source: Caselaw Access Project

author:
      CLARK, Justice ’
     WEIMER, J.,

license: Public Domain

text:
    SOUTH LAFOURCHE LEVEE DISTRICT v. Chad M. JARREAU
    No. 2016-C-0788, No. 2016-C-0904
    Supreme Court of Louisiana.
    03/31/2017

      KELLY HART & PITRE, Loulan Joseph Pitre, Jr., Aimee Williams Hebert, Jane Allison Jackson, for Applicant (No. 2016-C-0788).
    SMITH & FAWER, LLC, Randall Alan Smith, Laura Tiffany Hawkins, Mary Nell Bennett, for Respondent (No. 2016-C-0788).
    SMITH & FAWER, LLC, Randall Alan Smith, Laura Tiffany Hawkins, Mary Nell Bennett, for Applicant (No. 2016-C-0904).
    KELLY HART & PITRE, Loulan Joseph Pitre, Jr., Aimee Williams Hebert, Jane Allison Jackson, for Respondent (No. 2016-C-0904).
   CLARK, Justice

11 Following Hurricanes Katrina and Rita, the Louisiana legislature in 2006 passed Act 853 and Act 567, which amended the laws governing compensation for levee servitude appropriations with a particular focus on appropriations for use in hurricane protection projects. We granted certiorari in this res nova matter for three purposes: 1) to interpret specific provisions of the 2006 amendments to La. Const. art. I, § 4, La. Const. art. VI, § 42, and La. R.S. 38:281(3) and (4); 2) to determine the amount of compensation that is due a property owner whose | gproperty is appropriated by a levee district pursuant to a permanent levee servitude for use in a hurricane protection project; and 3) to determine whether La. R.S. 38:301(C)(2)(f) or La. R.S. 13:5111 governs an award for attorneys’ fees in a levee servitude appropriation dispute.

For the reasons that follow, we conclude the 2006 amendments to La. Const, art. I, § 4, La. Const, art. VI, § 42 and 38:281(3) and (4) reduced, rather than eliminated, the measure of damages to be paid to a property owner for the taking of, or loss or damage to, property rights for the construction, enlargement, improvement, or modification of hurricane protection projects from “full extent of the loss” to the more restrictive “just compensation” measure required by the Fifth- Amendment to the United States Constitution, which is the fair market value of the property at the time of the appropriation, based on the current use of the property, before the proposed appropriated use, and without allowing for any change in value caused by levee construction. We further hold that La. R.S. 38:301(C)(2)(f) governs an award for attorneys’ fees in a levee appropriation dispute. Thus, we affirm the court of appeal judgment, in part, reverse, in part, and render.

FACTS AND PROCEDURAL HISTORY

On January 10, 2011, the Board of Commissioners of the South Lafourche Levee District (“Levee District’) adopted Resolution 11-01 (the “Resolution”), appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche, an area the Levee District had determined was susceptible to storm surge and flooding. The express purpose of the appropriation was to upgrade and increase the size of the existing permanent levee ^servitude for flood protection in the Larose to Golden Meadow, Louisiana, Hurricane Protection Levee Project area. The Resolution gave the Levee District the right to “construct, operate and maintain levees, berms, drainage or borrow canals or ditches and other flood control works including the right to cut away, dredge or remove soil or earth therefrom and for the deposit of same as may be necessary[.]”

Landowners that were affected by the appropriation of the permanent servitude were notified by letter dated the same date the Resolution was passed. In the letter, the Levee District advised the landowners that soon it would begin “removing earthen material” from the appropriated property and demanded that they “immediately cease and desist performing any and all activities upon the property as appropriated.” The letter further explained that state law required the Levee District to pay each affected landowner the fair market value for the appropriated property.

Chad M. Jarreau, a Lafourche Parish resident who owns a 17.1 acre tract of land (“Jarreau tract”) located partially within the appropriated area, received the letter. Jarreau’s home is situated on the front portion of the tract near Highway 3235, and he operates Bayou Construction & Trucking Co., L.L.C. (“Bayou Constouction”), a dirt excavation and hauling business, over the remainder of the tract. Only the rear portion of the Jarreau tract, which measures .913 acres and backs up to a canal, was within the Levee District’s appropriated permanent servitude.

Despite receiving the letter, Jarreau continued to excavate dirt from the appropriated area to satisfy contractual obligations for Bayou Construction. On May 19, 2011, the Levee District filed a petition to enjoin Jarreau from excavating] 4 and removing any more dirt from the appropriated servitude and sought monetary damages for the “wrongful” excavation. Shortly thereafter, Jarreau received a check from the Levee District in the amount of $1,326.69 as compensation for the full market value of appropriated property; he rejected the tender. In response to the Levee District’s petition, Jarreau filed an answer and reconventional demand, seeking compensation for the appropriated land, severance damages to the land, buildings, and improvements; economic and business losses; and general damages for mental anguish, loss of use, inconvenience, and loss of enjoyment; costs and statutory attorney fees. Bayou Construction later intervened in the suit as a plaintiff-in-recon-vention, seeking compensation for lost profits, legal interest, and costs arising from the appropriation.

Jarreau eventually stipulated to the Levee District’s request for a permanent injunction, and with his consent, the trial court entered an order prohibiting him from removing dirt “from the property subject to the Levee Servitude appropriated by way of [the Levee District’s resolution].” Following a bench trial on the remaining issues, the trial court rendered a judgment awarding the Levee District damages of $16,956.00 for the dirt excavated from the appropriated property. The trial court awarded Jarreau $11,869.00 as just compensation for the appropriated tract pursuant to La. R.S. 38:301(C)(l)(a) and Jarreau and Bayou Construction, in globo, $164,705.40 for economic and business losses, as well as attorneys’ fees pursuant to La. R.S. 38:301(C)(2)(f) in the amount of $43,811.85, expert witness fees of $26,490.95, costs of $2,350.00 and interest.

lnThe Levee District appealed, asserting for the first time that the 2006 amendments that added § 4(G) to La. Const. I and amended art. VI, § 42(A) eliminated a property owner’s right to compensation whenever property is taken for hurricane protection projects. Alternatively, the Levee District argued the 2006 amendments prohibited the trial court from including economic and business losses in an award for just compensation for property appropriated for hurricane protection levees. See La. R.S. 38:281(3) and (4). Jar-reau and Bayou Construction answered the appeal, seeking reversal of the wrongful excavation award and an increase in attorneys’ fees.

On appeal, the First Circuit, noting the 2006 amendments were never considered at trial, found the lower court erred, as a matter of law, in awarding Jarreau and Bayou Construction economic and business losses. South Lafourche Levee District v. Jarreau, 2015-0328, p. 15 (La.App. 1 Cir. 3/30/16), 192 So.3d 214, 226 & n.4 (2016). It then reviewed the record de novo, in light of the 2006 amendments, and determined the Levee District’s use of dirt from the Jarreau tract was a constitutional “taking” that required just compensation at fair market value. Id., 2015-0328 at 14, 192 So.3d at 225. Based on the evidence, the court found the fair market value of the property at the time of appropriation was $11,869.00. Id., 2015-0328 at 17, 192 So.3d at 228. The court of appeal reversed the portion of the judgment awarding Jarreau and Bayou Construction $164,705.40 in damages for economic and business losses associated with the appropriation. Id., court of appeal also reversed the award of $16,956.00 to the Levee District for Jar-reau’s wrongful excavation of the dirt, finding the evidence insufficient to support the loss. Id., 2015-0328 at 23, 192 So.3d at 232. Id., 2015-0328 at 18, 192 So.3d at 232.

Last, the court of appeal found the trial court erred in applying the 25% cap on attorneys’ fees award under La. R.S. 38:301(C)(2)(f) rather than awarding reasonable attorneys’ fees actually incurred under La. R.S. 13:5111(A). Jarreau, 2015-0328 at 24, 192 So.3d at 232. A majority of the court of appeal held that La. R.S. 13:5111(A) was the more specific statute. Id. Utilizing factors established by this Court, the court of appeal concluded that $142,551.50 was a reasonable amount for attorney fees actually incurred and added $5,000 for the appellate work. Id., 2015-0328 at 25-26, 192 So.3d at 233.

The Levee Board and Jarreau and Bayou Construction filed these consolidated writs seeking our review of the court of appeal’s judgment. The Levee Board raises two assignments of error: 1) the court of appeal erred by concluding the Levee District owes any compensation for the appropriation of the levee servitude, given the 2006 amendments; and 2) the court of appeal erred in awarding attorney’s fees based on La. R.S. 13:5111 rather than La. R.S. 1738:301(C)(2)(f). Jarreau and Bayou Construction, on the other hand, argue the court of appeal erred in determining the fair market value of the property and reversing the trial court’s award of $164,705.40 for the value of the appropriated dirt.

LAW AND DISCUSSION

“Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for the legislative intent.” Pierce Foundations, Inc. v. JaRoy Construction, Inc., 2015-0785, p. 6 (La. 5/3/16), 190 So.3d 298, 303 (citations omitted). 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 legislative intent. La. Civ. Code art. 9; La. Rev. Stat. 1:4; Succession of Boyter, 99-0761, p. 9 (La. 1/7/00), 756 So.2d 1122, 1128-29. However, when a statute is susceptible of more than one interpretation, the court must apply the one that achieves the legislature’s intent and best comports with the principles of reason and justice. Pierce Foundations, 2015-0785 at 7, 190 So.3d at 303; Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La. 1980). “The starting point for interpretation of any statute is the language itself.” Pierce Foundations, 2015-0785 at 7, 190 So.3d at 303 (citations omitted). Also, “‘all laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other.’ ” Id., quoting State v. Williams, 10-1514 (La. 3/15/11), 60 So.3d 1189, 1191; La. Civ. Code art. 13.

A helpful guide in ascertaining the intent of the legislature is the legislative history of the statute and related legislation. Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La. 5/20/97), 694 So.2d 184, 186. The Legislature is presumed to have |senacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the Legislature is presumed to have intended to change the law. Fontenot v. Reddell Vidrine Water Dist., 2002-0439, 2002-0442, 2002-0478, pp. 13-14 (La. 1/14/03), 836 So.2d 14, 24 (citing Folse v. Folse, 98-1976 (La. 6/29/99), 738 So.2d 1040 and New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La. 4/10/95), 653 So.2d 538).

Furthermore, where two statutes deal with the same subject matter, they should be harmonized if possible, as it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws. Oubre v. Louisiana Citizens Fair Plan, 2011-0097 (La. 12/16/11), 79 So.3d 987, 997, cert. denied, 567 U.S. 935, 133 S.Ct. 30, 183 L.Ed.2d 677 (2012). However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Id.

Whether Jarreau is owed compensation for property appropriated for hurricane protection purposes pursuant to La. R.S. 38:301, in light of the 2006 amendments to La. Const. art. I, § 4, La. Const. VI, § 42, and La. R.S. 38:281 (3) and (4), presents only a question of law; therefore, our review is de novo. See Pierce Foundations, 2015-0785 at 7, 190 So.3d at 303.

We turn now to language of the constitutional and statutory provisions at issue.

2006 Amendments

The limitations placed upon governmental takings of property are found in both the federal and state constitutions. The Fifth Amendment of the United States Constitution, made applicable to the states pursuant to the Fourteenth Amendment, ^provides: “No person shall ... be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” The definition of “just compensation” required by the Fifth Amendment has repeatedly been held to be measured by “the market value of the property at the time of the taking.” Horne v. Department of Agriculture, — U.S. —, 135 S.Ct. 2419, 2432, 192 L.Ed.2d 388 (2015) (quoting United States v. 50 Acres of Land, 469 U.S. 24, 29, 105 S.Ct. 451, 454, 83 L.Ed.2d 376 (1984)).

The Louisiana Constitution of 1974 provides for governmental takings of property in both article I, § 4, “Right to Property,” and article VI, § 42, “Compensation for Property Used or Destroyed; Tax.” Article I, § 4 provides for the expropriation of private property for public purposes while article VI, § 42 provides specifically for the appropriation of private property necessary for levee or levee drainage purposes. The difference between a Louisiana landowner’s protection against “appropriation of property necessary for levee and levee drainage purposes,” which is excepted from the protections of article I, § 4, and expropriation for any lawful purpose, arises from the particular nature of the levee servitude and the way in which it was traditionally exercised by public bodies:

The ownership of the lands used or destroyed for levee purposes remained in the riparian landowner, because the lands were not ‘expropriated’ but merely ‘appropriated’ for levee construction and the payment (authorized under the Constitution of 1921) was an indemnity for the public use.

Yiannopoulus, Civil Law Treatise (Property), V. 2, Section 88, P. 190 (3d ed. 1991). Appropriation, as opposed to expropriation, is carried out by a resolution of the appropriating authority, without the need for a judicial proceeding. See Richardson & Bass v. Board of Levee Commissioners, 226 La. 761, 77 So.2d 32 (1954). Furthermore, “[a]ppropriation involves the taking of a servitude, whereas expropriation may involve the taking of ownership.” Yiannopoulus, supra, at 190 n. 20. See also Delaune v. City of Kenner, 550 So.2d 1386 (La. App. 5 Cir.1989), writ denied, 553 So.2d 475 (La.1989). While compensation is mandated by the U.S. Fifth Amendment for expropriations, no compensation is required for levee appropriations. See Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896).

Prior to the effective date of the 2006 amendments, article I, § 4(B) provided:

Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.... In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss.” (Emphasis added.)

The phrase “compensated to the full extent of his loss” was a change in the law when it was added to the 1974 Constitution. It broadened the measure of damages in expropriation cases by requiring that an owner be compensated not only for the fair market value of the property taken and severance damages to the remainder, but also to be placed in an equivalent financial position to that which he enjoyed before the taking. See West Jefferson Levee District v. Coast Quality Const. Corp., 93-1718, p. 13, 640 So.2d 1258, 1271 n.20 (La. 1994). Full compensation pursuant to the 1974 Constitution included things like inconvenience and loss of profits from the takings of business premises so that landowners were compensated for their loss, not merely the loss of their land. Id.

In 2006, Act 853 amended La. Const, article I, § 4 to add § 4(G) to provide:

(G) Compensation paid for the taking of, or loss or damage to, property rights for the construction, enlargement, improvement, or modification of federal or non-federal hurricane protection projects, including mitigation related thereto, shall not exceed the \uCompensation required by the Fifth Amendment of the Constitution of the United States of America. However, this Paragraph shall not apply to compensation paid for a building or structure that was destroyed or damaged by an event for which a presidential declaration of major disaster or emergency was issued, if the taking occurs within three years of such event. The legislature by law may provide procedures and definitions for the provisions of this Paragraph. (Emphasis added.)

The addition of § 4(G) to Article I restricts compensation for the taking of, or loss or damage to, property rights necessary for hurricane protection projects to that required by the Fifth Amendment. Thus, an owner of private property taken for use in hurricane protection projects is no longer entitled to just compensation to the full extent of his loss.

Act 853 also amended La. Const, art. VI, § 42(A), governing the rights and obligations of levee districts, to impose the same restriction:

(A) Compensation. Notwithstanding any contrary provision of this constitution, lands and improvements thereon hereafter actually used or destroyed for levees or levee drainage purposes shall be paid for as provided by law. With respect to lands and improvements actually used or destroyed in the construction, enlargement, improvement, or modification of federal or non-federal hurricane protection projects, including mitigation related thereto, such payment shall not exceed the amount of compensation authorized under Article I, Section 4(G) of this constitution. However, nothing contained in this Paragraph with respect to compensation for lands and improvements shall apply to batture or to property the control of which is vested in the state or any political subdivision for the purpose of commerce. If the district has no other funds or resources from which the payment can be made, it shall levy on all taxable property within the district a tax sufficient to pay for property used or destroyed to be used solely in the district where collected. (Emphasis added.)

Louisiana R.S. 38:301, governing compensation for levee district appropriations, contains the following provision applicable when property is taken by way of a permanent levee servitude:

C. (l)(h) The measure of compensation for lands and improvements taken or destroyed for levee or levee drainage purposes by way of a | ^permanent levee servitude shall be the fair market value of the property taken or destroyed before the proposed use of the property or construction of the levee facilities, without allowing any change in value caused by the construction of the levee facilities.

Therefore, for land taken by way of a permanent levee servitude, as in Jarreau’s case, compensation is fair market value of the property taken or destroyed before the proposed use. See La. R.S. 38:301(C)(l)(h). The compensation for a permanent levee servitude applies to all lands, exclusive of batture, and improvements appropriated, taken, used, damaged, or destroyed for levee purposes. See La. R.S. 38:301(C)(l)(i).

The terms “fair market value” and “full extent of the loss,” as they pertain to levee districts, are defined in La. R.S. 38:281. Act 567 of 2006 amended and reenacted La. R.S. 38:281(3) and (4), to provide the following:

(3) “Fair market value” means the value of the lands or improvements actually taken, used, damaged, or destroyed for levees or levee drainage purposes as determined in accordance with the uniform criteria for determining fair market value as defined in R.S. 47:2321 et seq. Pursuant to Article 1, Section 4(G) and Article VI, Section 4.2(A) of the Constitution of Louisiana, such determination of fair market value shall not exceed the compensation required by the Fifth Amendment of the Constitution of the United States of America unless an exception as provided in Article I, Section 4(G) of the Constitution of Louisiana is applicable. (Emphasis added.)
(4) “Full extent of the loss” shall not be construed to include payment for uses which are remote, speculative, or contrary to law; uses for which the property is still suitable; or elements of property ownership which are not actually taken, used, damaged, or destroyed for levees or drainage purposes. Further, pursuant to Article 1, Section 4(G) and Article VI, Section 42(A) of the Constitution of Louisiana, payment for the full extent of the loss shall not exceed fair market value and shall not exceed the compensation required by the Fifth Amendment of the | iaConstitution of the United States of America unless an exception as provided in Article I, Section 4(G) of the Constitution of Louisiana is applicable. (Emphasis added.)

The second sentence in each of the above definitions was added by Act 567 and directs the court to look to La. Const, art. I, § 4(G) and La. Const, art. VI, § 42. Those two constitutional provisions now limit compensation to property owners whose land is taken, damaged, or destroyed for construction, enlargement, improvement, or modification of hurricane protection projects, to what is required by the Fifth Amendment.

The Levee District maintains that Jar-reau is not entitled to any compensation because the Fifth Amendment does not require compensation for an appropriation of a permanent levee servitude. Jarreau, on the other hand, contends that the 2006 amendments require the Levee District to compensate him, at the very least, the amount required by the Fifth Amendment or the fair market value of the property at the time of the taking for public use, ie. the date of the appropriating resolution. See La. R.S. 38:301(C)(l)(g).

After examining the 2006 amendments to La. Const, art. I, § 4, La. Const, art. VI, § 42, and La. R.S. 38:281(3) and (4), we find the terms “fair market value” and “full extent of the loss” in reference to “the compensation required by the Fifth Amendment” must be reconciled. Therefore, we will look to the legislative history of the laws governing levee servitudes to ascertain which of the following arguments is correct: the legislature intended to limit the compensation due a property owner whose property is appropriated by way of a permanent levee servitude for use in a hurricane protection project to the amount allowed by the Fifth Amendment, ie. the fair market value of the property at the time of the | utaking; or instead, the legislature intended to limit compensation to the amount allowed by the Fifth Amendment for an appropriation, ie. nothing.

History of the Louisiana Levee Servitude

Prior to the Louisiana Purchase, the sovereign governments of France and Spain included in their land grants both reservations of public servitudes over riparian land and onerous levee obligations requiring such owners to build levees and keep them in repair at their own expense under penalty of forfeiture. Dickson v. Board of Com’rs, 210 La. 121, 131-35, 26 So.2d 474, 477-80 (1946) (citing Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 347, 40 L.Ed. 490 (1896)). Under this regime, the riparian landowner bore the burden and expense of protecting all people and property from flooding. Dickson, 210 La. at 133, 26 So.2d at 478. The imposition of this obligation on private parties persisted even after the Louisiana Purchase. DeSambourg v. Board of Commissioners, 621 So.2d 602, 607 (La. 1993), cert. denied, 510 U.S. 1093, 114 S.Ct. 925, 127 L.Ed.2d 218 (1994). It was not until the mid-19th century that the practice changed due to the need for an efficient and cohesive statewide plan for flood protection. Id.; John W. Jewell, Civil Law Property-Levee Servitude-Civil Code Article 665, 27 La. L. Rev. 321, 328 (1967). The obligation to build and maintain levees was then shifted from the private landowner to the state government. The first levee district was formed in 1852, and since 1878, the construction, maintenance and supervision of the levee system has been a function of the government. Id.; 27 La. L. Rev. at 327.

Despite the shift in responsibility, riparian land remained burdened by a levee servitude. DeSambourg, 621 So.2d at 607. When the state assumed responsibility for levees, no right of action for compensation existed for lands appropriated pursuant to the levee servitude. Id. Recognizing the state’s existing bright, the United States Supreme Court in Eldridge noted “the riparian owner enjoys his property sub modo, i.e., subject to the right of the public to reserve space enough for levees, public roads and the like” and “never acquires complete dominion.” Eldridge, 16 S.Ct. at 347.

In 1898, the Louisiana legislature, for the first time, provided compensation to riparian landowners whose property was appropriated under the levee servitude. Id.; see also La. Const. of 1898, art. 312. However, the effect of this constitutional provision was limited to the jurisdiction of the Orleans Levee District and specifically exempted batture. See La. Const. of 1898, art. 312; Dickson, 210 La. at 135, 26 So.2d at 479. The Louisiana Constitution of 1921 provided compensation for the first time on a statewide basis to property owners whose lands, excluding batture, and improvements were used or destroyed for levee or levee drainage purposes. See La. Const. of 1921 art. XVI, § 6; see also John A. Lovett, Batture, Ordinary High Water, and the Louisiana Levee Servitude, 69 Tul. L. Rev. 561, 562 n.2 (1994). This provision entitled riparian landowners to receive up to “the assessed value of the preceding year” of the land taken and, for many years, was considered a “mere gratuity.” DeSambourg, 621 So.2d at 608 (citing Delaune v. Board of Comm’rs, 230 La. 117, 124, 87 So.2d 749, 753 (1956); see also 69 Tul. L. Rev. 561, 562 n.2.

The Louisiana Constitution of 1974 reaffirmed the levee servitude as a constitutional, legal servitude. See La. Const. art. VI, §§ 38-12. The new Constitution altered the measure of the riparian landowner’s compensation from the property’s “assessed value of the preceding year” to providing that for “lands and improvements ... actually used or destroyed for levees or levee drainage purposes [compensation] shall be paid as provided by law.” La. Const. art. VI, § |1(i42(A). Implementing the 1974 constitutional provision, the legislature increased compensation from “assessed value” to “fair market value to the full extent of the loss” for the actual taking of improvements and all lands, excluding batture. See La. R.S. 38:301, as amended by Acts 1985, No. 785; see also Acts 1978, No. 314 and Acts 1979, No. 676.

Although the Louisiana Constitution and state statutes require gratuitous compensation for levee servitude appropriations, courts have maintained that the Fifth Amendment does not mandate compensation. See, e.g., General Box Co. v. United States, 351 U.S. 159, 166-67, 76 S.Ct. 728, 100 L.Ed. 1055 1055 (1956) (appropriation of levee servitude did not constitute a taking within the meaning of the Fifth Amendment); DeSambourg, 621 So.2d at 606-08 (compensation is not constitutionally mandated in appropriation cases); Dickson, 26 So.2d at 477, 479 (constitutional due process requirements apply to expropriations but not to appropriations for levee purposes); Peart v. Meeker, 45 La. Ann. 421, 12 So. 490, 490 (1893) (no compensation is owed for appropriations for levee purposes); Vela v. Plaquemines Parish Government, 97-2608-97-2611, p. 3 (La. App. 4 Cir. 3/10/99), 729 So.2d 178, 181 (“there is no historical Fifth Amendment imperative to provide compensation in appropriation situations as opposed to expropriations”).

In 2006, Act 853 originated in the Senate as S.B. 27. The author of S.B, 27 testified before the Senate Judiciary Committee, Section A, that the substance and purpose of the bill was to propose constitutional amendments to limit compensation for the taking of property for use in hurricane protection and flood control projects and for levees and levee drainage purposes to that required by the Fifth Amendment to the U.S. Constitution. See Minutes of Meeting, pp. 5-7, Senate Committee on Judiciary, Section A, 2006 Regular Session, April 11, 2006, S.B. 27 (statement by Sen. R. Dupre). Also, the proposed legislation was in response to the recent decisions in Kelo v. City of New London, Connecticut and State, Pontchartrain Levee District v. St. Charles Airline Lands, Inc. Id. The proposed amendments were necessary to allow the state and local levee districts to obtain property for hurricane protection and flood control projects at reasonable costs in order to qualify for federal funding on those projects. Id. The proposed constitutional amendments were similar to those passed in 2003 in response to the exorbitant awards to oyster farmers and lessees for damages sustained as a result of coastal restoration projects. Id.

House Bill 450, the duplicate bill to S.B. 27, was presented to the House Committee on Transportation, Highways, and Public Works as a measure to provide for compensation for property taken for levee projects to conform to that allowed for then existing coastal restoration projects. The committee was informed that landowners were not in favor of the measure. One committee member asked whether treating property owners differently would be a deprivation |1sof due process. The committee was assured landowners were not being treated differently.

On May 1, 2006, H.B. 450 was presented to the House Civil and Procedure Committee for review of the proposed ballot language. The committee chairman emphasized the substance of the proposed constitutional amendments was to provide some relief to governmental entities that have to acquire levee right-of-ways to get them at more reasonable costs.

Act 567 of 2006 originated as S.B. 64.- Its duplicate, H.B. 451, was presented to the House Committee on Transportation, Highways, and Public Works as a measure related to compensation for property taken for levees. An amendment was offered to add the language “hurricane protection and flood control projects, including” to the bill; the amendment passed. After the vote, a committee member commented that the legislation would reduce property owners’ then existing rights under the state constitution.

When viewed from the historical perspective of the law and jurisprudence pertaining to levee servitudes, we conclude the 2006 amendments to La. Const, art. I, § 4, La. Const, art. VI, § 42, and La. R.S. 38:281(3) and (4) reduced, rather than eliminated, the measure of damages to be paid to the owner of property for the taking of, or loss or damage to, property rights for the construction, enlargement, improvement, or modification of hurricane protection projects from “full extent of the loss” to the more restrictive “just compensation” measure required by the Fifth 119Amendment, which is the fair market value of the property at the time of the appropriation, based on the current use of the property, before the proposed appropriated use, and without allowing for any change in value caused by levee construction.

Following the devastation caused by Hurricanes Katrina and Rita to Louisiana citizens and property, the legislature wanted to take all measures necessary to repair and restore the Louisiana coast, and to protect the State and its citizens from future hurricane and flood events. The ability of the state and local levee districts to protect life and property is directly impacted by its right-of-way acquisition costs, a major component of a hurricane and flood protection project’s overall cost. Given the “full extent of loss” provisions of the 1974 Constitution, the state and levee districts were faced with daunting expropriation or appropriation costs. The legislature had to take steps to contain those costs for Louisiana to qualify for federal funds for hurricane protection and flood control projects. While the legislature wanted to significantly reduce acquisition costs, it also sought to protect an owner’s right to compensation for the taking, loss or damage to, his property for use in hurricane protection projects. We find by amending La. Const, art. VI, § 42 to limit compensation for the appropriation of property for levee purposes to the amount required by the Fifth Amendment, and amending La. R.S. 38:281(3) and (4) to tie to the definitions of “fair market value” and “full extent of the loss” to La. Const, art. I, § 4(G), the legislature intended to preserve, yet restrict, the “gratuitous compensation” allowed for the appropriation of a levee servitude. If the legislature had intended to eliminate all compensation for an appropriation of a permanent levee servitude for a hurricane protection project, then it would have amended La. Const, art. VI, § 42 and La. R.S. 38:301 to |2ndo so. The fact that it did not suggests the legislature intended to treat property owners the same, allowing them compensation for the fair market value of their property whether it was expropriated or appropriated for a hurricane protection project.

Compensation

Based on our conclusion that the 2006 amendments entitle Jarreau to compensation for the taking of, loss or damage to, his property by way of a permanent levee servitude for a hurricane protection project, his compensation is limited to that required by the Fifth Amendment, which is the fair market value of the property at the time of the appropriation, which does not include loss profits and other severance damages.

The fair market value of property taken for public purposes is the price a buyer is willing to pay after he has considered all of the uses to which the property may be put, where such uses are not speculative, remote, or contrary to law. See West Jefferson Levee District, 93-1718 at 17, 640 So.2d at 1273. The current use of the property is presumed to be the highest and best use. Id. at 20, 640 So.2d at 1275.

The record indicates that at the time of the appropriation in January 2011, Jarreau was using the Jarreau tract for excavating dirt for Bayou Construction’s contracts. Bennet Oubre, Jarreau’s expert real estate appraiser, determined the fair market value of the appropriated portion of the Jar-reau tract on the January 10, 2011, was $11,869.00, without any consideration for loss profits related to the value of the dirt. Oubre concluded that the highest and best use of the appropriated portion, as well as the entire 17.1 acres, was the current use as a “dirt pit” operation. He classified the property as a mixed-use tract on the date of | ⅞1 appropriation, for both commercial/industrial and residential purposes. Oubre also determined that the Levee District’s appropriation of the permanent levee servitude was paramount to a complete deprivation of any use of the remaining Jarreau tract, concluding that there was no reasonable use left for the tract after the appropriation.

Martin Glynn, the Levee District’s expert real estate appraiser, testified the Jarreau tract had a fair market value of $1,820.00. Glynn used a standard mathematical approach to get the contributory value of the Jarreau tract, concluding that the rear part of Jarreau’s property was not as valuable as the front portion along the highway. He stated that there was no sales data on which to base a valuation for the rear acre of property, and the appropriated portion of the Jarreau tract had no real value as a stand-alone tract since it was cut off from highway access. Glynn also found that the highest and best use of the property was multi-use, combining residential, pastureland, and commercial. He determined that the front two acres of the Jarreau tract were the most marketable and the overall value of the entire tract was $11,500.00 per acre.

William J. Pousson, the Levee District’s other expert real estate appraiser, appraised the appropriated part of the Jar-reau tract at $1,301.00 to $1,425.00, based on comparable properties. Pousson estimated the entire Jarreau tract to be worth $13,000.00 per acre, but he testified that the appropriated rear portion was not as valuable as the remaining tract due to the lack of highway and utility access. Pousson determined the appropriated portion had a different highest and best use (dirt pit) than the remainder of the Jarreau tract (residential/commercial).

When further questioned, Oubre explained the difference in his valuation analysis and why he did not separate the rear portion of the Jarreau tract when he |22valued the property. He looked at the property as a whole, and disagreed with the approach taken by the other appraisers, because the Jarreau tract was not cut off from highway and utility access until after the appropriation and there were no comparable sales where the rear portion of the tract had been cut off. Oubre maintained that his valuation of the entire property at $13,000.00 per acre was very similar to the other appraisals, and opined the amount was correct based on comparable data for sales of the whole property.

After x'eviewing the record, we find the value of Jarreau’s property to be $13,000.00 per acre. We also find that Ou-bre’s method of valuing the entire property without allowing for any change in value caused by the appropriation was correct in light of the statutory measure of compensation for land taken by way of a permanent levee servitude. See La. R.S. 38:301(C)(l)(h). Since the appropriated portion was less than an acre, we accept Oubre’s valuation of $11,869.00, as of the date of the appropriation. We will affirm the court of appeal judgment insofar as it awarded Jarreau $11,869.00, less the amount previously tendered by the Levee District, plus interest from the date of the appropriation.

Jarreau relies on the cases of Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949) and National Food & Beverage Co., Inc. v. United States, 105 Fed.Cl. 679 (Fed. Cl. 2012) to argue that the Levee District owes him compensation for the value of his excavating business. We find no merit to this argument.

In Kimball Laundry, the federal government took temporary possession of the Kimball laundry facility to clean military uniforms during World War II, and, as a result, the laundry could not service its customers for the duration of the | ^taking, three and one-half years. 338 U.S. at 3, 69 S.Ct. 1434. The Supreme Court found the taking of the laundry facility “completely ... appropriated the laundry’s opportunity to profit” from its established customer base for the duration of the occupation, leaving the laundry with far fewer customers when the property was eventually returned. Id. at. 14, 69 S.Ct. 1434. Because the goal of the Takings Clause is to make the dispossessed property owner whole, the Court held the government had to compensate Kimball Laundry for damage to its earning power, customer base and goodwill. Id. at 16, 69 S.Ct. 1434.

In National Food, the issue was whether the plaintiff had a compensable property interest in the borrow material (clay) located on its Louisiana property taken for levee purposes by the U.S. Army Corps of Engineers. 105 Fed.Cl. at 700. The court determined that where the highest and best use of the property is as a borrow pit, the fair market value for that property may include the price per cubic yard of the clay removed from the landowner’s property for hurricane levee repair. Id. (citing United States v. 22.80 Acres of Land, More or Less, 839 F.2d 1362, 1364 n.2 (9th Cir. 1988) (approving a cubic-yard basis of compensation where “the government is taken the [material] itself, [and] not the overlying parcel of land”)).

Jarreau’s case is distinguishable from Kimball Laundry and National Food. Here, unlike in Kimball Laundry, the Levee District did not take Jarreau’s business. The dirt’s value in this case is subsumed in the value of the surface, and it is only after extraction and delivery to another location that the dirt has additional value. Moreover, no evidence in the record indicates that the dirt from Jarreau’s property is of such high quality or has remarkable attributes that once he is compensated for surface, he cannot find another site to extract dirt and undertake his dirt hauling operations. National Food did not involve a levee servitude 1 ¡.¿appropriation where the government had a pre-existing right to the landowner’s property. Rather the property was taken via a commandeering order issued by the Plaquemines Parish president under the authority of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, and the “taking” occurred in 2006 before the effective date of the amendments. Thus, we agree with the First Circuit’s reversal of the damages award to Jarreau and Bayou Construction for economic and business losses, and will affirm its judgment in that regard.

Attorneys' Fees

We now consider whether the court of appealed erred in reversing the trial court and awarding Jarreau attorneys’ fees pursuant to La. R.S. 13:5111. Both the trial court and court of appeal acknowledged two statutes address attorneys’ fees in appropriation cases. La. R.S. 13:5111, provides:

A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding, Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.

Additionally, La. R.S. 38:301(C)(2)(f) provides:

Reasonable attorneys’ fees may be awarded by the court if the amount of the compensation found to be due by the state, the levee board, or the federal government is less than the amount of compensation awarded in any judgment seeking additional compensation. The attorneys’ fees shall not exceed twenty-five percent of the difference | ¾,-¡between the award and the amount found to be due by the state, the levee board, or the federal government.

Although La. R.S. 13:5111 applies generally to all cases where property is “taken” for any purpose by any method other than expropriation, La. R.S. 38:301(C)(2)(f) is tailored specifically to matters involving the taking, use, damage, or destruction of property for levee purposes pursuant to La. R.S. 38:301, as in this case. The rules of statutory construction dictate that La. R.S. 38:301(C)(2)(f) should prevail as the exception to the general rule provided by La. R.S. 13:5111.

Finally, we find no merit to Jarreau’s argument that if a conflict does exist, the statutes can be read in pari materia to mean that La. R.S. 13:5111 merely adds to the amount of attorneys’ fees recoverable. Such an interpretation would render the explicit legislative cap found in La. R.S. 38:301(C)(2)(f) meaningless. We find the court of appeal erred in awarding attorneys’ fees based on La. R.S. 13:5111 and, thus, reverse that part of the judgment. Applying La. R.S. 38:301(C)(2)(f), we find Jarreau is entitled to attorneys’ fees in the amount of $2,635.57.

DECREE

Accordingly, for the above reasons, the judgment of the court of appeal is reversed, in part, insofar as it awarded Jar-reau and Bayou Construction attorneys’ fees of $142,551.50. All other portions of the court of appeal judgment are affirmed. We hereby render judgment in favor of Jarreau and Bayou Construction and against the Levee District for attorneys’ fees in the amount of $2,635.57.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

WEIMER, Justice, additionally concurs and assigns reasons.

HUGHES, Justice, dissents and assigns reasons.

CANNELLA, Justice pro tempore, additionally concurs with the reasons of Justice Weimer.

WEIMER, J.,

additionally concurring.

hi write to emphasize that this case illustrates the infinitely delicate and difficult balance that the citizens and legislá-ture have confected between providing levee protection and recognizing private landowner rights.

The levee system in the southern portion of Lafourche Parish exists for storm protection and to limit salt water intrusion from the Gulf of Mexico. South Lafourche and the surrounding areas are at the epicenter of some of the most significant losses of land in the world. As the people of South Lafourche long ago recognized, much of their land was disappearing at an alarming rate and waters from the gulf were increasingly intruding on the land that remained. Where crops were grown, cattle grazed, and loved ones were buried only a generation or so ago, the land is now covered by water. If nothing was done, their homesteads, businesses, and the ^incredibly unique culture and way of life in South Lafourche would all be lost. The resilient citizens of South Lafourche boldly took steps to tax themselves and construct a levee system to preserve what was precious to them from being lost to the encroaching waters.

The rights of landowners in the southern portion of Lafourche Parish, as in the entire state, are afforded legal protections. The 2006 constitutional and statutory amendments described in the majority opinion are designed to allow the construction and maintenance of levee systems in a way that provides the protection levees afford, while limiting intrusion on landowners’ rights. As the situation here demonstrates, a portion of the landowner’s property is being used for levee maintenance, and although historically it could be argued no compensation was owed for such a project even dating back to the time before Louisiana became a state, under the 2006 statutes, the levee district must now compensate the landowner in the amount of fair market value.

Without such levee projects in the southern part of Lafourche Parish, if the trend of coastal land loss continues, there would eventually be little or no private land to protect. While the public policy of this state is ultimately established by its citizens and legislature, the manner in which the 2006 constitutional and statutory amendments have operated in this case suggests that a balance now exists between the public’s need for levee protection and the protection of landowners’ rights.

Hughes, J., dissents and assigns reasons.

11 Defendant is in the dirt business and owns land from which he digs and sells dirt. The government is entitled to “appropriate” defendant’s land, but must pay him fair compensation mandated by the Constitution. This court affirms an award of $11,869 despite evidence in the record that the dirt taken from the land has a value in excess of $100,000. Even if the most restrictive measure of compensation is applied, this value should be considered in determining the award to defendant. When the government can take private property without paying the landowner, something is wrong.

       Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J., for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

       Retired Judge James L. Cannella assigned as Justice pro tempore, sitting for Guidry, J., who was recused.

      . Acts 2006, No. 853, effective October 31, 2006, among other things, amended La. Const, art. I, § 4 to add § 4(G), and also amended La. Const, art. VI, § 42(A) to limit compensation for the appropriation of property for levee purposes to the amount required by the Fifth Amendment to the United States Constitution.

      . Acts 2006, No.567, effective October 31, 2006, among other things, amended La. R.S. 38:281(3) and (4) and enacted La. R.S. 38:249 and La. R.S. 49:213.10(D) to tie the definitions of "fair market value” and "full extent of the loss” to La. Const. art. I, § 4(G), thereby limiting compensation for appropriations of property for hurricane protection projects to that required by the Fifth Amendment to the United States Constitution. Louisiana R.S. 38:249 and La. R.S. 49:213.10(D) were later repealed by Acts 2009, No. 523, § 7 and § 8, respectively, effective July 10, 2009. The substance of former La. R.S. 49:213.10(D) is now found in La. R.S. 49:214.5.6, which was added by Acts 2009, No. 523, § 3, effective July 10, 2009, and provides for “[m]easure of compensation; property taken for public purposes; venue.”

        .South Lafourche Levee District v. Jarreau, 2016-00904 (La. 9/6/16), 204 So.3d 998 and South Lafourche Levee District v. Jarreau, 2016-0788 (La. 9/6/16), 205 So.3d 919.

      . The trial court gave the Levee District credit for the $1,326.99 it previously tendered to Jarreau, for a total award of $10,542.01 for the Jarreau tract.

      . Judge Crain disagreed with the majority’s interpretation of the 2006 amendments that landowners are owed no compensation for the State’s appropriation of their land for levee purposes, unless the appropriation is also a constitutional taking. He interpreted the amendments as simply changing the measure of damages from "full extent of the loss” to the more restrictive "just compensation” required by the Fifth Amendment. See Jarreau, 2015-0328, 192 So.3d 214, 234-35 (Crain, J., concurring in part).

      . The Levee District did not seek review of the part of court of appeal judgment reversing the damage award for Jarreau’s wrongful excavation of dirt from the appropriated property.

      . Judges Guidry and Crain dissented, finding R.S. 38:301(C)(2)(f) was applicable as the more specific statute for awarding attorneys’ fees in an appropriation for levee purposes. See Jarreau, 2015-0328, 192 So.3d 214, 234-35 (Guidry, J., dissenting in part and Crain, J., dissenting in part).

      . See State, Dep't of Transp. and Development v. Williamson, 597 So.2d 439, 442 (La. 1992) (determining the reasonableness of attorneys’ fees award include: (1) ultimate result obtained; (2) responsibility incurred; (3) importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and (10) court's own knowledge).

      . In his opposition to the Levee District’s writ application, Jarreau claims the Levee District did not prove the riparian nature of the appropriated property. However, Jarreau failed to contest the validity of the appropriation by filing a verified petition in the Seventeenth Judicial District Court of Lafourche Parish within sixty (60) days after the adoption of the appropriating resolution as required; thus, he is barred from asserting any right or claim contesting the appropriation, except for a claim for compensation in accord with La. R.S. 38:301(C)(2)(h)(ii). See La. R.S. 38:301 (C)(4)(a).

      . The Levee District neither raised this issue nor challenged the constitutionality of the 2006 amendments in the district court.

      . See Kelo v. City of New London, Conn., 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (Supreme Court held that the city of New London’s proposed development plan to revitalize an economically distressed city, in-eluding its downtown and waterfront areas, qualified as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.).

      . See State, Pontchartrain Levee District v. St. Charles Airline Lands, Inc., 03-1292, 03-1293, 04-20 (La.App. 5 Cir. 4/27/04), 871 So.2d 674, writ denied 2004-1552 (La. 10/1/04), 883 So.2d 992 (landowner was awarded a total of $3,068,420.50 in compensation for wetlands property expropriated for use in a hurricane protection project despite the property having a total fair market value of only $66,830.00 when expropriated).

      . See Acts 2003, No. 652 (amended and reenacted R.S. 49:214.5, requiring the State to be held harmless for coastal restoration projects); see also Acts 2003, No. 1295 (Joint resolution submitting an amendment to La. Const. article I, § 4 for popular vote; the amendment allowed the legislature to limit the extent of recovery for “takings” or damages due to coastal restoration projects.); see also Acts 2003, No. 583 (enacting La. R.S. 49:213.9 to limit the recovery for property taken or affected by coastal restoration activities).

      . See Minutes of Meeting, pp. 3-4, House Committee on Transportation, Highways, and Public Works, 2006 Regular Session, April 25, 2006, H.B. 450.

      . See House Civil Law and Procedure Committee, May 1, 2006, 2006 Regular Session (La. 2006); http://liouse.louisiana.gov/Hse Video Requested, aspx.

      . See Minutes of Meeting, p. 5, House Committee on Transportation, Highways, and Public Works, 2006 Regular Session, April 25, 2006, H.B. 451.

      . The Pacific Legal Foundation and the National Federation of Independent Business Small Business Legal Center filed an amici curiae brief in support of Jarreau on this issue.

      . ($11,869.00-$!,326.69) x ,25 = $2,635.57.

      . According to the levee districts website: "Our Goal is.. .to provide, within our district, the highest possible level of protection from flooding due to high tides, heavy rain falls, tropical storms and hurricanes for the safety and well[-]being of the community of South Lafourche, http://www.slld.org/ (last visited 3/23/17).

      . See USGS map: 100+ Years of Land Change for Coastal Louisiana (Sept. 28, 2015) at https://lacoast.gov/new/Pubs/Map_data/ 20031andlossl lX17.pdf.


author: PER CURIAM

text:
    IN RE: James E. MOORMAN, III
    NO. 2017-B-0431
    Supreme Court of Louisiana.
    04/24/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James E. Moorman, III, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in October 2013. In re: Moorman, 13-2430 (La. 10/21/13), 128 So.3d 268.

UNDERLYING FACTS AND PROCEDURAL HISTORY

By way of background, the misconduct at issue in this proceeding occurred over a three-month period of time in 2013, while respondent was experiencing severe depression. In August 2013, members of the judiciary and friends in the legal community conducted an intervention. Thereafter, respondent was admitted to the Ridgeview Institute (“Ridgeview”) for inpatient treatment. During his treatment, respondent contacted the Judges and Lawyers Assistance Program (“JLAP”) and voluntarily surrendered his law license. Following his initial treatment for depression, respondent was transferred to the inpatient addiction program at Ridgeview, where he remained until he was discharged in December 2013. He discontinued his contract with JLAP in November 2013.

lain December 2015, the ODC filed eleven counts of formal charges against respondent. Respondent answered the formal charges and admitted much of his misconduct, but asserted that numerous mitigating factors were applicable. Prior to a hearing on the formal charges, respondent and the ODC stipulated to ten counts of the formal charges. The stipulation includes the following facts and rule violations:

The Spell Matter

Respondent stipulated that Adrian Spell paid him $5,000 to handle a child custody matter. Respondent’s office accepted an additional payment of $1,000 in September 2013, although it was understood that respondent would likely be out of practice due to his interim suspension. Mr. Spell had to retain other counsel. Respondent acknowledged that he failed to zealously prosecute Mr. Spell’s case and that Mr. Spell is entitled to a full refund of unearned fees. Respondent also acknowledged his responsibility for the actions of his office staff, who, in his absence, accepted payment from Mr. Spell. The funds paid by Mr. Spell remain unaccounted for. Respondent has since made full restitution to Mr. Spell.

Respondent stipulated that his conduct in the Spell matter violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.15 (safekeeping property of clients or third persons), 1.16 (obligations upon termination of the representation), 5.3 (failure to properly supervise a non-lawyer assistant), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

| ¿The Meaux Matter

Respondent stipulated that in June 2013, Harris Meaux hired him to handle a custody and child support matter, for which he was paid a $3,500 deposit. Thereafter, respondent performed little to no services in the matter. Respondent acknowledged that he failed to zealously prosecute the case. Respondent also acknowledged that he converted the funds paid to him by Mr. Meaux.

Respondent stipulated that his conduct in the Meaux matter violated Rules 1.3, 1.15, 1.16, and 8.4(a) of the Rules of Professional Conduct.

The Scholl Matter

Respondent stipulated that in August 2013, he was hired by Courtney Ann Scholl to represent her in connection with DWI and possession of marijuana charges, for which he was paid $1,250. Thereafter, respondent performed little to no services in the matter. Respondent acknowledged that he failed to zealously prosecute the case. Respondent also acknowledged that he converted the funds paid to him by Ms. Scholl. He has since made full restitution to Ms. Scholl.

Respondent stipulated that his conduct in the Scholl matter violated Rules 1.3, 1.15,and 1.16 of the Rules of Professional Conduct.

The Jenkins Matter

Respondent stipulated that he was retained to represent Donald Jenkins in a community property partition action that had been pending for many years. Respondent was paid $3,500 to handle the matter and represented Mr. Jenkins through trial. Thereafter, respondent failed to follow up on the preparation of a qualified domestic relations order. Although he did not have billing records in the matter, respondent agreed that $474.07 of Mr. Jenkins’ payment remained unearned. Respondent has since made full restitution to Mr. Jenkins.

| ¿Respondent stipulated that his conduct in the Jenkins matter violated Rules 1.3, 1.15,and 1.16 of the Rules of Professional Conduct.

The George Matter

Respondent stipulated that in August 2013, Edwin George paid him $3,500 to represent him in a divorce instituted by his wife. Respondent admitted that he neglected the matter, noting that although he prepared an answer to the petition, nothing was ever filed. Respondent testified that he converted at least $3,200 in connection with this matter.

Respondent stipulated that his conduct in the George matter violated Rules 1.3, 1.15,1.16, 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

The Dufrene Matter

Respondent stipulated that Michael Du-frene hired him to handle his divorce, for which he was paid $1,000. While he did not have billing records in the matter, respondent agreed that $520 of Mr. Dufrene’s payment remained unearned. Respondent acknowledged that he neglected the matter and converted the unused portion of the fee. He has since made full restitution to Mr. Dufrene.

Respondent stipulated that his conduct in the Dufrene matter violated Rules 1.3, 1.15,and 1.16 of the Rules of Professional Conduct.

The Thompson Matter

Respondent stipulated that in August 2013, he was hired by Audley Joseph Thompson to handle a child custody matter, for which he was paid $2,000. Before respondent began to perform any work, Mr. Thompson was advised to retrieve his file as respondent could no longer handle the matter. Respondent admitted that he | ¡^converted the $2,000 paid by Mr. Thompson and did nothing in connection with the representation. He has since made full restitution to Mr. Thompson.

Respondent stipulated that his conduct in the Thompson matter violated Rules 1.3, 1.15,and 1.16 of the Rules of Professional Conduct.

The Phillips Matter

Respondent stipulated that in March 2012, he was hired by Dale Phillips to settle a community property matter, for which he was paid $1,500. Respondent acknowledged that he failed to zealously prosecute the case and misused the funds he received. During respondent’s absence, his non-lawyer assistants placed all monies received into his operating account, rather than his trust account. He has since made full restitution to Mr. Phillips.

Respondent stipulated that his conduct in the Phillips matter violated Rules 1.16, 5.3, and 8.4(a) of the Rules of Professional Conduct.

The Rollman Matter

Respondent stipulated that in January 2013, he was retained by Clay Rollman to handle a divorce and child custody matter, for which he was paid a total of $6,000. Subsequent to the divorce, which was completed, Mr. Rollman continued to experience problems with his ex-wife, who repeatedly violated the custody agreement. Respondent advised that a rule for contempt should be filed, but he did not represent Mr. Rollman zealously on this issue. Respondent acknowledged that $1,000 of the funds he received were not properly utilized, but noted that he was not in the office when the balance of $802.79 was misapplied. During his absence, respondent’s non-lawyer assistants placed all monies received into his operating account, rather than his trust account. He has since made full restitution to Mr. Rollman.

| (¡Respondent stipulated that his conduct in the Rollman matter violated Rules 1.3, 1.15, 1.16, and 5.3 of the Rules of Professional Conduct.

The Brmm Matter

Respondent stipulated that in April 2013, Shirley Ann Brown paid him $2,500 to represent her in a divorce proceeding. Respondent admitted that a balance of $1,685.31 was owed to Ms. Brown for unearned fees and that this unused portion was not refunded to Ms. Brown. During his absence, respondent’s non-lawyer staff placed monies received into his operating account, rather than his trust account. In October 2015, respondent tendered a payment of $100 to Ms. Brown, and he continues to make monthly restitution payments to her.

Respondent stipulated that his conduct in the Brown matter violated Rules 1.3, 1.15, 1.16, 5.3, 8.4(a), and 8.4(d) of the Rules of Professional Conduct.

Formal Hearing

The hearing committee conducted a formal hearing in June 2016. During the hearing, the committee heard testimony concerning the events leading up to respondent’s depression, including the death of his grandfather in 2012 and the death of his grandmother in January 2013; his close friend’s cancer diagnosis in 2011, treatment in 2012, and death in 2013; his 50th birthday; the termination of the partnership with his law partner in 2012; and a personal toxic relationship which began in January 2013.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the joint stipulation of facts and rule violations filed by the parties. The committee also made the following additional findings:

17Pr. Brian Murphy, a licensed psychologist who evaluated respondent, stated that during his depression, respondent was able to discern right from wrong, but since he was so preoccupied with his misery, his judgment was impaired and his thinking was off-centered. In 2014, respondent had another major depressive episode which was of shorter duration and did not require hospitalization. In Dr. Murphy’s opinion, the two depressive events were caused by outside sources and situations, rather than by a chemical depression. There was no evidence presented of any other major depressive episodes since the 2014 episode.

Respondent testified that during his depression, he was not thinking about the effects of his actions. Respondent stated that he would just write checks so that his office manager would stop bothering him for checks. Respondent testified that the 2014 episode was triggered by the result of the disciplinary complaints being made against him for his misconduct. Respondent testified that he received therapy after his impatient stay at Ridgeview, although no reports from any counselor or therapist were introduced as evidence. The committee found insufficient evidence to establish that respondent had a gambling problem or that substance abuse had any bearing on the violations or on his depression.

Prior to his depression, respondent was a caring and committed lawyer who worked hard for his clients. Many loyal clients and professional colleagues vouched for his good character as a person and for his skill as a lawyer.

Respondent presently works as a paralegal. Two of his employers testified about his work following his treatment at Ridge-view. They had known respondent for many years and chose to work with him after his treatment. Both testified that he was a diligent and hard worker and that he did not exhibit the behaviors they saw in him just prior to his 2013 treatment. Neither employer had any issues or problems with his work product or work ethic while he was in their employment. In their view, respondent has been an exemplary employee.

|sThe committee determined respondent violated duties owed to his clients by neglecting their cases and by failing to return unearned fees. These actions also violated respondent’s duties to the legal system, the public, and the legal profession. His misconduct caused actual injury to multiple clients, particularly in his conversion of client funds and his failure to supervise his staff. Respondent has made restitution to some clients, but not all converted funds have been repaid.

In aggravation, the committee found multiple offenses, all of which took place within a relatively short period of time, and substantial experience in the practice of law (admitted 1991). In mitigation, the committee found the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, full and free disclosure to the disciplinary board, character or reputation, mental disability when the disability caused the misconduct, and remorse. The committee noted that while respondent testified that he was making restitution to rectify the consequences of his misconduct, and the ODC stipulated that he had made restitution to some clients, there was no evidence presented about the timeliness of the restitution or payments made for partial or full restitution.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for three years.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual findings of the hearing committee are not manifestly erroneous and are supported by the stipulations of the parties and the evidence in the record. The board also | ^determined that the Rules of Professional Conduct were violated as set forth in the joint stipulation submitted by the parties.

The board determined respondent knowingly violated duties owed to his clients by neglecting their legal matters, by failing to promptly return unearned fees, and by converting client funds. These actions also violated duties owed to the legal profession and the public. Respondent caused actual harm by delaying the resolution of his clients’ legal matters and by depriving them of their funds. His neglect of client matters also created the potential for further harm. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is disbarment.

The board agreed with the aggravating factors found by the committee. In mitigation, the board found the absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse.

The board agreed with the committee in recognizing the mitigating factor of mental disability. The ODC did not challenge this finding. Expert testimony and documentary evidence established that respondent was clinically depressed when the misconduct occurred, and the evidence supports that this mental disability |1ncaused his misconduct. Dr. Murphy testified that it was reasonable to conclude that respondent’s depression caused his misconduct, and, in his opinion, respondent’s mental disorder was an explanation for the misconduct. All of the misconduct occurred over a three to four-month time period, and respondent had no history of engaging in such behavior. Respondent quickly sought treatment for his severe depressive episode once confronted by friends and colleagues.

After reviewing prior jurisprudence involving similar misconduct, and considering the mitigating factors, the board recommended respondent be suspended from the practice of law for three years, retroactive to the date of his interim suspension. The board also recommended respondent be ordered to make restitution to his clients and/or the Client Assistance Fund. The board further recommended that respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La. 11/26/96), 683 So.2d 714; In re: Pardue, 93-2866 (La. 3/11/94), 633 So.2d 150.

InRespondent has stipulated that he engaged in professional misconduct, including the neglect of his clients’ legal matters, failure to refund unearned fees, and failure to properly supervise his non-lawyer staff. In doing so, respondent has violated the Rules of Professional Conduct as set forth in the joint stipulation submitted by the parties. Therefore, the sole question presented for our consideration is the appropriate sanction for this misconduct,

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

The record supports a finding that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. His misconduct was grossly negligent, if not knowing, and caused actual harm. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La. 1986), the court set forth guidelines for imposing discipline in a conversion case:

In a typical case of disbarment for violation of [Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of | ^negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.

Hinrichs, 486 So.2d at 122-123 (citations omitted).

Applying the guidelines of Hinrichs, we agree that the appropriate sanction in this case is a three-year suspension. Respondent’s misconduct occurred over a period of three months, during- a time that he was severely depressed. There is no indication that respondent acted in bad faith or that he intended a, result inconsistent with his clients’ interests. As soon as he was confronted by friends and colleagues about his behavior, respondent sought treatment and self-reported his misconduct to the ODC. Although he has not made complete restitution, respondent has made and continues in good faith to make payments to his former clients and the Louisiana State Bar Association’s (“LSBA”) Cli&it Assistance Fund.

This sanction is further supported by our decision in In re: Scott, 09-2364 (La. 4/5/10), 32 So.3d 789, wherein we imposed a three-year suspension upon an attorney who converted more than $50,000 of his client’s workers’ compensation | ^settlement funds to his own use during a time of extreme stress when his wife was diagnosed with uterine cancer and while he and his son were suffering from shoulder problems. We determined that the attorney had acted intentionally and committed a dishonest act by misleading his client as to the status of his settlement funds; however, there were several mitigating factors present.

Based on this jurisprudence, and in light of the compelling mitigating factors present, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for three years, retroactive to October 21, 2013, the date of his interim suspension. We will also order respondent to pay restitution to his clients and/or to reimburse the LSBA’s Client Assistance Fund as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that James E. Moor-man, III, Louisiana Bar Roll number 20528, be and he hereby is suspended from the practice of law for a period of three years, retroactive to October 21, 2013, the date of his interim suspension. It is further ordered that respondent shall make restitution of any unearned fees to his clients subject of the formal charges and/or reimburse the Louisiana State Bar Association’s Client Assistance Fund, as applicable. 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.

      . The remaining count of misconduct stemmed from a disciplinary complaint filed by Gerald Dahlem, wherein he alleged respondent neglected his legal matter and failed to return the unearned portion of his fee. Respondent denied any misconduct in connection with Mr. Dahlem’s complaint. Following the formal hearing in this matter, the hearing committee found no misconduct related to the Dahlem complaint. The disciplinary board agreed with this finding, and the ODC did not object to the committee’s finding in any respect. Therefore, we will make no further reference to the Dahlem matter in this opinion.

      . In order to prove the mitigating factor of mental disability, ABA Standard 9.32(i) provides the lawyer must prove the following four factors by clear and convincing evidence: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. See In re: Stoller, 04-2758 (La. 5/24/05), 902 So.2d 981.
      The commentary to Standard 9.32 emphasizes the "careful analysis” that is required in considering issues of mental disability offered as mitigating factors in disciplinary proceedings, and that "direct causation between the disability" and the misconduct must be established. The commentary further discusses the weight to be assigned to this factor, indicating that "the greatest weight” should be assigned when the disability is the sole cause of the offense. If the disability is the principal cause of the offense, it should be given "very great weight”; if it is a substantial contributing cause of the offense, it should be given “great weight.” In all other cases in which the disability is considered as mitigating, the commentary indicates it should be given "little weight.”


text:
    IN RE: Mark Anthony JOHNSON
    NO. 2017-B-0262
    Supreme Court of Louisiana.
    04/24/2017

      ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

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

FORMAL CHARGES

Count I—The Unauthorized Practice of Law Matter

In July 2013, respondent secured employment as a staff attorney with the Louisiana Department of Transportation and Development (“DOTD”). On May 31, 2014, respondent was declared ineligible to practice law for failure to comply with mandatory continuing legal education (“MCLE”) requirements. On September 9, 2014, he was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment and for failure to file his trust account registration statement. Respondent nevertheless continued to work as an attorney for the DOTD and engaged in the practice of law during his period of ineligibility. Thereafter, the legal division of the DOTD filed a complaint against respondent with the ODC.

Count II—The DWI Matter

|2Puring its investigation of the aforementioned matter, the ODC learned that respondent had been arrested in Orleans Parish on August 22, 2012 for driving while intoxicated. During his sworn statement, respondent acknowledged that he had been consuming alcohol while operating a motor vehicle on the date in question and that a Breathalyzer test revealed his blood alcohol content to be .08g%, indicating intoxication.

Count III—The Failure to Cooperate Matter

The ODO forwarded notice of the DOTD complaint to respondent’s bar registration address. Respondent contends that the address listed in the records of the Louisiana State Bar Association is not accurate and never was; however, he failed to explain why on multiple annual registration statements he did not take the opportunity to correct the erroneous address. Moreover, the ODC also forwarded notice of the complaint to respondent at his preferred mailing address. This notice was signed for by respondent’s daughter, but respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. During his sworn statement, respondent was instructed to correct his ineligibility and provide the ODC with a status update by January 8, 2015. Respondent failed to do so and has not corrected his bar registration address.

DISCIPLINARY PROCEEDINGS

In February 2016, the ODC filed 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) (failure to comply with MCLE requirements), 1.1(c) (a lawyer is required to comply with all requirements of the Supreme Court’s rules regarding annual registration, including payment of bar dues and the disciplinary assessment, timely notification of changes of address, and proper | ¡¡disclosure of trust account information), 5.5 (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).

Respondent was personally served with the formal charges but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations of the formal charges were deemed admitted and, thus, proven by clear and convincing evidence. Based on those facts, the committee determined that respondent violated Rules 1.1(b), 1.1(c), 5.5(a), 8.1(c), and 8.4(b) of the Rules of Professional Conduct. The committee did not address Rule 8.4(a) in its report.

The committee further determined that respondent’s repeated failure to cooperate with the ODC’s investigation or to take appropriate steps to address his ineligibility caused needless delay and expenditure of resources. The committee added that respondent has shown a total lack of regard for his law license and a lack of willingness to comply with the Rules of Professional Conduct.

|4In aggravation, the committee found a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1994). In mitigation, the committee found the absence of a prior disciplinary record.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee also recommended that respondent be assessed with all costs associated with this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. Based on these findings, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board then determined respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. While the record does not contain evidence of actual harm, the potential for harm was significant. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension. The board adopted the aggravating and mitigating factors found by the committee.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended that respondent be assessed with the costs and expenses of this proceeding.

| ¿Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

JjjDISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). .Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal, conclusions that flow from the factual allegations.. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent practiced law while ineligible to do so, was arrested for operating a vehicle while intoxicated, and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

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 17each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

Respondent knowingly, if not intentionally, violated duties owed to the public and the legal profession. The potential for serious harm was present. We agree with the disciplinary board that the baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the hearing committee and the disciplinary board are supported by the record.

In In re: Baer, 09-1795 (La. 11/20/09), 21 So.3d 941, the court stated the following with respect to appropriate sanctions for DWI offenses:

We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved.

Baer suggests that if respondent’s DWI offense had occurred in isolation, a fully deferred suspension would be an appropriate sanction. However, in addition to this misconduct, respondent continued to practice law at the DOTD after becoming ineligible to do so, creating a risk of significant harm to both his employer and to the legal matters on which he worked. In prior cases involving similar misconduct, 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: Hardy, 03-0448 (La. 5/2/03), 848 So.2d 511. Given that respondent also failed to cooperate with the ODC’s investigation, we find that a downward deviation from the baseline sanction is not warranted.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day.

■JjjDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Mark Anthony Johnson, Louisiana Bar Roll number 23406, be and he hereby is suspended from the practice of law for one year and one day. 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.


author: PER CURIAM:

text:
    STATE EX REL. Richard Nathaniel MILLER v. STATE of Louisiana
    No. 17-KH-0548
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

|;WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Ronnie YORK v. STATE of Louisiana
    No. 2017-KH-0386
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Miguel A. ENCINAS v. STATE of Louisiana
    No. 17-KH-0377
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

1 .WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 6.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling deny-mg relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam. ing relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Joseph D. BLUEFORD v. STATE of Louisiana
    No. 17-KH-0356
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

|;WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling deny-


text:
    STATE of Louisiana v. Charles BABINEAUX
    No. 16-OK-0694
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM

hWrit granted. In accordance with the parties’ plea agreement, the district court sentenced relator pursuant to the version of the statute in effect at the time of his guilty plea, see R.S. 14:43.3, which provided for a substantially harsher punishment than at the time of his offense. Because the plea agreement thereby provided for the imposition of an illegal sentence, the agreement is null and void. See, e.g., United States v. Gibson, 356 F.3d 761, 767 (7th Cir. 2004) (“To allow an illegal sentence to stand would impugn the fairness, integrity, and public reputation of the judicial proceedings that have taken place in this case.”); see also Cantrell v. Easterling, 346 S.W.3d 445 (Tenn. 2011) (“If the illegal sentence was a material condition of a plea agreement, then the defendant must be given the opportunity (a) to withdraw his plea and stand trial on the original charges or (b) to enter into a legal plea agreement.”); United Stated v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002) (“Even when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law”). Relator’s conviction and sentence are therefore vacated and the parties are returned to status \ 9,qm ante. We remand to the district court for further proceedings consistent with this order.