source: Caselaw Access Project

author: JOHNSON, Justice. KIMBALL, C.J.,

license: Public Domain

text:
    SILVER DOLLAR LIQUOR, INC. v. RED RIVER PARISH POLICE JURY.
    No. 2010-C-2776.
    Supreme Court of Louisiana.
    Sept. 7, 2011.

      Bethard & Bethard LLP, Robert Edger-ton Bethard, Coushatta, Thomas Law Firm, Jeffrey Howerton Thomas, Natchi-toches, for Applicant.
    Julie C. Jones, District Attorney, John Christopher Guillet, Assistant District Attorney, for Respondent.
   JOHNSON, Justice.

11 This matter involves the validity of Section 3-18 of the Red River Parish Code (“Section 3-18”), which prohibits the Sunday sale of alcoholic beverages. We are called upon to interpret and determine the applicability of two statutes: La. R.S. 51:191, which requires a local-option election in order to authorize a Sunday-closing law; and La. R.S. 26:493, which delegates to political subdivisions the power to regulate the sale of alcoholic beverages.

Plaintiff, Silver Dollar Liquor, L.L.C. (“Silver Dollar”), owns the Silver Dollar Liquor Store located within District 6 of Red River Parish. Silver Dollar filed a declaratory judgment action against defendant, Red River Parish Police Jury (“Police Jury”), seeking to have Section 3-18 declared invalid because there has never been a local option election in District 6 pursuant to La. R.S. 51:191. The Police Jury answered that it has authority under La. R.S. 26:493 to regulate the sale of alcoholic beverages. Relying on La. R.S. 26:493, the court of appeal found in favor of the | ^Police Jury, holding Section 3-18 to be valid. Finding the court’s decision created a split in the circuits, we granted Silver Dollar’s writ application to resolve the split. For the reasons set forth below, we affirm the decision of the court of appeal.

FACTS AND PROCEDURAL HISTORY

Following the repeal of the prohibition against the manufacture and sale of alcohol by the Twenty-First Amendment to the United States Constitution, the Louisiana legislature passed legislation permitting the business of selling and producing alcoholic beverages. See La. Acts 1933, Ex.Sess., No. 1. While the Twenty-First Amendment grants to the states power to regulate the “delivery or use therein of intoxicating liquors,” this power is broad, and can be delegated by the states as they see fit. See City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 96, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986). Louisiana delegated to its political subdivisions the authority to regulate alcoholic beverages. See La. Acts 1933, Ex.Sess., No. 2. This law was codified in the 1950 enactment of the Revised Statutes as La. R.S. 26:494. Title 26 was amended and reenacted in 1987, and La. R.S. 26:494 was reenacted as the current La. R.S. 26:493. This statute provides:

Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by | ^referendum vote as provided by Chapter 3 of this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace. Local subdivisions, in adopting these regulatory ordinances, may provide, in addition to the ordinary penalties authorized by law for their violation, provisions which subject the permittee to having his permit suspended or revoked in the manner provided by law for the suspension or revocation of permits.

La. R.S. 26:493.

As part of this delegation of power, political subdivisions were given authority to hold local option elections to allow the voters to decide whether to prohibit or permit the sale of alcohol within those political subdivisions. See La. Acts 1933, Ex.Sess., No. 2. Throughout the years, the legislature changed this delegation of authority to different political subdivisions. Notably, in 1950, the legislature restricted exercise of local option elections to wards and incorporated municipalities. La. Acts 1950, Ex.Sess., No. 2.

14After a 1989 parish-wide prohibition election authorized by Act 17 of the 1935 extraordinary session of the Louisiana legislature, Red River Parish was voted “dry.” Red River remained a dry parish until 1974, following this Court’s decision in State v. Sissons, 292 So.2d 523 (La.1974). In Sissons, this Court struck down a Winn Parish ordinance prohibiting the sale of alcoholic beverages on the basis that it exceeded the legislative delegation of power. Specifically, the Court held the exercise of local option on a parish-wide basis rendered the resulting ordinance invalid. This Court found such local option ordinances had been superseded by the subsequent 1950 legislation restricting the exercise of local option exclusively to wards and incorporated municipalities, and expressly prohibiting exercise of local option on a parish-wide basis. Sissons, 292 So.2d at 526.

After the Sissons ruling, local option elections were held in certain wards in Red River Parish for the purpose of regulating the sale of alcoholic beverages. However, there has been no election in District 6, where Plaintiffs store is located, regarding the prohibition of sales of alcoholic beverages.

On May 27, 1974, the Police Jury adopted Ordinance Number 61 of Red River Parish. The police jury subsequently adopted the Red River Parish Code, and Section 14 of Ordinance Number 61 became Section 3-18 of the Red River Parish Code. Section 3-18 provides, in pertinent part:

|fiClosing hours.

No person holding a retail dealer’s permit and no servant, agent or employee of the permittee, shall sell or serve any beverage of a low alcoholic content or of a high alcoholic content or any malt beverage as defined herein between the hours of 12:00 midnight and 6:00 a.m. or between the days of Saturday at 12:00 midnight and Monday at 6:00 a.m. (Ord. No. 61 § 145-27-75).

General restrictions on Sunday sales in Louisiana began with the enactment of Act No. 18 of 1886, in what became known as Louisiana’s Sunday Law. Section 1 of the Act provided in relevant part for the closure of all stores, shops, saloons, all places of public business and all plantation stores for 24 hours beginning at 12:00 on Saturday nights. However, in 1986 the legislature completely revamped the Sunday closing laws and repealed the old “blue laws” with the enactment of 1986 La. Acts I, § 1. The legislature enacted a form of local option in La. R.S. 51:191, which gave the following grant of local authority to parish and municipal governments regarding Sunday closings:

Sunday closing law; local ordinances; election
Except as provided in R.S. 51:193, the governing authority of any parish or municipality may adopt ordinances regulating or prohibiting the opening of certain businesses and/or the sale of certain stock or articles of merchandise on Sunday, if approved by the voters at an election called as provided in Chapter 6-B of Title 18 of the Louisiana Revised Statutes of 1950.

La. R.S. 51:191.

It is undisputed that no election was held in District 6 pursuant to La. R.S. 51:191. According to Silver Dollar, La. R.S. 51:191 authorizes Sunday closing laws |„only after voter approval in a local-option election. Because there has been no such election in District 6, Section 3-18 of the Red River Parish Code, prohibiting the sale of alcohol on Sunday, is invalid. By contrast, the Police Jury argues it has separate authority under La. R.S. 26:493 to regulate the sale of alcoholic beverages, regardless of La. R.S. 51:191.

The case was submitted for trial on stipulations of fact and exhibits. Finding that La. R.S. 51:191 superseded La. R.S. 26:493, the trial court entered judgment declaring Section 3-18 of the Red River Parish Code invalid. The court reasoned it was impossible to read La. R.S. 26:493 and La. R.S. 51:191 in -pari materia, stating:

To give effect to both statutes would mean that even if voters rejected closing on Sunday in a 51:191 election, the Policy Jury would still have the power to “regulate” by imposing closing under 26:493, this in spite of the fact that [51:191], as now constituted, also speaks of “regulating.” We believe that [51:191] supersedes 26:493.

A five-judge panel of the court of appeal reversed. The court stated the issue as whether the legislature intended to modify a police jury’s authority under La. R.S. 26:493 to regulate the sale of alcohol by the use of Sunday closing ordinances so that a vote of the people through an election is now required. Silver Dollar Liquor, 56 So.3d at 270. And, more specifically, whether the 1986 legislation overhauling the Sunday closing laws operated to repeal all existing local ordinances which prohibited the Sunday sales of alcohol. Id.

The court found that Ordinance 61 (and, thus, Section 3-18) was unaffected by the 1986 legislation and the enactment of La. R.S. 51:191. Id. Relying on this Court’s 1972 decision in City of Shreveport v. Belk, the court determined that “the regulatory authority of a political subdivision over alcohol within its jurisdiction operates in an independent realm under La. R.S. 26:493 regardless of what the ^legislature might choose regarding Sunday laws for statewide businesses in general and even those businesses selling alcohol.” Id. The court found further evidence of this separate realm of alcohol regulation in the post-ReiA enactment and subsequent repeal of former La. R.S. 51:195. The court noted this statute was added in 1976 to give local governments the authority to exempt businesses selling alcohol from statewide Sunday closing laws. The court concluded “when the legislature removed itself from the regulation of Sunday business enterprise in 1986 without drawing back the Police Jury’s authority under La. R.S. 26:493 for Sunday closing laws for alcohol, the Police Jury’s ordinance retained its independent force regardless of the changes to Title 51.” Id. Also, in reaching this conclusion, the court found that “La. R.S. 26:493 was the specific statute addressing alcohol with its societal risks requiring ‘the protection of the public health, morals, safety, and peace’ by a political subdivision, and the ordinary commerce of other businesses without such risks is the general subject matter of La. R.S. 51:191.” Id. at n. 4. Thus, the court of appeal specifically rejected the rationale and holding of two rulings by the Third Circuit in City of Zwolle v. Polk, 93-1102 (La.App. 3 Cir. 9/14/94), 643 So.2d 201, writ denied, 94-2553 (La.1/13/95), 648 So.2d 1339 and Pappy’s Investment Group of Lake Charles, Inc. v. City of Lake Charles, 96-411 (La.App. 3 Cir. 7/24/96), 677 So.2d 1145, writ denied, 96-2156 (La.9/13/96), 679 So.2d 112.

DISCUSSION

The issue we must resolve is whether the Police Jury, pursuant to the provisions of La. R.S. 26:493, can prohibit Sunday sales of alcoholic beverages without holding a local option election pursuant to La. R.S. 51:191. Our analysis is based on the proper interpretation of La. R.S. 26:493 and La. R.S. 51:191, their relationship to each other, and them effect on Section 3-18 of the Red River Parish |sCode. Because this matter involves the interpretation of a statute, it is a question of law, and is thus reviewed by this Court under a de novo standard of review. Thibodeaux v. Donnell, 2008-2436 (La.5/5/09), 9 So.3d 120, 122. After our review, we “render judgment on the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 (La.11/29/06), 943 So.2d 1037, 1045.

Silver Dollar contends the court of appeal erroneously interpreted La. R.S. 51:191, failing to find it is a specific statute that prevails over La. R.S. 26:493, as a general statute, and that La. R.S. 51:191 “preempts” the ability of a local governing authority to regulate the Sunday sales of alcoholic beverages. Silver Dollar relies on City of Zwolle and Pappy’s Investment Group, supra, which reached conclusions contrary to the court of appeal. In those cases, the Third Circuit determined the Sunday closing law “deals more specifically with the matter at hand than does the general police power provisions of La. R.S. 26:493.” City of Zwolle, 643 So.2d at 202; Pappy’s Investment Group, 677 So.2d at 1147. Silver Dollar points to the Third Circuit’s findings that La. R.S. 26:493 deals with “regulation of alcohol generally,” but La. R.S. 51:191 “deals specifically with the narrow issue of Sunday sales.” Id. Therefore, La. R.S. 51:191 should prevail, as it did in City of Zwolle and Pappy’s Investment Group.

Silver Dollar further contends the enactment of La. R.S. 51:191 expressly repealed all Sunday closing laws by Section 3 of Acts 1986, No. 1, which provides: “This Act shall become effective on December 1, 1986 with regard to those provisions which repeal the state Sunday closing laws.” (Emphasis added). Upon enactment of La. R.S. 51:191, the Red River Parish ordinance was repealed. In |grepealing these laws, the legislature intended to “occupy the field” with respect to the Sunday closing laws and intended a statewide regulatory scheme by adopting a local-option requirement. Silver Dollar asserts that if a local governing authority can prohibit Sunday sales without a local-option election, the intent of the legislature is defeated. Further, to the extent local ordinances conflict with state general laws on the same topic, the local ordinances are invalid and without effect.

By contrast, the Police Jury argues the court of appeal was correct that La. R.S. 51:191 did not “repeal” the parish ordinance, which remains in effect and is, like legislation, presumptively constitutional. It relies heavily on Belk, supra, which specifically held that La. R.S. 26:493 is a “separate grant of authority” that permits a parish to regulate Sunday sales of alcohol. Belk also held that disallowing sales of alcohol on Sunday is a reasonable regulation of alcohol sales, not a prohibition. Although the new La. R.S. 51:191 repealed the state Sunday closing laws, the Police Jury contends it did not invalidate parish ordinances such as Red River Ordinance 61. After the passage of La. R.S. 51:191 in 1986, Red River Parish retained the authority granted by La. R.S. 26:493, and its 1975 ordinance, restricting alcohol sales on Sunday, remains effective.

After reviewing the record, relevant statutes and jurisprudence, we are persuaded by the reasoning of the court of appeal and arguments set forth by the Police Jury, and thus reject the reasoning underlying the holdings of the Third Circuit in City of Zwolle and Pappy’s Investment Group, supra.

In City of Zwolle, the defendants were charged with unlawfully selling alcoholic beverages on Sunday, in violation of the Zwolle Code of Ordinances. The Zwolle ordinance was passed by the local governing body but was not approved by the voters in an election. The court, in considering whether the local government Imcould prohibit Sunday sales of alcohol pursuant to La. R.S. 26:493 without holding an election, found that to the extent that La. R.S. 26:493 can be read to authorize Sunday closing ordinances without an election, it conflicts with La. R.S. 51:191. City of Zwolle, 643 So.2d at 202. Finding that La. R.S. 51:191 was the more specific statute, and thus should prevail over La. R.S. 26:493, the more general statute, the court reasoned that the Sunday closing law dealt more specifically with the matter at hand than did the general police power provisions of La. R.S. 26:493. Id. at 202-03.

In Pappy’s Investment Group, the plaintiff filed a petition to enjoin the city from enforcing an ordinance regulating the sale of alcoholic beverages on Sunday on the basis it was in contravention of La. R.S. 51:191. The ordinance was passed and approved by the council, but was never presented to the general public for a vote. The court restated its position in City of Zwolle, which found that La. R.S. 51:191 supersedes La. R.S. 26:493. Pappy’s Investment Group, 677 So.2d at 1147.

Initially, we note it is well-settled that when two statutes apply to the same situation, the specific statute prevails over the general one. Burge v. State, 2010-2229 (La.2/11/11), 54 So.3d 1110, 1113. La. R.S. 26:1, et seq., comprising the “Alcoholic Beverage Control Law,” govern the sale of alcoholic beverages in the State. La. R.S. 51:1 et seq., in the “Trade and Commerce” section of the Revised Statutes, deal primarily with general trade regulation law. La. R.S. 51:191 deals generally with the sale of any merchandise on Sunday. La. R.S. 26:493 deals specifically with the regulation of the sale of alcoholic beverages. We disagree with the reasoning of the Third Circuit in City of Zwolle and Pappy’s Investment Group, finding the Sunday Closing law to be more specific than the regulatory scheme established by the Legislature and directed specifically to local regulation of sale of alcoholic beverages. We do not view Section 3-18 as a Sunday closing ordinance, but rather a regulation |nof the sale of alcohol on Sunday. The prohibition of the sale of alcoholic beverages on Sunday does not close establishments that sell alcohol on Sundays, but merely proscribes certain limits to the sale of alcoholic beverages.

The sale of alcohol has traditionally been regulated separately and more strictly than the sale of other products due to issues of public health, morals, safety, and peace. The Louisiana legislature has, by statute, delegated the state’s authority under the Twenty-First Amendment to regulate alcoholic beverages to municipalities via La. R.S. 26:493. This Court has long recognized that municipalities have the inherent police power to regulate alcohol. See City of Lafayette v. Elias, 232 La. 700, 95 So.2d 281, 283 (1957) [citing State v. Gardner, 198 La. 861, 5 So.2d 132 (La.1941); City of DeRidder v. Mangano, 186 La. 129, 171 So. 826 (La.1936) ]. Further, in Belk, supra, this Court considered whether there was conflict between the authority given to political subdivisions in Title 26 and the state Sunday laws in Title 51. In Belle, the defendant was charged with violation of a city ordinance which prohibited the sale of all alcoholic beverages on Sunday, including beer. Defendant argued that the ordinance was unconstitutional because it conflicted with the state Sunday Closing Law which only prohibited the sale of intoxicating liquor on Sunday, excluding beer. Belk, 258 So.2d at 80. In upholding the validity of the ordinance, this Court noted the specific grant of legislative authority under La. R.S. 26:494 conferring on political subdivisions the authority to regulate the sale of alcoholic beverages. Id. This Court, citing the earlier case of City of Lafayette v. Elias, supra, held that “R.S. 26:294 is a broad grant of authority to municipalities allowing them wide discretion in the control of the sale of alcoholic beverages. This grant of authority is in addition to any authority which the city may have to provide for a day of rest.” Id. at 80. | ii>This Court went on to hold that the ordinance “reasonably regulates the sale of alcoholic beverages, and as such, is a valid exercise of authority. The fact that such regulation may be to prohibit the sale of such beverages on Sunday does not invalidate an otherwise valid ordinance.” This Court held that the ordinance was a reasonable regulation, rather than a prohibition of the sale of alcohol. Id.

The effect of the holdings of the Third Circuit in City of Zwolle and Pappy’s Investment Group is essentially to remove the regulation of liquor sales from Title 26 when the regulation occurs on Sunday, which would lead to absurd consequences in this case. If we were to find Section 3-18 invalid as it applies to Sunday sales, sales of alcohol in Red River Parish would be illegal Monday through Saturday from midnight until 6 a.m., but legal all day on Sunday absent a local option election. This is contrary to the rationale of Belk. Our holding in Belk makes clear that a municipality may disallow Sunday sales of alcohol pursuant to its legislative grant of authority in La. R.S. 26:493. Notably, the Third Circuit failed to address Belk in either opinion. We find the rationale underlying our opinion in Belk is equally applicable to the instant case.

Additionally, we agree with the court of appeal that the legislature’s enactment of former La. R.S. 51:195, which authorized “the governing authority of each parish and municipality” to exempt from the statewide Sunday closing laws businesses dispensing alcoholic beverage at retail, was a further indication that “the regulatory authority of the political subdivision over alcohol within its jurisdiction operates in an independent realm under La. R.S. 26:493 regardless of what the legislature might choose regarding Sunday laws for statewide businesses in general and even those | ^businesses selling alcohol.” Silver Dollar Liquor, 56 So.3d at 271.

Further, we find nothing to suggest that the 1986 enactment of La. R.S. 51:191 served to repeal or overrule the specific grant of authority under La. R.S. 26:493. It is well settled that repeals by implication are not favored and will only be permitted where two acts are irreconcilably inconsistent or repugnant. International Paper Co., Inc. v. Hilton, 2007-0290 (La.10/16/07), 966 So.2d 545, 555. In International Paper, we explained:

Louisiana law and jurisprudence demonstrate that a newly passed legislative act that is repugnant to or in conflict with an earlier passed act will supersede and implicitly repeal the earlier act, even in the absence of a repealing clause. However, not all conflicts lead to tacit repeal; only those conflicts which are irreconcilable may lead to tacit repeal.

Id. (internal citations removed).

La. R.S. 51:191 was revised in 1986 when the Louisiana legislature repealed the old statewide blue laws. At the same time, the legislature turned over to municipalities and parishes the authority to adopt ordinances regulating trade on Sunday if such regulation was approved by the voters. However, the delegation of authority to local governments to regulate Sunday merchandise sales created no substantive change in the law which would undermine this Court’s reasoning and holding in Belk, wherein this Court considered the relationship between La. R.S. 26:493 and La. R.S. 51:191. The intent of the legislature was clearly to remove any statewide prohibition against the general sale of merchandise on Sunday. The legislative history reflects there was no express concern or discussion specific to regulation of alcohol sales, nor was there discussion regarding changing or revoking the authority of local governments to regulate alcohol pursuant to La. R.S. 26:493. |MWe do not find La. R.S. 51:191 purports to change, repeal, or to fit into its provisions any part of La. R.S. 26:493. We do not find La. R.S. 26:493 and La. R.S. 51:191 are in conflict such that they are irreconcilable. The statutes can be harmonized to the extent they are separate laws that essentially govern two separate matters. La. R.S. 26:493 gives political subdivisions authority to regulate the sale of alcohol without an election. To the extent that any conflict exists between this statute and La. R.S. 51:191 regarding the sale of alcohol on Sundays, La. R.S. 26:493, the more specific statute involving regulation of alcohol, must prevail.

CONCLUSION

For the above reasons, we find Section 3-18 of the Red River Parish Code to be valid. We find the Police Jury has the power under La. R.S. 26:493 to regulate the sale of alcohol, even if the sale occurs on Sundays. To the extent Section 3-18 is impacted by both La. R.S. 26:493 and La. R.S. 51:191, we find La. R.S. 26:493 to be the more specific statute, and thus controlling.

DECREE

AFFIRMED.

KIMBALL, Chief Justice, concurs with reasons.

KIMBALL, C.J.,

concurring with reasons.

|1BI concur with the majority opinion because I find it unnecessary to decide whether La. R.S. § 26:493 or § 51:191 is the more specific statute. The statutes are independent grants of authority — one to “control the sale of alcoholic beverages,” the other to “provide for a day of rest.” City of Shreveport v. Belk, 260 La. 1041, 258 So.2d 79, 80 (1972).

I agree with the majority that the ordinance, which bans the sale of alcohol at certain times, including all-day on Sundays, regulates the sale of alcohol but does not prohibit it. See Belk, 258 So.2d at 80, 81. Therefore, the local government had power to enact the ordinance without a referendum election pursuant to La. R.S. § 26:49s.

      . Silver Dollar Liquor, Inc. v. Red River Parish Police Jury, 45,637 (La.App. 2 Cir. 11/17/10), 56 So.3d 265.

      . Silver Dollar Liquor, Inc. v. Red River Parish Police Jury, 2010-2776 (La.2/18/11), 57 So.3d 322.

      . U.S. Const, amend. XXI, § 2 provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

      . A brief history of Louisiana’s liquor laws since the repeal of Prohibition was previously set forth by this Court in Sabine Parish Police Jury v. Commissioner of Alcohol & Tobacco Control, 2004-1833 (La.4/12/05), 898 So.2d 1244, 1250-51.

      . This section was amended several times, without changing this grant of power to political subdivisions. La. Acts 1934, No. 15 § 24; La. Acts 1934, 3rd Ex.Sess., No. 1, § 1; La. Acts 1935, Ex.Sess., No. 3, § 2; La. Acts 1940, No. 330, § 1; La. Acts 1942, No. 329, § 1; La. Acts 1944, No. 203, § 2; La. Acts 1946, No. 190, § 2; La. Acts 1946, No. 384, § 2.

      . The statute as originally codified in 1950 was essentially identical. The only change in the 1987 reenactment was the removal of the word "however” prior to the sentence "No parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace.”

      . See, e.g., La. Acts 1934, No. 15 (parishes and municipalities were authorized to hold local option elections); La. Acts 1935, 1st Ex.Sess., No. 17, (parishes, wards and municipalities authorized to hold local option elections); La. Acts 1948, No. 372 (wards, incorporated villages, towns and cities authorized to hold local option elections); La. Acts 1950, Ex. Sess, No. 2 (ward, incorporated municipality authorized to hold local option elections; exercise of local option by parishes expressly prohibited); La. Acts 1974, No. 41 (parishes, wards and incorporated municipalities authorized to hold local option elections); La. Acts 1986, No. 958 and La. Acts 1987, No. 696 (wards and incorporated municipalities authorized to hold local option elections); La. Acts 1997, Nos. 330, 765 (wards, election districts, incorporated municipalities authorized to hold local option elections).

      .Local option elections are currently provided for in La. R.S. 26:582, which provides:
      A.(1) Upon petition of not less than twenty-five percent of the qualified electors residing in any ward, election district, or any incorporated municipality, the governing authority shall order a referendum election to be held to determine whether or not the business of selling alcoholic beverages shall be conducted and licensed therein.
      (2) A copy of the petition shall be submitted to the registrar on the date the first signature is affixed on the petition for the purpose of determining the total number of qualified voters residing in each ward, election district, or each incorporated municipality in which such petition will be circulated.
      B. In the case of such an election held on a ward, election district, or municipal basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward or election district.
      C. No such election shall be held for the same subdivision more often than once in every two years.

      . When the electorate of a political entity votes to prohibit the sale of alcoholic beverages, that political entity is considered "dry;” similarly, when the electorate of a political entity votes to permit the sale of alcoholic beverages, the political entity is considered "wet.” Sabine Parish Police Jury, 898 So.2d at 1245 n. 1.

      . It was stipulated at trial that elections were held in Districts 1, 2, 3, 7 and 8. Pursuant to those election results, certain ordinances were promulgated with respect to those districts.

      . Silver Dollar is contesting only that portion of the ordinance relative to Sunday sales.

      . A "Sunday law” or "blue law” is defined as "[a] statute regulating or prohibiting commercial activity on Sundays.” Black's Law Dictionary (9th ed.2009).

      . Certain exceptions were set forth in other sections of the Act.

      . La. R.S. 51:193 provides: No motor vehicle dealer licensed pursuant to Title 32 of the Louisiana Revised Statutes of 1950 who is engaged in the sale of new or used cars or trucks may be open on Sunday.

      . Silver Dollar Liquor, 56 So.3d at 271.

      . 260 La. 1041, 258 So.2d 79 (1972).

      . Now, La. R.S. 26:493.

      . Pappy’s Investment Group cites Belk in a footnote simply for its statement that: "The line between prohibition and regulation is sometimes a fine one. Most regulation of activity involves the prohibition of certain types of activity.” 677 So.2d at 1147 n. 3.

      . A review of die legislative history reflects that re-enacted La. R.S. 51:191 began as Senate Bill 195, which was introduced as a commerce bill. The primary impetuses behind this bill were increasing jobs and retail activity; capturing additional tax revenues; promoting public convenience; and retaining business that would be lost to Texas stores, which were open on Sundays. See Minutes, Senate Committee on Commerce, 1986 Reg. Sess., April 30, 1986 at 3-5; Minutes, House Commerce Committee, 1986 Reg. Sess., May 14, 1986 at 3-9.

      . La. R.S. § 26:493 permits the local government to regulate the sale of alcohol in its jurisdiction without a referendum election, but requires a referendum election to prohibit the sale of alcohol.


author: PER CURIAM. GUIDRY, Justice, VICTORY, J.,

text:
    In re Louis A. GERDES, Jr.
    No. 2011-B-0200.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Charles Bennett Plattsmier, Bernadine Johnson, Baton Rouge, for Applicant.
    Antonio Marcell Clayton, Louis Adam Gerdes, Jr., for Respondent.
   PER CURIAM.

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

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1968. In June 1995, respondent was admonished by the disciplinary board for improperly using his trust account and providing prohibited financial assistance to a client. In December 1999, respondent received another admonition for allowing his nonlawyer assistant to attend and take part in a deposition. Finally, in March 2004, this court suspended respondent from the practice of law for one year, with six months deferred, followed by one year of probation with conditions, for neglecting legal matters, failing to communicate with clients, and knowingly filing meritless lawsuits. In re: Gerdes, 03-2642 (La.3/12/04), 869 So.2d 106 (hereinafter referred to as “Gerdes I ”).

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

^UNDERLYING FACTS

The Bates Matter

On September 3, 2003, Robert Bates hired respondent to represent him in a personal injury claim stemming from a hit- and-run car accident. Mr. Bates and respondent signed a contingency fee contract the same day.

In March 2004, respondent permitted Dominique Johnson, his nonlawyer assistant, to participate in a telephone interview of Mr. Bates by an adjuster for his uninsured motorist carrier, State Farm Mutual Automobile Insurance Company. In April 2004, respondent’s colleague, attorney Melvin Cade, filed a lawsuit on Mr. Bates’ behalf against State Farm.

In August 2005, State Farm reported Mr. Bates’ claim to the Louisiana Department of Insurance as a suspected fraudulent claim. Among other issues raised in the report, State Farm asserted that Mr. Bates initially claimed lost wages of $5,600 from his employment with AA Contracting Services, LLC between July 14, 2003 and September 12, 2003. However, State Farm secured the affidavit of Candice Bates Anderson, Mr. Bates’ daughter and the person who purportedly signed the lost wages claim letter on behalf of AA Contracting Services. In the affidavit, Ms. Anderson indicated that she was not an employee of AA Contracting Services, she had no knowledge of how much time Mr. Bates missed from work as a result of the accident, and her signature on the lost wages claim letter was forged.

Mr. Bates passed away in October 2006, and respondent was appointed administrator of Mr. Bates’ succession. In January 2007, respondent filed an amended petition requesting that he, as the succession’s administrator, be substituted as the plaintiff in Mr. Bates’ lawsuit against State Farm. In March 2007, in response to State Farm’s exceptions to the substitution, respondent filed a ^pleading requesting that Ms. Anderson, as Mr. Bates’ daughter, instead be substituted as the plaintiff.

The lawsuit proceeded to trial in May 2007. Judgment was rendered in favor of State Farm, and Mr. Bates’ lawsuit was dismissed.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.7 (conflict of interest), 1.16(a)(1) (a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law), 3.1 (meritorious claims and contentions), 3.3(a)(b) (candor toward the tribunal), 5.3 (failure to properly supervise a non-lawyer assistant), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

The DeGruy Matter

In 1992, respondent began representing Gregory DeGruy in a previously filed lawsuit based on Mr. DeGruy’s employment related personal injury claim. Respondent did not have a written contingency fee agreement with Mr. DeGruy.

During the course of the representation, respondent failed to attend a March 10, 1997 deposition of his client’s medical expert. On other occasions, respondent allowed his paralegal, Charles Williams, to attend and participate in depositions with and on behalf of Mr. DeGruy.

1 ¿Eventually, respondent wished to withdraw from the representation, and the court allowed him to do so by order dated July 12, 2000. Respondent attached to his motion to withdraw a letter stating his opinion that Mr. DeGruy’s case was worth approximately $50,000 and not the $4.5 million Mr. DeGruy claimed it was worth.

Two weeks before the trial date, which was set for some time in August 2000, attorney Eric Person began representing Mr. DeGruy. In October 2000, Mr. Person settled Mr. DeGruy’s case for $65,000. After the case was dismissed, respondent filed a petition for intervention, to collect expenses and a percentage of the attorney’s fees. However, respondent’s intervention was dismissed as untimely. As such, in November 2000, respondent filed a lawsuit against Mr. DeGruy, Mr. Person, and the defendant in Mr. DeGruy’s lawsuit, claiming they conspired to deprive him of his attorney’s fee. Respondent and Mr. Person eventually settled their fee dispute and filed a joint motion to dismiss the lawsuit.

In July 2004, Mr. DeGruy filed a disciplinary complainant against respondent. In addition to the above facts, Mr. De-Gruy’s complaint alleged that 1) respondent requested or consented to a number of continuances without informing him; 2) respondent did not return numerous telephone calls from him; and 3) respondent did not reply to requests for information from him.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(a) (charging an unreasonable fee), 1.5(b) (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation), 1.5(c) (contingency fee agreements), 1.6(a) (a lawyer shall not reveal information relating to the ^representation of a client), 1.16(b)(1) (a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 5.3, 8.4(a), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In April 2009, the ODC filed formal charges against respondent. Respondent answered the formal charges, denying any misconduct. He also claimed he was prejudiced by the ODC’s delay in filing the formal charges in the Bates matter; therefore, he sought the dismissal of those charges. He further claimed that he should not be sanctioned for his conduct in the DeGruy matter because it occurred prior to the misconduct for which he was sanctioned in Gerdes I. According to respondent, the sanction in Gerdes I should be a sufficient sanction for any misconduct found in the DeGruy matter.

Additionally, respondent filed an exception of vagueness and various motions to dismiss the formal charges. The hearing committee chairperson overruled respondent’s exception of vagueness and referred the issues presented in respondent’s motions to dismiss to the merits to be presented at the formal hearing.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

The Bates matter — Respondent provided State Farm with documentation of Mr. Bates’ lost wages on the letterhead of AA Contracting Services. The document was purportedly signed by Candice Bates Anderson; however, she testified that her father signed her name on the document. There is no doubt that |fithe document is false and was fraudulently submitted to support Mr. Bates’ lost wages claim. However, the committee concluded that the ODC did not present evidence demonstrating respondent knew or should have known the document was fraudulent or was involved in the preparation of the document. After learning of State Farm’s suspicions about the document, respondent withdrew the lost wages claim and did not include same in the lawsuit. The document was never presented to the court. The ODC also did not present evidence that respondent did not properly investigate Mr. Bates’ claim prior to filing suit.

After Mr. Bates died, respondent was appointed as the administrator of his succession. He subsequently filed an amended petition, substituting himself as the plaintiff in Mr. Bates’ lawsuit. Soon thereafter, respondent filed another amended petition, requesting Ms. Anderson be substituted as the plaintiff. The committee concluded respondent’s appointment as the administrator of Mr. Bates’ succession was proper because he was a creditor of Mr. Bates. Further, when respondent substituted himself as the plaintiff, no conflict of interest existed because respondent’s interests were not adverse to the interests of another client or person, nor was the representation limited by respondent’s personal interest.

Respondent stipulated that, in March 2004, he permitted his nonlawyer assistant to participate in a telephone interview of Mr. Bates by an insurance claims adjuster. The committee found such conduct constitutes the practice of law and may not be performed by a nonlawyer.

Based on these findings, the committee determined respondent violated Rules 5.3 and 8.4(a) of the Rules of Professional Conduct. However, the committee did not find violations of Rules 1.1(a), 1.7, 1.16(a)(1), 3.1, 3.3(a), 3.3(b), 8.4(c), or 8.4(d).

The DeGruy matter — Respondent represented Mr. DeGruy from 1991 until 2000. Respondent did not attend the 1997 deposition of his client’s treating |7physician, nor did he send another attorney to attend on Mr. DeGruy’s behalf, resulting in his neglect of Mr. DeGruy’s legal matter. However, the committee found the ODC did not present clear and convincing evidence that respondent failed to keep Mr. DeGruy informed, failed to return Mr. De-Gruy’s numerous telephone calls, and requested and consented to a number of continuances.

Respondent’s attorney’s fees were contingent on the outcome of Mr. DeGruy’s case. Respondent did not obtain a written contingency fee agreement signed by Mr. DeGruy. Nonetheless, respondent was not seeking to collect his fees without a basis.

Respondent filed a motion to withdraw from the representation and attached a letter stating that he thought Mr. De-Gruy’s case was worth $50,000 while Mr. DeGruy thought it was worth $4.5 million. The committee found Mr. Person to be a credible witness, and he indicated Mr. De-Gruy was reasonable in his settlement demand. Therefore, the committee found that Mr. DeGruy did not demand $4.5 million, and respondent stated so in the court record in a malicious attempt to hurt Mr. DeGruy’s case. This information was related to respondent’s representation of Mr. DeGruy, and Mr. DeGruy did not consent to respondent’s disclosure of same.

Mr. DeGruy’s trial on the merits was scheduled to begin in early August 2000. Respondent withdrew from the representation approximately three weeks before the trial date, leaving little time for Mr. DeGruy’s new attorney to prepare for trial. The notice respondent provided to Mr. DeGruy, just three weeks before trial, was not reasonable and did not allow Mr. De-Gruy sufficient time to retain new counsel.

| ¡¿Finally, respondent permitted Mr. Williams, his nonlawyer assistant, to attend and participate in two depositions on February 15, 1996. However, in mitigation, the committee noted that the ODC did not present any evidence that respondent sent nonlawyers to depositions after his 1999 admonition for similar misconduct which had taken place in April 1998.

Based on these facts, the committee determined respondent violated Rules 1.3, 1.5(c), 1.6, 1.16, 5.3, and 8.4(a) of the Rules of Professional Conduct. However, the committee did not find violations of Rules 1.4,1.5(a), 1.5(b), 3.2, or 8.4(c).

The committee determined respondent acted negligently in failing to obtain a written contingency fee agreement in the DeGruy matter, but otherwise acted knowingly and/or intentionally. Respondent violated duties owed to his clients, and he caused actual harm to Mr. DeGruy. Upon review of the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined suspension is the baseline sanction.

In aggravation, the committee found pri- or disciplinary offenses, a dishonest of selfish motive (only with respect to the violation of Rule 1.6 in the DeGruy matter), a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1968). In mitigation, the committee found a delay in the disciplinary proceedings and imposition of other penalties or sanctions for similar misconduct.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for nine months.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation. However, in his brief to the disciplinary board, respondent alleged various procedural errors and requested that the board Neither remand the matter, dismiss the charges, or recommend a more lenient sanction.

Disciplinary Board Recommendation

Initially, the disciplinary board addressed the procedural errors alleged by respondent. First, respondent argued the hearing committee erred in not allowing him to pursue his motion to dismiss the formal charges based on the ODC’s inappropriate handling of the investigation. As evidence of the ODC’s “inappropriate handling,” respondent cites 1) the delay in the investigation and prosecution of this matter; 2) the ODC’s expansion of the formal charges beyond the misconduct alleged in the complaints; and 3) the ODC’s failure to recognize possible rule violations by Mr. DeGruy’s subsequent counsel, Eric Person. With regard to the delay, the board indicated that Supreme Court Rule XIX does not give hearing committees or the board the authority to dismiss a matter because of a delay in an investigation or prosecution. At most, the delay would be a mitigating factor, as was found by the committee in this matter. With regard to the ODC’s “expansion” of the formal charges, the board pointed out the ODC sent respondent copies of the complaints and gave him an opportunity to respond, as required by Supreme Court Rule XIX, § 11(B)(2). Finally, with respect to Mr. Person, the board noted the ODC has the prosecutorial discretion to determine how and what it investigates and prosecutes. The issue of whether there were potential rule violations by Mr. Person has no bearing on this matter. Therefore, the board denied respondent’s request to remand the matter to the committee or dismiss the formal charges on the issue of the ODC’s improper handling of the investigation. Second, respondent argued the ODC failed to give him appropriate notice of its intent to file formal charges. The board indicated that any delay between respondent’s receipt of notice of the complaints and the ODC’s filing of formal |incharges can be considered in mitigation. Therefore, the board denied respondent’s request to dismiss the formal charges on this basis.

Turning to the merits, the board determined the committee’s factual findings do not appear to be manifestly erroneous, with one exception relating to the committee’s finding that respondent’s representation of Mr. Bates after his death was not limited by respondent’s personal interest. When respondent had himself substituted as the plaintiff in Mr. Bates’ lawsuit, his representation of Mr. Bates became materially limited by his personal interest. Respondent became a party to the lawsuit, the outcome of which had a direct bearing on his contingency fee interest. In fact, he admitted at the hearing that he proceeded in this matter “to recover whatever fee I had to recover in the process.” The fact that he had a professional relationship with Ms. Anderson but claimed he was unable to reach her before substituting himself as the plaintiff supports the conclusion that he was only pursuing his personal interest in his contingency fee when he substituted himself as plaintiff. Therefore, a conflict existed, and the committee committed manifest error when it found the representation was not limited by respondent’s personal interest.

Based on these facts, the board determined respondent violated the Rules of Professional Conduct as follows:

The Bates matter — Respondent adequately investigated the facts before filing the lawsuit. Respondent was not aware the lost wages letter was fraudulent. Upon learning this, respondent withdrew the lost wages claim and did not include same in the lawsuit. As such, he did not violate Rules 1.1(a), 1.16(a)(1), 3.1, 3.3(a), or 3.3(b). By being substituted as the plaintiff in the lawsuit after Mr. Bates’ death, respondent engaged in a conflict of interest, in violation of Rule 1.7, and violated Rule 8.4(d) by causing unnecessary delay and litigation in the matter. Respondent violated Rule 5.3 by allowing his nonlawyer assistant to participate in |na telephone interview between Mr. Bates and State Farm’s insurance adjuster. The board also determined respondent violated Rule 8.4(a) but not 8.4(c).

The DeGruy matter — Respondent violated Rule 1.3 by failing to attend the deposition of his client’s treating physician. However, the ODC did not prove respondent violated Rules 1.4 and 3.2 because it failed to present the testimony of Mr. De-Gruy, and the other evidence in the record does not support a violation of these rules. Respondent also failed to reduce the contingency fee agreement to writing, and he testified that he did not discuss or communicate the basis of the fee to Mr. DeGruy. Therefore, respondent violated Rules 1.5(b) and 1.5(c). However, he did not violate Rule 1.5(a) because the Fourth Circuit Court of Appeal ruled that he had a right to collect a portion of the attorney’s fees from the DeGruy settlement. Respondent violated Rule 1.6(a) when he submitted a letter to the court in which he disclosed his opinion of the value of Mr. DeGruy’s case and lied about the amount of Mr. DeGruy’s settlement demand. Respondent also withdrew from the representation only a few weeks prior to the scheduled trial and disclosed the above information, both of which represented a disregard for Mr. DeGruy’s interests. Therefore, respondent violated Rules 1.16(b)(1) and 1.16(d). Respondent also violated Rule 5.3 when he allowed Charles Williams, a suspended attorney, to attend and participate in two depositions. Finally, respondent engaged in dishonest conduct when he falsely stated that Mr. De-Gruy demanded $4.5 million in settlement, which the committee determined was a malicious attempt to hurt Mr. DeGruy’s case. Having violated all the above rules, respondent also violated Rule 8.4(a).

The board further determined respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. He caused significant potential harm to Mr. DeGruy and actual harm in the form of delay and unnecessary litigation in the Bates matter. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board adopted the aggravating factors found by the committee. Additionally, the board found the aggravating factor of refusal to acknowledge the wrongful nature of the conduct. The only mitigating factor the board found was a delay in the disciplinary proceedings.

Turning to the issue of an appropriate sanction, the board indicated the misconduct in the DeGruy matter occurred during the same time period as the misconduct in Gerdes I. Pursuant to the court’s holding in Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), the board determined it must treat the De-Gray matter as if it was before the court simultaneously with the misconduct in Gerdes I. Respondent received a one-year suspension, with six months deferred, in Gerdes I. Standing alone, respondent’s misconduct in the DeGruy matter, especially his attempt to harm Mr. DeGruy’s credibility by disclosing confidential information and making false statements, would justify at least a short period of suspension (three to six months). Thus, the board concluded that, had the court considered the DeGruy matter with the misconduct in Gerdes I, it would have deferred less of the suspension or none at all.

Since the misconduct in the Bates matter occurred outside the time period in which the misconduct in Gerdes I occurred, the board determined it was subject to a separate sanction analysis. Considering all the circumstances of the Bates matter, the board determined the appropriate sanction would be in the range of a six-month suspension, with no time deferred because of respondent’s history of Rule 5.3 | ^violations. A combined sanction for both the Bates matter and the DeGruy matter would be a suspension in the range of nine months to one year.

Under these circumstances, the board recommended respondent be suspended from the practice of law for nine months.

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

DISCUSSION

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

Before we address the merits, we turn to a discussion of respondent’s first two arguments in his brief to the court. These arguments are essentially reiterations of his arguments to the disciplinary board. We find the board adequately addressed the arguments and properly found no basis to remand the matter to the hearing committee or dismiss the formal charges. Accordingly, we will adopt the board’s determinations and find neither remand nor dismissal is appropriate.

Turning to the merits, the record supports a finding that in the Bates matter, respondent engaged in a conflict of interest by being substituted as the plaintiff in 114the lawsuit after Mr. Bates’ death. In the DeGruy matter, respondent failed to attend the deposition of his client’s treating physician. Respondent also failed to reduce the contingency fee agreement to writing. Additionally, respondent submitted a letter to the trial court in which he (1) disclosed his opinion of the value of Mr. DeGruy’s case and (2) misrepresented Mr. DeGruy’s settlement demand. Respondent also withdrew from the representation only a few weeks prior to the scheduled trial. Finally, respondent allowed a nonlawyer to attend and participate in two depositions. Based on these facts, respondent has violated the Rules of Professional Conduct.

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

Respondent knowingly violated duties owed to his clients, the legal system, and the legal profession. He caused potential and actual harm to his clients and the legal profession. The baseline sanction for this type of misconduct is suspension.

| ^Aggravating factors include prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, we recognize the delay which has occurred in this disciplinary proceeding.

Turning to the issue of an appropriate sanction, we note that the misconduct in the DeGruy matter occurred from 1992 to 2000, while the misconduct at issue in Gerdes I occurred from 1990 to 2001. Because these time periods are the same, we agree with the board that the misconduct in the DeGruy matter should be treated as if it were before the court simultaneously with the misconduct in Gerdes I, pursuant to the approach established in Chatelain. However, had this misconduct been considered with the misconduct in Gerdes I, we would not have imposed a harsher sanction. Therefore, we find no additional discipline is warranted for the misconduct in the DeGruy matter. Accordingly, the only misconduct at issue in determining an appropriate sanction is the conflict of interest in the Bates matter. In mitigation of the severity of that conduct, we note that there was no harm caused to respondent’s client or to the personal injury case as a result of respondent’s ill-advised efforts to substitute himself as the plaintiff.

Accordingly, under all the circumstances of this case, we find the appropriate sanction is a nine-month suspension from the practice of law, with all but three months deferred. Following the active portion of his suspension, respondent shall be placed on supervised probation for a period of one year, during which he shall report to a practice monitor and attend and successfully complete the Louisiana State Bar Association’s Ethics School. We caution respondent that any violation of the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

| ifiDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Louis A. Gerdes, Jr., Louisiana Bar Roll number 6030, be and he hereby is suspended from the practice of law for nine months. It is further ordered that all but three months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on supervised probation for one year governed by the conditions set forth in this opinion. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

GUIDRY, Justice,

concurs in part and dissents in part.

11 While I concur in the majority’s conclusion that the respondent engaged in the conduct subject of the formal charges, I respectfully dissent as to the discipline imposed. I agree with the hearing committee and disciplinary board that a nine-month suspension, with no portion deferred, is an appropriate sanction under the facts.

VICTORY, J.,

dissents.

hi dissent because I would have imposed a nine-month suspension, with no portion deferred, as recommended by the hearing committee and disciplinary board.

      . Respondent did not file the lawsuit himself because he was suspended from the practice of law at the time, pursuant to the court’s order in Gerdes I.

      . Mr. Williams is an attorney who has been suspended from the practice of law since 1986. See Louisiana State Bar Ass'n v. Williams, 498 So.2d 727 (La.1986), and In re: Williams, 02-2698 (La.4/9/03), 842 So.2d 353. Nevertheless, on February 15, 1996, Mr. Williams attended Mr. DeGruy’s deposition and the deposition of Tina Louise Davis. During the depositions, Mr. Williams agreed to the normal stipulations concerning the depositions, assisted Mr. DeGruy with his responses, and cross-examined Ms. Davis.

      . In respondent’s suit against Mr. Person, the Fourth Circuit Court of Appeal ruled that respondent's failure to obtain a written contingency fee agreement with Mr. DeGruy did not preclude him from collecting a portion of the attorney’s fees for the work he performed. The committee indicated it would defer to the Fourth Circuit on this issue and found that respondent did not violate Rule 1.5 by seeking to collect fees without a basis.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

      . Respondent also allowed a nonlawyer to listen in while his client, Mr. Bates, gave a telephone statement to an insurance adjuster. Because the record is clear that the nonlaw-yer assistant asked no questions during the statement, and that he did not take any action on behalf of Mr. Bates, we find no misconduct occurred in this regard. In reaching this conclusion, we emphasize that respondent's decision to allow his nonlawyer assistant to attend the statement in respondent’s absence was unwise and fraught with potential danger. However, we find that under the unique facts presented in this record, where the non-lawyer assistant did not undertake any actions on behalf of the client, respondent's conduct does not violate the ethical rules as alleged in the formal charges. Cf. In re: Garrett, 08-2513 (La.5/5/09), 12 So.3d 332 (attorney disciplined for allowing nonlawyer assistant to represent clients during recorded statements taken by insurance companies).


author: VICTORY, J.

text:
    In re Justice of the Peace Tina Revette LaGRANGE, District 6, Parish of St. Landry, State of Louisiana.
    No. 2011-O-0714.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Barbara Lynn Edin, Assistant Special Counsel, for Applicant.
    Tina Revette LaGrange, Arnaudville, LA, for Respondent.
    Nancy E. Rix, Commission Counsel.
   VICTORY, J.

|! This matter arises from a recommendation of the Judiciary Commission of Louisiana (the “Commission”) regarding Justice of the Peace Tina Revette La-Grange’s failure to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX. The Commission found that Justice of the Peace LaGrange failed to file her 2009 personal financial disclosure statement timely, thereby subjecting her to a monetary penalty. The Commission originally deemed Justice of the Peace LaGrange to have acted willfully and knowingly in failing to comply with the financial disclosure rule and recommended that she be ordered to pay a penalty of $9,250.00 and to reimburse the Commission for costs in the amount of $150.50. However, on August 23, 2011, following this Court’s opinions in In re Hoffman, 11-0417 (La.7/1/11), 66 So.3d 455, In re Flaherty, 11-0418 (La.7/1/11), 66 So.3d 461, and In re Thomas, 11-0572 (La.7/1/11), 66 So.3d 466, the Commission filed an amended recommendation, finding that Justice of the Peace LaGrange acted negligently, but not willfully, and recommending penalties be limited to $200.00, with no request for reimbursement of costs. For the reasons set forth below, we find that Justice of the Peace LaGrange failed to comply with the financial disclosure rule, thereby subjecting her to a civil monetary penalty. We further find the record evidence supports a finding that her late filing was willful and knowing. |2After considering the facts, circumstances, and applicable law, Justice of the Peace LaGrange is ordered to pay a civil penalty in the amount of $500.00.

FACTS AND PROCEDURAL HISTORY

This Court recently promulgated Supreme Court Rule XXXIX, which requires for the first time the filing of annual personal financial disclosure statements by judges and justices of the peace. See In re Sanborn, 10-2051 (La.11/30/10), 50 So.3d 1279. This rule became effective as to justices of the peace on January 1, 2010. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, § 3(A) and (B). If a justice of the peace fails to timely file a financial disclosure statement as required by the rule, or omits any information required to be included in the statement, or the JAO has reason to believe the information included in the statement is inaccurate, the JAO must notify the justice of the peace of such failure, omission, or inaccuracy by certified mail. Rule XXXIX, § 4(A). The notice of delinquency shall inform the justice of the peace that the financial statement must be filed, or that the information must be disclosed or accurately disclosed, or that a written answer contesting the allegation of such a failure, omission, or inaccuracy must be filed within fourteen days. Rule XXXIX, § 4(A)(2). If the justice of the peace files the statement, provides the omitted information, or corrects the inaccurate information within the deadline, no penalties shall be assessed. Rule XXXIX, § 4(B).

However, if the justice of the peace fails to file the statement, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the fourteen-day deadline, the matter shall be referred to the Commission. Rule XXXIX, § 4(C)(1). In turn, if the Commission determines that lathe justice of the peace may have failed to file the statement or failed to disclose or accurately disclose the required information, the matter shall be the subject of a hearing before a hearing officer. Rule XXXIX, § 4(F).

A hearing before a hearing officer is limited to three issues: whether the justice of the peace failed to file a financial statement; whether the justice of the peace failed to disclose or accurately disclose the required information; and whether the failure was willful and knowing. Rule XXXIX, § 4(F)(3). The hearing officer submits a report to the Commission containing proposed findings of fact and conclusions of law, which report is then considered by the Commission. Rule XXXIX, § 4(F)(4). If the Commission determines the justice of the peace has failed to file a statement, or failed to disclose or accurately disclose the required information, the Commission shall file the record and recommendation with this Court. Rule XXXIX, § 4(F)(6). In that event, the Commission shall recommend the imposition of civil penalties against the justice of the peace, and shall also make a recommendation as to whether the violation was willful and knowing. Id.

Once the recommendation is filed in this Court, Rule XXXIX, § 4(F)(7) provides that the case shall be docketed “summarily” for oral argument, and the Court’s judgment “shall be rendered promptly following argument.” If the Court determines no violation has occurred, no penalty shall be assessed. Rule XXXIX, § 4(F)(7). If the Court determines that a violation has occurred, civil penalties of up to fifty dollars per day shall be assessed against the justice of the peace. Rule XXXIX, § 4(F)(7)(b).

Three similar cases involving justices of the peace were decided on July 11, 2011. See Hoffman, Flaherty, Thomas, supra. Today, three more cases involving violations of Rule XXXIX by justices of the peace have been decided. See In re Cook, 11-0715 (La.10/25/11), 74 So.3d 667; In re Myers, 11-0874 (La.10/25/11), 74 So.3d 672; In re Threet, 11-0875 (La.10/25/11), 74 So.3d 679.

Justice of the Peace LaGrange (hereinafter “respondent”), who is not an attorney, was elected justice of the peace for St. Landry Parish, District 6, during the 2009 calendar year. In 2009 and 2010, the JAO made presentations at the Attorney General’s training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (hereinafter the “2009 Statement”). It is unclear from the record whether respondent was in attendance at either of these sessions, but all justices of the peace are required to attend the conference every other year. Respondent did not file her 2009 Statement by May 15, 2010. A JAO staff attorney contacted respondent by telephone to inquire about her non-compliance, and on June 4, 2010 sent respondent another blank disclosure form. Respondent still did not file her 2009 Statement. Accordingly, on June 16, 2010, the JAO sent respondent a notice of delinquency advising her that the 2009 Statement “must be filed no later than July 8, 2010.” The notice also stated that failure to file the 2009 Statement by the deadline “shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX.” Respondent personally signed for the certified mail containing the delinquency notice, but she still did not submit the 2009 Statement by the deadline. On July 23, 1010, the JAO referred the matter to the Commission. Respondent eventually filed the 2009 Statement on January 11, 2011, after the Commission filed a Formal Charge against her and the day before the matter was set to be heard by a hearing officer.

The order of the Commission setting the January 12, 2011 hearing before the hearing officer was personally served on respondent on November 22, 2010. A hearing subpoena issued to respondent was never served upon her. The envelope | .^containing the subpoena was returned to the Office of Special Counsel bearing an inscription that the envelope was never claimed. A second attempt to serve her with the hearing subpoena was then made through the St. Landry Parish Sheriffs Office, however the sheriffs office could not locate her. The return form stated she was unable to be served because she was in rehab in Marksville, Louisiana, for three months according to her family.

On January 11, 2011, the JAO’s office received a voice mail message from respondent stating that she was not going to be attending the hearing the following day because she was a patient at the Hope Center, which is a substance abuse treatment center in Marksville. She faxed her 2009 Statement to the JAO’s office from the Hope Center on January 11, 2011.

The hearing proceeded on January 12, 2011 before the hearing officer in the absence of respondent. Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission, finding that respondent failed to timely file a 2009 Statement and that she acted willfully and knowingly. The Commissioners invited respondent to appear before them on February 18, 2011 to make a statement in response to the hearing officer’s report, but she did not attend.

The Commission filed its recommendation on April 11, 2011, adopting all of the hearing officer’s proposed findings of fact and law. The Commission reasoned there were at least fourteen attempts made to contact respondent regarding this matter, with her receipt of the contact verified for at least three of the fourteen attempts. Although no direct evidence was presented to show that respondent purposefully chose not to file her 2009 Statement, the Commission concluded that her failure to respond to the numerous attempts to contact her regarding this delinquency was tantamount to a purposeful choice not to file the 2009 Statement and evidence that |fishe acted in bad faith. Based on these findings, the Commission determined that the burden of proof was satisfied. As a total of 185 days passed from July 9, 2010 (the deadline set forth in the delinquency notice) to January 11, 2011 (the date respondent submitted her 2009 Statement by facsimile), the Commission recommended that respondent be ordered to pay $9,250.00 in penalties citing the former version of Rule XXXIX, § 4(F)(7), which has since been amended to provide for a penalty of up to $50 per day. The Commission further recommended that respondent be ordered to reimburse the Commission $150.00 in costs.

On August 23, 2011, following this Court’s opinions in Hoffman, Flaherty, and Thomas, supra, the Commission filed an amended recommendation in this matter, significantly changing some of its factual findings and recommendation. In particular, the Commission changed its finding that respondent acted willfully and instead found she acted negligently. The Commission also recommended that the civil penalties be limited to $200.00, and the Commission withdrew its request for reimbursement of costs.

DISCUSSION

Having resolved several cases involving violations of Rule XXXIX, we have yet to determine the appropriate burden of proof in these type cases. See Sanborn, supra; Hoffman, supra. Rule XXXIX is silent on the issue. However, in cases involving judicial discipline, we have consistently determined that the clear and convincing standard is the appropriate standard. In re Morvant, 09-747 (La.16/26/09), 15 So.3d 74, 79; In re Hughes, 03-3408 (La.4/22/04), 874 So.2d 746, 760; In re Bowers, 98-1735 (La.12/1/98), 721 So.2d 875; In re Johnson, 96-1866 (La.11/25/96), 683 So.2d 1196; In re Huckaby, 95-0041 (La.5/22/95), 656 So.2d 292. We have also applied the clear and convincing burden of proof to judicial discipline cases involving justices of the peace. In re Freeman, 08-1820 (La.12/2/08), 995 So.2d 1197; In re Franklin, 07-1425 (La.11/27/07), 969 So.2d 591. In Sanborn, the first judicial disciplinary proceeding brought under Rule XXXIX, we declined to resolve the burden of proof issue as the facts were undisputed and presented a violation of Rule XXXIX under either standard. Similarly, in Hoffman, Flaherty, and Thomas, we declined to establish the burden of proof for violations of Rule XXXIX involving justices of the peace. However, upon review, we have determined that, just as in judicial disciplinary proceedings brought under other rules, the Judiciary Commission must prove violations of Rule XXXIX by clear and convincing evidence. After reviewing the record in this case, we find the evidence establishes by clear and convincing evidence that respondent did not timely her financial disclosure statement. It is undisputed that the 2009 Statement was due July 9, 2010, but was not filed until November 18, 2010.

Having found respondent in violation of Rule XXXIX, we next decide whether her violation was “willful and knowing” under Rule XXXIX, § 4(F)(8). In the first cases before us involving violations of Rule XXXIX, we classified actions as “willful and knowing” as those which involve bad faith or a purposeful choice not to file the disclosure statement in order to obtain some personal or professional gain. Hoffman, supra at 460; Sanborn, supra at 1282-83. In addition, we refused to find a “willful and knowing” violation where the failure to timely file was “a case of mere neglect, not willful and knowing disobedience of the rule.” Sanborn, supra at 1282-83. Further, “we recognized some leniency is appropriate where the judge’s ‘violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.’ ” Id. (citing Morvant, supra at 80). Under those standards, we have yet to find a willful and knowing violation of Rule XXXIX. However, as we warned in Hoffman, FlaheHy, and Thomas, “such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year.”

In this case, we find respondent’s failure to timely file her 2009 Statement to be willful and knowing. The JAO attempted to contact respondent at least fourteen times, yet, aside from one telephone conversation on May 26, 2010, she did not respond or communicate with the JAO until the day before the hearing was scheduled. She even personally signed for the certified mail containing the delinquency notice in June of 2010, but did not return her completed 2009 Statement until January 11, 2011, the day before the hearing. This is more than mere negligence, but was willful and knowing disobedience of the disclosure rule. Respondent’s conduct evidences a “purposeful choice” not to file the disclosure statement. While there was no evidence presented that she failed to timely file the statement in order to obtain some monetary gain, that is not required under our holding in Sanborn. “Personal or professional gain” is to be interpreted broadly, and the “gain” can be anything from a desire not to disclosure one’s personal assets to the public, to a desire not to take the time, trouble and effort to complete the form with knowledge that it is required to be filed by a certain date. While respondent may have been in some type of rehabilitation for part of this delay period, she presented no evidence to the hearing officer, the Commission, or this Court that she was being treated for any specific problem and whether that problem affected her ability to timely file the statement. |9Without such evidence, there is nothing in the record to mitigate her behavior. Accordingly, we find that respondent committed a willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for respondent’s failure to timely file her financial disclosure statement under Rule XXXIX. In response to our recent penalty assessments in Hoffman, Flaherty, and Thomas, the Judiciary Commission filed an amended recommendation, seeking a civil penalty of $200.00 and withdrawing its request for costs. We must point out that each violation of Rule XXXIX is decided on a case by case basis and our $200.00 penalty assessments in those prior cases should not be construed as absolutes for violations of Rule XXXIX. However, the Judiciary Commission was correct in withdrawing its request for costs as we have declined to award costs for violations of Rule XXXIX because that rule does not provide for assessment of costs and “the only costs taxable against a litigant are those provided by the positive law.” Sanborn, supra at 1283. After reviewing the facts and circumstances in this case, we find that a civil penalty of $500.00 is appropriate.

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace LaGrange failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting her to a civil monetary penalty. We further find that her failure to comply with the financial disclosure rule was willful and knowing. Accordingly, it is ordered that Justice of the Peace LaGrange pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $500.00, no later than thirty days from the finality of this judgment.

      . Rule XXXIX does not specify a burden of proof. The Commission found that in this case, the Office of Special Counsel met its burden of proof by clear and convincing evidence.

      . Originally, Rule XXXIX provided a mandatory civil penalty of $50 per day of delay for justices of the peace and $100 per day of delay forjudges, with no discretion to assess a lesser amount. However, effective May 18, 2011, the Court amended Rule XXXDÍ, § 4(F)(7) to provide that the amount of the penalty may be decided in the Court’s discretion, up to $50 per day for justices of the peace and up to $100 per day for judges.


text:
    In re Justice of the Peace David E. COOK, Ward 1, Parish of Bienville, State of Louisiana.
    No. 2011-O-0715.
    Supreme Court of Louisiana.
    Oct. 25, 2011.
    Office of Special Counsel, Henry Nathan Bellamy, Special Counsel, Michael Bewers, Assistant Special Counsel, for Applicant.
    David E. Cook, Arcadia, LA, for Respondent.
    Nancy E. Rix, Commission Counsel.
   VICTORY, J.

| ¡This matter arises from a recommendation of the Judiciary Commission of Louisiana (the “Commission”) regarding Justice of the Peace David E. Cook’s failure to comply with the financial disclosure requirements of Louisiana Supreme Court Rule XXXIX. The Commission found that Justice of the Peace Cook failed to file his 2009 personal financial disclosure statement, thereby subjecting him to a monetary penalty. The Commission determined Justice of the Peace Cook acted negligently in failing to comply with the financial disclosure rule and recommended that he be ordered to pay a penalty of $6,600.00 and to reimburse the Commission for costs in the amount of $332.50. However, on August 23, 2011, following this Court’s opinions in In re Hoffman, 11-0417 (La.7/1/11), 66 So.3d 455, In re Flaherty, 11-0418 (La.7/1/11), 66 So.3d 461, and In re Thomas, 11-0572 (La.7/1/11), 66 So.3d 466, the Commission filed an amended recommendation, recommending penalties be limited to $200.00, with no request for reimbursement of costs. For the reasons set forth below, we find that Justice of the Peace Cook failed to comply with the financial disclosure rule, thereby subjecting him to a civil monetary penalty. We further find the record evidence supports the Commission’s finding that Justice of the Peace Cook acted negligently, but not willfully and knowingly, in failing to file the financial disclosure statement. After considering the facts, circumstances, and | inapplicable law, Justice of the Peace Cook is ordered to pay a civil penalty in the amount of $200.00.

FACTS AND PROCEDURAL HISTORY

This Court recently promulgated Supreme Court Rule XXXIX, which requires for the first time the filing of annual personal financial disclosure statements by judges and justices of the peace. See In re Sanborn, 10-2051 (La.11/30/10), 50 So.3d 1279. This rule became effective as to justices of the peace on January 1, 2010. Pursuant to Section 3 of the rule, all elected justices of the peace must file a financial statement by May fifteenth of each year, using a form prescribed by the Judicial Administrator’s Office (“JAO”) for that purpose. Rule XXXIX, § 3(A) and (B). If a justice of the peace fails to timely file a financial disclosure statement as required by the rule, or omits any information required to be included in the statement, or the JAO has reason to believe the information included in the statement is inaccurate, the JAO must notify the justice of the peace of such failure, omission, or inaccuracy by certified mail. Rule XXXIX, § 4(A). The notice of delinquency shall inform the justice of the peace that the financial statement must be filed, or that the information must be disclosed or accurately disclosed, or that a written answer contesting the allegation of such a failure, omission, or inaccuracy must be filed within fourteen days. Rule XXXIX, § 4(A)(2). If the justice of the peace files the statement, provides the omitted information, or corrects the inaccurate information within the deadline, no penalties shall be assessed. Rule XXXIX, § 4(B).

However, if the justice of the peace fails to file the statement, fails to provide the omitted information, fails to correct the inaccurate information, or fails to file a written answer prior to the fourteen-day deadline, the matter shall be referred to the Commission. Rule XXXIX, § 4(C)(1). In turn, if the Commission determines that lathe justice of the peace may have failed to file the statement or failed to disclose or accurately disclose the required information, the matter shall be the subject of a hearing before a hearing officer. Rule XXXIX, § 4(F).

A hearing before a hearing officer is limited to three issues: whether the justice of the peace failed to file a financial statement; whether the justice of the peace failed to disclose or accurately disclose the required information; and whether the failure was willful and knowing. Rule XXXIX, § 4(F)(3). The hearing officer submits a report to the Commission containing proposed findings of fact and conclusions of law, which report is then considered by the Commission. Rule XXXIX, § 4(F)(4). If the Commission determines the justice of the peace has failed to file a statement, or failed to disclose or accurately disclose the required information, the Commission shall file the record and recommendation with this Court. Rule XXXIX, § 4(F)(6). In that event, the Commission shall recommend the imposition of civil penalties against the justice of the peace, and shall also make a recommendation as to whether the violation was willful and knowing. Id.

Once the recommendation is filed in this Court, Rule XXXIX, § 4(F)(7) provides that the case shall be docketed “summarily” for oral argument, and the Court’s judgment “shall be rendered promptly following argument.” If the Court determines no violation has occurred, no penalty shall be assessed. Rule XXXIX, § 4(F)(7). If the Court determines that a violation has occurred, civil penalties of up to fifty dollars per day shall be assessed against the justice of the peace. Rule XXXIX, § 4(F)(7)(b).

Three similar cases involving a justice of the peace were decided on July 11, 2011. See Hoffman, Flaherty, Thomas, supra. Today, three more cases involving violations of Rule XXXIX by justices of the peace have been decided. See In re LaGrange, 11-0714 (La.10/25/11), 74 So.3d 661; In re Myers, 11-0874 (La.10/25/11), 74 So.3d 672; In re Threet, 11-0875 (La.10/25/11), 74 So.3d 679.

Justice of the Peace Cook (hereinafter “respondent”), who is not an attorney, assumed the office of justice of the peace for Bienville Parish, Ward 1, on January 1, 2009. In 2009, the JAO made a presentation at the Attorney General’s training conference for justices of the peace regarding the May 15, 2010 deadline for filing the personal financial disclosure statement for 2009 (hereinafter the “2009 Statement”). Respondent was in attendance at this session, however, he did not file his 2009 Statement by May 15, 2010. A JAO staff attorney attempted to contact respondent by telephone to inquire about his non-compliance, but was unable to reach him. Accordingly, on June 16, 2010, the JAO sent respondent a notice of delinquency advising him that the 2009 Statement “must be filed no later than July 8, 2010.” The notice also stated that failure to file the 2009 Statement by the deadline “shall result in the imposition of penalties as provided in Section 4 of Rule XXXIX.” The certified mail containing the delinquency notice was initially returned to the JAO as undeliverable, but the post office provided a forwarding address to which the letter was resent. That envelope was accepted on June 24, 2010 by Ruth Boston, a part-time secretary at the Arcadia, Louisiana funeral home where respondent has been employed for the last twenty-two years, and next door to the trailer where respondent resided. On July 23, 1010, the JAO referred the matter to the Commission. Respondent eventually contacted the JAO on November 18, 2010 and filed the 2009 Statement the same day, but after the Commission had filed a Formal Charge against him.

The hearing proceeded on January 28, 2011 before the hearing officer and respondent appeared and testified. In his com-raents to the hearing officer, respondent 1-explained he did not submit his 2009 Statement timely because he “didn’t know nothing about it.” Respondent did not deny receiving the delinquency notice sent to him in June 2010, and signed for by the secretary at the funeral home, but he could not recall getting it because in 2010 he was preoccupied with taking care of his mother, who was dying of cancer:

My mother ... has cancer. She was sick. I was ripping and running — see, my mother stayed in El Dorado, Arkansas which is about 65, 70 miles from Arcadia. And I was back and forth, I was relieving my sister at nights so she can go to work, you know, so she wouldn’t miss nothing. And, you know, we did that off and on for a long time. And she died August 28th of last year, 2010 ...
I didn’t ... say I didn’t see it [referring to the notice of delinquency], I mean, she — I didn’t say at that time I didn’t see it. I just said she probably give [sic] it to me. So much was going on ... [M]y concern was my mother.... She probably gave it to me, and I probably just laid it down. My focus of 2010 was really my mother.

Similarly, respondent acknowledged he received, but did not respond to, a letter of inquiry from the Office of Special Counsel and the Formal Charge filed by the Commission. He apologized for his conduct in this regard, and expressed regret that these proceedings were necessary and appreciation to the JAO’s staff for their assistance in completing the 2009 Statement.

Following the hearing, the hearing officer filed findings of fact and conclusions of law with the Commission, finding that respondent failed to timely file a 2009 Statement but that his actions were negligent. The hearing officer found the actions were the result of several factors, most notably the short amount of time he had been in office and the illness and death of his mother. Once he realized he needed to file the 2009 Statement, he telephoned the JAO immediately and completed and filed the 2009 Statement that same day. The hearing officer found respondent’s apologies for his conduct were genuine expressions of contrition. The Commissioners invited | (¡respondent to appear before them on March 18, 2011 to make a statement in response to the hearing officer’s report, but he did not attend.

The Commission filed its recommendation on April 11, 2011, adopting some of the hearing officer’s proposed finding of fact and law, including the finding that respondent did not act willfully or knowingly in failing to timely file the 2009 Statement. Rather, given the mitigating circumstances, the Commission agreed that his conduct was negligent:

... [T]his justice of the peace was a brand new judicial officer, approximately two months into his term in 2009, when he attended the first JP training session where financial reporting was discussed. He did not attend training, nor was he required to, in 2010. Through a series of circumstances his location and address changed, which complicated his receipt of phone messages and mail. Ultimately the Delinquency Notice was delivered to his employer, a funeral home. From JP Cook’s testimony it was apparent he eventually received the Delinquency Notice, but at that time he was dealing with a seriously ill parent who passed away in late August 2010. To his credit, he drove 346 miles to his hearing in New Orleans to apologize to those present for his noncompliance with the Reporting Rule.

Based upon these findings, the Commission determined that the burden of proof was satisfied. As a total of 132 days passed from July 9, 2010 (the deadline set forth in the delinquency notice) to November 18, 2010 (the date respondent submitted his 2009 Statement by facsimile), the Commission recommended that respondent be ordered to pay $6,600.00 in penalties citing the former version of Rule XXXIX, § 4(F)(7), which has since been amended to provide for a penalty of up to $50 per day. The Commission further recommended that respondent be ordered to reimburse the Commission $332.50 in costs.

|7On August 23, 2011, following this Court’s opinions in Hoffman, Flaherty, and Thomas, supra, the Commission filed an amended recommendation in this matter, significantly changing some of its factual findings and recommendation. The Commission maintained its finding that respondent acted negligently, but recommended that the civil penalties be limited to $200.00, and the Commission withdrew its request for reimbursement of costs.

DISCUSSION

Having resolved several cases involving "violations of Rule XXXIX, we have yet to determine the appropriate burden of proof in these type cases. See Sanborn, supra; Hoffman, supra. Rule XXXIX is silent on the issue. However, in cases involving judicial discipline, we have consistently determined that the clear and convincing standard is the appropriate standard. In re Morvant, 09-747 (La.6/26/09), 15 So.3d 74, 79; In re Hughes, 03-3408 (La.4/22/04), 874 So.2d 746, 760; In re Bowers, 98-1735 (La.12/1/98), 721 So.2d 875; In re Johnson, 96-1866 (La.11/25/96), 683 So.2d 1196; In re Huckaby, 95-0041 (La.5/22/95), 656 So.2d 292. We have also applied the clear and convincing burden of proof to judicial discipline cases involving justices of the peace. In re Freeman, 08-1820 (La.12/2/08), 995 So.2d 1197; In re Franklin, 07-1425 (La.11/27/07), 969 So.2d 591. In Sanborn, the first judicial disciplinary proceeding brought under Rule XXXIX, we declined to resolve the burden of proof issue as the facts were undisputed and presented a violation of Rule XXXIX under either standard. Similarly, in Hoffman, Flaherty, and Thomas, we declined to establish the burden of proof for violations of Rule XXXIX involving justices of the peace. However, upon review, we have determined that, just as in judicial disciplinary proceedings brought under other rules, the Judiciary Commission must prove violations of Rule XXXIX by clear and |Rconvincing evidence. After reviewing the record in this case, we find the evidence establishes that respondent did not timely file his financial disclosure statement by clear and convincing evidence. It is undisputed that the 2009 Statement was due July 9, 2010, but was not filed until November 18, 2010.

Having found respondent in violation of Rule XXXIX, we next decide whether his violation was “willful and knowing” under Rule XXXIX, § 4(F)(8). In the first cases before us involving violations of Rule XXXIX, we classified actions as “willful and knowing” as those which involve bad faith or a purposeful choice not to file the disclosure statement in order to obtain some personal or professional gain. Hoffman, supra at 460; Sanborn, supra at 1282-83. In addition, we refused to find a “willful and knowing” violation where the failure to timely file was “a case of mere neglect, not willful and knowing disobedience of the rule.” Sanborn, supra at 1282-83. Further, “we recognized some leniency is appropriate where the judge’s ‘violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.’ ” Id. (citing Morvant, supra at 80). Under those standards, we have yet to find a willful and knowing violation of Rule XXXIX. However, as we warned in Hoffman, Flaherty, and Thomas, “such leniency or benefit of the doubt will not be extended now that the financial disclosure rule has been in effect for more than one year.”

In this case, we agree with the hearing office and the Commission that respondent acted negligently in failing to timely file the statement. Respondent initially was unaware of the requirement, but once he contacted the JAO and was informed of it, he filed his disclosure statement that same day. Further, during the period of delay, he was traveling back and forth from Arcadia to El Dorado, Arkansas to care for his terminally ill mother. Given the mitigating factors, his failure to timely [¡file can only be classified as negligent under the standard enunciated in Sanborn and Hoffman. Accordingly, we do not find that respondent committed a willful and knowing violation of Rule XXXIX.

We next decide the appropriate penalty for respondent’s failure to timely file his financial disclosure statement under Rule XXXIX. In response to our recent penalty assessments in Hoffman, Flaherty, and Thomas, the Judiciary Commission filed an amended recommendation, seeking a civil penalty of $200.00 and withdrawing its request for costs. We must point out that each violation of Rule XXXIX is decided on a case by case basis and our $200.00 penalty assessments in those prior cases should not be construed as absolutes for violations of Rule XXXIX. However, the Judiciary Commission was correct in withdrawing its request for costs as we have declined to award costs for violations of Rule XXXIX because that rule does not provide for assessment of costs and “the only costs taxable against a litigant are those provided by the positive law.” Sanborn, supra at 1283. After reviewing the facts and circumstances in this case, we find that a civil penalty of $200.00 is appropriate.

CONCLUSION

We find the record establishes by clear and convincing evidence that Justice of the Peace Cook failed to comply with the financial disclosure requirement of Rule XXXIX, thereby subjecting him to a civil monetary penalty. We further find that his failure to comply with the financial disclosure rule did not rise to the level of a willful and knowing violation. Accordingly, it is ordered that Justice of the Peace Cook pay a civil penalty to the State of Louisiana, Judicial Branch, in the amount of $200.00, no later than thirty days from the finality of this judgment.

      . Although Rule XXXIX does not specify a burden of proof, the Commission found the Office of Special Counsel had proven the charge by clear and convincing evidence.

      . Originally, Rule XXXIX provided a mandatory civil penalty of $50 per day of delay for justices of the peace and $100 per day of delay forjudges, with no discretion to assess a lesser amount. However, effective May 18, 2011, the Court amended Rule XXXIX, § 4(F)(7) to provide that the amount of the penalty may be decided in the Court’s discretion, up to $50 per day for justices of the peace and up to $100 per day for judges.