirmed that prior to the passage of the sales tax, when a firefighter was promoted to a driver, or a driver promoted to a captain, the statutory promotional increase in pay was funded from the general fund. After the passage of the tax, all promotional increases are funded from the sales tax proceeds. The Clerk also confirmed that she would define a salary increase as including all costs of an increase in salary to a particular employee, such as the City’s contribution to the retirement system, and the City’s cost of insurance for workers’ compensation and unemployment compensation.

|7PIaintiffs contend that the City’s use of the sales tax proceeds to fund promotional increases for each individual firefighter who is promoted, rather than an increase for the entire class of fire personnel at each rank, is impermissible. We agree that the funding of statutorily-required promotional increases with the sales tax proceeds does not comport with the intent of the voters who dedicated those proceeds to salary increases to fire personnel. La. R.S. 33:1992 sets forth required minimum monthly salaries for firemen, and a percentage increase for each promotion in rank. | sWhen a firefighter is promoted to a higher rank or position, he is entitled to the minimum salary required to be paid for that rank or position. The new salary is payment for the performance of a different job, not a salary increase for the former rank or position held by the firefighter. Although the individual firefighter does receive additional take-home pay, he is entitled to the additional compensation because he was promoted and is performing a new job; he has not merely received a salary increase. In our view, payment of statutorily-mandated promotional increases for each individual at the time he is promoted is not a salary increase for fire personnel as intended by the voters when they approved the tax at issue. In contrast, an increase in the monthly compensation for each firefighter at each rank or position, for example all lieutenants or all captains, would be a salary increase for fire personnel that could be funded by the sales tax proceeds.

Similarly, the City’s practice of funding the overtime and holiday pay of firefighters from the sales tax revenues is impermissible when the intent of the voters |9in passing the tax is considered. While overtime pay is part of a firefighter’s compensation, it is not part of his salary. The statute governing a firefighter’s maximum hours, La. R.S. 33:1994, recognizes that his overtime compensation is governed by the federal Fair Labor Standards Act. In its contingent provisions, however, the statute states that overtime compensation shall be calculated using a firefighter’s “average monthly salary,” which is obviously distinguished from overtime pay. Because it is not part of a firefighter’s salary, we cannot say that the voters intended that overtime compensation be funded from the sales tax proceeds dedicated to salary increases for fire personnel.

Likewise, the statute governing holiday pay, La. R.S. 33:1999, sets forth a computation using the firefighter’s “average monthly salary,” which, again, must be distinct from holiday pay. Additionally, the statute provides that in lieu of additional compensation, the City may grant fire personnel time off from work for which the additional compensation would be due and payable to the firefighter. Holiday pay may therefore be “paid” with time off rather than money. We do not believe the voters intended for holiday pay to be funded from the sales tax proceeds dedicated to salary increases.

In addition to funding promotional increases, overtime pay and holiday pay from the sales tax proceeds, the City also pays costs related to increases in firefighters’ compensation, such as the City’s contribution to the retirement system, FICA taxes, and the City’s cost of insurance for workers’ compensation and unemployment compensation, from the sales tax revenues. These costs are not part of a firefighter’s salary, but are obligations of the City. As such, they cannot be said to be what the voters had in mind when they agreed to tax themselves to give a salai’y increase to fire personnel. Payment of these costs, while necessary, do not increase | H,the salary of a firefighter. If these ancillary or related costs were intended to be funded by the proceeds of the sales tax, the tax proposition could easily have included them. For example, the proposition could have provided that the sales tax be used for the purpose of City employees’ salary increase and related costs. In the absence of such wording, we cannot find the voters intended that the sales tax revenues be used for costs related to salary increases when the tax initiative clearly indicates an intent to provide only for salary increases to fire personnel.

We recognize that the City Clerk and the auditors of the City opined that the City is using the tax proceeds in accordance with the proposition and generally accepted principles. However, the test to determine whether the proceeds are correctly being used is what the voters intended when they approved the proposition dedicating the tax revenues to City employees’ salary increases with a portion going to fire personnel. We find the City’s use of the tax proceeds to fund promotional increases, overtime pay, holiday pay, and costs related to increases in firefighters’ compensation, such as the City’s contribution to the retirement system, FICA taxes, and the City’s cost of insurance for workers’ compensation and unemployment compensation, was not approved by the voters. Consequently, the tax revenues cannot be used for these purposes.

Plaintiffs also complain that the City is impermissibly retaining a portion of the sales tax proceeds dedicated to the firefighters by maintaining a surplus of funds in them account. The evidence indicates that the City has maintained a balance of varying amounts since the tax was enacted. However, for practical reasons, we see no problems with the City maintaining a reasonable surplus or balance in the account representing the firefighters’ share of the sales tax proceeds. While the proceeds are dedicated to salary increases for fire personnel and must be used for this purpose, it |nwould be unworkable to prohibit the carrying of a reasonable balance in the account at issue.

When the voting public adopts a tax and dedicates its proceeds to a specified use, those tax revenues cannot be used for any other purpose. The voters directed that the proceeds of the sales tax are to be used for salary increases for fire personnel. However, the City is using some of the proceeds for increases in pay that are not true salary increases, and for costs that are related to salary increases, but are obligations of the City rather than true salary increases. We find, therefore, the City is improperly using the tax proceeds when it uses them for promotional increases, overtime pay, holiday pay, and costs related to the increases. Consequently, the lower courts erred in finding that the tax proceeds were being used in accordance with the intent of the proposition selected by the voters. The court of appeal was in error when it affirmed the trial court’s judgment dismissing plaintiffs’ petition for declaratory judgment.

Decree

For the reasons assigned, judgment is rendered in favor of plaintiffs and against the City on plaintiffs’ petition for declaratory judgment. Accordingly, it is ordered, adjudged and decreed that there be judgment declaring that the City must use the 33 1/3 % of the sales tax proceeds at issue only for salary increases for fire personnel as interpreted herein and for no other purpose. The judgment of the court of appeal affirming the trial court’s judgment dismissing plaintiffs’ petition for declaratory judgment is reversed.

Reversed.

WEIMER, J., dissents and assigns reasons.

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

WEIMER, J.,

dissenting.

|tI respectfully dissent from the majority opinion that reverses the rulings of the lower courts. For the following reasons, I find this is a proper case for the application of the doctrine of contemporaneous administrative construction. This court has noted that:

[A]n administrative construction cannot have weight where it is contrary to or inconsistent with the statute. However, where the statute [or other legislative enactment] is ambiguous ... a long settled contemporaneous construction by those charged with administering the statute is given substantial and often decisive weight in its interpretation. This is especially so where ... the administrative construction has consistently been followed since adoption of the statute over twenty years ago.

International Paper, Inc. v. Bridges, 07-1151, pp. 15-16 (La.1/16/08), 972 So.2d 1121, 1131-1132, quoting Traigle v. PPG Industries, Inc., 332 So.2d 777 (La.1976).

On March 3, 2006, the parties filed a “Joint Stipulation of Facts” which they stated was in “support of their respective positions.” The parties submitted the depositions of City Clerk Judy Istre, one taken in 2003 and the other in 2006; a deposition taken in 2003 of Steven Lam-bouse, a CPA (now retired) who had been the auditor of the City of Crowley; and a 2006 deposition of Charles Abshire, a CPA who was the current auditor of the City of Crowley.

12Abshire’s deposition testimony revealed that he was present at Istre’s 2006 deposition, and that he had reviewed the deposition transcript of the former auditor, Lambouse. During the audits Abshire conducted of the Fund, he found no problems with the City’s withdrawals from the Fund generated as a result of the tax proposition at issue. He stated that if there had been problems, the City would have been notified by letter and a copy sent to the legislative auditor. Although the legislative auditor has received copies of all audits, the City has not been cited by the legislative auditor for any problems involving this Fund.

Abshire verified that in performing the audit, his firm read the sales tax call and determined that the taxes collected were used for the purposes stated therein. The Fund was used for salary increases, ie., for increased wages and “direct costs” related to the increases.

In light of the above testimony and the lack of any evidence presented by the plaintiff firefighters to refute that testimony, I conclude the application of the doctrine of contemporaneous administrative construction is appropriate. First, the sales tax provision in question in this case is ambiguous — “City employees [sic] salary increase” can be read (as the firefighters suggest) to be limited to actual dollars added to their gross pay, or can be read (as verified by the auditor) to allow the Fund to be used for direct costs of those increases. This tax initiative was voted on in 1981, and renewed in 1991 and 2001, when it was ultimately challenged by the plaintiffs. Throughout this time, the City, as the administrating body, has interpreted the measure as allowing the deductions that have been made. The City’s interpretation has been approved by the auditor each year for the past 27 years.

Although the parties did not cite or discuss the doctrine of contemporaneous administrative construction, the majority opinion delves into what was intended when |Kthe tax was enacted. It was the City that drafted the tax proposition, submitted the tax proposition to the voters, and implemented the proposition once approved by the voters. The City’s implementation was based on its contemporaneous construction of the proposition. This construction spanned more than two decades without being challenged. When considered in conjunction with the auditor’s approval, the City’s construction is persuasive, especially in light of the fact the firefighters submitted no evidence whatsoever to rebut the City’s and the auditor’s construction of the proposition. In an attempt to determine intent, the doctrine of contemporaneous administrative construction is considered the best evidence and indication of what was meant when the voters enacted the provision.

Nothing in the record indicates the firefighters have proven the City’s intent to exclude the direct costs of the increases in salaries. The firefighters have failed to introduce any evidence to establish the auditor and the City Clerk were wrong in their reading of the sales tax proposal or that the City Clerk’s and the auditor’s reading of the sales tax proposal deviated from the intent of the voters. Consequently, I disagree with the majority’s reversal of the decisions of the lower courts.

GUIDRY, Justice,

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

hi concur in the majority opinion’s holding that the City of Crowley is improperly using certain sales tax proceeds for statutorily-mandated promotional increases and any ancillary expenses or costs associated with that unauthorized use of the sales tax fund. However, I respectfully dissent in part from the majority opinion’s holding that the City is improperly using sales tax proceeds to cover corresponding, discrete increases in overtime pay, holiday pay, and ancillary expenses and costs incurred as a result of properly authorized salary increases. The majority reasons that the sales tax proposition could have been worded more specifically to include such ancillary or associated costs but was not, and, further, that such costs, some of which are the legal obligation of the employer, should be paid out of the City’s general fund, and not out of the new tax revenue, because they are not included in an employee’s “salary.” However, if the test is, as the majority opinion asserts, “the understanding that can reasonably be ascribed to the voting population as a whole,” ante, pp. 796-97, then such ancillary costs of the proposed salary increases would logically be included as payable from the additional sales taxes imposed upon the | .¿voters and not from the City’s general fund. According to my reading, the approved proposition does not indicate in any manner whatsoever that the salary increases — to be paid for solely from the new sales tax — would result in additional and unfunded financial liability to the City’s general fund. Therefore, my view is that the voting public would surely expect, in authorizing additional sales taxes to pay for salary increases for certain City employees, that such new revenue would also be the source for paying the ancillary costs incurred as a result of those authorized salary increases and not to place any additional costs upon the City’s general fund. Essentially, the majority opinion holds that the voting public would have understood that the ancillary costs associated with the additional take-home pay for certain City employees would be paid from the City’s general fund and not the new tax revenue source it had voted to impose upon itself to fund those salary increases, but I can discern no support for such a conclusion.

      . Specifically, the "1/3 PETITION,” as it was identified on the proposition, provided:
      Shall the said sales and use tax be used for the purpose of City employees [sic] salary increase to be equally divided with 33 1/3% per cent to all City employees not otherwise covered herein, 33 1/3 % per cent to all Fire personnel, and 33 1/3 % per cent to all police personnel, all being full[-] time employees of the City to be paid from the proceeds of annual receipts of the revenues generated from the said one-half (16) of one (1%) per cent sales tax as projected on an annual basis and provided for in the annual budget; police personnel salary increase to be paid across the board equally?

      . The alternate proposition, which was not approved by a majority of the voters, provided:
      Shall the sales and use tax be used for the purpose of providing a single fifteen (15%) per cent pay raise for all City employees ■ based on their salaries for fiscal year 1981, which said pay raise shall be not less than $100 per month and not more than $150 per month to all full[-]time City employees and with a portion to be budgeted to fund the unfunded liability or the merger of the City of Crowley Police Pension Fund with the Municipal Police Employees Retirement System, with the said plan to be approved by the City of Crowley for the purchase of the unfunded liability standing in the City of Crowley Police Pension Fund either in a lump sum payment or a 20 or 30 year payoff plan and the remainder shall thereafter be used for salaries?

      . La. R.S. 33:1992 provides in part:
      A. The minimum monthly salaries of firemen in municipalities having a population of twelve thousand or more and of all parish and fire protection district paid firemen, including salaries payable out of the avails of any special tax provided by the Constitution of Louisiana for increasing the pay of firemen, shall be in accordance with the following schedule, and such salaries shall be paid semi-monthly not later than the fifth and twentieth day of each calendar month:
      (1) A fireman shall receive a minimum monthly salary of four hundred dollars per month.
      (2) Engineers shall receive a minimum monthly salary of not less than ten percent above that of a fireman.
      (3) Lieutenants shall receive a minimum monthly salaty of not less than fifteen percent above that of a fireman.
      (4) Captains shall receive a minimum monthly salaty of not less than twenty-five percent above that of a fireman.
      (5) Battalion chiefs and district chiefs shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
      (6) Assistant chiefs and deputy chiefs shall receive a minimum monthly salary of not less than fifty percent above that of a fireman.
      (7) A mechanic or assistant mechanic, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
      (8) A superintendent of fire alarm system, or any other person doing this type of work for (he fire department, shall receive a minimum monthly salaty of not less than forty percent above that of a fireman.
      (9) A fire alarm operator or dispatcher, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
      (10) A fire inspector shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
      (11) For the city of Shreveport only, the provisions of R.S. 33:1992(9) shall apply only to present employees of the city of Shreveport Fire Department and shall not be applicable to any person employed by the city of Shreveport Fire Department after September 1, 1986.
      (12) The provisions of R.S. 33:1992(A)(9) shall not be applicable to any person employed by the city of Morgan City.
      B. From and after the first day of August, 1962, each member of the fire department who has had three years continuous service shall receive an increase in salaty of two percent and shall thereafter receive an increase in salary of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay.

      . These ancillary expenses or costs include the corresponding increases in contributions to the Firefighters’ Retirement System, FICA taxes, workers’ compensation insurance premiums, and unemployment compensation taxes.


author: PER CURIAM. TRAYLOR, J.

text:
    In re Douglas H. GREENBURG and Anthony P. Lewis.
    No. 2008-B-2878.
    Supreme Court of Louisiana.
    May 5, 2009.

      Charles Bennett Plattsmier, G. Fred Ours, Baton Rouge, Gregory Lynn Tweed, for applicant.
    Dane S. Ciolino, New Orleans, Gideon Tillman Carter, III, Baton Rouge, Douglas Henry Greenburg, Houma, Anthony P. Lewis, Thibodaux, for respondent.
   hATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondents, Douglas H. Greenburg and Anthony P. Lewis, attorneys licensed to practice law in Louisiana.

UNDERLYING FACTS

By way of background, Mr. Greenburg served as the District Attorney of Terre-bonne Parish from 1985 through 1996. He now maintains a private law practice in Houma. Mr. Lewis primarily practices in neighboring Lafourche Parish, but occasionally handles cases in Terrebonne Parish.

In 2005, respondents represented opposing parties in a bitterly contested succession matter pending in Terrebonne Parish. Jean Claire Williams v. Debra Williams Jones, No. 121,049 on the docket of the 32nd Judicial District Court for the Parish of Terrebonne. On May 26, 2006, respondents appeared in open court for a motion hearing before Judge Randall L. Bethanc-ourt. During the hearing, Mr. Greenburg suggested that “some hanky-panky” on the part of Mr. Lewis might well justify an award of attorney’s fees to Mr. Green-burg’s client. The following exchange then occurred:

Mr. Lewis: Here we go again, Your Honor, the former D.A. is always suspect—
|2Mr. Greenburg: Your Honor, I’m going to object right now—
Mr. Lewis: — or somebody ... the law— The Court: Gentlemen, quiet.
Mr. Greenburg: — and ask that this jackass—
The Court: Gentlemen, quiet. Quiet, gentlemen.
Mr. Greenburg: — quit bringing up anything—
Mr. Lewis: Jackass?
Mr. Greenburg: Jackass.
Mr. Lewis: Your mother is a jackass.
The Court: Hey, hey, hey. All right, y’all are both in contempt.

Following the exchange of profanities, Mr. Greenburg grabbed Mr. Lewis’ suit jacket and both men fell to the floor. Judge Bethancourt immediately recessed the proceeding, cleared the courtroom, and restored order. He then informed respondents on the record that he was holding both of them in contempt of court but that sentencing would be delayed until a later date.

On June 28, 2006, Judge Bethancourt took up the sentencing on the contempt matter. After hearing brief arguments from both respondents, Judge Bethancourt sentenced Mr. Greenburg to serve twenty-four hours in the parish jail and fined him $100. Mr. Lewis was sentenced to serve twelve hours in the parish jail, suspended upon the condition that he pay a $50 fine and perform eight hours of community service.

13Mr. Greenburg was subsequently charged by bill of information with committing simple battery upon Mr. Lewis. Mr. Lewis was not criminally charged in connection with the altercation. In February 2007, Judge David Arceneaux conducted a bench trial of the battery charge. Judge Arceneaux heard testimony from several witnesses, including both respondents, Judge Bethancourt and his court reporter, bailiff, and minute clerk, the Ter-rebonne Parish Sheriffs deputy who was called to investigate the incident, and an attorney who was present in the courtroom during the May 26, 2006 hearing and witnessed the altercation. During his testimony, Mr. Greenburg admitted that he had called Mr. Lewis a jackass during the hearing and grabbed Mr. Lewis by the lapels of his suit jacket. However, Mr. Greenburg asserted that he was justified in his actions because he felt threatened by Mr. Lewis, whom he contended had approached him with his finger pointed. For his part, Mr. Lewis denied this. He claimed that he was sitting at the counsel table when Mr. Greenburg approached him, grabbed his lapel, and pushed him, causing him to fall to the floor.

After considering all of the evidence presented, Judge Arceneaux rejected Mr. Greenburg’s defense of justification and found him guilty of simple battery, a misdemeanor violation of La. R.S. 14:35. Judge Arceneaux sentenced Mr. Green-burg to serve ten days in the parish jail; pursuant to the provisions of La. Code Crim. P. art. 894, Judge Arceneaux suspended the sentence and placed Mr. Greenburg on unsupervised probation for a period of sixty days, the only condition of which was that Mr. Greenburg not violate any federal, state, or local criminal law or ordinance. Judge Arceneaux further ordered that the sentence run concurrently with the sentence imposed against Mr. Greenburg for the contempt.

14Mr. Greenburg subsequently completed the terms of his probation in a satisfactory manner. In June 2007, Judge Arcen-eaux set aside Mr. Greenburg’s conviction and dismissed the prosecution in accordance with La.Code Crim. P. art. 894.

DISCIPLINARY PROCEEDINGS

In October 2007, the ODC filed one count of formal charges against respondents jointly, alleging that Mr. Green-burg’s conduct violated Rules 3.5(d) (engaging in conduct intended to disrupt a tribunal), 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. The ODC alleged that Mr. Lewis’ conduct violated Rules 3.5(d) and 8.4(d). Respondents, through separate counsel, answered the formal charges and requested a hearing in mitigation. Mr. Greenburg admitted to the allegations of the formal charges and conceded that he “committed professional misconduct,” for which he requested the imposition of “appropriate discipline.” In his answer, Mr. Lewis admitted “there is a factual basis for the filing of’ the formal charges but he denied he violated the Rules of Professional Conduct as alleged therein. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee found that during the May 26, 2006 hearing before Judge Bethanc-ourt, Mr. Greenburg referred to Mr. Lewis as a jackass. Mr. Lewis responded |fiby calling Mr. Greenburg’s mother a jackass. Following these statements there was a brief altercation, which the committee believed was initiated by Mr. Greenburg. As a result, both attorneys were held in contempt. Mr. Greenburg was sentenced to the maximum sentence allowed under the contempt statute, twenty-four hours of confinement in the Terrebonne Parish Detention Center and a $100 fine. Mr. Lewis was sentenced to twelve hours in the Ter-rebonne Parish Detention Center, which sentence was suspended upon the condition that he pay a $50 fine and perform eight hours of community service. Mr. Lewis filed writ applications with the First Circuit Court of Appeal and the Louisiana Supreme Court, both of which were denied.

In addition, Mr. Greenburg was also charged with simple battery and found guilty of the misdemeanor. The court sentenced Mr. Greenburg to ten days in the parish jail, suspended. He was also placed on unsupervised probation under La.Code Crim. P. art. 894. Mr. Greenburg served his probationary term, and in June 2007, his conviction was set aside and the prosecution dismissed pursuant to art. 894.

Based on these findings, the committee determined that respondents violated the Rules of Professional Conduct as charged in the formal charges. As to Rule 3.5(d), the committee acknowledged that respondents may not have intended to disrupt the tribunal by their use of vulgarity in open court and by their subsequent physical altercation directed at each other. However, the committee found that respondents had to know that their actions would, in fact, disrupt the proceedings, that such conduct was totally unacceptable in open court, and that their behavior was a violation of the professional standards required of attorneys, especially in light of Judge Bethancourt’s request prior to the physical altercation that respondents discontinue their verbal abuse. As to Rule 8.4(d), the committee found that both respondents engaged in conduct prejudicial to the administration of justice “for their ^clients and for the decorum of the court.” Finally, the committee determined that Mr. Greenburg committed a criminal act in violation of Rule 8.4(b).

In aggravation, the committee found that both respondents possess substantial experience in the practice of law. As to Mr. Greenburg, an additional aggravating factor is his illegal conduct. The following mitigating circumstances were found by the committee as to both respondents: absence of a prior disciplinary record and imposition of other penalties or sanctions.

Considering the circumstances, the committee recommended that Mr. Greenburg be suspended from the practice of law for thirty days “and defer the entirety of the suspension and impose a public reprimand.” The committee recommended that Mr. Lewis be publicly reprimanded.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee as to Mr. Green-burg.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board made the following determinations concerning the alleged violations of the Rules of Professional Conduct:

Rule 3.5(d) requires an attorney to refrain from conduct intended to disrupt a tribunal. Both respondents disrupted a judicial hearing with their profanity, and thus violated Rule 3.5(d). The board found Mr. Greenburg further disrupted the tribunal when he ignored the judge’s directions to maintain proper decorum and instead escalated the verbal exchange of insults by committing'a battery upon Mr. Lewis.

1 iRule 84(d) states that it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. By exchanging profanity, which has no proper place during courtroom argument, the board found both respondents violated Rule 8.4(d). ■

Rule 84(b) requires that an attorney refrain from criminal conduct, especially conduct that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. The comments to ABA Model Rule 8.4 explain: “Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence ... are in that category.” Accordingly, the board found that committing a battery upon another lawyer in open court reflects adversely upon Mr. Greenburg’s fitness as a lawyer.

The board determined that by exchanging profanities in open court, both respondents violated duties owed to the legal system and the profession. By its very nature, the misconduct of each lawyer was knowing and intentional, as the record reflects that Mr. Greenburg called Mr. Lewis a “jackass,” and Mr. Lewis returned the volley by stating that Mr. Greenburg’s “mother is a jackass.” The injury and interference to the reputation of the legal profession and the proper functioning of the legal system was serious or potentially serious. For example, the judge had to clear the public from the courtroom, and significant time and resources were taken on two occasions to deal with respondents’ contempt. Additionally, the record reflects that Mr. Greenburg, a former district attorney in the parish where these events took place, received considerable television coverage after he was arrested and led from the courthouse that day in handcuffs.

|HIn determining the baseline sanction applicable to the conduct of each respondent, the board considered the ABA’s Standards for Imposing Lawyer Sanctions. As to Mr. Lewis, the board applied Standard 6.22, which provides for a baseline sanction of suspension when a lawyer knowingly violates a court order or rule and causes injury or potential injury to a client or party, or causes interference with a legal proceeding. The board likewise applied Standard 6.22 to Mr. Greenburg, both with respect to his conduct in calling Mr. Lewis a jackass and in committing a battery upon Mr. Lewis. However, the board also found that Standard 5.12 applies to Mr. Greenburg’s commission of a battery upon his opposing counsel. The board reasoned that Mr. Greenburg provoked the incident which culminated in the battery, but more importantly, escalated the situation into physical violence, which “seriously adversely reflects on the lawyer’s fitness to practice.” Accordingly, the board concluded that the baseline sanction applicable to Mr. Greenburg’s misconduct is suspension.

The board found the following aggravating factors are present: substantial experience in the practice of law and illegal conduct (as to Mr. Greenburg only). The board found the record supports the following mitigating circumstances: absence of a prior disciplinary record and imposition of other penalties or sanctions.

Considering these factors, the board determined that a downward deviation to a reprimand is appropriate for Mr. Lewis, as recommended by the hearing committee. The ODC does not oppose a public reprimand for Mr. Lewis, and the record supports two circumstances in mitigation and only one in aggravation. Therefore, the board recommended that Mr. Lewis be publicly reprimanded.

1 gHowever, the board concluded Mr. Greenburg’s situation is different. His exchange of vulgarities with Mr. Lewis was not his only misconduct: he was also convicted of the crime of simple battery upon Mr. Lewis. Because he committed the battery during a hearing in open court, the board found the particular mitigating circumstances here do not justify a downward deviation from the baseline sanction of suspension. Accordingly, the board turned to a discussion of what duration of suspension is appropriate.

In In re: Thomas, 03-2738 (La.2/25/04), 976 So.2d 1245, the respondent engaged in a post-hearing physical altercation with opposing counsel in a hallway outside a judge’s chambers. For the altercation, plus five additional instances of misconduct, the court imposed a three-year suspension from the practice of law.

In In re: Estiverne, 99-0949 (La.9/24/99), 741 So.2d 649, the court imposed a one year and one day suspension upon an attorney who threatened opposing counsel with a firearm after a deposition. The board noted that in Mr. Greenburg’s case, the battery he committed did not involve a dangerous weapon; however, a major rationale for the court’s decision in Estiveme squarely applies here: “We accept the fact that Mr. Bonnaffons [Mr. Estiverne’s opposing counsel] was responsible for initiating the confrontation by encouraging respondent to ‘step outside’ and settle their dispute ‘man to man.’ However, when respondent left the room and returned with the gun, he became the aggressor.” Thus, even assuming Mr. Greenburg was baited by Mr. Lewis, an assumption the board noted was not supported by the record, the court in Esti-veme has made it clear that a lawyer who turns a verbal argument into a physical encounter is culpable as an aggressor, warranting a significant period of actual suspension.

In light of the violent nature of Mr. Greenburg’s misconduct, the board found the applicable mitigating circumstances do not warrant “a major downward deviation” | infrom the baseline sanction of a one year and one day suspension. Accordingly, the board recommended that Mr. Greenburg be suspended from the practice of law for one year and one day.

Mr. Greenburg filed an objection to the disciplinary board’s 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: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). 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.

The underlying facts of this matter are not seriously in dispute. Mr. Lewis and Mr. Greenburg exchanged vulgarities with each other during a hearing in open court. This behavior is unprofessional on the part of both respondents and rises to the level of a violation of Rules 3.5(d) and 8.4(d) of the Rules of Professional Conduct. Mr. Greenburg then escalated the exchange into physical violence by committing a battery upon Mr. Lewis, in violation of Rule 8.4(b). This stunning lack of decorum and civility occurred in open court, in front of lawyers, court personnel, and ordinary Indtizens of Terre-bonne Parish. Such conduct undermines public confidence in and respect for the legal system, and it cannot be condoned by this court.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondents’ 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).

Mr. Lewis

Under Standard 6.22 of the ABA’s Standards for Imposing Latmjer Sanctions, the baseline sanction applicable to Mr. Lewis’ conduct is suspension. In aggravation, Mr. Lewis has substantial experience in the practice of law (admitted 1986). As mitigating factors, we recognize the absence of a prior disciplinary record and imposition of other penalties or sanctions. Considering these circumstances, and the absence of any objection by the ODC to the recommended sanction, we agree with the hearing committee and the disciplinary board that a downward deviation to a public reprimand is appropriate for Mr. Lewis.

Mr. Greenburg

Under Standard 6.22 of the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction applicable to Mr. Greenburg’s conduct is suspension. In aggravation, Mr. Greenburg has substantial experience in the practice of law 112(admitted 1973). As mitigating factors, we recognize the absence of a prior disciplinary record, cooperative attitude toward the disciplinary proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

Because Mr. Greenburg’s conduct in physically assaulting opposing counsel in front of a judge during a court hearing is so much more egregious than Mr. Lewis’ conduct, we will not deviate downward from the baseline in Mr. Greenburg’s case. Rather, we will impose a six-month period of suspension upon Mr. Greenburg. In light of the substantial mitigating factors present, however, we will defer all but thirty days of the suspension on the condition that Mr. Greenburg successfully complete an anger management counseling program approved by the ODC.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Douglas H. Greenburg, Louisiana Bar Roll number 2235, be and he hereby is suspended from the practice of law for six months. It is further ordered that all but thirty days of the suspension shall be deferred, subject to the conditions set forth in this opinion. It is further ordered that Anthony P. Lewis, Louisiana Bar Roll number 17318, be and he hereby is publicly reprimanded. All costs and expenses in the matter are assessed against respondents 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.

TRAYLOR, J., concurs in part and dissents in part with reasons.

TRAYLOR, J.

concurs in part, dissents in part, with reasons.

hi dissent from the per curiam’s imposition of a six month suspension of Douglas H. Greenburg from the practice of law, with all but thirty days deferred, subject to the condition that he successfully complete an anger management counseling program approved by the Office of Disciplinary Counsel. I agree with the Disciplinary Board that Douglas H. Greenburg should be suspended from the practice of law for one year and one day. Mr. Green-burg exchanged vulgarities with Mr. Lewis in open court. Mr. Greenburg also was convicted of the crime of simple battery committed upon Mr. Lewis during the same hearing in open court. A lawyer who turns a verbal argument into a physical encounter is culpable as an aggressor, warranting a significant period of actual suspension. See In re: Estiverne, 1999-0949 (La.9/24/99); 741 So.2d 649.

      . Mr. Lewis sought supervisory review of the contempt ruling, but his writ applications were denied. See Williams v. Jones, 06-1085 (La.App. 1st Cir.7/24/06), — So.3d-, writ denied, 06-1815 (La.7/27/06), 934 So.2d 704.

      . Standard 5.11 suggests that disbarment is appropriate when a lawyer engages in “serious criminal conduct’’ involving, for example, fraud, extortion, theft, the sale or distribution of controlled substances, or the intentional killing of another. Standard 5.12 provides for suspension “when a lawyer knowingly engages in i criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.”

      . Mr. Lewis did not file an objection.


author: PER CURIAM. VICTORY, J.,

text:
    In re Philip C. HOFFMAN.
    No. 2007-OB-1989.
    Supreme Court of Louisiana.
    May 5, 2009.
   LON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Philip C. Hoffman, applied to sit for the Louisiana Bar Examination. On his application, petitioner disclosed his ongoing problem with and subsequent treatment for drug and alcohol addiction. After review of this information, the Committee on Bar Admissions (“Committee”) determined that it was appropriate to refer petitioner for a substance abuse evaluation. Following the evaluation, and petitioner’s successful completion of the bar exam, petitioner and the Committee filed a joint petition for conditional admission in this court. The parties proposed that petitioner be admitted to the bar on a conditional basis for a period of five years, subject to the requirement that he comply with all of the terms and conditions of his contract with the Lawyers Assistance Program. On October 15, 2007, we denied the petition for conditional admission on the showing made and appointed a commissioner to take evidence concerning petitioner’s character and fitness to practice law. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. The Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(6).

12After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

JOHNSON, J., dissents.

VICTORY, J., dissents and assigns reasons.

VICTORY, J.,

dissenting.

hi dissent from the Per Curiam opinion as I would deny the petitioner admission to the bar.