text:
    In re Chris L. BOWMAN.
    No. 2012-B-2410.
    Supreme Court of Louisiana.
    March 19, 2013.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Esq., Baton Rouge, LA, Tammy Pruet Northrup, Esq., for Applicant.
    The Law Office of Chris L. Bowman, Chris Lane Bowman, Esq., Jonesboro, LA, Francis Marion Gowen, Jr., Esq., Shreveport, LA, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Chris L. Bowman, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent and his wife, Carol Dreyfus, were married for eighteen years before they were divorced on October 5, 2004. The couple had a son, then age fourteen, and two daughters, who were ages twelve and eight at the time of the divorce. Respondent and Ms. Dreyfus shared physical custody of the children on a rotating weekly schedule pursuant to an interim custody order rendered by the trial court in July 2004.

In the early evening on October 15, 2004, respondent telephoned Ms. Dreyfus to advise her that he would soon be arriving at their former matrimonial domicile in Ruston to pick up his two daughters for visitation. Ms. Dreyfus informed respondent that he was welcome to pick up the older daughter, but that the younger daughter did not want to go with him and that she would not force her to go. Respondent became angry when he heard this; he reminded Ms. Dreyfus |2that he had a court order to get his girls and said he would be over in about half an hour to pick them up.

When respondent arrived at the house, he knocked on the front door and Ms. Dreyfus opened it in response. Respondent told Ms. Dreyfus that he was “here to get the kids.” Ms. Dreyfus again informed respondent that the youngest child was not going with him, and respondent said she was. Respondent then pushed past Ms. Dreyfus in an attempt to enter the house. As Ms. Dreyfus closed the front door to prevent respondent from entering, respondent pushed her with his arm, causing her to stumble backwards against the door. He then pinned her against the door by placing his forearm against her throat and chest. He also drew back his left hand in a fist as though he was going to punch Ms. Dreyfus; however, he did not actually strike her with his fist. Respondent then yelled into the house for his two daughters to come with him.

At this point in the altercation, Ms. Dreyfus’s boyfriend, David Bryant, appeared on the scene. Mr. Bryant, then employed as a Louisiana State Trooper, had been at Ms. Dreyfus’s home that evening to have dinner with her. When he heard screaming from the front of the house, he came to the door, grabbed respondent’s arm, and maneuvered him out of the home and onto the front porch. After Mr. Bryant and respondent exchanged words on the porch, respondent left the residence to return to his home a few blocks away.

In response to a 911 call placed by the older daughter, the Ruston Police Department located respondent for questioning. Respondent admitted to the police that he had “kind of pushed” Ms. Dreyfus “a little bit,” but he denied that he had hit her. Officers then proceeded to the former matrimonial domicile and found that Ms. Dreyfus had visible red marks and abrasions on her neck and chest from being Rpushed into the door. Officers also questioned the older daughter, who reported that she had seen her father pin her mother against the front door with his arm. Respondent was placed under arrest and charged with domestic abuse battery. On October 27, 2004, the Lincoln Parish District Attorney’s Office filed a bill of information charging respondent with one count of domestic abuse battery, a misdemeanor violation of La. R.S. 14:35.3(A).

In February 2005, in connection with the settlement of the domestic litigation between respondent and Ms. Dreyfus, Ms. Dreyfus agreed to request that the criminal charge against respondent be dismissed. Ms. Dreyfus did so; however, the district attorney’s office declined to forego the criminal prosecution. The Lincoln Parish District Attorney’s Office subsequently recused itself from the criminal case and referred the matter to the Louisiana Attorney General’s Office.

In July 2008, the case was tried as a bench trial by Judge ad hoc James Boddie, Jr. Following the trial, Judge Boddie found respondent guilty as charged. In oral reasons for judgment, Judge Boddie commented that even though Ms. Dreyfus’s actions on the day in question constituted a willful disobedience of a custody order and actually triggered the heated exchange and ultimately the very incident in question, she was not the aggressor or instigator in the altercation. He continued:

Although Carol Dreyfus Bowman engaged in a pattern of conduct guaranteed to cause her ex-husband distress, there is absolutely no proof of any legal justification for Chris Bowman’s intentional use [of] force upon her person without her consent. Even considering that there may well be some minor discrepancies in the trial testimony and evidence, nothing has created a reasonable doubt regarding Chris Bowman’s guilt.... [A] volatile situation occurred, matters got out of hand, and Chris Bowman intentionally used force as described upon the person of Carol Dreyfus Bowman without her consent. The Court has concluded that the State has proved every |4element of the crime charged beyond a reasonable doubt. Therefore, Chris Lane Bowman is found guilty as charged.

Judge Boddie sentenced respondent to pay a $500 fíne and all court costs and to serve sixty days in jail. Pursuant to the provisions of La.Code Crim. P. art. 894, Judge Boddie suspended the jail sentence and placed respondent on supervised probation for a period not to exceed six months with special conditions, including the requirement that respondent perform four eight-hour days of community service work and attend and complete a court-approved domestic abuse prevention program.

Respondent subsequently completed the terms of his probation in a satisfactory manner. In October 2008, Judge Boddie set aside respondent’s conviction and dismissed the prosecution in accordance with La.Code Crim. P. art. 894(B).

DISCIPLINARY PROCEEDINGS

In January 2005, Mr. Bryant filed a complaint against respondent with the ODC. In his response, respondent characterized the complaint as “frivolous, and nothing more than an ex-wife’s boyfriend whining and complaining.” The ODC then stayed any further consideration of the matter pending the outcome of respondent’s criminal trial.

In September 2008, following respondent’s criminal conviction, the ODC filed a petition for interim suspension in this court. On October 8, 2008, we |fideclined to impose an interim suspension. In re: Bowman, 08-2173 (La.10/3/08), 992 So.2d 1000.

In November 2010, the ODC filed one count of formal charges against respondent, alleging that by his actions as set forth above he has committed a criminal act in violation of Rule 8.4(b) of the Rules of Professional Conduct. Respondent answered the formal charges and maintained his innocence of the criminal conduct of which he was convicted. Respondent also denied that the imposition of lawyer discipline is warranted, asserting that he was not convicted of a serious crime and that his conviction does not relate to the practice of law. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

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

On October 15, 2004, Ms. Dreyfus informed respondent that she would not force their youngest child to go with him for visitation. Rather than seeking relief from the court or authorities to enforce the custody order, respondent instead proceeded to the residence to force the issue himself. At the door, Ms. Dreyfus again told respondent that she would not require the youngest child to go with him. At that point, respondent testified that Ms. Dreyfus blocked the door, and he “pushed” her aside to enter the home to gather the children. Ms. Dreyfus contends that respondent not only pushed her but pressed her up against the door with his right arm and raised his left hand clenched in a fist to strike her.

lfiMs. Dreyfus had a male friend at the house at that time, David Bryant, a Louisiana State Trooper. Mr. Bryant did not witness the initial interaction at the door between Ms. Dreyfus and respondent, but did hear yelling and a loud thud. Mr. Bryant testified that when he reached the door, he observed respondent pressing Ms. Dreyfus against it with his right arm and his left hand was clenched in a fist about to strike Ms. Dreyfus. Mr. Bryant was able to get respondent to let Ms. Dreyfus go, and he and respondent moved out onto the porch. The Ruston Police Department was called and while they were en route to the home, respondent left the scene and was the subject of a traffic stop on the way back to his residence. A full investigation was undertaken by the Ruston Police Department, which was detailed in the documentary evidence submitted, including the testimony of the principal witnesses and the officers involved in the investigation. In addition to the witness statements, the police reviewed photographs of the injuries sustained by Ms. Dreyfus, and found independent evidence in the form of a broken door wreath with portions of the wreath in Ms. Dreyfus’s hair and down the back of her clothing.

The committee found that the hearing testimony of Ms. Dreyfus and Mr. Bryant concerning the October 15, 2004 incident is fully supported by the documentary evidence, particularly the multiple consistent statements made by Ms. Dreyfus and Mr. Bryant in the criminal case and in the custody proceedings. Respondent’s middle daughter, age twelve at the time of the incident, also corroborated her mother’s account of the incident, testifying to a hearing officer in the custody case that she saw her dad push her mom “up against the door.” Finally, the committee found that as between respondent and Ms. Dreyfus, Ms. Dreyfus was the more credible witness. She appeared earnest and honest before the committee, answering questions directly without any hint of evasiveness. Her recall and recount of the events in question was unequivocal.

17Respondent was tried in 2008 on a charge of domestic abuse battery. Following a three-day trial, respondent was found guilty as charged. The trial court made a specific factual finding that respondent intentionally used force against Ms. Dreyfus without her consent, and that the injuries she sustained “were consistent with the type and degree of force used against her and on the areas of her body where the force was applied.” Respondent was sentenced with the benefit of La.Code Crim. P. art. 894. Pursuant to that article, the conviction was subsequently set aside and the prosecution dismissed.

Based on these factual findings, the committee determined that respondent’s conviction of domestic abuse battery constituted a violation of Rule 8.4(b) of the Rules of Professional Conduct.

The committee found respondent intentionally violated duties owed to the public, causing substantial harm. Based upon the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction in this matter is suspension.

In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse. The committee found the following aggravating factors are present: refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law (admitted 1987).

Turning to the issue of an appropriate sanction for respondent’s misconduct, the committee considered In re: Cardenas, 11-0031 (La.5/6/11), 60 So.3d 609, in which the respondent lawyer was convicted of domestic abuse battery for striking his estranged wife in the presence of their minor child. For this conduct, the court | simposed a one-year suspension, with six months deferred, followed by probation. Given the similarity of Cardenas to the instant matter, the committee recommended respondent be suspended for one year and one day, with six months deferred.

Both respondent and the ODC filed objections to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. Based on these facts, the board determined that respondent violated Rule 8.4(b) of the Rules of Professional Conduct.

The board found respondent violated duties owed to the public and the profession when he willingly and intentionally committed a domestic battery. Although the incident had only a minimal short-term physical impact upon Ms. Dreyfus, it could potentially have had long-term psychological repercussions for both Ms. Dreyfus and respondent’s daughter, who was present at the time of the incident. The reputation of the profession is likewise harmed when a lawyer commits a crime of violence. The applicable baseline sanction in this matter is suspension.

In mitigation, the board recognized the following factors: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse. The board found the following aggravating factors are present: refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct.

InThe board observed that sanctions in eases concerning attorneys who have engaged in violent conduct range from a one-year suspension to disbarment. Considering the facts of the case, the board recommended that respondent be suspended from the practice of law for one year, with six months deferred, followed by a two-year period of probation. The board also recommended respondent be assessed with all costs and expenses of these disciplinary proceedings.

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

DISCUSSION

In an attorney disciplinary proceeding based on the lawyer’s criminal conviction, the issue of his guilt may not be relitigated. Because the lawyer’s conviction, whether based on adjudication or guilty plea, is tantamount to a finding of his guilt beyond a reasonable doubt, the clear and convincing standard of proof that applies to disciplinary proceedings has already been satisfied. In re: Bankston, 01-2780 (La.3/8/02), 810 So.2d 1113; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). In this type of proceeding, the sole issue to be determined is whether the crime warrants discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76.

Our first inquiry is whether the crime of which respondent was convicted, domestic abuse battery, is a crime warranting discipline. In this regard, we are guided by Supreme Court Rule XIX, § 19(A), which defines “serious crime” as “a felony or any other crime, the necessary elements of which as determined by the statute defining such crime, reflect upon the attorney’s moral fitness to practice 1 mlaw.” Although the crime of which respondent was convicted is a misdemeanor, we conclude the elements of that crime reflect upon his moral fitness to practice law. In particular, La. R.S. 14:35.3(A) defines the crime of misdemeanor domestic abuse battery as the “intentional use of force or violence committed by one household member upon the person of another household member without the consent of the victim.” Clearly, the use of force by an attorney against a household member raises questions about the attorney’s moral fitness to practice. Therefore, we find the crime of which respondent was convicted is a crime warranting professional discipline.

Having determined discipline is warranted, the only remaining issue is the appropriate sanction for respondent’s misconduct. In examining our prior jurisprudence in this area, we note there is a considerable range of sanctions imposed upon attorneys who have been found to engage in conduct involving physical violence. See, e.g., In re: Cardenas, 11-0031 (La.5/6/11), 60 So.3d 609, (attorney suspended for one year with six months deferred based on conviction of domestic abuse battery for striking his estranged wife in the presence of their minor child); In re: Willis, 09-0211 (La.5/13/09), 8 So.3d 548 (attorney disbarred based on multiple professional violations, including charges he was involved in a physical altercation); In re: Sterling, 08-2399 (La.1/30/09), 2 So.3d 408 (attorney suspended for two years based on multiple professional violations, including charges based on his conviction for unauthorized entry of an inhabited dwelling); In re: Estiveme, 99-0949 (La.9/24/99), 741 So.2d 649 (attorney suspended for one year based on charges he used an unloaded gun to threaten another attorney). This divergence suggests that the determination of an appropriate sanction in this Inarea may turn on the unique facts and circumstances of each case, making it difficult to draw much guidance from prior jurisprudence. Nonetheless, the broad principle which may be distilled from these cases is that we have at a minimum imposed a period of suspension in cases where attorneys have been convicted of crimes involving physical violence. Therefore, the baseline sanction in this case is a period of suspension. See also Standard 5.12 of the ABA’s Standards for Imposing Lawyer Sanctions.

The record supports the following aggravating factors: refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. In mitigation, we recognize the absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and the imposition of other penalties or sanctions in connection with the criminal proceeding.

Considering all the facts of this case, we conclude the appropriate sanction for respondent’s misconduct is a six-month suspension from the practice of law. However, considering the presence of significant mitigating factors, particularly the absence of a prior disciplinary record and the imposition of other penalties, we will defer all but thirty days of that sanction. See In re: Greenburg, 08-2878 (La.5/5/09), 12 9 So.3d 802 (attorney who engaged in a physical altercation in open court suspended for six months, with all but thirty days deferred in light of mitigating factors including lack of prior disciplinary record and imposition of other sanctions). Following the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of two years. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Chris L. Bowman, Louisiana Bar Roll number 18131, be and he hereby is suspended from the practice of law for six months. All but thirty days of the suspension shall be deferred, subject to respondent’s successful completion of a two-year period of unsupervised probation. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

Judge JEFFERSON D. HUGHES III, assigned as Justice pro tempore, sitting for KIMBALL, C.J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

VICTORY, J., dissents and would impose a harsher sanction.

       Judge Jefferson D. Hughes III, assigned as Justice pro tempore, sitting for Kimball, C.J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

      . Respondent still co-owned the house at this time, and it was not subject to any use or occupancy judgment.

      . Ms. Dreyfus also had bits of a door wreath in her hair and on the back of her shirt, and bruises on her arm and thigh.

      . On September 18, 2008, the Second Circuit Court of Appeal denied respondent’s writ application seeking review of his conviction and sentence. This court likewise denied writs. State v. Bowman, 08-2521 (La.9/4/09), 17 So.3d 949.

      . Respondent had previously filed a complaint against Mr. Bryant with the Internal Affairs division of the Louisiana State Police, in which he asserted that Mr. Bryant had used physical force to interfere with a lawful order of custody of respondent's children.

      .In July 2011, the ODC amended the formal charges to include an additional count of alleged misconduct; however, both the hearing committee and disciplinary board found insufficient evidence to support this count. The ODC did not file an objection to the board's recommendation. Accordingly, we will make no further reference to the amended formal charges.

      . Appearing pursuant to subpoena, two district judges testified regarding respondent’s character at the hearing.

      . The committee noted that respondent is "continuing to argue his conviction should not have been a conviction at all, and was somehow politically motivated to hurt him in his run for district attorney.”

      . The mere fact that respondent's conviction was subsequently set aside under La.Code Crim. P. art. 894 does not preclude the use of that conviction for bar disciplinary purposes. See In re: Edwards, 99-1825 (La.7/2/99), 747 So.2d 6; In re: Yarno, 98-0442 (La.5/29/98), 713 So.2d 451; Louisiana State Bar Ass’n v. Porterfield, 550 So.2d 584 (La.1989).

      . In recommending a sanction in this matter, the hearing committee and disciplinary board relied principally on our decision in Cardenas. While we acknowledge there is some similarity between Cardenas and the instant case, the subtle factual distinctions inherent in cases in this area preclude giving too much weight to any single prior decision. While our precedents provide general guidance in this area, the appropriate sanction must be determined with reference to the unique facts and circumstances of the specific case at issue.

      . Under Standard 5.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice law. By way of reference, Standard 5.11 provides for disbarment when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice law.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Mark Andrew MOELLER.
    No. 2012-B-2460.
    Supreme Court of Louisiana.
    March 19, 2013.

      Office of Disciplinary Counsel, Charles Bennett Plattsmier, Esq., Baton Rouge, LA, for Applicant.
    Moeller Law Firm, LLC, Mark Andrew Moeller, Esq., Gretna, LA, Dane S. Cioli-no, Esq., for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1998. In January 2004, respondent was admonished by the disciplinary board for neglect of a legal matter and failure to communicate with a client. In September 2008, respondent received another admonition for neglect of a legal matter and failure to cooperate with the ODC in its investigation.

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

UNDERLYING FACTS

From June 19, 2010 to August 31, 2010, respondent was declared ineligible to practice law for failure to comply with the mandatory continuing legal education requirements. Likewise, from September 10, 2010 to December 23, 2010, 12respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. In fact, respondent has a long history of ineligibility to practice law for failing to comply with his professional obligations. Respondent continued to practice law during these periods of ineligibility, including making court appearances in Jefferson Parish on behalf of his clients, as indicated by court records of the Jefferson Parish Clerk of Court.

DISCIPLINARY PROCEEDINGS

In September 2011, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (a lawyer is required to comply with the minimum requirements for continuing legal education), 1.1(c) (a lawyer is required to pay bar dues and the disciplinary assessment), 5.5(a) (engaging in the unauthorized practice of law), and 8.4(a) (violation of the Rules of Professional Conduct). Respondent answered the formal charges. He admitted the factual allegations and alleged rule violations, but requested a hearing in mitigation.

\ «Hearing Committee Report

This matter proceeded to a hearing in mitigation. After considering the testimony and evidence presented at the hearing, the hearing committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee did not discuss in its report the duties violated by respondent or his mental state. With regard to injury, the committee found that the types of violations at issue are less likely to harm clients than other types of violations. However, the committee acknowledged the potential for harm, in that one of the criminal defendants represented by respondent could have raised an ineffective assistance of counsel claim based on the fact of his ineligibility to practice law. The committee determined that the applicable baseline sanction is suspension.

In aggravation, the committee found the following factors: a prior disciplinary record (two admonitions) and a pattern of misconduct (several periods of ineligibility). In mitigation, the committee recognized that respondent has suffered personal or emotional problems.

Considering these factors, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Respondent filed an objection to the hearing committee’s recommendation, arguing that the sanction recommended by the committee is too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board agreed with the hearing committee that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent violated a duty to his clients by leading them to believe that |4he was eligible to represent them. He violated a duty to the public by holding himself out to be a licensed attorney eligible to practice law. He also violated a duty to the legal profession. Respondent knowingly failed to comply with his professional obligations as mandated by this court and intentionally engaged in the practice of law while ineligible. Although no actual harm resulted from his actions, the potential to harm clients and the adjudicative process was created when respondent represented clients, notably a criminal client, in court while ineligible to practice law. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

In aggravation, the board found the following factors: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1998). In mitigation, the board found the following factors: absence of a dishonest or selfish motive, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board also recommended respondent be assessed with all costs and expenses of these disciplinary proceedings.

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

DISCUSSION

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

In this matter, the record supports a finding that respondent continued to practice law during multiple periods of ineligibility. Based on this finding, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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

In prior cases involving the practice of law by attorneys who are ineligible to do so for failure to comply with professional obligations, we have imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension of one year and one day. See In re: Fisher, 09-1607 (La.12/18/09), 24 So.3d 191 (one-year suspension, with all but ninety days deferred, followed by a one-year period of supervised probation with conditions, imposed upon an attorney who represented a client in a bankruptcy matter during a period in which he was not eligible to practice law; the attorney had a long history | fiof ineligibility but numerous mitigating factors were present); In re: Oldenburg, 09-0991 (La.10/16/09), 19 So.3d 455 (six-month suspension, with all but thirty days deferred, followed by a two-year period of probation with conditions, imposed upon an attorney who appeared in court on behalf of a client while he was ineligible to practice law); In re: McCarthy, 07-1272 (La.1/25/08), 972 So.2d 1143 (six-month suspension, followed by a one-year period of probation, imposed upon an attorney who filed pleadings, appeared in court, and contacted and negotiated with third parties on behalf of a client when he was ineligible to practice law); In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511 (two-year suspension imposed upon an attorney for failing to comply with the minimum continuing legal education requirements, failing to cooperate with his probation monitor, and practicing law during a period of ineligibility; numerous aggravating factors present); In re: Richard, 00-1418 (La.8/31/00), 767 So.2d 36 (disbarment imposed upon an attorney without a prior disciplinary record who engaged in the practice of law while ineligible for more than six years); In re: Withers, 99-2951 (La.11/19/99), 747 So.2d 514 (six-month suspension imposed upon an attorney without a prior disciplinary record who represented a client while ineligible, became involved in a “highly improper” relationship with her client, and failed to cooperate with the ODC in its investigation); In re: Grady, 99-0440 (La.4/9/99), 731 So.2d 878 (one year and one day suspension imposed upon an attorney who failed to terminate a representation after he became ineligible and failed to advise his client of the status of her case; numerous aggravating factors present); In re: Brough, 98-0366 (La.4/3/98), 709 So.2d 210 (one year and one day suspension imposed upon an attorney who practiced law while ineligible, filed a suit without a good faith basis for doing so, and failed to cooperate with the ODC in its investigation; numerous aggravating factors present); In re: Jones, 98-0207 (La.3/27/98), 708 So.2d 413 (one year and one day suspension, with six months ^deferred, imposed upon an attorney who practiced law while ineligible; numerous aggravating factors present); and In re: Geiss, 97-1726 (La.9/26/97), 701 So.2d 967 (one year and one day suspension imposed upon an attorney who practiced law while ineligible, neglected a legal matter, failed to communicate with his client, and failed to refund an unearned fee).

Considering these cases, and respondent’s repeated past failures to comply with his professional obligations, we find that an actual period of suspension is warranted. Accordingly, we will suspend respondent from the practice of law for one year and one day, with all but ninety days deferred. Following the active portion of his suspension, respondent shall be placed on unsupervised probation for a period of two years. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan, which shall incorporate a requirement that respondent remain current on his bar dues, disciplinary assessment, and MCLE. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Mark Andrew Moeller, Louisiana Bar Roll number 25798, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that all but ninety days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on unsupervised probation for two years governed by the conditions set forth in this opinion. Any failure of respondent to comply with the conditions of probation, or |Rany misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

Judge JEFFERSON D. HUGHES III, assigned as Justice pro tempore, sitting for KIMBALL, C.J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

VICTORY, J., dissents and would impose a harsher sanction.

       Judge Jefferson D. Hughes III, assigned as Justice pro tempore, sitting for Kimball, C.J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

      . The records of the Louisiana State Bar Association reflect that respondent has been declared ineligible to practice law as follows:
      September 4, 2001 — October 2, 2001 Failure to pay bar dues and disciplinary assessment
      August 3, 2002 — November 21, 2002 Failure to attend mandatory CLE
      September 4, 2002 — November 21, 2002 Failure to pay bar dues and disciplinary assessment
      June 2, 2004 — -March 23, 2005 Failure to attend mandatory CLE
      September 7, 2004 — January 12, 2005 Failure to pay bar dues and disciplinary assessment
      October 31, 2005 — December 16, 2005 Failure to pay bar dues and disciplinary assessment
      November 30, 2007 — January 22, 2009 Failure to file a trust account registration statement
      July 24, 2008 — February 6, 2009 Failure to attend mandatory CLE
      October 1, 2008 — January 22, 2009 Failure to pay bar dues and disciplinary assessment
      September 9, 2009 — September 17, 2009 Failure to pay bar dues and disciplinary assessment
      June 19, 2010 — August 31,2010 Failure to attend mandatory CLE
      September 10, 2010 — December 23, 2010 Failure to pay bar dues and disciplinary assessment

      . Respondent’s conduct came to the ODC’s attention by way of a complaint made to the Metropolitan Crime Commission. After the ODC notified respondent of the filing of the complaint, he paid his bar dues and the disciplinary assessment, and attended CLE, and his eligibility was restored effective December 23, 2010.

      . The hearing committee also made findings of fact pertaining to the dates of respondent’s various periods of ineligibility. However, those findings contained several typographical errors.


author: CLARK, Justice. KNOLL, J.,

text:
    WEST MONROE FIREFIGHTERS LOCAL 1385, et al. v. CITY OF WEST MONROE.
    No. 2012-C-1937.
    Supreme Court of Louisiana.
    March 19, 2013.
    Rehearing Denied May 3, 2013.

      The Kullman Firm, Eric Ray Miller, Esq., Christine S. Goldberg, Esq., Baton Rouge, LA, for Applicant.
    Robein, Urann, Spencer, Picard & Can-gemi, APLC, Louis L. Robein, Jr., Esq., Metairie, LA, Christina L. Carroll, Esq., for Respondent.
   CLARK, Justice.

hWe granted this writ application to determine whether the minimum monthly salary referenced in La.R.S. 33:1992 includes the supplemental amount paid by the municipality for purposes of calculating wage differentials for higher-ranking firefighters. We find the interplay between La.R.S. 33:1992 and R.S. 33:2002 necessitates the exclusion of the enhanced amount of $300 from the base pay of a firefighter when calculating the pay differentials. Thus, we reverse the grant of partial summary judgment as to liability against the City of West Monroe in this suit and grant summary judgment in favor of the City of West Monroe, dismissing the plaintiffs’ suit in its entirety.

FACTS AND PROCEDURAL HISTORY

Pursuant to La. R.S. 33:2002(A)(1), the state of Louisiana pays firefighters a state supplement of $500 per month beginning after a firefighter’s first year. The legislature in 2006 amended La.R.S. 33:2002(A)(3) to allow a municipality to pay first-year firefighters a supplemental monthly payment “in the amount equivalent to the state supplemental pay, or any portion thereof’ and to authorize termination of such payment at the end of the first year as long as the reduction is disclosed in writing at the time the firefighter is hired. In compliance with La.R.S. 33:2002, the City of West Monroe (“the City”) paid a city supplement in the amount of |¾$300 to its first-year firefighters.

In the instant litigation, there are five ranks of firefighters: firefighter, engineer/operator, fire captain, assistant fire chief, and chief. La.R.S. 33:1992(A) sets forth the minimum salaries to be paid to the differing ranks of firefighters, basing the pay differential on specified percentages above the “minimum monthly salary” of a first-year firefighter. The City did not include the $300 supplemental payment in its computation of the “minimum monthly salary.”

On March 1, 2010, current and former firefighters for the City of West Monroe (“Plaintiffs”) filed suit against the City, alleging that the pay practices in use violated La.R.S. 33:1992. Particularly, Plaintiffs argued the base salary, or “minimum monthly salary”, which is used to compute percentage differentials for higher ranking firefighters, failed to include the city supplemental pay of $300 per month. They contended the correct minimum monthly salary was $1,800, reflecting the $1,500 base salary in addition to the $300 supplemental salary. Without the supplement, the first year firefighters’ pay would not meet the minimum wage required by federal law. Conversely, the City argued the proper minimum monthly salary was $1,500 because the city supplement is only a temporary monthly payment given to first-year firefighters.

Plaintiffs amended their petition to include a claim under the Louisiana Wage Act pursuant to La.R.S. 23:631 for former employees to recover unpaid wages. Penalty wages and attorney fees were also sought.

On July 21, 2011, Plaintiffs filed a motion for partial summary judgment as to liability against the City. The City filed an opposition to Plaintiffs’ motion for partial summary judgment and filed a cross-motion for summary judgment as to all the claims brought by Plaintiffs, arguing that La.R.S. 33:2002 specifically | ^authorizes the City to calculate pay differentials in a manner that excludes the city supplemental pay.

The trial court held a hearing on the motions. It granted Plaintiffs’ motion for partial summary judgment as to the claims under La.R.S. 33:1992 for current firefighters and 23:631 for former firefighters. Additionally, it awarded attorney fees in the amount of $500. The trial court denied the City’s motion for summary judgment. In support of its judgment, the trial court explained:

The wage differentials set forth in La. R.S. 33:1992 shall be calculated on the actual minimum monthly salary (or starting base pay) of a fireman, including the city supplemental pay. The court specifically finds that the defendant City may not base the minimum monthly salary of first year firefighters for purposes of La.R.S. 33:1992 on an amount that does not meet the applicable minimum wage requirements of the Fair Labor Standards Act, 29 U.S.C. § 206. The defendant City’s policy of excluding the City supplemental pay from this calculation pursuant to La.R.S. 33:2002(A)(3)(a)-(c) contravenes La.R.S. 33:1992.

The court of appeal upheld the portion of the trial court’s judgment that granted Plaintiffs motion for partial summary judgment, but it reversed the ruling on attorney fees and remanded the matter for purposes of determining an award of back pay and appropriate attorney fees. The City filed a writ application with this court.

We granted certiorari to determine whether La.R.S. 38:1992 obligates the City to include the supplemental pay as part of the “minimum monthly salary” of first-year firefighters for purposes of calculating wage differentials for higher ranking firefighters.

| ..APPLICABLE LAW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 2009-0023, p. 5 (La.6/26/09), 17 So.3d 350, 353. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B); Costello v. Hardy, 2003-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137.

DISCUSSION

As follows, La. R.S. 33:1992(A) sets forth the wage differentials for the differing ranks of firefighters and establishes that the salaries are based on the “minimum monthly salaries” of firefighters:

A. The minimum monthly salaries of firemen in municipalities having a population of twelve thousand or more and in the city of Bastrop and of all parish and fire protection district paid firemen, including salaries payable out of the avails of any special tax provided by the Constitution of Louisiana for increasing the pay of firemen, shall be in accordance with the following schedule, and such salaries shall be paid semi-monthly not later than the fifth and twentieth day of each calendar month:
(1) A fireman shall receive a minimum monthly salary of four hundred dollars per month.
(2) Engineers shall receive a minimum monthly salary of not less than ten percent above that of a fireman.
(3) Lieutenants shall receive a minimum monthly salary of not less than fifteen percent above that of a fireman.
ls(4) Captains shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(5) Battalion chiefs and district chiefs shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(6) Assistant chiefs and deputy chiefs shall receive a minimum monthly salary of not less than fifty percent above that of a fireman.
(7) A mechanic or assistant mechanic, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(8) A superintendent of fire alarm system, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than forty percent above that of a fireman.
(9) A fire alarm operator or dispatcher, or any other person doing this type of work for the fire department, shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.
(10) A fire inspector shall receive a minimum monthly salary of not less than twenty-five percent above that of a fireman.

At issue is whether the $300 city supplement is to be considered part of the “minimum monthly salary” of a first-year firefighter. The City argues La.R.S. 33:2002(A)(3) specifically authorizes the exclusion of the city supplement. La.R.S. 33:2002 provides, in pertinent part:

A. (1) In addition to the compensation now paid by any municipality, parish, fire protection district, or other political subdivision maintaining a fire department, or by the Chitimacha Tribe of Louisiana or the Coushatta Tribe of Louisiana, hereinafter referred to as “tribe”, or by any nonprofit corporation contracting with any such political subdivision to provide fire protection services to every paid, regularly employed employee who is paid not less than three hundred dollars per month, not including supplemental pay, as distinguished from part-time employees and volunteers of such fire department, who are carried on the payroll of such fire department, and every employee as defined herein who is paid from funds of the parish or municipality or tribe obtained through lawfully adopted bond issues, lawfully assessed taxes, or other funds available for such purpose, either directly or through a board or commission set up by law or ordinance of the parish or municipality or tribe, shall be paid extra compensation by the state in the amount of five hundred dollars \ fíper month for each such paid employee who has completed or who hereafter completes one year of service.
(3)(a) A municipality, parish, fire protection district, or other political subdivision maintaining a fire department, or the Chitimacha Tribe of Louisiana or the Coushatta Indian Tribe of Louisiana, or any nonprofit corporation contracting with any such political subdivision to provide fire protection services may enhance the first-year salary of every paid, regularly employed employee in the amount equivalent to the state supplemental pay, or any portion thereof, that the employee shall be entitled to be paid after one year of service pursuant to this Subpart.
(b) Any such municipality, parish, fire protection district, or other political subdivision maintaining a fire department, or the Chitimacha Tribe of Louisiana or the Coushatta Indian Tribe of Louisiana, or nonprofit corporation contracting to provide fire protection services shall disclose, in uniting, at the time the employee is hired that such enhancement shall be paid only during the first year of employment.
(c) Notwithstanding any other provision of law to the contrary, no municipality, parish, fire protection district, or other political subdivision maintaining a fire department, or the Chitimacha Tribe of Louisiana or the Coushatta Indian Tribe of Louisiana, or any such nonprofit corporation contracting to provide fire protection services, shall be subject to penalty for reducing the salary of any employee whose salary has been enhanced pursuant to this Paragraph for one year by an amount not exceeding the amount of such enhancement. Any such reduction shall not be void as provided in R.S. 33:2218.5.

(Emphasis added).

La.R.S. 33:2002(A)(3) provides for the enhancement of the salary of first-year firefighters in an amount equivalent to or less than the state supplemental pay of $500 that begins after the first year of service. Effective July 1, 2006, if a municipality discloses in writing that such payment will only be paid during the first year of employment, the municipality is protected from penalty for reducing the salary of a firefighter by an amount not exceeding the amount of the enhancement. The City argues the lower courts’ inclusion of the $800 in the definition of “minimum monthly salary” renders La.R.S. 33:2002(A)(3)

17meaningless because the City could never effectively reduce the temporary city supplemental pay. In effect, the $300 will always be owed to higher ranking firefighters in addition to the percentage above the $300 amount.

Further, the City contends that because the city supplement is only paid for a twelve-month period, it is temporary by nature and cannot be considered part of the “minimum monthly salary” that acts as a base from which all percentage increases are set for years to come.

Plaintiffs aver the city supplement should be included in the calculable base pay for pay differentials because without the supplement, the first-year firefighters’ salaries do not meet the minimum wage requirements of the Fair Labor Standards Act. Citing to Johnson v. Marrero-Estelle Volunteer Fire Company No. 1, 04-2124 (La.04/12/05), 898 So.2d 351, 354 which reiterated language used in Neiv Orleans Firefighters Assoc. v. Civil Service Commission of City of New Orleans, 422 So.2d 402, 412 (La.1982), they argue the city’s pay practice thwarts the legislative purpose of La. R.S. 33:1992 insofar as the goal of the statutory scheme is to eradicate poor working conditions for fire department employees:

The provisions of La.R.S. 33:1991 et seq. are “remedial and humanitarian in purpose and must not be interpreted narrowly.” We described the “motive and purpose” behind these laws was “plainly to make effective [the legislature’s] conception of public policy that substandard labor conditions in city, parish and other local fire departments should be eliminated as injurious to the safety and welfare of the public as well as detrimental to the health, efficiency and morale of firefighters.”

Plaintiffs contend that the City’s use of a sum for base pay that does not comply with the federal minimum wage standards contravenes the purpose of the statute.

In response, the City explains that a lesser amount than $300 would satisfy the City’s obligation to comply with the Fair Labor Standards Act; that federal law | 8is in no way being violated and that plaintiffs did not bring a claim alleging violations of federal law; that, as evidenced by La.R.S. 33:2002, the legislature did not intend for the base rate to be set at the federal minimum wage; and that the federal minimum wage law is irrelevant to the interpretation and application of La.R.S. 33:1992. For the reasons that follow, we agree with the City.

Under the Fair Labor Standards Act, wages include all remuneration paid to an employee. 29 U.S.C. § 207. It is undisputed that all remuneration given to first-year firefighters, whether it be base pay, supplemental pay, or incentive pay, exceeds the federal minimum wage requirement. Thus, there is no cause of action under federal law.

Nothing in the language of La. R.S. 33:1992 requires the “minimum monthly salary” to independently meet the federal minimum wage laws. If the legislature had intended for the base pay of La.R.S. 33:1992 to be governed by the mandates of the Fair Labor Standards Act, it could have directly referenced it therein. “Legislative language will be interpreted on the assumption that the Legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes.” Fontenot v. Reddell Vidrine Water Dist. 02-0439, pp. 13-14 (La.1/14/03), 836 So.2d 14, 24. It is impossible to say the legislature was not cognizant of the Fair Labor Standards Act, when it references it separately within the same statutory scheme. (See La.R.S. 33:1994(A), which provides: “[ojvertime compensation for firefighters covered by this Subpart ... shall be governed by the provisions of the federal Fair Labor Standards Act, as implemented in 29 CFR Part 553.”) Thus, if the legislature intended for the federal minimum wage to be incorporated into the definition of “minimum monthly salary” in La.R.S. 33:1992, it could and would have done so expressly.

[^Additionally, we find that the lower courts’ rulings interpret La.R.S. 33:1992 in a manner that fails to give effect to La.R.S. 33:2002. In statutory interpretation, there is a well-settled presumption that “every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used.” ABL Mgmt., Inc. v. Bd. of Supervisors of Southern Univ., 00-0798, p. 6 (La.11/28/00), 773 So.2d 131, 135. Thus, our courts must “give effect to all parts of a statute and construe no sentence, clause or word as meaningless.” Moss v. State, 05-1963, p. 15 (La.4/4/06), 925 So.2d 1185, 1196. It is further presumed that the legislature did not insert “idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless.” ABL Mgmt., Inc., 00-798, p. 6, 773 So.2d at 135.

Acknowledging that state supplemental pay is not provided to beginning firefighters, the legislature in La. R.S. 33:2002 allows a municipality to provide a supplemental enhancement to firefighters in their first year of employment and to stop payment of that supplemental pay at the end of the year if the municipality advises the firefighter in writing at the time of hiring that the supplemental amount will be reduced from their salary. Subsection (c) specifically states that “no municipality ... shall be subject to penalty” for the described reduction. Requiring the City to include the supplemental pay in the base pay of entry level firefighters and thereby cause it to serve as the amount on which all higher-ranking firefighters’ salaries are based effectively prevents the City from doing what La.R.S. 33:2002 specifically authorizes it to do, i.e., stop payment of the supplemental pay after the employee’s first year. Instead, the City would be |inrequired to continue paying the supplement to higher ranking firefighters in addition to the applicable percentage increase. This practice renders the statute meaningless and does not further the legislative intent of increasing the pay of first-year firefighters. Contrarily, it acts as a disincentive against the City giving more money to a first-year firefighter beyond that which is required under federal law because a limited municipal budget cannot support a temporary pay increase that is effectively permanent.

Accordingly, we find under the plain language of La.R.S. 33:1992 and La. R.S. 33:2002, the city supplemental pay of $300 per month is not included in the calculation of a first-year firefighters’ “minimum monthly salary” for purposes of determining wage differentials for higher-ranking firefighters. Federal minimum wage law is unrelated to and irrelevant in this analysis.

DECREE

For the reasons stated herein, we reverse the grant of partial summary judgment in favor of Plaintiffs and grant the City’s cross-motion for summary judgment, dismissing all of Plaintiffs’ claims.

REVERSED; JUDGMENT RENDERED.

KNOLL, Justice, dissents and assigns reasons.

KNOLL, J.,

dissenting.

| TWith all due respect, I dissent. The majority interprets La.Rev.Stat. § 33:1992 to exclude the $300 city supplement from first-year firefighters’ “minimum monthly salary” for purposes of calculating the wage differentials of higher-ranking firefighters. In my view, such a narrow interpretation subverts the “remedial and humanitarian ... purpose” of La. Rev. Stat § 33:1991, et seq. New Orleans Firefighters Ass’n v. Civil Serv. Comm’n of City of New Orleans, 422 So.2d 402, 412 (La.1982). I further dissent because I do not believe reading La. Rev. § 33:1992 to include the $300 city supplement as part of a firefighter’s “minimum monthly salary” renders La.Rev.Stat. § 33:2002(A)(3)(c) meaningless.

First, the majority, in my view, narrowly interprets § 33:1992, thereby undermining the Legislature’s intent in enacting minimum wage and overtime laws for Louisiana firefighters. Such an interpretation overlooks the primary purpose of statutory construction, which is to ascertain and enforce the will of the Legislature. Pumphrey v. City of New Orleans, 05-979, p. 10 (La.4/4/06), 925 So.2d 1202, 1209; Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360, p. 4 (La.12/3/03), 860 So.2d 1112, 1115. A statute must be “applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the Legislature had in enacting it.” Sultana Corp., 03-0360 at p. 4, 860 So.2d at 1116. Although statutory interpretation begins with the language of the statute itself, Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 11 (La.12/16/11), 79 So.3d 987, 997, a statute’s language must not be construed so narrowly as to defeat or undermine the clear intent of the Legislature. See State v. Shaw, 06-2467, p. 15 (La.11/27/07), 969 So.2d 1233, 1242 (“[A]n interpretation should be avoided which would operate to defeat the object and purpose of the statute.”).

This Court has previously ascertained and cogently articulated the Legislature’s intent in enacting minimum wage and overtime laws for Louisiana firefighters:

... [Tjhere is no difference in principle between our statutes [La.Rev.Stat. § 33:1991 et seq.] and the federal minimum wage and working condition laws. The motive and purpose of the legislature were plainly to make effective its conception of public policy that substandard labor conditions in city, parish and other local fire departments should be eliminated as being injurious to the safety and welfare of the public as well as detrimental to the health, efficiency and morale of firefighters ... [La.Rev. Stat. § 33:1991 et seq.] are remedial and humanitarian in purpose and must not be interpreted narrowly.

New Orleans Firefighters Ass’n, 422 So.2d at 412 (emphasis added); see also Johnson v. Marrero-Estelle Volunteer Fire Co., No. 1, 04-2124, p. 2 (La.4/12/05), 898 So.2d 351, 354 (quoting New Orleans Firefighters Ass’n, 422 So.2d at 412). In order to effectuate the “the remedial and humanitarian purpose of the statute[ ],” the wages of higher-ranking firefighters should be calculated based on a firefighter’s “minimum monthly salary,” including the $300 city supplement. New Orleans Firefighters Ass’n, 422 So.2d at 412.

A fair interpretation of the phrase “minimum monthly salary” supports the conclusion that the $300 city supplement should be included in the base figure for calculating the wages of higher-ranking firefighters. Section 33:1992 mandates that higher-ranking firefighters’ salaries must be a specified percentage above the |a“minimum monthly salary” of a beginning firefighter. La.Rev.Stat. § 33:1992(A)(1)-(10). A basic tenant of statutory construction is that “words of a law must be given their generally prevailing meaning.” La. Civ. Code art. 11. Several appellate courts have interpreted the generally prevailing meaning of the phrase “minimum monthly salary” in § 33:1992. For instance, the Second Circuit in Alamond v. City of Shreveport, 39,514, p. 8 (La.App. 2 Cir. 4/6/05), 900 So.2d 277, 281, defined the phrase as “regular compensation paid monthly over an extended period of time,” and the First Circuit in Hemphill v. City of Bogalusa, 417 So.2d 462, 465 (La.App. 1 Cir.1982), stated, “the minimum salary actually paid is the correct base” for calculating the salaries of higher-ranking firefighters, (emphasis in original). The City, however, sets the base for calculating the salaries of higher-ranking firefighters at $1,500, deliberately understating the “minimum monthly salary” of a beginning firefighter. The City’s beginning firefighters, though, are never “actually paid” $1,500 “monthly over an extended period of time.” Alamond, 39,514 at p. 8, 900 So.2d at 281; Hemphill, 417 So.2d at 465. Instead, a beginning firefighter in West Monroe is actually paid $1,800 a month — $1,500 base salary plus $300 city supplement — during his first year of service and thereafter receives $2,000 a month — $1,500 base salary plus $500 state supplement. Thus, an entry-level firefighter is never actually paid an amount less than $1,800 a month. The City’s devaluation of the beginning firefighters’ monthly salaries in turn suppresses the salaries of higher-ranking firefighters under § 33:1992.

Ultimately, the majority’s interpretation of § 33:1992 allows the City to craft a fiction in which the $300 city supplement is included for purposes of meeting federal minimum wage requirements under the Fair Labor Standards Act, 29 U.S.C. § 206, but magically disappears for purposes of § 33:1992. In this fiction, the City acknowledges the supplement when it is financially convenient but then |4disregards the supplement when it is a financial burden. Allowing the City to have it both ways creates, in my view, an absurd result. Namely, by indulging this fiction, the majority permits the City to suppress the wages of high-ranking firefighters by calculating their salaries using an amount that is always less than the actual compensation paid to a beginning firefighter over an extended period of time.

Finally, I dissent because interpreting § 33:1992 to include the $300 city supplement as part of a beginning firefighter’s “minimum monthly salary” does not render § 33:2002(A)(3)(c) superfluous. Admittedly, § 33:2002(A)(3)(c) permits a municipality — after disclosing the temporary nature of the city supplement in writing— to reduce the city supplement after a firefighter’s first year of service without being “subject to penalty.” However, after reading § 33:2002 in pari materia with La. Rev.Stat. § 33:2005 and reviewing the legislative history behind the 2006 amendments to § 33:2002, it is clear the Legislature meant one thing by word “penalty” in § 33:2002(A)(3)(c). Specifically, the word “penalty” in § 33:2002(A)(3)(c) is shorthand for “lawsuit under § 33:2005.”

In my view, requiring the City to include the $300 supplement in the base figure for calculating the wages of higher-ranking firefighters does not fall within the purview of the Legislature’s targeted use of the word “penalty” in § 33:2002(A)(3)(c). As an initial matter, §§ 33:2002(A)(3)(a)-(c) must be read in pari materia with both § 33:1992 and § 33:2005. See La. Civ. Code art. 13. The majority, however, ignores § 33:2005, which provides in pertinent part:

Any reduction of the salary of an employee covered by this Subpart [ie., a firefighter] ... whether by the governing authority or by any pay plan under the provisions of the civil service law, or otherwise, shall be void where it is made solely by reason of the additional compensation by the state, provided in this Subpart [ie., the $500 state supplement].

| ^Before 2006, if a municipality reduced a firefighter’s city supplement after the firefighter became eligible to receive the monthly state supplement, then that firefighter could sue the municipality under § 33:2005 to have his city supplement reinstated. See Aguillard v. City of Lake Charles, 07-189, p. 4 (La.App. 3 Cir. 9/26/07), 966 So.2d 722, 726, writ denied, 07-2107 (La.3/7/08), 977 So.2d 907. In 2006, the Legislature sought to avoid this result under § 33:2005 by amending § 33:2002. Acts 2006, No. 789, § 1, eff. July 1, 2006. Specifically, the Legislature added § 33:2002(A)(3)(e), which authorizes a municipality to reduce a firefighter’s city supplement without “penalty” after that firefighter begins receiving the monthly state supplement. Id. When introducing House Bill 1168, which would become §§ 33:2002(A)(3)(a)-(c), Representative Jack Smith repeatedly emphasized the Bill was designed to prevent municipalities from being sued for reducing city supplemental pay after a firefighter began receiving state supplemental pay. See Meeting of Committee on Municipal, Parochial, and Cultural Affairs of the Louisiana House of Representatives (5/3/2006), H.B. 1168, available at http://house.louisiana. gov/H_Video/2006/May2006/htm. This legislative history, read in conjunction with § 33:2005, reveals the term “penalty” in § 33:2002(A)(3)(c) means “lawsuit under § 33:2005.” Including the $300 city supplement in the base figure for calculating the minimum salaries of higher-ranking firefighters cannot trigger a “lawsuit under § 33:2005,” and it does not, therefore, subject municipalities to a “penalty” under § 33:2002(A)(3)(c).

In sum, reading § 33:1992 to include the $300 city supplement does not render § 33:2002(A)(3)(c) nugatory. Rather, a municipality can still, without being sued under § 33:2005, reduce a first-year firefighter’s city supplement after that firefighter becomes eligible for the state supplement. This was the Legislature’s intent in enacting § 33:2002(A)(3)(c), and interpreting § 33:1992 to include the $300 city supplement does nothing to abrogate this intent.

lfiFor these reasons, I would affirm the rulings of the lower courts, which granted summary judgment in favor of the West Monroe firefighters.

      . See West Monroe Firefighters Local 1385, et al. v. City of West Monroe, 47,333 (La.App. 2 Cir. 8/1/12), 103 So.3d 481.

      . See West Monroe Firefighters Local 1385, et al. v. City of West Monroe, 12-1937 (La. 11/21/12), 102 So.3d 49.


author: McClendon, j.

text:
    STATE of Louisiana v. Troy K. GUIDERA.
    No. 2012 KA 0267.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Baton Rouge, LA, for Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, LA, for Defendant/Appellant Troy K. Guidera.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   McClendon, j.

| ^Defendant, Troy K. Guidera, was charged by amended bill of information with one count of fourth-offense driving while intoxicated (DWI), a violation of LSA-R.S. 14:98 E, and he entered a plea of not guilty. After a jury trial, defendant was found guilty as charged. The trial court denied defendant’s motion for new trial, and it sentenced defendant to serve a period of 20 years at hard labor, without benefit of - parole, probation, or suspension of sentence. The State subsequently filed a habitual offender bill of information, alleging defendant to be a fourth-felony habitual offender. After a hearing, the trial court adjudicated defendant a third-felony habitual offender. The trial court vacated defendant’s twenty-year sentence and resentenced defendant to twenty-five years at hard labor without benefit of probation or suspension of sentence. Defendant now appeals, alleging three counseled assignments of error and one pro se assignment of error. For the following reasons, we affirm defendant’s conviction, habitual offender adjudication, and habitual offender sentence.

FACTS

On the evening of May 7, 2011, Trooper Charles Robinson was traveling southbound on La. Hwy. 59 in St. Tammany Parish when he observed the driver of a gray pickup truck execute an illegally-wide turn, pull into a gas station, and park at an odd angle. Trooper Robinson activated his emergency lights and pulled into the gas station. He advised the driver of the truck, identified at trial as defendant, to exit the vehicle. As defendant approached, Trooper Robinson observed that defendant was swaying, had red and glassy eyes, spoke with a slur, and smelled strongly of alcohol. Trooper Robinson immediately informed | ¡¡defendant of his Miranda rights, and he began to conduct a standardized field sobriety test on him. Defendant performed poorly on all three parts of the test. Trooper Robinson placed defendant under arrest and transported him to the police station, where defendant refused to submit to any scientific testing. Defendant later fell asleep while Trooper Robinson completed paperwork relating to defendant’s arrest. At trial, the state introduced certified copies of defendant’s prior DWI convictions, and Lieutenant Dawn Powell of the St. Tammany Parish Sheriffs Office crime lab matched defendant’s fingerprints to those taken at the time of his felony DWI convictions in docket numbers 218860, 322404, and 482123. Through the testimonies of Monica George and Elizabeth Blanton, probation and parole officers with the Department of Public Safety and Corrections (DPSC), the State established that the ten-year cleansing period had not run with respect to any of these three felony DWI convictions.

COUNSELED ASSIGNMENT OF ERROR NUMBER 1

In his first counseled assignment of error, defendant contends that the trial court erred in using one of the same pri- or convictions used to convict defendant of fourth-offense DWI to adjudicate defendant a third-felony habitual offender, resulting in a “double enhancement.” Specifically, defendant argues that his conviction under St. Tammany Parish docket number 322404 was a predicate for defendant’s fourth-offense DWI conviction, and was also listed as a “prior felony” for purposes of the habitual offender bill of information.

For purposes of the Habitual Offender Law, LSA-R.S. 15:529.1, a defendant’s current offense “shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or between the expiration of the maximum sentence or sentences of each 1 ¿preceding conviction or convictions alleged in the multiple offender bill .and the date of the commission of the following offense or offenses.” See LSA-R.S. 15:529.1 C. In computing those intervals of time, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses. See LSA-R.S. 15:529.1 C.

Before addressing whether defendant’s prior conviction for DWI under St. Tammany Parish docket number 322404 was improperly used in defendant’s habitual offender bill of information, we must decide whether defendant’s conviction for fourth-offense DWI is subject to enhancement at all under the Habitual Offender Law. Previously, in State v. Campbell, 03-3035, p. 10 (La.7/6/04), 877 So.2d 112, 118, the supreme court held that a defendant convicted of third-offense DWI could not have his sentence enhanced under the Habitual Offender Law, even where he had two prior non-DWI felony convictions. The court reasoned that habitual offender adjudication under LSA-R.S. 15:529.1 would preclude a trial court from crafting a sentence which complied with the requirements of LSA-R.S. 14:98 D (prior to amendment by 2005 La. Acts No. 497, § 1). See Campbell, 03-3035 at p. 10, 877 So.2d at 118-19. At the time, LSA-R.S. 14:98 D(l)(a) provided, in pertinent part, that for a third-offense DWI “notwithstanding any other provision of law to the contrary ... the offender shall be imprisoned ... for'not less than one year nor more than five years.... Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended.... ” The court found that this provision directly conflicted with LSA-R.S. 15:529.1 G, which would have denied the defendant the benefit of either probation or suspension of sentence. The court pointed to the legislature’s mandate that the suspension of sentence required by LSA-R.S. 14:98 D be accompanied with substance abuse treatment as evidence that there was a clear conflict between the two statutes. Thus, the supreme |5court found that the defendant’s third-offense DWI sentence was not subject to enhancement.

In 2005, the legislature enacted 2005 La. Acts No. 497, § 1, which amended LSA-R.S. 14:98, subsections D and E, to eliminate the mandatory suspension of sentence provisions from these respective subsections. Accordingly, LSA-R.S. 14:98, subsections D and E, now place the decision to suspend any part of a defendant’s sentence within the trial court’s discretion. Only if a defendant is given the benefit of a suspended sentence and placed on parole is he mandated to submit to substance abuse treatment.

In State v. Shoupe, 46,395 (La.App. 2 Cir. 6/22/11), 71 So.3d 508, writ denied, 11-1634 (La.1/13/12), 77 So.3d 950, the second circuit reevaluated the supreme court’s holding from Campbell in light of the revisions to LSA-R.S. 14:98. Like the defendant in this matter, Shoupe had been convicted of fourth-offense DWI. This conviction was subsequently enhanced under LSA-R.S. 15:529.1 as a second felony. The second circuit found that the 2005 amendment to LSA-R.S. 14:98, subsections D and E, “places those provisions in the same category as any other felony sentence with benefit of probation which may nevertheless be enhanced under La. R.S. 15:529.1.” Shoupe, 46,395 at p. 16, 71 So.3d at 517. Thus, the second circuit concluded that the statutory construction, as laid out by the supreme court in Campbell, was no longer applicable after the amendment to LSA-R.S. 14:98. Shoupe, 46,395 at p. 16, 71 So.3d at 518.

In State v. Firmin, 354 So.2d 1355 (La.1978) (per curiam), the supreme court held that its decision in State v. Sanders, 337 So.2d 1131 (La.1976), prevented the double use of a defendant’s recidivist offender status, thereby preventing the state from using a defendant’s recidivist offense as part of a habitual offender allegation. In Sanders, the court had disallowed the use of a defendant’s same prior conviction “first, to establish his status as a convicted felon so as to convict him of the [recidivist] crime, and, second to increase the penalty through a multiple bill.” Sanders, 337 So.2d at 1134. The | ^Sanders court also made a determination that no further enhancement, other than the penalties already described in the possession of a firearm by a felon statute, could be made to a sentence imposed under that statute. See Sanders, 337 So.2d at 1134-35. Although the supreme court had limited the Sanders decision to its facts, it later cited Sanders in Firmin for the second proposition, that is, that a conviction for possession of a firearm by a felon is not subject to further enhancement even where the alleged prior felonies were different at trial and in the habitual offender bill, respectively. See Firmin, 354 So.2d at 1355.

In State v. Baker, 06-2175 (La.10/16/07), 970 So.2d 948, cert. denied, 555 U.S. 830, 129 S.Ct. 39, 172 L.Ed.2d 49 (2008), the supreme court readdressed the issue of whether a defendant’s conviction for possession of a firearm by a felon could later be enhanced by the fifing of a habitual offender bill of information. In Baker, as in Firmin, the defendant had been previously convicted of two different felonies and charged with possession of a firearm by a felon. At trial, the state used Baker’s conviction for aggravated battery to prove the elements of the offense. The state later used Baker’s conviction for illegal possession of stolen things in a habitual offender bill of information, seeking to have Baker’s conviction for possession of a firearm by a felon enhanced. The court held that its determination in both Sanders and Firmin, that a sentence imposed pursuant to a conviction for possession of a firearm by a felon could not be further enhanced by the habitual offender law, was in error, and it overruled those cases to the extent that they stood for that proposition. See Baker, 06-2175 at p. 15, 970 So.2d at 957. The court noted that it had held in previous cases that there was no restriction on the type of felony which could be enhanced by the habitual offender law. See Baker, 06-2175 at p. 11, 970 So.2d at 955. According to the court, it could only have reached the Sanders result by reading something not present into the possession of a firearm by a felon statute, i.e., a specific prohibition as to further enhancement. See Baker, 06-2175 at p. 12, 970 So.2d at 955.

l7In fight of 2005 La. Acts No. 497, § 1 and Baker, we find that defendant’s conviction for fourth-offense DWI is subject to subsequent enhancement under the habitual offender law. We agree with the second circuit that the 2005 amendment to LSA-R.S. 14:98 eliminated the statutory construction conflict cited by the supreme court in Campbell. Further, the supreme court noted in Baker that there is no restriction on the type of felony which may be enhanced by the habitual offender law, except when a statute specifically prohibits further enhancement. Baker, 06-2175 at p. 12, 970 So.2d at 955. We find no such restriction in the DWI statute, so defendant’s fourth-offense DWI conviction is subject to further enhancement.

We now turn to defendant’s argument that one of the predicate offenses used to prove his conviction for fourth-offense DWI was also improperly used as a predicate for the enhancement to defendant’s sentence under the habitual offender law. A thorough review of the record indicates that the State alleged seven total predicate offenses in defendant’s habitual offender bill of information. These predicates included convictions for possession of cocaine, forgery, two counts of felony theft, attempted burglary of a business and another count of felony theft, and burglary. All of these alleged predicates were non-DWI offenses. In addition to alleging these predicates, the State included in defendant’s habitual offender bill of information the allegation that, in connection with his DWI offense under docket number 322404, defendant was in the custody of DPSC from September 28, 2000 until June 23, 2009. This allegation was made expressly to negate the cleansing period under LSA-R.S. 15:529.1 C. Defendant asserts in his brief that the entire habitual offender proceeding was tainted because a reference to this DWI offense was included in the habitual offender bill of information, and the trial court was unclear about which of the predicates it relied upon to adjudicate defendant a third-felony habitual offender. Therefore, defendant argues under Baker that his DWI offense may have been improperly used twice to convict him of the underlying offense and to enhance his sentence as a habitual offender.

|RAt the habitual offender hearing, the State introduced certified copies of the bills of information and minute entries for all of the alleged predicate convictions. The State also included the Boykin examination transcripts for the alleged predicate convictions under docket numbers 234782 and 434399. In addition, the State introduced certified copies of the bill of information, minute entry, and a preliminary examination transcript from defendant’s DWI conviction under docket number 322404. Defense counsel argued that the State failed to carry its burden in proving that defendant was a fourth-felony habitual offender, citing unsigned minute entries and a lack of transcripts for any of the prior convictions. After a brief recess for the trial court to examine the records, defense counsel admitted that the State’s submission did in fact contain two Boykin examination transcripts for defendant’s alleged predicate convictions. However, he maintained the argument that the State had not carried its burden due to the unsigned minute entries.

The trial court adjudicated defendant to be a third-felony habitual offender. From the record, it appears to have made this determination as a result of the Boykin examination transcripts included with respect to docket numbers 234782 and 434399. By defense counsel’s own admission at the habitual offender hearing, the only transcript included with the information for defendant’s DWI conviction under docket number 322404 was for a preliminary examination. Based on the trial court’s apparent rejection of those alleged predicates unaccompanied by Boykin examination transcripts and its determination that defendant was only a third-felony habitual offender, we conclude that the trial court did not use defendant’s DWI conviction under docket number 822404 to be a predicate conviction for the purposes of his habitual offender adjudication. Further, we find that the inclusion of this prior DWI conviction in defendant’s habitual offender bill of information served only to prove that the ten-year cleansing period under LSA-R.S. 15:529.1 had not 19elapsed due to defendant’s constant status as an inmate or parolee from September 28, 2000 until June 23, 2009.

This assignment of error is without merit.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

In his second and third counseled assignments of error, defendant raises alleged errors regarding his underlying sentence for fourth-offense DWI in the event that this court vacated his habitual offender sentence. Defendant’s second counseled assignment of error alleges that his underlying sentence is constitutionally excessive, and his third counseled assignment of error alleges that the trial court failed to articulate the appropriate sentencing factors under LSA-C.Cr.P. art. 894.1. Because we do not vacate defendant’s habitual offender sentence, we will not address these assignments of error.

PRO SE ASSIGNMENT OF ERROR

In his sole pro se assignment of error, defendant asserts that the district attorney made an improper remark during closing arguments by telling the jury that they would be breaking the law if they failed to find defendant guilty. Defendant asserts that this statement was taken out of, or not put into, the transcript. After a thorough review of the record, we find no evidence that such a statement was made by the district attorney during his closing arguments, and defendant has not supported this assignment of error with any evidence of wrongdoing.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction, habitual offender adjudication, and habitual offender sentence are affirmed.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND HABITUAL OFFENDER SENTENCE AFFIRMED.

      . The State alleged five predicate convictions in the bill of information, all of which were prior DWI convictions from St. Tammany Parish: 1) docket number 197322 — July 16, 1991 conviction date; 2) docket number 201454 — June 5, 1992 conviction date; 3) docket number 218860 — December 6, 1993 conviction date; 4) docket number 322404— September 28, 2000 conviction date; and 5) docket number 482123 — June 21,'2010 conviction date.

      .The habitual offender bill of information alleged the following predicate convictions: 1) a conviction for possession of cocaine in St. Tammany Parish under docket number 434339; 2) a conviction for forgery in St. Tammany Parish under docket number 395269; and 3) convictions in St. Tammany Parish for two counts of felony theft, one count of attempted burglary of a business and one count of felony theft, and one count of burglary under docket numbers 234782, 234784, and 234785, respectively.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Defendant’s other two prior alleged DWI convictions appear to have been for misdemeanors, so DPSC never housed or supervised defendant with respect to those convictions.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).