author: KIMBALL, Chief Justice.

text:
    Desi FULMER v. STATE of Louisiana, DEPARTMENT OF WILDLIFE AND FISHERIES and Gary Pierce.
    No. 2010-C-2779.
    Supreme Court of Louisiana.
    July 1, 2011.
    Rehearing Denied Sept. 2, 2011.

      James D. Caldwell, Attorney General, Provosty & Gankendorff, LLC, Lena Dawn Giangrosso, Henry St. Paul Pro-vosty, for Applicant.
    Law Office of Tonry & Ginart, LLC, Richard A. Tonry, Joyce Duhe Young, Kim Cooper Jones, Michael Charles Ginart, Jr., for Respondent.
   KIMBALL, Chief Justice.

11 This case involves a seaman who was injured in the course and scope of his employment with the State of Louisiana. We granted certiorari in this case to determine whether an injured, state-employed seaman in Louisiana can sue the state under the Jones Act (46 U.S.C. § 30104 et seq.) in state court or whether his claim for damages is governed exclusively by the provisions of the Louisiana Workers’ Compensation Act (“LWCA”) (La. R.S. 23:1032 et seq.). For the reasons that follow, we find Louisiana has waived its sovereign immunity from suit for injury to persons and the legislature has not limited that waiver concerning suits by state employees under the Jones Act. Thus, the ruling of the court of appeal is affirmed.

FACTS AND PROCEDURAL HISTORY

Desi Fulmer was an employee of the State of Louisiana, Department of Wildlife and Fisheries, and was assigned to the crew of a state-owned vessel in navigation. On June 2, 2001, as the vessel was patrolling an area of Plaquemines Parish, it went down a trough, which caused Mr. Fulmer to be thrown into the air and upon landing, Mr. Fulmer allegedly suffered several herniated discs and other serious injuries to his spine. At the time of the incident, the vessel was being operated by his co-employee, Gary Pierce, who allegedly was operating the craft at a high rate of speed.

|2On May 6, 2004, Mr. Fulmer filed suit against the State of Louisiana and Gary Pierce seeking relief for his injuries under the Jones Act and general maritime law. The State, while admitting it was the employer of the plaintiff and Gary Pierce, asserted numerous affirmative defenses and denied many of the allegations set forth in the petition. The State then filed a declinatory exception of lack of subject matter jurisdiction and a peremptory exception of no cause of action, asserting that the LWCA, La. R.S. 23:1021 et seq., provided the plaintiffs exclusive remedy. The State sought dismissal of all of the plaintiffs claims under the Jones Act and general maritime law. After a hearing on January 10, 2008, the trial court denied the State’s exceptions, relying on the Fourth Circuit decision of Higgins v. State of Louisiana, 627 So.2d 217 (La.App. 4 Cir.1993), which found the State was not immune from suits under the Jones Act and an injured state-employed seaman could bring a Jones Act claim against the State in state court.

In May of 2009, the State re-urged its exception of no cause of action relying on the then recently decided Fourth Circuit case of Kuebel v. Dept. of Wildlife & Fisheries, 08-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, which held that seamen employed by the State could not sue their employer under the Jones Act or general maritime law in state court because Louisiana has not expressly consented to such suits nor has it waived its sovereign immunity as to such suits. Following Kuebel, the trial court sustained the exception of no cause of action and dismissed the plaintiffs suit against the State concluding the plaintiffs exclusive remedy lay in workers’ compensation. Plaintiff then filed an appeal to the trial court’s ruling.

A divided panel of the Fourth Circuit Court of Appeal overruled its decision in Kuebel and reversed the trial court’s ruling. Fulmer v. State of Louisiana, Department of Wildlife and Fisheries, 10-0088 (La.App. 4 Cir. 10/6/10), 50 So.3d 843. The court reviewed the issue on the peremptory exception de novo. Bibbins v. City of New Orleans, 02-1510, p. 3 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 690. The court examined its previous decision in Higgins, recognizing that the instant case and Higgins were factually indistinguishable. Higgins involved a state-employed seaman who sued the state for negligence under the Jones Act and general maritime law alleging that the vessel was unseaworthy. In Higgins, the State, as in the instant case, filed an exception of no cause of action and a motion for summary judgment. The trial court in Higgins sustained the exception of the State and dismissed the claims of the state-employed plaintiff. The Fourth Circuit reversed, finding that an injured, state-employed seaman was entitled to sue the state under the Jones Act. The Higgins court followed the U.S. Supreme Court in Petty v. Tennessee-Missouri Bridge Commission, which stated “the Jones Act has no exceptions from the broad sweep of the statement ‘any seaman who shall suffer personal injury in the course of his employment may’ etc,” finding no exceptions for state and bi-state employers in the express terms of the Jones Act. Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 282, 79 S.Ct. 785, 790, 3 L.Ed.2d 804 (1959) (emphasis added). The Higgins majority also recognized that La. R.S. 23:1035.2 excludes from workers’ compensation employees who have federal claims under the Jones Act. Higgins, 627 So.2d 217, 219.

14 The court of appeal then turned its attention to its previous decision in Kuebel, which relied on the decision of the U.S. Supreme Court in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Alden held that a state’s sovereign immunity operates to prevent individuals from suing the state for federal remedies in state court absent that state’s consent stating, “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting states to private suits for damages in state courts.” Id. at 712, 119 S.Ct. at 2246. The Kuebel majority found that Louisiana had not consented to suits against the state under the Jones Act, thus a state-employed seaman’s exclusive remedy would be the LWCA. Kuebel, 14 So.3d at 30. In the instant case, the Fourth Circuit disagreed and recognized that the State of Louisiana has waived its sovereign immunity via Article XII, Section 10(A) of the Louisiana Constitution, which states, in pertinent part, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” The court further held that through La. R.S. 23:1035.2, the Louisiana Legislature has recognized that employees may be covered by federal laws providing remedies, and in such cases, workers’ eom-pensation benefits are not payable. The majority did note that the state could limit its exposure to suits under the Jones Act; however, it found Louisiana simply has not done so. Fulmer, 50 So.3d at 848, n. 2. The State subsequently applied for a writ of certiorari in this Court, which was granted on February 18, 2011.

DISCUSSION

The State asserts the Fourth Circuit erred in deciding the plaintiff has a cause of action against Louisiana under the Jones Act. The State contends that Higgins, on which the court of appeal relied, is no longer good law, because the U.S. Supreme 15Court, in the Alden trilogy, determined that Article I enactments, such as the Jones Act, cannot waive sovereign immunity on behalf of the states and subject them to private suits for monetary damages absent their consent. In the last case of the Alden trilogy, Alden v. Maine, a group of probation officers in Maine sued their employer for violations of the overtime provisions of the Fair Labor Standards Act. The Court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts.” Alden, 527 U.S. at 712, 119 S.Ct. 2240. In Alden, the U.S. Supreme Court recognized,

The State of Maine “regards the immunity from suit as ‘one of the highest attributes inherent in the nature of sovereignty,’ ” Cushing v. Cohen, 420 A.2d 919, 923 (Me.1980) (quoting Drake v. Smith, 390 A.2d 541, 543 (Me.1978)), and adheres to the general rule that “a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity,” 420 A.2d, at 923.

527 U.S. at 757-58, 119 S.Ct. at 2268. The Court found that Maine had not consented to suit, and was thus immune from suit through its sovereign status as a State. Therefore, we must determine if Louisiana has consented to suit or otherwise waived its sovereign immunity as to suits such as the one presented in this case.

The Louisiana Constitution provides, in Article XII Section 10, “Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” This Court has recognized this section as an “unequivocal, self-executing waiver of sovereign immunity as to suit and liability in contract and tort cases.” Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14, 22. In 1995, Article XII Section 10(C) of the Louisiana | fiConstitution was amended to read, in pertinent part:

Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages.

The State contends that after the amendment to Section 10(C), the self-executing waiver of sovereign immunity found in Section 10(A) is now a limited waiver subject to the limitations set forth in Section 10(C). The State further argues that the LWCA, particularly La. R.S. 23:1034, contains a valid limitation of the State’s self-executing waiver of sovereign immunity set forth by the legislature pursuant to Section 10(C) of the Louisiana Constitution. La. R.S. 23:1034(A) states:

The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.

The State highlights the language, “for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in |7this Chapter shall be exclusive, compulsory, and obligatory ” (emphasis added). The State contends that this provision, when read in conjunction with Article XII Section 10(C), validly limits the State’s liability, including the circumstances giving rise to that liability and the kinds and amounts of recoverable damages as permitted by Section 10(C) itself.

We disagree. Section 10(C) of the Louisiana Constitution provides that the legislature “may limit or provide for the extent of liability of the state.” (emphasis added). This provision grants the legislature the power to enact legislation to limit or set out the conditions of the State’s liability. In contrast, Section 10(A) sets forth a mandatory prohibition against sovereign immunity, which this Court has held is a self-executing presently effective rule without an act of the legislature. See Chamberlain v. State Through Dept. Of Transp. and Development, 624 So.2d 874 (La.1993); Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14, 18. This Court has previously examined Article XII Section 10(C), in Jacobs v. City of Bunkie, and found that it is not a self-executing provision, stating:

[Constitutional provisions that are not self-executing allocate power to the legislature requiring the legislature to enact supplemental legislation to carry the rule into effect.... Because [Section 10(C) ] does not establish a presently effective limit on the state’s liability but allocates the power to enact one “by law” to the legislature, we find the provision not self executing. As Section 10(C) is non-self-executing, it requires supplemental legislation to carry its edict into effect.

Id. at 19. Unlike Section 10(A), Section 10(C) merely grants a power to the legislature, which requires supplemental legislation to be effective. Thus, unless after the enactment of Section 10(C) the legislature promulgated a rule limiting the state’s conditions of liability concerning State employees workers’ compensation, Section 10(A)’s unequivocal waiver of sovereign immunity would apply in this case.

| ¡^Initially, the State contends the legislature expressed the intent to limit the State’s liability through La. R.S. 23:1034(A), which provides that for every person in the employ of the state the remedies of the Chapter shall be “exclusive, compulsory, and obligatory.” However, La. R.S. 23:1034(A), which contains this language, was last amended by the legislature in 1981, fourteen years before the constitutional amendment to Section 10(C) and has not been changed. Other sections of La. R.S. 23:1034 were amended in 1999, but no changes were made to subsection (A). Thus, no change made to section 1034 indicates the legislature intended to invoke its power under Article XII Section 10(C) of the Louisiana Constitution.

Furthermore, nothing in the plain language of the LWCA indicates the legislature’s intent to limit the State’s liability to suits under the Jones Act brought by a state employee. In fact, as recognized by the court of appeal in this case, La. R.S. 23:1035.2 specifically excludes from compensation coverage “any employee” who is covered by the Jones Act. La. R.S. 23:1035.2 states, “No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’ Compensation Act or any of its extensions, or the Jones Act.” La. R.S. 23:1035.2 (emphasis added). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. La. R.S. 23:1035.2 is a clear statement indicating that if “any employee,” not only a private employee, is covered by the Jones Act, the LWCA does not provide compensation.

The State argues that La. R.S. 23:1035.2 should have no application to public employees. The State points again to the “exclusive, compulsory, and obligator/’ | ^language found in La. R.S. 23:1034(A), arguing it provides for no exceptions to the exclusivity of the LWCA for state employees. However, a plain reading of the statute dictates otherwise. La. R.S. 23:1034(A) states, “for such employee and employer the payment and compensation according to and under the terms, conditions, and provisions set out in this Chapter, shall be exclusive, compulsory, and obligatory.” Chapter 10 of the Louisiana Revised Statutes is titled “Workers’ Compensation” and contains both La. R.S. 23:1035.2 and 23:1034. A provision of Chapter 10, namely § 1035.2, provides a valid exception to coverage under the LWCA for “any employee” when coverage of a federal statute such as the Jones Act is applicable. The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294. The express terms of this exception are clear for “any employee” and no language in the LWCA persuades us otherwise. When read in pari materia with the Louisiana Constitution and the rest of the provisions of the LWCA, we find La. R.S. 23:1035.2 does apply to public employees.

We are also not persuaded by the State’s contention that a 1995 amendment to La. R.S. 23:1032 was meant to distinguish the exclusivity of the LWCA as to public employees. La. R.S. 23:1032 provides the general provisions of workers’ compensation as they apply to employees in the state, while La. R.S. 28:1034 specifically provides the provisions for employees employed in the service of the state. As amended, Section 23:1032(A)(l)(a) provides that the rights and remedies of the LWCA “shall be exclusive of all other rights, remedies, and claims, for damages, including but not limited to punitive or exemplary damages, unless, such [frights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee. The State highlights the use of the word “unless” in 1032(A)(1)(a), which is absent from 1034(A), arguing that this distinction indicates the legislature’s intent to provide some circumstances in which an exception to the LWCA is appropriate for private employees but not state employees.

Again, we disagree. After reviewing the legislative history of the 1995 amendment to La. R.S. 23:1032, it is clear that the language added to 23:1032(A)(l)(a) was specifically intended to reaffirm the exclusiveness of the rights and remedies of workers’ compensation as to private employees in the aftermath of a case decided by this Court in 1994, Billiot v. B.P. Oil Co., 93-1118 (La.12/16/94), 645 So.2d 604. In Billiot, this Court determined that the exclusivity provisions of La. R.S. 23:1032 did not apply to the 1984 amendment of La. C.C. art. 2315.3, which provided for exemplary damages for any person injured by a defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances. Id. at 606. In reaction to this ruling, the legislature amended La. R.S. 23:1032 to legislatively overrule Billi-ot, such that no punitive or exemplary damages would be allowed in cases to which the LWCA applied. The amendment had no relation to La. R.S. 23:1035.2 or its application to State employees. There is no indication the amendment to La. R.S. 23:1032 was meant to be a backdoor exception intended to modify the terms of La. R.S. 23:1034(A) with the use of the word “unless” as the State suggests. Moreover, as previously |n discussed, La. R.S. 23:1034(A) sets out that the terms, provisions, and conditions of “this Chapter” shall be exclusive, and the exception for employees covered by the Jones Act, La. R.S. 23:1035.2, is contained in Chapter 10 with 1034(A).

The Louisiana Third Circuit Court of Appeal has also considered the issue of whether a state-employed seaman can sue the State in state court under the Jones Act. In a case with substantially the same pertinent facts as the case under consideration, the Third Circuit came to a different conclusion from the Fourth Circuit. In James v. State of Louisiana, Department of Wildlife and Fisheries, the Third Circuit concluded, similar to the State’s argument in this matter, that because the more general exclusivity statute La. R.S. 23:1032 contains the word “unless,” it provides for an exception to the exclusivity of the LWCA for other statutes such as the Jones Act, while 23:1034(A) does not. The court further reasoned that La. R.S. 23:1035.2 makes sense in light of the exception in 1032 stating:

We must conclude that James is not entitled to pursue his claim under the Jones Act. The legislature enacted La. R.S. 23:1035.2 to make clear that employees entitled to make federal claims are not entitled to make claims under workers’ compensation. This makes perfect sense in light of the exception created in La. R.S. 23:1032. It also makes it clear that there is no actual conflict between La. R.S. 23:1034 and La. R.S. 23:1035.2. Louisiana Revised Statute 23:1035.2 is simply inapplicable to state employees because La. R.S. 23:1034 bars them from making federal claims.

James v. State of Louisiana, Department of Wildlife and Fisheries, 10-399 (La.App. 3 Cir. 12/22/10) 54 So.3d 778, 781. However, La. R.S. 23:1035.2 was enacted in 1990, 5 years before the amendment to La. R.S. 23:1032(A)(l)(a), adding the “unless” language, which the state and the Third Circuit allege carved out the exception that 23:1035.2 was meant to create. We do not believe this was the intent 112of the legislature. As discussed previously, we have reviewed the legislative history of LA Acts 1995, No. 432 (H.B. 1622), which amended La. R.S. 23:1032, and the clear language of La. R.S. 23:1034 and 23:1035.2, and have found nothing to persuade us that 23:1035.2 excludes public employees.

Simply put, the State of Louisiana has waived its sovereign immunity from suit as to contract suits and suits for personal injury, which this court has found to be an unequivocal, self-executing waiver of its sovereign immunity. Jacobs, 737 So.2d 14. While the legislature is empowered to limit that waiver and provide for the extent and type of liability the state faces, in this situation we find the legislature has simply not limited the State’s exposure to suit by state-employed seamen under the Jones Act.

CONCLUSION

For the reasons set forth above, we find that claims against the state under the Jones Act brought by state-employed seamen are not prohibited under the LWCA or the Louisiana Constitution. Louisiana has consented through Article XII Section 10 to suits for personal injury, and has not limited that waiver for suits brought by state employees under the Jones Act. We further find the court of appeal was correct in finding that plaintiff has stated a valid cause of action against the State under the Jones Act. The court of appeal did not err in denying the State’s exception of no cause of action. Thus, we affirm the ruling of the court of appeal in this case.

AFFIRMED.

      . As it is currently worded, 46 U.S.C. § 30104 provides:
      A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.

      . La. R.S. 23:1035.2 provides, "No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.”

      . Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); and Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).

      . In 1995, the Louisiana Legislature added the following language to La. R.S. 23:1032(A)(1)(a), "The rights and remedies [...] under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, whether now existing or created or recognized in the future, unless such rights, remedies, and damages are created by a statute expressly establishing same as available to such employee ...” LA Acts 1995, No. 432 (H.B. 1622).

      . Again, it is important to note that the 1995 amendment to La. R.S. 23:1032(A)(1)(a) did not simply add the "unless” provision, but added that the compensation under the chapter was exclusive of all rights and remedies "including but not limited to punitive or exemplary damages, unless such, rights, remedies, and damages are created by a statute, whether now existing or created or in the future, expressly same as available to such employees.” The entire provision added in the 1995 amendment was clearly to reaffirm that workers’ compensation was meant to be exclusive of such rights as punitive damages, but any exceptions to the exclusivity which have already been carved out or will be created are still valid.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Mervin Patrick WHITE.
    No. 2010-K-1799.
    Supreme Court of Louisiana.
    July 1, 2011.
    Rehearing Denied Sept. 2, 2011.
    James D. Caldwell, Attorney General, Paul D. Connick, Jr., District Attorney, Juliet Lee Clark, Terry Michael Bou-dreaux, Assistant District Attorneys, for Applicant.
    Martin E. Regan & Associates, PLC, John Hall Thomas, Martin Edward Regan, Jr., New Orleans, LA, for Respondent.
   PER CURIAM.

liThe state charged defendant by bill of information with fourth or subsequent offense of driving while intoxicated in violation of La.R.S. 14:98(E)(4). After trial by jury on December 11, 2008, defendant was found guilty as charged. The trial court sentenced him to 20 years’ imprisonment at hard labor without benefit of suspension of sentence, probation, or parole. La.R.S. 14:98(E)(4)(b). On appeal, the Fifth Circuit affirmed defendant’s conviction, thereby rejecting his claim that the evidence was insufficient to support the jury’s verdict, but vacated his sentence of 20 years’ imprisonment at hard labor as excessive, and substituted for it a term of 10 years’ imprisonment at hard labor, also without benefit of suspension of sentence, probation, or parole. State v. White, 09-1071 (La.App. 5th Cir.6/29/10), 44 So.3d 750. We granted the state’s application to review that decision and reverse for the reasons that follow.

|2The undisputed evidence at trial showed that in the early morning hours of March 24, 2008, State Trooper Sean Boyd found defendant slumped over the wheel of his truck parked on the lower portion of Westbank Expressway in Gretna, Louisiana, some distance away from a traffic light that had turned green. The truck straddled the middle and right lanes of the expressway and there was no other traffic around the vehicle at the time. The truck was running, and in gear, but defendant’s foot pressed on the brake pedal kept the vehicle from surging forward. Trooper Boyd reached through the opened window, put the vehicle into park, and turned off the ignition. He then shook defendant awake, had him step from the car, and asked him some questions to ensure that he had no medical problems. The trooper noticed that defendant had bloodshot, glazed eyes, and smelled of alcohol. The officer administered a standard field sobriety test, concluded that defendant was intoxicated, placed him under arrest, and put him in the backseat of his patrol unit. The officer then re-started defendant’s vehicle without difficulty and moved it to a corner lot where he parked it and inventoried the contents. He secured the vehicle and transported defendant to the station house for booking. Defendant submitted to an Intoxilyzer test which indicated that his blood alcohol level was .121% grams, well above the legal limit of .08% grams. Defendant also gave a statement in which he admitted that he had consumed two 12 ounce glasses of Crown Royal whiskey and that he had been driving home from his father’s house when the encounter with Trooper Boyd occurred.

Defendant stipulated at trial that he was, in fact, intoxicated at the time of his arrest, and that he had four prior DWI convictions, as alleged by the state in the bill of information. However, the defense disputed whether defendant had operated the vehicle while intoxicated after leaving a local bar on the Westbank Expressway. The 1 .-¡defense called Reginald Bradley who testified that he had been with defendant at the bar and that he, not defendant, had taken the wheel of the car after they left and headed for the home of defendant’s girlfriend. Bradley followed the directions provided by defendant intermittently as he drifted in and out of an alcoholic haze. Bradley testified that a couple had flagged him down as they drove on the expressway and asked him for help with their own car. Bradley managed to start that vehicle but then found that defendant’s car would not restart because of a faulty ignition. Defendant had lapsed back into unconsciousness and after failing to shake him out of his slumber, Bradley wandered off looking for help. When he returned approximately 45 minutes later, Bradley found the vehicle parked off the Expressway and defendant gone. Although Bradley testified that he alone drove the vehicle after they left the bar and headed for the home of defendant’s girlfriend, he conceded that he did not know whether defendant then took the wheel and attempted to move the vehicle after he left the scene looking for help.

Following the jury’s return of a verdict of guilty as charged, the trial court conducted a brief sentencing hearing on December 18, 2006. Defendant called two witnesses. Reverend Orlando Brown testified that he had known defendant for 30 years and had been counseling him for three years. He noted that defendant had “recently gotten married and really made a big change in his life,” and expressed confidence that defendant was “going in the right direction right now.” However, Reverend Brown acknowledged that he had no formal training in social work or in substance abuse counseling. The reverend thus based his opinion on his own life experiences and his work through his ministry, including enrollment in Christian Bible College which evidently offered some courses in counseling. Yvette White Steib, defendant’s sister, testified that she had been through substance abuse classes |4and that based on her personal observations, defendant had made “big progress, a lot,” with handling his emotions and in “finding a way other than drinking to handle his emotions.” She attributed defendant’s alcoholic past to the death of his mother, after a long illness, which was his “complete downfall.”

The trial court initially sentenced defendant to a maximum term of 30 years’ imprisonment at hard labor, the last 10 years suspended and the first three years without benefit of suspension of sentence, probation, or parole. The court also imposed a fine of $5,000. The court expressly took into account “the defendant’s criminal history with respect to so many DWI convictions and arrests ... for public intoxication.” However, after a brief recess to sort out confusion over the applicable law with his law clerk, and after determining from the state’s exhibits introduced at trial that defendant had been previously convicted of fourth offense D.W.I., for which he received a suspended sentence and probation, the trial judge vacated his original sentence and resentenced defendant to 20 years’ imprisonment at hard labor, the entire term without benefit of suspension of sentence, probation, or parole, and re-imposed the $5,000 fine.

On appeal, the Fifth Circuit panel flatly rejected defendant’s challenge to the sufficiency of the evidence supporting his conviction and sentence. White, 09-1071 at 10, 44 So.3d at 756. The court noted that the “only reasonable hypothesis [was] |fithat defendant operated the vehicle,” given Bradley’s testimony which, “if believed, would show that defendant moved into the driver’s seat, turned the key in the ignition, started the vehicle, put it in drive, and placed his foot on the brake before slumping behind the steering wheel, all of which would indicate that defendant operated the vehicle.” Id. However, the court of appeal found that the sentence imposed by the trial court was excessive. In vacating the penalty, the Fifth Circuit readily acknowledged that “[t]he issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate.” White, 09-1071 at 17, 44 So.3d at 759 (citation omitted). Finding an abuse of that discretion in the present case, the Fifth Circuit panel expressly considered the testimony presented at sentencing that defendant appeared to have turned his life around by marrying and seeking counseling from his minister and longtime friend and had thus taken steps on a path to stability and rehabilitation. White, 09-1071 at 18, 44 So.3d at 760. Further, the court of appeal observed that “no one was injured and there was no accident as a result of [defendant’s] intoxication.” Id. Finally, the court noted that in State v. Conner, 02-0363 (La.App. 5th Cir.11/13/02), 833 So.2d 396, writ denied, 02-3064 (La.4/25/03), 842 So.2d 396, another panel in the Fifth Circuit had affirmed a fifth DWI offender’s sentence of 10 years’ imprisonment at hard labor without benefit of suspension of sentence, probation, or parole, and a fine of $5,000, against a challenge of excessiveness. Thus, “[a]fter considering the nature of the instant crime, the nature and background of the defendant, and the sentence imposed by this Court for a similar crime in [Conner ],” the Fifth Circuit panel found defendant’s sentence excessive. As opposed to remanding the case for resen-tencing with or without specific instructions to the trial court, see La.C.Cr.P. art. 881.4(A) (“If the appellate court finds that a sentence must be set aside on any ground, the court shall | firemand for resen-tence by the trial court.”), the court of appeal reduced the penalty to a term of 10 years’ imprisonment at hard labor without benefit of suspension of sentence, probation, or parole. Id., 09-1071, p. 18, 44 So.3d at 760. It further ordered the trial court to clarify in its commitment that the entire term of imprisonment must run without benefit of suspension of sentence, probation, or parole. Id.

However, we agree with the state that even as the court of appeal acknowledged a fundamental principle of sentence review, the Fifth Circuit panel essentially substituted its determination of what it considered an appropriate penalty for that of the trial judge by reevaluating factors otherwise committed to the sound discretion of the trial court to weigh in the first instance. State v. Telsee, 425 So.2d 1251, 1253 (La.1983) (“The initial elements to be analyzed in determining whether the punishment is constitutionally disproportionate are the nature of the offense and the offender.”) (citation omitted). We find no abuse of the trial court’s broad sentencing discretion in not sharing the court of appeal’s view that the failure of defendant to cause an accident militated against the severity of any punishment imposed. The undisputed evidence at trial placed defendant at the wheel of a vehicle stopped and straddling two lanes of the lower portion of the Westbank Expressway, a major thoroughfare in Jefferson Parish. He was unconscious with his foot on the brake as the engine idled with the transmission in gear. The fortuity that defendant’s foot did not slip before Trooper Boyd found him and that the vehicle did not begin meandering along the Expressway posing significant risk to anyone else on the road scarcely diminished what his conduct said about the societal dangers of drunken driving and its potential for lethal results. See Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990) (“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest |7in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion.”).

Nor did the trial court abuse its sentencing discretion by according relatively little or no weight to what amounted to subjective statements of belief or hope by Reverend Brown and Yvette Steib that defendant had made a decisive turn on the path to rehabilitation. The court properly evaluated those opinions in the context of what defendant’s four prior D.W.I. convictions, including a prior fourth offender conviction and sentence which had entailed probation and substance abuse treatment, said about his potential for rehabilitation. In particular, the commitment form issued by the court following defendant’s prior guilty plea to fourth offense D.W.I. on February 3, 2003, introduced at trial as S-2, indicated that defendant had been sentenced to 10 years’ imprisonment at hard labor, credit for time served, with nine years and eight months of that term suspended. The court placed defendant on probation with the special conditions that he undergo evaluation to determine the nature and extent of his substance abuse disorder and to undergo inpatient substance abuse treatment for a period not less than four weeks nor more than six months, with follow-up outpatient treatment for up to one year. The court further imposed two years of home incarceration. The state’s exhibits further demonstrated that defendant’s guilty plea to first offense D.W.I. in Ascension Parish on October 12, 1999, entailed probation with substance abuse evaluation and treatment if necessary. These flexible sentencing measures, intended to address defendant’s underlying substance abuse disorder as an alternative to extended incarceration, clearly failed to have any lasting rehabilitative effect.

Finally, while a comparison of defendant’s sentence with penalties imposed in other similar cases plays a role in sentence review, as it “sets the stage for ... inquiry [Rinto the nature of the offender and the offense,” Telsee, 425 So.2d at 1254, the court of appeal’s consideration of a single case in which a similarly-situated fifth offender received only one-half of the original term of imprisonment imposed on defendant scarcely supported its conclusion that defendant’s sentence, in effect, made “no measurable contribution to acceptable goals of punishment and [was] nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). Although there are several reported decisions in addition to Conner affirming mandatory minimum terms of 10 years’ imprisonment at hard labor without benefit of suspension of sentence, probation, or parole, for a fourth or subsequent DWI offenses, see, e.g., State v. Gage, 42,279 (La.App. 2nd Cir.8/29/07), 965 So.2d 592, writ denied, 07-1910 (La.2/22/08), 976 So.2d 1283; State v. Corbin, 42,384 (La. App. 2nd Cir.8/15/07), 964 So.2d 431, writ denied, 07-2273 (La.4/25/08), 978 So.2d 364; State v. Jones, 41,242 (La.App. 2nd Cir.8/23/06), 938 So.2d 1080; State v. Volgamore, 38,054 (La.App. 2nd Cir.1/28/04), 865 So.2d 237, writ denied, 04-1255 (La.4/22/05), 899 So.2d 568, two reported decisions affirmed 15-year terms of imprisonment at hard labor without benefit of suspension of sentence, probation, or parole, State v. Hardeman, 04-0760 (La. App. 1st Cir.2/18/05), 906 So.2d 616; State v. Masters, 37,967 (La.App. 2nd Cir.12/17/03), 862 So.2d 1121, and one decision affirmed a 25-year term of imprisonment at hard labor under identical restrictions. State v. Wiltcher, 41,981 (La.App. 2nd Cir.5/9/07), 956 So.2d 769. As in the present case, the defendants in Harde-man, Masters, and Wiltcher, injured no one in the course of committing the underlying D.W.I. offense yet still received substantial executory terms of imprisonment served without benefit of parole.

| ¡/Thus, while the 20-year term without benefit of suspension of sentence, probation, or parole, imposed by the trial court in the present case clearly falls in the upper range of sentences imposed under R.S. 14:98(E)(4)(b), it does not suggest an arbitrary departure from a sentencing norm that might indicate disproportionate punishment.

Accordingly, the decision of the court of appeal is reversed and defendant’s sentence of 20 years’ imprisonment at hard labor without benefit of suspension of sentence, probation; or parole, is reinstated. This case is remanded to the trial court for execution of sentence, in connection with which the court shall issue an amended commitment clarifying that the sentence imposed pursuant to La.R.S. 14:98(E)(4)(9), is without benefit of suspension of sentence, probation, or parole for the entire 20-year term of imprisonment.

COURT OF APPEAL DECISION REVERSED; SENTENCE REINSTATED; CASE REMANDED WITH INSTRUCTIONS

      . At the time of the offense in March 2008, the applicable version of R.S. 14:98(A)(1), 2005 La. Acts 497, provided a sentencing range of not less than 10 and not more than 30 years' imprisonment with or without hard labor, the first 60 days of which were without benefit of probation, parole, or suspension of sentence, and the remainder of any term imposed subject to the discretion of the court to suspend sentence in whole or in part. However, La.R.S. 14:98(E)(4)(b) further provided that:
      If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

      . Other factors providing additional flexibility in execution of the sentence may militate against the severity of the punishment imposed. Although La.R.S. 14:98(E)(4)(b) eliminates parole eligibility as a matter of La.R.S. 15:574.4, it does not otherwise restrict diminution of sentence for good behavior under La.R.S. 15:571.3(A)(1), and, thus, early release "as if on parole.” La.R.S. 15:571.5(A)(1). The availability of early release options "is generally a relevant consideration in review of sentences for excessiveness,” State v. LeBlanc, 09-1355, p. 11 (La.7/6/10), 41 So.3d 1168, 1174.


text:
    STATE of Louisiana v. James E. MASON, Jr.
    No. 2011-KK-1866.
    Supreme Court of Louisiana.
    Aug. 29, 2011.
   IN RE: State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 265,550; to the Court of Appeal, Second Circuit, No. 46,-906-KW.

Writ granted. Given counsel’s initial admission that race was a motivating factor in the exercise of his peremptory challenges, the district court abused its discretion in determining that counsel’s subsequent attempt to set forth racially neutral reasons for his decisions, with respect to prospective jurors Michelle Blake and Mary Cope, was not pretextual. The ruling of the district court denying the State’s Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) challenge to prospective jurors Michelle Blake and Mary Cope is reversed. The case is remanded to the district court for re-seating of these two prospective jurors and for all further proceedings.

JOHNSON, J., would deny.

KNOLL, J., would deny.


text:
    Iris Hopkins TATE v. Pauline A. TATE.
    No. 2010-C-1964.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   IN RE: Tate, Iris Hopkins;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. F, No. 104,568; to the Court of Appeal, First Circuit, No. 2009 CA 2034, 42 So.3d 439.

Writ granted; Case Remanded. The courts below failed to consider whether the outcome of the case, considering the law at the time of the transfers, is affected by the fact that defendants and/or the subsequent property owners are donees, having acquired their interest in the property, if at all, by gratuitous rather than onerous transfers. See Owen v. Owen, 336 So.2d 782 (La.1976); Mathews v. Mathews, 35,984 (La.App. 2 Cir. 5/8/02), 817 So.2d 418. The lower courts also failed to consider the effect of the Lis Pendens filed in the public records before the transfer of the property from Susan Lozier to Lisa Duvall and from Lisa Duvall to Justification, L.L.C. Accordingly, the decisions of the lower courts are vacated and the case is remanded to the trial court for a new trial to consider all relevant issues under the correct legal principles.

WEIMER, J., would grant and docket.


text:
    Troy LILLIE, et al. v. STANFORD TRUST COMPANY, State of Louisiana, Office of Financial Institutions, and Sei Investments Company.
    No. 2011-CC-1833.
    Supreme Court of Louisiana.
    Sept. 1, 2011.
   IN RE: State of Louisiana through the Office of Financial Institutions;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No: 581,670; to the Court of Appeal, First Circuit, No.2011 CW 1284.

Granted. The judgment of the trial court granting the motion to compel is vacated and set aside. The case is remanded to the trial court, which is instructed to reconsider its ruling on relator’s claims of privilege after conducting an in camera inspection of the documents at issue.

KNOLL, J., would deny.


text:
    STATE ex rel. David Lee WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-1697.
    Supreme Court of Louisiana.
    Aug. 19, 2011.
   In re Williams, David Lee;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. A, No. 82-CRC-37096.

Writ granted in part; otherwise denied. The district attorney is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const. art. XII, Section 8; R.S. 44:31; R.S. 44:31.1; State ex rel. Barbee v. State, 10-0275 (La.2/4/11), 57 So.3d 318; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. In all other respects, the application is denied.


text:
    STATE ex rel. Robert LAIR v. STATE of Louisiana.
    No. 2010-KH-1793.
    Supreme Court of Louisiana.
    Aug. 19, 2011.
   In re Lair, Robert;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 229,955; to the Court of Appeal, Third Circuit, No. CW 10-00526.

Writ granted. If it has not already done so, the court of appeal is ordered to reach the merits of relator’s filing so as to afford him reasonable access to the courts. La. Const. art. I, Section 22; Gibbs v. Louisiana Dept. of Public Safety and Corrections, 08-0815 (La.1/30/09), 999 So.2d 1137; Carter v. Cain, 99-2349 (La.1/28/00), 753 So.2d 225; Smith v. Terrell, 97-0640 (La.9/5/97), 699 So.2d 74; State ex rel. Johnson v. Maggio, 440 So.2d 1336, 1337 (La.1983); Smith v. Cajun Insulation, 392 So.2d 398, 402 n. 2 (La.1980).


text:
    STATE ex rel. Carey Louis HOOD v. STATE of Louisiana.
    No. 2010-KH-2033.
    Supreme Court of Louisiana.
    Aug. 19, 2011.
   In re Hood, Carey Louis;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 267,664; to the Court of Appeal, Third Circuit, No. KH 10-00426.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. See also State v. Cotton, 09-2397 (La.10/15/10), 45 So.3d 1030.


text:
    STATE ex rel. Willie WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-1986.
    Supreme Court of Louisiana.
    Aug. 19, 2011.
   In re Williams, Willie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 380-683; to the Court of Appeal, Fourth Circuit, No. 2010-K-0955.

Writ granted in part; otherwise denied. If it has not already done so, the district court is ordered to supply relator with a copy of the transcript of his December 2, 2009 post-conviction hearing. See State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094. In all other respects, the application is denied.


text:
    STATE of Louisiana v. Gregg KAGLER, Jr.
    No. 2011-KD-1878.
    Supreme Court of Louisiana.
    Aug. 29, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 505-522; to the Court of Appeal, Fourth Circuit, No. 2011-K-1184.

Stay denied; Writ denied.


text:
    Barbara HOUSSIERE, et al. v. ASCO USA, L.L.C., et al.
    No. 2011-CC-1880.
    Supreme Court of Louisiana.
    Aug. 29, 2011.
   In re BP America Production Company;-Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. L, No. 84,068; to the Court of Appeal, Third Circuit, No. CW 11-1023.

Stay denied. Writ denied.


text:
    STATE of Louisiana v. Darrill HENRY.
    No. 2011-KD-1887.
    Supreme Court of Louisiana.
    Aug. 30, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 451-696; to the Court of Appeal, Fourth Circuit, No. 2011-K-1193.

Denied.

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


text:
    STATE of Louisiana v. Darrill HENRY.
    No. 2011-KD-1887.
    Supreme Court of Louisiana.
    Aug. 30, 2011.
   In re State of Louisiana;—Plaintiff; Applying for Reconsideration of this Court’s action dated August 30, 2011; Parish of Orleans, Criminal District Court Div. L, No. 451-696; to the Court of Appeal, Fourth Circuit, No. 2011-K-1193.

Not considered. See Supreme Court Rule IX, Section 6.

GUIDRY, J., would grant.


text:
    STATE of Louisiana in the Interest of B.B., B.K.G., & B.G.
    No. 2011-CJ-1812.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   In re A., R.; Confidential Party;—Other(s); Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. JC 20080671 A-C; to the Court of Appeal, Third Circuit, No. 11-252.

Denied.


text:
    Raven Skye MAURER v. Michael Thomas BOYD.
    No. 2011-CJ-1787.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   In re Maurer, Raven Skye;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2011-14457; to the Court of Appeal, First Circuit, No. 2011 CW 1441.

Stay denied; writ denied.


text:
    STATE of Louisiana in the Interest of C.M. State of Louisiana in the Interest of P.A.
    No. 2011-CJ-1791.
    Supreme Court of Louisiana.
    Aug. 31, 2011.
   In re Confidential Party;—Other; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. I, Nos. JC20080997, JC20080997; to the Court of Appeal, Third Circuit, Nos. 11-54, 11-55.

Denied.


text:
    Desiree FARRAR (on behalf of her minor children, Emilia and Dora) v. A. CERTIFIED COATINGS OF CALIFORNIA, INC.; Fred R. Cagle (individual/representative capacity); Scott Soldis (individual/representative capacity); John P. Wright (individual/representative capacity); Dan Martin (individual/representative capacity); State of Louisiana Department of Transportation and Development; Greg Carter (individual/representative capacity); Harness Manufacturer (unknown); (unknown) Liability Insurer of defendant Certified Coatings; (unknown) Liability Insurer of (unknown) defendant Harness Manufacturer.
    No. 2011-C-1088.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Farrar, Desiree et al.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 619-825; to the Court of Appeal, Fifth Circuit, No. 10-CA-421.

Denied.


text:
    BRYAN McCANN FARMS, L.L.C. v. ROY O. MARTIN LUMBER COMPANY, L.L.C.
    No. 2011-C-1089.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Bryan McCann Farms L.L.C.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2008-1952-A; to the Court of Appeal, Third Circuit, No. 10-1129.

Denied.


text:
    STATE of Louisiana v. Jeffery GUILLORY.
    No. 2011-KK-1090.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Guillory, Jeffery;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 05-10-0796; to the Court of Appeal, First Circuit, No. 2011 KW 0412.

Denied.


text:
    Gloria NEEB v. Rene LASTRAPES, Wife of/and John Lastrapes.
    No. 2011-C-1092.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Neeb, Gloria Anne LaCour;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 630-711; to the Court of Appeal, Fifth Circuit, No. 10-CA-763.

Denied.

GUIDRY, J., recused.


text:
    TI PNEUMOTIVE, INC., a/k/a Thomas Industries v. ECOLOGICAL TANKS, INC.
    No. 2011-CC-1241.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Yasunaga Corporation;—Third Party; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. B, No. 04-1128; to the Court of Appeal, Second Circuit, Nos. 46,507-CW, 46,502-CW.

Denied.

CLARK, J., recused.


text:
    Robert J. NOLAN, II v. FIFTEENTH JUDICIAL DISTRICT ATTORNEY’S OFFICE.
    No. 2011-C-1350.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Nolan II, Robert J.;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. E, No. 2009-6949; to the Court of Appeal, Third Circuit, No. CA 10-1093.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-1745.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Castillo, Vincent Mark;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-1277; to the Court of Appeal, Fifth Circuit, No. 11-KH-693.

Denied.


text:
    Ava Maria DEJOIE v. David GUIDRY.
    No. 2011-C-1779.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Guidry, David;-Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 2007-8444; to the Court of Appeal, Fourth Circuit, No. 2010-CA-1542.

Denied.


text:
    STATE of Louisiana v. Benjamin WRIGHT.
    No. 2011-KO-0421.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wright, Benjamin;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 69,946; to the Court of Appeal, Second Circuit, No. 45,980-KA.

Denied.


text:
    STATE of Louisiana v. Alexander MANSELL.
    No. 2011-KP-0532.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Mansell, Alexander;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. F, No. 77,261; to the Court of Appeal, Second Circuit, No. 46,334-KW.

Denied.


text:
    Katie COPELAND, Valerie Copeland and Dustin Copeland v. KANSAS CITY SOUTHERN RAILWAY COMPANY, State of Louisiana, through the Department of Transportation and Development, and the Parish of Ouachita, through the Ouachita Parish Police Jury.
    No. 2011-OC-1058.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Copeland, Dustin; Copeland, Katie et al.; Copeland, Valerie;-Plaintiffs); Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 02-2858; to the Court of Appeal, Second Circuit, No. 46,477-CA.

Denied.


text:
    GULF COAST MINERAL, L.L.C. v. Robert GROTHAUS.
    No. 2011-CC-1059.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Gulf Coast Minerals L.L.C.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 113347; to the Court of Appeal, Third Circuit, No. CW 11-00004.

Denied.


text:
    REDFLEX TRAFFIC SYSTEMS, INC. v. The PARISH OF JEFFERSON.
    No. 2011-CC-1076.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Redflex Traffic Systems Inc.—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 689-481; to the Court of Appeal, Fifth Circuit, No. ll-C-315.

Denied.


text:
    Amber Dawn Sonnier VINCENT, et al. v. STATE of Louisiana et al.
    No. 2011-CC-1080.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Department of Social Services; State of Louisiana et al.;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2009-2688; to the Court of Appeal, Third Circuit, No. CW 11-00047.

Denied.


text:
    Robert L. PHILLIPS, Sr. and Ilse Phillips v. Brandy BUSH, State Farm Mutual Automobile Insurance Company, Hertz Claim Management Corporation, United Services Automobile Association, General Dynamics Corporation and/or General Dynamic Information Technology, Inc., and XYZ Insurance Company.
    No. 2011-C-1082.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re American Home Assurance Company;-Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 668-922; to the Court of Appeal, Fifth Circuit, No. 10-CA-821.

Denied.

GUIDRY, J., recused.


text:
    Angela COTTON, Andy Cotton and Blaine Cotton v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Kerry A. Carter, Government Employee’s Insurance Company, and State of Louisiana, through the Department of Transportation and Development.
    No. 2011-C-1084.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re State of Louisiana through the Department of Transportation and Development;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ter-rebonne, 32nd Judicial District Court Div. C, No. 151003; to the Court of Appeal, First Circuit, No, 2010 CA 1609.

Denied.


text:
    Michael BRANDNER and Cynthia Brandner v. STAF-RATH, L.L.C.
    No. 2011-C-1085.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Brandner, Cynthia; Brandner, Michael et al.;—Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. H, No. 640-745; to the Court of Appeal, Fifth Circuit, No. 10-CA-778.

Denied.


text:
    RAPIDES PARISH POLICE JURY v. Thomas REICH.
    No. 2011-C-1087.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Catahoula Boys Hunting & Social Club Inc.; Dent, Betty Lou Kris; Lee, Richard E.; Reich, Thomas et al.;-Defendants); Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, Nos. 236,506, 236,507, 236,508; to the Court of Appeal, Third Circuit, Nos. 10-1247, 10-1248, 10-1249.

Denied.


text:
    STATE of Louisiana v. Clifton John TRAHAN, Jr.
    No. 2010-K-2631.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Trahan Jr., Clifton John;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 522-341; to the. Court of Appeal, First Circuit, No. 2010 KA 0554.

Denied.


text:
    STATE of Louisiana v. Jocobby Joseph LEE.
    No. 2010-K-2741.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Lee, Jocobby. Joseph;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 556,154; to the Court of Appeal, First Circuit, No. 2010 KA 1592.

Denied.


text:
    STATE of Louisiana v. Audy MATERRE.
    No. 2011-K-0090.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Materre, Audy;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 472-116; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1666.

Denied.


text:
    STATE of Louisiana v. Hermes O. CHAVEZ.
    No. 2011-KP-0232.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Chavez, Hermes O.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 95-5478; to the Court of Appeal, Fifth Circuit, No. 10-KH-1054.

Denied.


text:
    STATE of Louisiana v. William A. HENDERSON.
    No. 2011-KK-0319.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Henderson, William A.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 557,867; to the Court of Appeal, First Circuit, No. 2010 KW 2249.

Denied.


text:
    STATE of Louisiana v. Trave WILSON.
    No. 2011-KO-0382.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wilson, Trave;-Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 457-619; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0770.

Denied.


text:
    STATE of Louisiana v. Daniel Joseph BLANK.
    No. 2011-K-0386.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Blank, Daniel Joseph;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. John, 40th Judicial District Court Div. C, No. 1997-639; to the Court of Appeal, Fifth Circuit, No. 10-KA-205.

Denied.


text:
    STATE of Louisiana v. Derrick WILLIAMS.
    No. 2011-KO-0403.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Williams, Derrick;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 04-5428; to the Court of Appeal, Fifth Circuit, No. 10-KA-384.

Denied.


text:
    STATE of Louisiana v. Alphonse MOORE.
    No. 2011-KO-0404.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Moore, Alphonse;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 480-142; to the Court of Appeal, Fourth Circuit, No. 2010-KA-0314.

Denied.


text:
    STATE of Louisiana v. Kenneth Dewayne PALMER.
    No. 2011-K-0412.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 263518; to the Court of Appeal, Second Circuit, No. 45,627-KA.

Denied.


text:
    STATE ex rel. Steven BRANCH v. STATE of Louisiana.
    No. 2010-KH-1521.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Branch, Steven;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 364-045; to the Court of Appeal, Fourth Circuit, No. 2010-K-0744.

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


text:
    STATE ex rel. Barbette WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-1522.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Williams, Barbette;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 08-03-0710; to the Court of Appeal, First Circuit, No. 2010 KW 0387.

Denied.


text:
    STATE ex rel. Michael LOVICK v. STATE of Louisiana.
    No. 2010-KH-1524.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Lovick, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 98-4563; to the Court of Appeal, Fifth Circuit, No. 08-WR-1047.

Denied.


text:
    Kerry WHITE v. James LeBLANC, Warden Robert Henderson & Cindy Hebert, Records Custodian.
    No. 2010-CI-1535.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re White, Kerry;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 573,468; to the Court of Appeal, First Circuit, No. 2010 CA 0053.

Denied.


text:
    STATE ex rel. James K. WILLIAMSON v. STATE of Louisiana.
    No. 2010-KH-1538.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Williamson, James K.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 164,901; to the Court of Appeal, Second Circuit, No. 45,688-KH.

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


text:
    STATE ex rel. Christopher THOMAS v. STATE of Louisiana.
    No. 2010-KH-1555.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Thomas, Christopher;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 90-3439; to the Court of Appeal, Fifth Circuit, No. 08-WR-1013.

Denied.


text:
    STATE ex rel. Jerome TURNER v. STATE of Louisiana.
    No. 2010-KH-1567.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Turner, Jerome;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 448-582; to the Court of Appeal, Fourth Circuit, No. 2010-K-0688.

Denied.


text:
    STATE ex rel. Melvin Ray WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-1859.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Williams, Melvin Ray;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 1, No. 213,766; to the Court of Appeal, Second Circuit, No. 45,747-KH.

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


text:
    STATE ex rel. Shawn ARCEMENT v. STATE of Louisiana.
    No. 2010-KH-1869.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Arcement, Shawn;-Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 262712; to the Court of Appeal, First Circuit, No. 2010 KW 0939.

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

WEIMER, J., recused.


text:
    STATE ex rel. Russell ELLWOOD v. STATE of Louisiana.
    No. 2010-KH-1975.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Ellwood, Russell;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 98-109; to the Court of Appeal, Fifth Circuit, No. 00-KA-1232.

Denied.


text:
    Michelle NICKS v. Jimmy LeBLANC, Secretary Department of Correction & Risk Review Panel of State of Louisiana.
    No. 2010-CI-1451.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Nicks, Michelle;-Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 565-101; to the Court of Appeal, First Circuit, No. 2009 CA 2171.

Denied.


text:
    STATE ex rel. Nolan C. DAVIS, Sr. v. STATE of Louisiana.
    No. 2010-KH-1458.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Davis Sr., Nolan C.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 483-001; to the Court of Appeal, Fourth Circuit, No. 2010-K-0315.

Denied.


text:
    STATE ex rel. Aaron GENTRAS v. STATE of Louisiana.
    No. 2010-KH-1456.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Gentras, Aaron;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 97-3916; to the Court of Appeal, Fifth Circuit, No. 08-WR-1039.

Denied.


text:
    STATE ex rel. Reginald D. DIXON v. STATE of Louisiana.
    No. 2010-KH-1481.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Dixon, Reginald D.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 285,118; to the Court of Appeal, Third Circuit, No. 09-1409.

Denied.


text:
    STATE ex rel. Shannon CARROLL v. STATE of Louisiana.
    No. 2010-KH-1488.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Carroll, Shannon;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 73098-D; to the Court of Appeal, Third Circuit, No. KH 10-00049.

Denied.


text:
    STATE ex rel. Charles McDONALD v. STATE of Louisiana.
    No. 2010-KH-1495.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re McDonald, Charles;-Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 348-143; to the Court of Appeal, Fourth Circuit, No. 2010-K-0751.

Denied.


text:
    STATE ex rel. Donald Christopher BURGO v. STATE of Louisiana.
    No. 2010-KH-1498.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Burgo, Donald Christopher;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 168512; to the Court of Appeal, First Circuit, No. 2010-KW-4444.

Denied.


text:
    STATE ex rel. David JACOBSON v. STATE of Louisiana.
    No. 2010-KH-1504.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Jacobson, David;-Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Beauregard, 86th Judicial District Court Div. A, No. 10-134; to the Court of Appeal, Third Circuit, No. KH 10-00498.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. John Willis PITTMAN v. STATE of Louisiana.
    No. 2010-KH-1509.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Pittman, John Willis;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. C, No. 99-153763 (09-179886); to the Court of Appeal, First Circuit, No. 2010 KW 0530.

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


text:
    STATE ex rel. George WADE v. STATE of Louisiana.
    No. 2010-KH-1519.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wade, George;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 80-313; to the Court of Appeal, Fifth Circuit, No. 10-KH-501.

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


text:
    Arlene CHAMBERS v. VILLAGE OF MOREAUVILLE.
    No. 2011-C-0898.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Village of Moreauville;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2008-2551-A; to the Court of Appeal, Third Circuit, No. 10-1368.

Granted.


text:
    Scott THOMPSON v. Susan MOLINARI.
    No. 2011-CP-0646.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Thompson, Scott; Plaintiff; Applying for Reconsideration of this Court’s action dated May 20, 2011; Parish of St. Martin, 16th Judicial District Court Div. F, No. 72107; to the Court of Appeal, Third Circuit, No. 10-805.

Reconsideration not considered. See Supreme Court Rule IX, Section 6.


text:
    STATE of Louisiana v. John D. FLOYD.
    No. 2010-KP-1163.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Floyd, John D.;—Defendant; Applying for Reconsideration of this Court’s action dated May 20, 2011; Parish of Orleans, Criminal District Court Div. C, No. 280-729.

Reconsideration denied.

JOHNSON and KNOLL, JJ„ would grant.


text:
    STATE of Louisiana v. Lawrence WEHNER.
    No. 2010-KP-1162.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wehner, Lawrence;-Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 428-348; to the Court of Appeal, Fourth Circuit, No. 2010-K-0085.

Denied.


text:
    STATE ex rel. Arthur WASHINGTON v. STATE of Louisiana.
    No. 2010-KH-1432.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Washington, Arthur;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 98-1121; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-1217,10-KH-107.

Denied.


text:
    STATE ex rel. Daniel James MOORE v. STATE of Louisiana.
    No. 2010-KH-1434.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Moore, Daniel James;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 504062; to the Court of Appeal, First Circuit, No. 2010 KA 0017.

Denied.


text:
    STATE ex rel. Robert L. WYMORE v. STATE of Louisiana.
    No. 2010-KH-1446.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Wymore, Robert L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, Nos. 78-215, 79-065.

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


text:
    STATE ex rel. Percy L. JONES v. STATE of Louisiana.
    No. 2010-KH-1448.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Jones, Percy L.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 06-5344; to the Court of Appeal, Fifth Circuit, No. 09-KA-788.

Denied.


text:
    STATE ex rel. Valerie W. LUCAS v. STATE of Louisiana.
    No. 2010-KH-1449.
    Supreme Court of Louisiana.
    Sept. 2, 2011.
   In re Lucas, Valerie W.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 375-352; to the Court of Appeal, Fourth Circuit, No. 2010-K-0617.

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


author: PARRO, J. PETTIGREW,

text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge, and the Department of Baton Rouge City Court v. Jennifer BETHLEY and The Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge.
    No. 2009 CA 1840.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Rehearing Denied July 26, 2011.
    Mary Roper, Parish Attorney and Deidre D. Robert, Gwendolyn K. Brown, Special Assistant Parish Attorneys, Baton Rouge, LA, for Plaintiffs/Appellants City of Baton Rouge, Parish of East Baton Rouge, and the Department of Baton Rouge City Court.
    Daniel L. Avant, Baton Rouge, LA, for Defendant/Appellee Jennifer Bethley.
    Jonathan C. Augustine, Baton Rouge, LA, for Defendant/Appellee The Personnel Board for the City of Baton Rouge, Parish of East Baton Rouge.
    Before PARRO, KUHN, GUIDRY, PETTIGREW, and McDONALD, JJ.
   PARRO, J.

| {¡The City of Baton Rouge, Parish of East Baton Rouge (City/Parish) appeals a judgment rendered on judicial review, affirming the decision of the Personnel Board for the City/Parish (Personnel Board) to reinstate Jennifer Bethley’s employment with the Department of Baton Rouge City Court (City Court). For lack of appellate jurisdiction in the district court, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Jennifer Bethley had been a classified civil service employee of the City/Parish since June 1994. On August 9, 2007, while serving as the Chief Deputy Clerk of City Court, in which position she was the second in command of the City Court’s Criminal Traffic Division, Ms. Bethley went on family medical leave (FMLA) in order to have back surgery. The FMLA leave was exhausted October 26, 2007, but she had not yet been released by her doctor to return to work. Therefore, she wrote to the City Court Administrator, Lon Norris, advising him that her next doctor’s appointment was November 28, 2007, and requesting additional leave time. She was not eligible for additional paid leave under FMLA, but he allowed her to use accrued sick leave, compensatory time, and accrued vacation time to extend her period of paid leave through November 28, 2007. When she was not discharged from her doctor’s care at that time, she again contacted her employer and was advised to apply for a leave of absence without pay.

Accordingly, Ms. Bethley submitted a request to the City/Parish’s Human Resources Department, requesting a leave of absence without pay for approximately one year. Mr. Norris was contacted, and recommended that the leave request be denied for three reasons. First, Ms. Bethley supervised a large staff in the Criminal Traffic Division, particularly the counter staff, which required daily contact with those employees; second, she supervised the disposition section and jail call-out, which also required constant staff contact and was a strenuous job involving considerable movement, such that her medical condition would diminish her physical ability to continue in that position; and third, her continued absence would be a hardship on the staff, because he wanted a leader in that position. Mr. Norris also noted that the City [,.¡Court was in the process of implementing a new case management procedure, and her absence would make that process more difficult. Ms. Bethley’s request for a year’s leave without pay did not contain her treating physician’s certification of a date by which she could return to work. Rather, the certification stated that the time required for leave was indefinite.

Having learned that a leave request could not be approved without a doctor’s certification of a date for her return to work, Ms. Bethley then amended her leave request, seeking six months’ leave without pay, because her doctor had indicated she needed additional surgery and had advised her that it would take six months to a year to recover from the second procedure. She obtained and submitted a new certification from her doctor, indicating that her return-to-work date would depend on her recovery and estimating it could be six months before she was able to return to work full time. The City/Parish’s Human Resources Department approved a six-month leave of absence without pay. This period expired on June 17, 2008.

Ms. Bethley did not return to work after her leave expired, because she was still recuperating from the second back surgery. According to the rules governing classified civil service employees, as an employee with more than five years of continuous service, she was eligible for a total of twelve months’ leave of absence without pay. Therefore, she requested an extension of her leave for an additional six months, accompanying that request with a certification from her doctor. Mr. Norris again expressed his opposition, and this time the Human Resources Department acquiesced to his position and denied her a further leave of absence. Mr. Norris then notified her in writing that, since she was not eligible for FMLA, was not approved for any further leave of absence without pay, had no other leave that could be provided, and had not returned to work on the day after her leave expired, she was considered as having resigned from her position with the City Court, pursuant to the rules governing classified civil service employees.

|4Ms. Bethley appealed this decision to the Personnel Board. A hearing was held on November 13, 2008; however, two board members were absent. The hearing was recorded by audio and video and viewed by the absent board members. Closing arguments and a decision were delayed until December 18, 2008, at which time all five board members were present. At the hearing, a motion was made and seconded to uphold the City/Parish’s action; the motion failed. A motion was then made to reinstate Ms. Bethley to her former position, which passed by a vote of three to two.

On February 17, 2009, the City/Parish filed a petition for judicial review and for suspensive appeal in the Nineteenth Judicial District Court (19th JDC), alleging that the decision of the Personnel Board was arbitrary, capricious, and a violation of law. Ms. Bethley and the Personnel Board were named as defendants. The City/Parish based its right to judicial review or suspensive appeal on certain provisions of the Plan of Government of the City/Parish. It contended the Personnel Board was arbitrary and capricious, because the evidence showed Ms. Bethley did not return to work at the expiration of her approved leave of absence; that her failure to return to work adversely affected the efficiency of the classified service by placing a hardship on her department; and that she was properly removed from her job for cause. The City/Parish also stated that it had the authority to deny, and did properly deny, her request for an additional leave of absence without pay. On March 2, 2009, the district court signed an order allowing the City/Parish to appeal the decision of the Personnel Board, but scratched through the work “suspensively” in the order.

At this point Ms. Bethley, who had been proceeding pro se, obtained legal counsel and filed an answer to the City/Parish’s petition. She denied that the City/Parish’s rules governing employees in the classified civil service were followed, and further denied that the Plan of Government granted the City/Parish the right to seek a suspensive appeal from the Personnel Board’s decision. She also averred that the Personnel Board’s decision was fully supported by the administrative record and was not manifestly erroneous.

After reviewing all the evidence and the transcript from the hearing before the Personnel Board, the district court affirmed the decision of the Personnel Board and | -,ordered the City/Parish to immediately reinstate Ms. Bethley to her position of employment, retroactive to December 18, 2008. A judgment to this effect was signed August 26, 2009. The City/Parish then filed a motion and order for suspen-sive appeal to this court, which was granted on September 20, 2009.

The City/Parish contends the district court erred in affirming the decision of the Personnel Board, for three reasons. First, it argues that the Personnel Board erred by ordering Ms. Bethley reinstated to her position, because the City/Parish had borne its burden of proving legal cause for her dismissal. Second, it claims the Personnel Board based its decision in Ms. Bethley’s appeal on its own opinion regarding how Ms. Bethley’s situation should have been handled, rather than applying the governing rules to the facts of the case. Third, it urges that the district court erred in failing to find that the Personnel Board abused its discretion in reversing the action of the City/Parish.

ANALYSIS

A number of recent cases have focused this court’s attention on the issue of subject matter jurisdiction over appeals from decisions of administrative bodies. This court has a duty to examine subject matter jurisdiction on its own motion, even when the issue is not raised by the litigants. Monterrey Center, LLC v. Education Partners, Inc., 08-0734 (La.App. 1st Cir.12/23/08), 5 So.3d 225, 228-29. A district court is vested with appellate jurisdiction to review administrative action as provided by law. See LSA-Const. art. V, § 16(B); Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987). Examination of this issue requires this court to identify the source of the district court’s subject matter jurisdiction over the appeal of each such case.

This case involves an attempt to appeal a decision of the Personnel Board to the 19th JDC under the provisions of the Plan of Government of the City/Parish, Chapter 9, Personnel, Section 9.05, which states, in pertinent part:

No member of the Classified Service shall be suspended for more than thirty days, reduced in rank or pay, or removed, except after notice in writing of the grounds of the proposed disciplinary action and an opportunity to be heard thereon by the Personnel Board at a hearing which may be public at his option, and at which he may be represented by counsel, to be held not less than ten nor more than sixty days after the service of such notice at a time to be specified therein. The decision of the Personnel Board either sustaining, reversing or modifying the disciplinary action against a Classified Service member may be 1 ^appealed by such Classified Service member or the applicable department head to the Nineteenth Judicial District Court within sixty (60) calendar days from the appealing party’s receipt of notice of the Personnel Board’s decision. (Emphasis added).

First, it is clear from the record in this matter that Ms. Bethley’s involuntary resignation was not the result of a disciplinary action. Rather, it was simply the application of Rule IX, Section 6(E) of the City/Parish Personnel Rules, which states:

When an employee does not return to work at the expiration of the time period set forth in (A) or (B) herein and is not on approved family/medical leave, he or she shall be considered as having resigned his or her position.

Because there was no disciplinary action involved, Section 9.05 does not authorize an appeal to the 19th JDC.

Additionally, there is no constitutional or statutory authority conferring the authority to hear such an appeal on the 19th JDC. The 1974 Louisiana Constitution, as amended, provides that “[a] district court shall have appellate jurisdiction as provided by law.” LSA-Const. art. V, § 16(B). Louisiana Constitution Article X, § 12, vesting original appellate jurisdiction from decisions of the State and City Civil Service Commissions in the courts of appeal, does not apply, since this case involves an appeal to the district court and is not an appeal from a city civil service commission. See LSA-Const. art. X, § 1(B). A governmental agency that does not have a constitutionally guaranteed right of judicial review necessarily must rely upon and comply with statutory provisions for such review. Loop, 523 So.2d at 202. Consequently, a governmental agency seeking judicial review of administrative action in a district court must establish that there is a statute that gives subject matter jurisdiction to that court. Id. In this case, no specific statute passed by the Louisiana legislature vests the 19th JDC with appellate jurisdiction to review the Personnel Board’s decision. The Louisiana Administrative Procedure Act, LSA-R.S. 49:950 et seq., does not apply to an agency or department of a political subdivision, such as the City/Parish. See LSA-R.S. 49:951(2) and LSA-Const. art. VI, § 44(2). The City/Parish operates under a home rule charter, Land has, in Section 9.05 of its Plan of Government, limited its recourse as a juridical entity from adverse decisions of its own Personnel Board. See City of Baton Rouge v. Douglas, 04-1448 (La.App. 1st Cir.12/29/05), 923 So.2d 166, 167 (en banc), writ denied, 06-0675 (La.6/2/06), 929 So.2d 1254; City of Baton Rouge v. Bernard, 01-2468 (La.App. 1st Cir.1/22/03), 840 So.2d 4, 6, writ denied, 03-1005 (La.6/27/03), 847 So.2d 1278. While we question whether, in the absence of a statute enacted by the Louisiana legislature, the provisions of a home rule charter or plan of government passed by a municipal entity can confer appellate jurisdiction on a district court, the record in this case shows that the provisions of Section 9.05 of the City/Parish’s Plan of Government were not met in this case. As previously noted, since no disciplinary action was involved, the 19th JDC lacked appellate jurisdiction over this matter. Furthermore, because the 19th JDC’s judgment was void for lack of jurisdiction, this court, having nothing to review, is required to dismiss the appeal without reaching the merits of the case. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La.10/16/01), 797 So.2d 656, 663.

Under the circumstances of this case, in which neither the district court nor this court has appellate jurisdiction, this court must dismiss the appeal. See LSA-C.C.P. art. 2162.

^CONCLUSION

For the above reasons, the appeal is dismissed. All costs of this appeal, in the amount of $1,583.94, are assessed to the City/Parish.

APPEAL DISMISSED.

PETTIGREW, J., concurs and assigns reasons.

GUIDRY, J., concurs in the result.

McDONALD, J., dissents and believes both courts have jurisdiction.

PETTIGREW,

concurs and assigns reasons.

| lAlthough I concur in the results, I do not agree with the majority’s narrow interpretation of a disciplinary action defined in Section 9.05 of the provisions of the Plan of Government of the City/Parish, Chapter 9, Personnel.

In my humble opinion, the second sentence of Section 9.05, which states, “disciplinary action,” must be read in context with the provisions of the previous sentence, which in part, provides “No member of the Classified Service shall be suspended for more than thirty days, reduced in rank or pay, or removed, except after....” (Emphasis added.) Regardless of how it happened, Ms. Bethley was removed from her position, and I believe this fits within the definition of “disciplinary action.”

I agree that we must identify the source of the district court and the court of appeal’s subject matter jurisdiction over a case such as this, but I am of the opinion we are confronted with a situation where we must specifically decide whether the Home Rule Charter or Plan of Government passed by the municipality can confer appellate jurisdiction to the district court and to our court. Section 9.05 does not mention our court, but it does mention the district court.

      . Her position had been filled conditionally by another employee since February 2008.

      . We note also that even if Section 9.05 were interpreted to allow an appeal, that appeal could only be taken by the classified service member, which in this case is Ms. Bethley, or by the applicable department head, which in this case is Lon Norris. The appeal to the 19th JDC was not taken by either of those parties, and nothing in Section 9.05 permits or authorizes the City/Parish or the Department of Baton Rouge City Court to appeal a Personnel Board decision.

      . This home rule charter was granted under provisions of the .Louisiana Constitution of 1921. Home rule charters in effect when the Louisiana Constitution of 1974 was ratified remained in effect by virtue of Article VI, § 4 of the 1974 Constitution. The Parish of East Baton Rouge and the City of Baton Rouge adopted a Plan of Government, which became effective January 1, 1949. That Plan of Government has been amended numerous times, most recently on October 20, 2007. See http://brgov.com/plan/. Although the Plan of Government has not been filed in the record, this court may take judicial notice of its provisions under the authority of LSA-R.S. 13:3712(B). Tull v. City of Baton Rouge, 385 So.2d 343, 345 (La.App. 1st Cir.), writ denied, 392 So.2d 663 (La.1980).

      . Perhaps in response to the Bernard and Douglas decisions, the City/Parish’s Plan of Government was amended October 20, 2007, to allow either the classified service member or the applicable department head to appeal certain decisions of the Personnel Board. However, as previously noted, this appeal did not involve a disciplinary matter and was not filed by either the classified service member or the applicable department head.

      . Nor can this court exercise its supervisory jurisdiction in a matter over which the district court had no jurisdiction. See Metro Riverboat, 797 So.2d at 663.