text:
    STATE of Louisiana v. Willie J. ELLISON, Jr.
    NO. 2018-K-0053
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
    CRICHTON, J., would grant and assigns reasons.
   This case demonstrates the problems associated with blind application of habitual offender laws by our sentencing courts. In this case, Willie J. Ellison, Jr., pled guilty to one count of possession with intent to distribute heroin and another count of possession with intent to distribute cocaine. According to the terms of the plea agreement, Mr. Ellison was advised that if he appeared for sentencing on September 22, 2010, and registered with the home incarceration office in the interim, he would receive two concurrent 15-year sentences as a second-felony offender. However, if Mr. Ellison failed to comply with the term of the plea deal, the State would file a habitual offender bill of information charging him as a fourth-felony offender and defendant would face a sentencing range of 50 years to life imprisonment, based on his three prior guilty pleas to possession of cocaine.

Mr. Ellison failed to register with the home incarceration office and failed to appear for sentencing on September 22, 2010. With respect to Mr. Ellison's failure to appear, his counsel explained to the court that Mr. Ellison's infant daughter had undergone surgery and was only released from the hospital on the date he was required to appear in court. There is apparently documentation in the record to verify the child's hospitalization and surgery. See State v. Ellison , 2012 WL 6864439 (2012). Additionally, Mr. Ellison appeared before the sentencing court days later on September 28, 2010, and filed a motion to withdraw his guilty pleas. Upon denial of this motion, the sentencing court fulfilled its promise in the plea agreement and re-sentenced Mr. Ellison to 30 years imprisonment at hard labor on count one, with the first five years to be served without benefit of parole, probation, or suspension of sentence, and 20 years imprisonment on count two, with the first two years to be served without benefit of parole, probation, or suspension of sentence, and ordered that the sentence run consecutively.

Mr. Ellison appealed and those sentences were vacated. A lengthy and complex procedural history ensued. Over the course of almost eight years, Mr. Ellison has been re-sentenced at least five times, resulting from numerous appeals by either him or the State. After much debate by the lower courts, Mr. Ellison was most recently re-sentenced as a fourth-felony offender to 50 years without benefit of parole, probation, or suspension of sentence on count one, and a concurrent sentence on count two of 15 years imprisonment, of which the first two years are without benefit of parole, probation, or suspension of sentence.

The majority now denies review of Mr. Ellison's writ application seeking review of his sentences, which were enhanced by 35 years simply because he failed to appear on a specific date almost 10 years ago when his daughter was hospitalized. For the following reasons, I would grant Mr. Ellison's writ application.

In my view, defendant's reason for not appearing, which was verified and in the record, was reasonable and should have been considered by the sentencing court. Habitual offender laws are designed to counter criminal recidivism and should be applied as a consequence for repeat offenses and not for failure to appear and other technical violations. Sentencing courts have broad discretion when applying these laws. Since previous felony convictions are a prerequisite for application of habitual offender laws, the nature and scope of previous convictions should be given great weight by the sentencing court. If the previous convictions are all non-violent offenses, then the sentencing court should use its broad discretion to apply penalties with leniency. Mr. Ellison's previous offenses are all non-violent drug offenses.

I have expressed my disagreement with the routine overuse of habitual offender proceedings by district attorneys. In my dissent in State v. Guidry , I explained:

The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.
The Pew Charitable Trusts have examined the Habitual Offender Law and its impact on Louisiana's incarceration rate and found the number of newly-sentenced defendants who have received substantially enhanced punishments under the law has more than doubled over the past 10 years.
* * *
Although the law represents an important means of protecting public safety and punishing recidivism, this data reveals the unfortunate truth that the weightiest penalties are not being reserved for the most serious crimes or the most dangerous offenders, particularly in Orleans Parish. To the contrary, drug possession is the most common primary offense for newly-sentenced prisoners convicted under the Habitual Offender Law. According to the Louisiana Legislative Auditor's Office, 78% of habitual offender convictions are for non-violent offenses, though some of those offenders may have had prior violent offenses.

16-1412 (La. 3/15/17), 221 So.3d 815, 826-27 (J, dissenting).

Another mitigating factor that must be considered by the sentencing court is the nature of the previous convictions in contrast with the nature of the instant offense. As a matter of public policy, in America we now recognize in a nation stricken with individuals suffering from drug addictions, habitual offender laws should be cautiously applied when each of a defendant's previous felonies are drug offenses. Here, each of Mr. Ellison's previous felony convictions were for the same non-violent offense, possession of cocaine. While this Court cannot instruct the lower courts to apply leniency to handle all drug offenses when adjudicating defendants as habitual offenders, when the pattern of drug addiction is clear based on defendant's previous convictions the sentencing court should consider the long-term effect of whether harsher sentences would directly result in less drug use.

I have on numerous occasions pointed out the stark disparity that exists in the treatment of individuals addicted to opioids compared to those addicted to illicit substances, such as cocaine. As I explained at length in my dissent in State v. Jago :

A swift rise in opioid-related deaths has been portrayed as a public health crisis of epic proportions. In fact, President Donald Trump declared the epidemic a national public health emergency on October 26, 2017. While a new collective understanding has emerged acknowledging drug addiction, particularly opioid abuse, as an illness best addressed by our public health institutions rather than our criminal justice system, this new collective understanding only relates to one category of drug addiction.
When we declared a War on Drugs in the 1980's and 1990's, lawmakers eschewed compassion and reason, painting a distorted picture of certain drug abusers as violent criminals deserving of long prison sentences, rather than treatment. Prior to the Fair Sentencing Act (FSA) of 2010, the sentencing disparity between offenses for crack and powder cocaine was 100:1. See Dorsey v. United States , 567 U.S. 260, 264, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Interestingly, crack addiction largely affected poor communities of color, while powder cocaine predominantly impacted more affluent white communities. The current opioid crisis, however, casts a much broader demographic net. Many opioid abusers use legally prescribed medication, yet others are addicted to unlawfully obtained heroin. Indeed, over forty states across the nation, including Louisiana, have made opioid antagonists such as naloxone available over the counter at drugstores such as CVS and Walgreens. The fact remains, however, that opioids killed more than 33,000 people in 2015, and nearly half of those deaths were caused by a prescription opioid. In my view, it is inconceivable to categorize one class of opioid abusers as ill and in need of treatment, while others are prosecuted to the full extent of the law.
* * *
To be clear, I embrace the notion that drug treatment should be the primary tool used to solve addictions. I have long advocated for reform in our criminal justice system and have actively participated in the Louisiana Justice Reinvestment Task Force, which successfully passed ten bills designed to reduce penalties for drug offenses and other non-violent offenses, while investing in substance abuse treatment and counseling programs. Equal protection requires that we change our approach in handling addictions. We must not continue this pattern of relegating one group of drug abusers to prison, while providing medical assistance for some opioid abusers.

17-0183 (La. 11/17/17), 228 So.3d 1218, 1219-20 (J, dissenting). See also , State ex rel. Causey v. State , 16-1909 (La. 3/2/18), 237 So.3d 508, 510 (J, dissenting).

By denying review of this case, this Court has effectively ignored a systematic issue that burdens defendants and citizens of this State alike. In my view, we would reduce Louisiana's prison population substantially if drug dependency was treated as an addiction rather than soley in a criminal context. See State v. James , 15-2059 (La. 1/9/17), 208 So.3d 876 (J, dissenting). According to the Louisiana Department of Corrections, the average cost to house an inmate is approximately $60/day, which equates to approximately $22,000/year. The Louisiana Legislative Auditor concluded in fiscal year 2015, Louisiana spent over $680 million on incarceration, an increase of more than $25 million over the prior year. Continued abuse of habitual offender laws to impose long sentences on drug abusers serves only to exacerbate this already unsustainable burden that Louisiana taxpayers have been forced to shoulder to incarcerate more offenders than any other state, per capita.

In this case, imposition of an enhanced, excessive sentence on this non-violent offender who clearly suffers from a drug addiction which motivated his involvement in the activity for which he has been convicted, does not serve the purposes of protecting public safety and punishing recidivism.

For these reasons, I would grant defendant's writ application.

By his conduct, this defendant has earned a substantial hard labor sentence. However, in my view, the sentence of 50 years hard labor of this defendant as a multiple offender is unconstitutionally excessive. I agree with Chief Justice Johnson here that use of the Habitual Offender Law by prosecutors should be cautiously exercised with reasonable discretion, as I have repeatedly stated. State v. Guidry , 2016-1412 (La. 3/15/17), 221 So.3d 815, 831 (Crichton, J., additionally concurring) ("[T]he abusive frequency with which a de minimis number of jurisdictions invoke habitual offender laws against non-violent actors appears to do little to protect the people of Louisiana, and depletes the already scarce fiscal resources of this state"); State v. Hickman , 2017-0142 (La. 9/29/17), 227 So.3d 246, 247, reconsideration not considered , 2017-0142 (La. 11/28/17), 230 So.3d 224 (Crichton, J., additionally concurring) ("Complying with La. C.Cr.P. art. 894.1(C) and under an appropriate set of facts, I believe a trial court can impose a downward departure for certain non-violent offenses."); State v. Hagans , 2016-0103 (La. 10/17/16), 202 So.3d 475 ("In my view, the fact that a district attorney can file a habitual offender bill of information does not mean that in every case he should do so..."); State v. Ladd , 2014-1611 (La. 3/27/15), 164 So.3d 184 (Knoll, J., additionally concurring and Crichton, J., additionally concurring for the reasons assigned by Justice Knoll) ("In view of the defendant's non-violent criminal record and the sentencing court's imposition of twenty years without the benefit of parole, probation, or suspension of sentence under the Habitual Offender Law, this sentence on its face seems very harsh.").

This defendant has three previous cocaine possession convictions and no - zero - convictions of a crime of violence. In my view, the 50-year sentence is excessive and inhumane, extremely expensive to taxpayers of this state and, under the specific circumstances underlying this matter, retaliatory. Accordingly, I would grant the defendant's writ, vacate the sentence, and remand the matter to the trial court for re-sentencing.

      An account of Mr. Ellison's procedural history can be found in State v. Ellison , 17-0319 (La. App. 5 Cir. 12/13/17), 234 So.3d 217.

      The study was conducted in accordance with House Bill 82 of the 2016 Legislative Session convening the Justice Reinvestment Task Force. The Task Force has been charged to analyze the drivers of the state's prison population. Surveying 10 years of data from the Department of Corrections and Public Safety, Pew has concluded that offenders sentenced under the habitual offender law represent a small yet growing share of prison admissions. See Pew Charitable Trusts, Louisiana Data Analysis Part II: Prison Trends Cont. (September 23, 2016) (citing Department of Corrections data from 2006-15).

      While in 2006, 157 prisoners faced enhanced punishment under the law, the number of defendants sentenced as recidivists had risen to 365 by 2015. Id.

      2015 Department of Corrections data shows that nearly three quarters of habitual offender admissions have a primary drug or property offense, while just 14% have a violent primary offense, with 10% being defined as other.

      Louisiana Legislative Auditor, Evaluation of Strategies to Reduce Louisiana's Incarceration Rate and Costs for Nonviolent Offenders (Aug. 31, 2016), available online as of October 26, 2018 at https://app.lla.state.la.us/PublicReports.nsf/DB26F2309F9783F2862580200077A2CD/$FILE/00010B73.pdf.

      In 2016, 63,632 drug overdose deaths occurred in the United States. The age-adjusted rate of overdose deaths increased significantly by 21.5% from 2015 (16.3 (per 100,000) to 2016 (19.8 per 100,000). Opioids-prescription and illicit-are currently the main driver of drug overdose deaths. Opioids were involved in 42,249 overdose deaths in 2016 (66.4% of all drug overdose deaths). Opioid Overdose, Centers for Disease Control and Prevention Website, https://www.cdc.gov/drugoverdose/index.html (last visited October 26, 2018).

      Louisiana Justice Reinvestment Task Force Report and Recommendations, March 16, 2017; https://www.lasc.org/documents/LA_Task_Force_Report_2017_FINAL.pdf

      See n. 5, supra .


source: Caselaw Access Project

author: GUIDRY, J., would grant.

license: Public Domain

text:
    STATE of Louisiana v. Michael Scott PAPIZAN
    No. 2017-K-2028
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF E. BATON ROUGE
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.

CRICHTON, J., would grant the State's writ, reverse the lower courts' rulings, and remand to the trial court for further proceedings.


text:
    Karen Sue THIBODEAUX v. GEICO CASUALTY COMPANY, et al.
    No. 2018-C-1218
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF LAFAYETTE
    Writ denied.
    CRICHTON, J., would grant and assigns reasons:
    I would grant and docket plaintiff's writ application to examine the significant policy issues raised therein. This matter arises in the context of a motion for partial summary judgment. As such, the trial judge's role is not to evaluate the weight of the evidence, and any doubts should be resolved in the non-moving party's favor. La. C.C.P. art. 966 ; Larson v. XYZ Insurance Company , 16-0745, p.6 (La. 2017), 226 So.3d 412, 416. Here, the facts construed most favorably for the plaintiff, who opposed the motion, reveal that the narrow issue presented is whether an employee returning home in her own personal vehicle from attending an optional training seminar - for which she is not paid - benefits the employer so as to consider the employee within the course and scope of her employment when the employer may have reimbursed the employee for mileage.
    Despite the employee's testimony that she was attending the training in order to enhance her overall performance as a pharmacist and not because she was required to do so, the court of appeal concluded that her "motivation for completing the training was to follow her supervisor's directions." Thibodeaux v. GEICO Casualty Company , 17-853, p.8 (La. App. 3 Cir. 6/13/18), 249 So.3d 114, 120. In my view, the court of appeal thus erroneously weighed the evidence in the context of a summary judgment motion in order to prematurely conclude that the defendant-employer was vicariously liable for the actions of its employee. Such error may rise to a material injustice warranting this Court's review.
   More importantly, however, the court of appeal's opinion establishes a new policy for this state that an employer is vicariously liable when an employee is on her way home in her own vehicle from an optional employer-paid training seminar and has an automobile accident. Considering the general rule that the act of driving to and from work is not in the course and scope of employment, Orgeron on Behalf of Orgeron v. McDonald , 93-1353 (La. 1994), 639 So.2d 224, this decision expands the doctrine of vicarious liability, which should ordinarily be construed strictly, to cover any optional trainings offered by employers that may improve or increase an employee's skills. I would grant this writ in order to assess whether the court of appeal correctly ruled in light of the substantial burden such policy may have on businesses sponsoring employee trainings in the state.


text:
    Toby SHREVE and Sherry Shreve v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    NO. 2018-C-1058
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF OUACHITA
    Writ denied.
    In this writ application, the trial court granted a Judgment Notwithstanding the Verdict on the issue of whether the defendant insurer acted unreasonably, arbitrarily and capriciously in handling the Plaintiffs' homeowner's claim.
    In Davis v. Wal-Mart Stores, Inc ., 2000-0445, pp. 4-5 (La. 11/28/00), 774 So.2d 84, 89 (citations omitted), this court discussed motions for judgment notwithstanding the verdict:
    A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
    The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review.
    Three experts testified in this case resulting in differing opinions as to the cracked foundation and the fallen tree. There were definitely two permissible views of the evidence; thus, the jury's decision cannot be deemed to have been clearly erroneous or that there was manifest error. It cannot be said that reasonable jurors could not have arrived at a contrary verdict. The trial court simply substituted its judgment for that of the jury, which is impermissible. I would reverse the lower courts and reinstate the jury verdict.


text:
    VOICE OF the EX-OFFENDER, Kenneth Johnson, Bruce Reilly, Dwight Anderson, Randy Tucker, Bill Vo, Huy Tran, Checo Yancy, Ashanti Witherspoon, and Others Similarly Situated v. STATE of Louisiana; John Bel Edwards, Governor of Louisiana; and Tom Schedler, Secretary of State of Louisiana
    NO. 2018-C-0945
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    JOHNSON, C.J. would grant the writ application and assigns reasons.
   In this case, the court of appeal upheld Louisiana laws which unconstitutionally disenfranchise its citizens on probation or parole following a felony conviction. Because this court now denies plaintiffs' writ application, that opinion is allowed to stand and these citizens will continue to be excluded from our democratic process.

Article 1, § 10(A) of the 1974 Louisiana Constitution provides for the constitutional right to vote:

Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony . (Emphasis added).

This section was adopted by the Louisiana Constitutional Convention on September 8, 1973, ratified by the people of Louisiana in 1974, and became effective on January 1, 1975. When the 1974 Constitution was adopted, the former provisions of the 1921 Constitution, which permanently deprived persons of the right to vote upon the conviction of a felony, were repealed. Thus, Article 1, § 10(A) expanded the constitutional right to vote, and specifically provided only a temporary suspension of that right while a citizen is under an order of imprisonment for conviction of a felony.

The Legislature thereafter enacted the Election Code, which included statutes that had the effect of limiting the constitutional right to vote. Being challenged by the plaintiffs in this case are La. R.S. 18:2(8) and La. R.S. 18:102(A)(1) :

La. R.S. 18:2. Definitions
(8) 'Under an order of imprisonment' means a sentence of confinement, whether or not suspended, whether or not the subject of the order has been placed on probation, with or without supervision, and whether or not the subject of the order has been paroled.
La. R.S. 18:102. Ineligible persons
A. No person shall be permitted to register or vote who is:
(1) Under an order of imprisonment, as defined in R.S. 18:2(8), for conviction of a felony; ...

In upholding the constitutionality of these statutes, the court of appeal explained that the constitution specifically limits the fundamental right to vote while convicted felons are under an "order of imprisonment." The court found the meaning of "under an order of imprisonment" is unambiguous and that a convicted felon serving a term of probation or parole is clearly under an order of imprisonment because he is still in a custodial setting and still serving a portion of a criminal sentence. I cannot agree. In my view, incarceration must be distinguished from parole and probation, and a criminal sentence does not equate to an order of imprisonment. In fact, our Code of Criminal Procedure clearly makes distinctions between incarceration on one hand, and parole and probation on the other hand, while the phrase "order of imprisonment" does not appear once. See , e.g. , La. R.S. 15:529.1(c). Notably, the phrase "order of imprisonment" was found in Article 822 of our former Code of Practice, which set forth grounds for habeas relief. That article authorized relief when there was a deficient "order of imprisonment." See , e.g., State v. Fenderson , 28 La. Ann. 82, 83-84 (1876). Because habeas relief presupposes incarceration, the phrase "order of imprisonment" has clearly long been equated to incarceration. Additionally, there is support from contemporary commentators that the word choice of "order of imprisonment" in Article 1, § 10(A) of our constitution was not intended to exclude parolees and probationers. Professor Lee Hargrave, constitutional scholar and consulting expert during the 1973 Constitutional convention explained in a 1974 law review article:

The word choice, 'under an order of imprisonment,' may seem unusual; 'imprisoned' would be simpler and more direct. The reason for the choice was to overcome an objection that an escapee would not be 'imprisoned' and thus not within the exception. That choice of words does not prevent a person on probation or parole from voting since such a person is not under an order of imprisonment.

The Declaration of Rights of the Louisiana Constitution of 1974 , 35 La. L.Rev. 1, 34 (1974). Parolees and probationers are not inmates in a custodial setting. While parolees and probationers are under the threat of imprisonment, they are not under "orders of imprisonment." Parolees and probationers must commit some volitional act or omission to trigger the custodial sentence and a return to physical custody. Thus, I find the plain meaning of "under an order of imprisonment" in Article 1, § 10(A) of our constitution means a person is incarcerated in prison.

There is no legitimate reason for disenfranchising these citizens. Voting is a fundamental right in America, yet tens of thousands of Louisiana citizens are impacted by Louisiana's felony disenfranchisement laws. In 1969, there were 6,740 people on probation or parole across the state. Today, that number has increased to approximately 71,000 people who are on probation or parole, twice the number of people actually incarcerated in the state. Citizens on probation or parole in Louisiana contribute to our state in various ways. These citizens work, pay taxes, raise families, and volunteer in their communities, as evidenced by the diverse group of representative-citizens who sought relief in this case. This representative group include a Vietnam War veteran, a construction worker, a law school graduate, a college graduate, two deacons, a hospice volunteer, and a minister. Yet these tax-paying citizens have no voice in the political life of their communities and are excluded from our democratic process because they are denied the right to choose their elected officials. This problem is not unique to Louisiana. Six million Americans cannot vote due to a felony conviction. Felony disenfranchisement rates vary by state, and most have instituted a wide range of disenfranchisement laws and policies. Only Maine and Vermont do not restrict the voting rights of people with a felony conviction. The twelve most extreme states restrict voting rights even after a person has served his or her prison sentence and is no longer on probation or parole. Notably, people of color are disproportionately impacted by these voting restrictions. One of every thirteen African-Americans has lost their right to vote due to criminal disenfranchisement laws.

I am encouraged that in recent years there has been increased public awareness of the problem of felony disenfranchisement. This has resulted in some successful state-level reform efforts. Since 1997, twenty-four states have modified felony disenfranchisement laws and regulations to expand voter eligibility or inform such persons of their voting rights. Because of these efforts, an estimated 840,000 citizens have regained their right to vote.

Finally, I recognize that the Louisiana Legislature recently amended La. R.S. 18:102(A)(1) to specifically provide an exception to voter registration ineligibility for certain probationers and parolees. The amendment provides, in relevant part:

A. No person shall be permitted to register or vote who is:
(1)(a) Under an order of imprisonment, as defined in R.S. 18:2(8), for conviction of a felony; or, except as provided in Subparagraph (b) of this Paragraph.
(b) Except as provided in Subparagraph (c) of this Paragraph, a person who is under an order of imprisonment for conviction of a felony and who has not been incarcerated pursuant to the order within the last five years shall not be ineligible to register or vote based on the order if the person submits documentation to the registrar of voters from the appropriate correction official showing that the person has not been incarcerated pursuant to the order within the last five years.
(Emphasis added)

2018 La. Sess. Law Serv. Act 636 (H.B. 265). While I am in favor of this attempt to restore voting rights to probationers and parolees, I am of the opinion that the clear language of our constitution already provides the right to vote to all probationers and parolees because they are not incarcerated. Further, while this amendment restores voting rights to some of these citizens, the disenfranchisement problem remains because any probationer or parolee who has been incarcerated within the last five years will still not be allowed to vote.

In opposing plaintiffs' writ application in this court, the state argued that this amendment made the plaintiffs' legal challenge moot. I find no merit to this argument. The amendment does not directly address the challenge in this case which turns on the legal interpretation of "order of imprisonment." Moreover, the amendment impacts only a portion of the citizens covered by this legal challenge, and will not have an impact on those citizens until March of 2019. Thus, all probationers and parolees will still be disenfranchised and not able to vote during the November 2018, December 2018, or March 2019 elections. And, because the amended law provides for a five-year waiting period, numerous citizens on probation and parole will continue to be disenfranchised even after the amended law goes into effect.

For these reasons, I find La. R.S. 18:2(8) and 18:102(A)(a) unconstitutionally restrict the right to vote of parolees and probationers, in violation of Article 1, § 10(A) of the Louisiana Constitution. Thus, I would grant plaintiffs' writ application.

      Statistical figures stated in this dissent were obtained from:
      • Louisiana Dept. of Corrections, Fact Sheet, March 31, 2017; https://www.doc.la.gov/media/1/Briefing%20Book/Apr_17/p.p.apr.17.pdf
      • The Sentencing Project, Felony Disenfranchisement , https://www.sentencingproject.org/issues/felony-disenfranchisement/
      • Brennan Center for Justice, Racism & Felony Disenfranchisement: An Intertwined History , https://www.brennancenter.org/publication/racism-felony-disenfranchisement-intertwined-history


text:
    STATE of Louisiana v. Vickie PRYOR
    No. 2018-KK-0943
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
    GENOVESE, J., would grant and assigns reasons.
    The majority's writ denial agnostically ignores Birchfield v. North Dakota , 579 U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). In Birchfield , the United States Supreme Court held that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, but not warrantless blood tests. In the companion case consolidated for review, Beylund v. North Dakota Dep't of Transp. , the Court considered whether a driver's consent to a blood test was insufficiently voluntary because he was advised he was obligated to submit to the test. Birchfield was decided nearly four months before defendant herein consented to a blood test after she was involved in a vehicular accident with a fatality. Therefore, I would grant defendant's writ application to remand the matter back to the trial court for it to consider its ruling on defendant's motion to suppress in light of Birchfield and its consolidated cases.
   WEIMER, J., concurs in the denial. Adequate remedy on appeal.

HUGHES, J., would grant.


author: PER CURIAM:

text:
    STATE EX REL. Jimmy James MACK v. STATE of Louisiana
    No. 2017-KH-1388
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his second application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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 of Louisiana v. Gary WORKMAN
    No. 2017-KP-0716
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of trial and appellate counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Concita Dequita DIXON v. STATE of Louisiana
    No. 2017-KH-1356
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry her burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated her application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

CRICHTON, J., recused.


text:
    STATE EX REL. Alfred SERIALE v. STATE of Louisiana
    No. 2017-KH-1515
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Francis BROWN v. STATE of Louisiana
    No. 2017-KH-1347
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Larry MOSES v. STATE of Louisiana
    No. 2017-KH-1354
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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:
    IN RE: Andrew T. ADAMS
    NO. 2018-B-1700
    Supreme Court of Louisiana.
    October 29, 2018
    ORDER
   Considering the Joint Petition for Interim Suspension filed by respondent, Andrew T. Adams, and the Office of Disciplinary Counsel, IT IS ORDERED that Andrew T. Adams, Louisiana Bar Roll number 37388, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    STATE EX REL. Daryle GUILLOT v. STATE of Louisiana
    No. 2017-KH-1708
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Russell C. GROSS v. STATE of Louisiana
    No. 2017-KH-1386
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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:
    IN RE: Joshua William CHRISTIE
    NO. 2018-OB-1537
    Supreme Court of Louisiana.
    October 29, 2018
    ORDER
   The Office of Disciplinary Counsel ("ODC") filed formal charges against respondent, alleging that he represented to opposing parties and the court that he had the authority to implement settlement agreements on behalf of two separate clients; however, respondent did so without the knowledge, consent, or approval of those clients or of the law firm for which he worked. The ODC also alleged that respondent failed to cooperate in its investigation. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent's petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Joshua William Christie, Louisiana Bar Roll number 34487, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Joshua William Christie for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Joshua William Christie shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.


text:
    STATE EX REL. Myrle WHEAT v. STATE of Louisiana
    No. 2017-KH-1242
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. James C. PIERCE v. STATE of Louisiana
    No. 2017-KH-1326
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Wesley Shane AUSTIN v. STATE of Louisiana
    No. 2017-KH-1235
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189 ; see also State ex rel. Hall v. State , 99-0326 (La. 9/24/99), 871 So.2d 1071 (untimely writ does not "unfinalize" convictions or toll the limitations period of La.C.Cr.P. art. 930.8.).

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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.

Hughes, J., would grant for an evidentiary hearing.


text:
    STATE EX REL. Edward KING v. STATE of Louisiana
    No. 2017-KH-1379
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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.


author: PER CURIAM

text:
    CROSSTEX ENERGY SERVICES, LP, et al. v. TEXAS BRINE COMPANY, LLC, et al.
    No. 2018-CC-1128
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRIT TO THE 23RD JUDICIAL DISTRICT COURT, PARISH OF ASSUMPTION
   PER CURIAM

Writ granted. Finding there are genuine issues of material fact still in dispute, we set aside the district court's ruling which granted Occidental Chemical Corporation's motion for partial summary judgment and dismissed Texas Brine Company's fraud-based claims. This matter is remanded to the district court for further proceedings.


text:
    STATE EX REL. Alphonse MOORE v. STATE of Louisiana
    No. 2017-KH-1236
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application is repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his second application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Jerrod Dewayne JOHNSON v. STATE of Louisiana
    No. 2017-KH-1201
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Demetrice WILLIAMS
    No. 2017-KP-1465
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated two applications for 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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. Rickey GIPSON v. STATE of Louisiana
    No. 2017-KH-1402
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for 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 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's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is 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 of Louisiana v. Dante LEE
    No. 2018-KK-0887
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE FOURTH CIRCUIT COURT OF APPEAL, PARISH OF ORLEANS
   PER CURIAM:

Writ granted; relief denied. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Here, the officer had probable cause to believe that defendant violated La.R.S. 32:53(A)(3) in effect at the time of the traffic stop, which provided, "Every permanent registration license plate shall at all times be securely fastened to the vehicle to which it is assigned, so as to prevent the plate from swinging, and at a height not less than twelve inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible." The court of appeal erred, however, in citing this statute as it was amended by 2017 La. Acts 46, which amendment became effective after the traffic stop at issue. Regardless, the officer's belief that defendant had violated La.R.S. 32:53(A)(3) in effect at the time of the traffic stop was objectively reasonable. See State v. Pena , 43,321 (La. App. 2 Cir. 7/30/08), 988 So.2d 841 ; see also United States v. Henry , 853 F.3d 754, 757 (5th Cir. 2017) ("Given Pena , Freeman and Trosclair's belief that Section 32:53(A)(3) prohibited an obscured registration sticker was objectively reasonable"). Accordingly, we grant the application but deny defendant relief, leave the court of appeal's ruling intact that reversed the district court's grant of defendant's motion to suppress, and remand to the district court for further proceedings.

REMANDED

JOHNSON, C.J., would grant relief.

GENOVESE, J., would grant relief.


author: GUIDRY, J.

text:
    Lisa Seal FRIGON, as the Administratrix of the Estate of Adler Berriman Seal v. UNIVERSAL PICTURES, INC., Deborah Dubois Seal, Aaron Seal, Christina Seal Warmack, and Dean Berriman Seal
    NUMBER 2017 CA 0993
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 21, 2018 Rehearing Denied October 18, 2018
    Roy H. Maughan, Jr., Namisha D. Patel, Joshua D. Roy, Baton Rouge, LA, Counsel for Plaintiff/Appellant Lisa Seal Frigon, as the administratrix of the Estate of Adler Berriman Seal
    Mary Ellen Roy, Dan Zimmerman, New Orleans, LA, Counsel for Defendant/Appellee Universal City Studios, LLC
    Mary E. Heck Barrios, Denham Springs, LA, Counsel for Defendants/Appellees Deborah Dubois Seal, Dean Berriman Seal, Aaron Christopher Seal, and Christina Seal Warmack
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   GUIDRY, J.

A succession representative appeals the dismissal of claims brought on behalf of the decedent's estate relative to the sale of the decedent's "life story." For the following reasons, we: (1) affirm the sustaining of the peremptory exceptions raising the objection of no cause of action; (2) reverse the denial of the special motions to strike; and (3) render judgment to grant the special motions to strike.

FACTS AND PROCEDURAL HISTORY

On February 19, 1986, Adler Berriman Seal, who was more commonly known as simply Barry Seal, died intestate. In 2014, Universal City Studios, LLC ("Universal"), through its Universal Pictures division, executed a multi-part agreement whereby it purchased rights to the life story of the decedent from the decedent's surviving spouse and children of his third marriage: Debbie Seal, Aaron Seal, Christina Seal Warmack, and Dean Berriman Seal (collectively "Seal defendants"). In the agreement, the Seal defendants also conveyed rights to their life stories and agreed to act as consultants for a feature film based on the decedent's life that was to be developed and produced by Universal.

Thereafter, the decedent's daughter from his first marriage, Lisa Seal Frigon, was appointed administratrix of his succession. Following her appointment, Ms. Frigon filed a petition against Universal and the Seal defendants, seeking to nullify the aforementioned agreement and further seeking damages on behalf of the decedent's estate for violation of privacy and publicity rights, misappropriation, false advertising, unfair trade practices, and conversion. Ms. Frigon also sought to enjoin any further development, production, or advertisement of the motion picture based on the decedent's life.

In response to the petition, Universal filed a peremptory exception raising the objection of no cause of action, seeking dismissal of Ms. Frigon's claims. Universal also filed a special motion to strike, pursuant to La. C.C.P. art. 971, as an additional basis for dismissal of Ms. Frigon's claims. The Seal defendants likewise filed a pleading asserting a peremptory exception raising the objection of no cause of action and a special motion to strike pursuant to La. C.C.P. art. 971 seeking the dismissal of Ms. Frigon's claims against them.

The trial court held a joint hearing on the peremptory exceptions and special motions to strike filed by Universal and the Seal defendants. On June 15, 2016, the trial court signed a judgment sustaining the peremptory exception raising the objection of no cause of action and dismissing Ms. Frigon's petition with prejudice as to Universal only. The trial court denied Universal's special motion to strike in that same judgment. The judgment made no reference to the exception and special motion to strike filed by the Seal defendants.

On June 27, 2016, Ms. Frigon filed a motion for partial new trial, seeking reconsideration of the peremptory exception sustained in favor of Universal, contesting the trial court's failure to allow amendment of the petition pursuant to La. C.C.P. art. 934, and requesting an award of costs and attorney fees pursuant to La. C.C.P. art. 971(B), as the prevailing party on the special motion to strike. On the proposed order attached to the motion, however, a diagonal line appears striking through a portion of the text of the order, along with an unsigned, handwritten annotation dated July 7, 2016, stating, "[s]ee order to vacate signed on June 28, 2016." No such order is in the record before us; however, the minute entry for June 28, 2016 recites: "Order to Vacate filed and signed. The Judgment signed on June 15, 2016 is VACATED. The Court will rule after further review of the relevant law and jurisprudence. Copy of order mailed to all parties."

On August 30, 2016, the trial court signed a second judgment in which it decreed that the special motions to strike filed by Universal and the Seal defendants were denied. The judgment also simply "granted" the peremptory exceptions raising the objection of no cause of action filed by Universal and the Seal defendants, but the judgment otherwise contains no decretal language pertaining to the exception. Ms. Frigon filed a motion for new trial in relation to the August 30, 2016 judgment on essentially the same grounds asserted in the previously filed motion for partial new trial, but she expanded her motion to include the rulings relative to the Seal defendants as well. The trial court scheduled a hearing on the motion for new trial for December 5, 2016.

Following the hearing held on December 5, 2016, two judgments were signed by the trial court. The first judgment, signed on February 14, 2017, denied the "motion for partial new trial" relative to granting the peremptory exceptions in the August 30, 2016 judgment and declared that "Plaintiff's petition against all defendants is DISMISSED WITH PREJUDICE ." The judgment additionally provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the issue related to the Motion for Partial new trial as it relates to reasonable attorney fees and costs associated with the Special Motion to Strike filed by Defendant, Universal City Studios LLC, which this Court denied in its Judgment signed on August 30, 2016 and ordered all parties to pay their own cost and attorney fees shall be GRANTED. The Defendant, Universal City Studios, LLC, was the prevailing party for the Special Motion to Strike. Pursuant to the Louisiana Code of Civil Procedure Article 971, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

The second judgment, signed February 15, 2017, simply denied the plaintiff's motion for partial new trial; however, a diagonal line appears across the face of the judgment with an accompanying handwritten annotation stating: "See judgment signed on Feb. 14, 2017 ... File as Is."

The matter now comes before us pursuant to a devolutive appeal of the judgments signed on August 30, 2016 and February 14, 2017, filed by Ms. Frigon. Universal has answered the appeal requesting that this court "modify, revise, or reverse in part" the August 30, 2016 judgment to grant its special motion to strike, pursuant to which Universal would be entitled to an award of reasonable attorney fees and costs. The Seal defendants also filed an answer to Ms. Frigon's appeal, requesting that the August 30, 2016 judgment, which denied their special motion to strike, be "corrected, revised, or reversed in part" to grant their special motion to strike. And in line with that request, the Seal defendants further request that the February 14, 2017 judgment be "corrected, revised, [and/or] reversed in part" to award them reasonable attorney fees and costs as a prevailing party on the special motion to strike. Finally, the Seal defendants request an award of additional attorney fees and costs incurred for this appeal.

DISCUSSION

No Cause of Action

In her first two assignments of error, Ms. Frigon claims that the trial court erred in sustaining the peremptory exceptions raising the objections of no cause of action filed by Universal and the Seal defendants and in failing to permit her to amend the petition to state a cause of action.

The purpose of the peremptory exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. In ruling on a peremptory exception raising the objection of no cause of action, the court must determine whether the law affords any relief to the plaintiff if the factual allegations in the petition were proven at trial. Dural v. Louisiana State Board of Cosmetology, 08-0929, p. 3 (La. App. 1st Cir. 12/23/08), 4 So.3d 874, 877.

All facts pled in the petition must be accepted as true. CLB61, Inc. v. Home Oil Company, LLC, 17-0557, pp. 3-4 (La. App. 1st Cir. 11/1/17), 233 So.3d 656, 660. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. However, where evidence is admitted without objection, such evidence may be considered in determining whether a legal remedy exists. Emigh v. West Calcasieu Cameron Hospital, 13-2985, p. 4 (La. 7/1/14), 145 So.3d 369, 372. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. CLB61, Inc., 17-0557 at p. 4, 233 So.3d at 660.

Generally, an exception of no cause of action should not be maintained in part, so as to prevent a multiplicity of appeals, thereby forcing an appellate court to consider the merits of the action in a piecemeal fashion. If there are two or more items of damages or theories of recovery that arise out of the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss an item of damages or theory of recovery. Robinson v. Papania, 15-1354, pp. 5-6 (La. App. 1st Cir. 10/31/16), 207 So.3d 566, 572, writ denied, 16-2113 (La. 3/13/17), 216 So.3d 808. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Further, any doubts are resolved in favor of the sufficiency of the petition. State, by & through Caldwell v. Astra Zeneca AB, 16-1073, p. 13 (La. App. 1st Cir. 4/11/18), 249 So.3d 38, 43-11 (2018 WL 1755535, at *7) ; Calloway v. Lobrano, 16-1170, p. 5 (La. App. 1st Cir. 4/12/17), 218 So.3d 644, 649.

In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court's decision is based solely on the sufficiency of the petition. An exception raising the objection of no cause of action should be sustained only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Dural, 08-0929 at p. 3, 4 So.3d at 877.

In this case, Ms. Frigon has asserted claims of nullity, violation of the rights of privacy and publicity, unfair trade practices, misappropriation, false advertising, and conversion, but from her arguments below and on appeal, it is evident that the principal claim at issue is the right of publicity. Indeed, except for the claim of privacy, all of the other claims asserted by Ms. Frigon are premised on finding that such a right exists and that the decedent's succession possesses it. It should be duly noted that Ms. Frigon is not appearing on her own behalf, but as the representative of the decedent's succession.

As administratrix, Ms. Frigon is deemed to have possession of all property of the succession and is required to enforce all obligations in its favor. La. C.C.P. art. 3211. Additionally, "[e]xcept as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration." La. C.C.P. art. 685. Comment (b) to Article 685 notes that "[t]his article is declaratory of the jurisprudence so far as it recognizes the right of an administrator alone to institute and prosecute a personal action." The comment goes on further to observe that "[t]here is no reason today why a succession representative alone should not be able to enforce judicially all rights of the deceased, or of his succession, whether the action is personal, real or mixed." So whether the right of publicity is viewed as a "right" or "property," to the extent it is deemed to exist under Louisiana law and survives the decedent, then clearly under La. C.C.P. arts. 685 and 3211, Ms. Frigon would have authority to assert such a claim on behalf of the decedent's estate.

Right of Publicity

The right to publicity advocated by Ms. Frigon in this case is best described as being the right to control the commercial appropriation of her father's identity or public image. See Todd J. Rahimi, The Power to Control Identity: Limiting a Celebrity's Right to Publicity, 35 Santa Clara L. Rev. 725, 725 (1995). "[W]hile the attributes of human personality, like name, reputation, image, voice, and privacy, have traditionally been seen as extrapatrimonial rights without monetary value, today these rights are being increasingly [patrimonalized] and brought into commerce." Eric H. Reiter, Articles, Personality and Patrimony: Comparative Perspectives on the Right to One's Image, 76 Tul. L. Rev. 673, 675 (2002) (footnotes omitted).

As previously mentioned, Universal and the Seal defendants executed a multi-part agreement wherein the Seal defendants not only conveyed rights to their own life stories, but purportedly conveyed the rights to the life story of the decedent as well. Notably, one of the terms of the agreement required the Seal defendants to deliver "chain-of-title" for the life story rights so conveyed. Moreover, the life story rights conveyed covered events and occurrences from birth to the date of execution of the agreements, and possibly even after, to the extent such events or occurrences might be incorporated into the feature film to be produced by Universal. The Seal defendants also warranted that they were the sole owner of the life story rights conveyed and that they had the unrestricted right, power, and authority to enter the agreement conveying the life story rights of themselves and the decedent. It is only the conveyance of the rights to the decedent's life story that Ms. Frigon challenges in claiming a violation of the right of publicity.

In Zacchini v. Scripps-Howard Broadcasting Company, 433 U.S. 562, 566, 97 S.Ct. 2849, 2853, 53 L.Ed.2d 965 (1977), the United States Supreme Court recognized that a right of publicity arises under state rather than federal law. Where such a right is recognized under state law, the Court found that the First Amendment does not grant a privilege for violation of the right so granted. Zacchini, 433 U.S. at 579, 97 S.Ct. at 2859. In Prudhomme v. Procter & Gamble Co., 800 F.Supp. 390, 396 (E.D. La. 1992), a federal district court noted the possibility of a civil action to enforce a right of publicity being recognized in Louisiana, but we have not found nor have the parties revealed where such has actually occurred.

Judicial decisions are not intended to be an authoritative source of law in Louisiana; they are secondary to legislation. See A.N. Yiannopoulos, Louisiana Civil Law System § 35, p. 53 (1977); Deshotel v. Guichard Operating Company, Inc., 03-303, p. 2 (La. App. 3d Cir. 11/19/03), 861 So.2d 697, 703, aff'd, 03-3511 (La. 12/17/04), 916 So.2d 72. Hence, for us to hold jurisprudentially that a right of publicity exists would constitute an unwarranted intrusion into an area in which the legislature has not seen fit to act. See Baynard v. Guardian Life Insurance Company of America, 399 So.2d 1200, 1202 (La. App. 1st Cir. 1981). Thus, in the absence of legislative action, we decline to supply a cause of action through jurisprudence that the law does not. See Eagle Pipe & Supply, Inc. v. Amerada Hess Corporation, 10-2267, pp. 39-40 (La. 10/25/11), 79 So.3d 246, 276. Accordingly, we find no error in the trial court's ruling sustaining the objection of no cause of action as to Ms. Frigon's claim of a right of publicity.

Right of Privacy

The right to privacy, as recognized in Louisiana, has been held to embrace the following four interests: (1) appropriation of individual's name or likeness for the use or benefit of the defendant; (2) unreasonable intrusion by the defendant upon the plaintiff's physical solitude or seclusion; (3) publicity that unreasonably places plaintiff in false light before public; and (4) unreasonable public disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal Inc., 375 So.2d 1386, 1388 (La. 1979).

As pertaining to the right of privacy, Universal and the Seal defendants rely on a fairly recent Louisiana Fourth Circuit case wherein the court declared that the right of privacy is a personal right that belonged only to the decedent. Tatum v. New Orleans Aviation Board, 11-1431, p. 3 (La. App. 4th Cir. 4/11/12), 102 So.3d 144, 147, writ denied, 12-1847 (La. 11/9/12), 100 So.3d 838. In considering that holding, it is observed that the decedent's son in that case sued to receive compensation on his own behalf for the use of his mother's image in a mural on the walls of the New Orleans International Airport terminal. Tatum, 11-1431 at p. 1, 102 So.3d at 146. Despite the distinction that Ms. Frigon is attempting to assert the right on behalf of the estate of a deceased person, we agree with the reasoning of the Fourth Circuit that the right is strictly personal, and as such, died with the decedent.

As observed by the Louisiana Supreme Court, the right to privacy as recognized under Louisiana law, "protects the individual." Jaubert, 375 So.2d at 1387 n.2. Claims of privacy seek to protect against unreasonable intrusion into a person's seclusion, solitude, or private affairs. Perere v. Louisiana Television Broadcasting Corporation, 97-2873, p. 3 (La. App. 1st Cir. 11/6/98), 721 So.2d 1075, 1077. Consequently, claims of privacy have been viewed as personal to the individual and not heritable. See Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790, 792 (La. 1992) ; Tatum, 11-1431 at p. 3, 102 So.3d at 147. We therefore conclude that the trial court did not err in sustaining the objection of no cause of action as to the right to privacy claim asserted on behalf of the decedent's estate. See also Schultz v. White, 10-0488, p. 10 (La. App. 1st Cir. 10/29/10), 50 So.3d 949, 955 (wherein the court found that an obligation strictly personal to the decedent was not transmittable to his estate).

Special Motion to Strike

In conjunction with Ms. Frigon's third assignment of error, we will also consider the answers to the appeal filed by Universal and the Seal defendants, which all address whether the respective special motions to strike should have been granted by the trial court.

A special motion to strike presents a question of law. Appellate review of a question of law is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders a judgment on the record. Starr v. Boudreaux, 07-0652, pp. 3-4 (La. App. 1st Cir. 12/21/07), 978 So.2d 384, 388.

The grounds for a special motion to strike are found in La. C.C.P. art. 971, which states, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
...
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:
...
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Louisiana Code of Civil Procedure article 971 was enacted by 1999 La. Acts, No. 734, § 1. Section 2 of the Act provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

Hence, Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Thinkstream, Inc. v. Rubin, 06-1595, p. 9 (La. App. 1st Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La. 1/7/08), 973 So.2d 730.

Under the shifting burdens of proof established by the article, the mover must first establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitutions in connection with a public issue. If the mover satisfies this initial burden of proof, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Thinkstream, Inc., 06-1595 at p. 9, 971 So.2d at 1100.

Free Speech in Connection with a Public Issue

In support of its special motion to strike, Universal argued that the premise of Ms. Frigon's suit-that her permission, as the administratrix of her father's estate, had to be obtained for the production of the feature film based on her father's life-"would have a profoundly chilling effect on free speech." While we make no express ruling regarding Universal's characterization of Ms. Frigon's suit, we do agree that her suit against Universal does arise from an act by Universal in furtherance of its right of free speech. As observed by the U.S. Fifth Circuit, it has long been recognized that the First Amendment protects film and "[a] corollary to this principle is that the First Amendment protects the act of making film." Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017). And to the extent that the claims against the Seal defendants are identically related to the making of the feature film based on the decedent's life story, we likewise find that the suit impacts their exercise of free speech as well.

In addition to finding that the challenged actions of Universal and the Seal defendants were in the exercise of free speech, we must consider whether this exercise of free speech can be viewed as being in connection with a public issue or an issue of public interest, particularly since the infamous events of the decedent's life occurred over 30 years ago.

A similar question of contemporaneity and public interest was addressed in Roshto v. Hebert, 439 So.2d 428 (La. 1983). That case involved the publication by a newspaper of the front page of randomly selected prior editions. This practice by the newspaper brought to light the plaintiffs' convictions for cattle theft 25 years before, which had since been pardoned. Roshto, 439 So.2d at 430. While recognizing that there was a right to publish information that is true, accurate, and a matter of public record, the court held that there can be an abuse of that right in light of the purpose, manner, and timing of the publication. Roshto, 439 So.2d at 432 n. 8. In considering whether such an abuse occurred in Roshto, the court found, among other factors, that the information contained on the front pages of former editions of the newspaper, when viewed collectively, was certainly a matter of legitimate public interest. Roshto, 439 So.2d at 431-32. Of particular note to the matter before us is the court's pronouncement that "the passage of a considerable length of time after the pertinent event does not of itself convert a public matter into a private one." Roshto, 439 So.2d at 431.

In the present case, that pronouncement by the court in Roshto rings especially true. Universal submitted copies of articles published in 1986, 1987, 1994, 1996, and 2000 to establish that the decedent's life story has remained an issue of public interest years after his death. Additionally, films about historical events, whether involving famous people or notable events involving relatively unknown people, have proliferated in movie theaters in recent years.

Moreover, to the extent that information conveyed in the film relates to issues of drug trafficking and the actions of federal authorities, such activities unquestionably can be viewed as matters of public concern and interest, not just in Louisiana, but nationwide. "Reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of legitimate public interest as a matter of law." Lowe v. Hearst Communications, Inc., 414 F.Supp.2d 669, 674 (W.D. Tex. 2006), aff'd, 487 F.3d 246 (5th Cir. 2007) ; see also Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1045, 43 L.Ed.2d 328 (1975) ("commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions ... are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government"). As such, we find the record establishes that Universal and the Seal defendants met their burden of showing that Ms. Frigon's suit is an action against their exercise of free speech relative to an issue of public concern. Thus, the burden properly shifted to Ms. Frigon to prove her probability of success as to any of the claims asserted in her petition.

In cases where more than one claim is alleged in the petition, the courts examine the probability of success of each claim individually. If the plaintiff can demonstrate a probability of success on any of her claims, then the special motion to strike must fail. Shelton v. Pavon, 17-0482 at p. 6, 236 So.3d 1233, 1237 (La. 2017). As we have previously found that the trial court properly sustained the objection of no cause of action as to all the claims asserted by Ms. Frigon, that determination, in turn, means that Ms. Frigon does not have a probability of success as to any of those claims. We therefore find that the trial court erred in denying the respective special motions to strike. Accordingly, we will reverse that ruling by the trial court in the August 30, 2016 judgment and will render judgment granting the special motions to strike.

In addressing Ms. Frigon's final assignment of error, based on our rulings in this appeal, we find that the trial court properly held that Universal was the prevailing party on the special motions to strike and accordingly entitled to an award of reasonable attorney fees and court costs pursuant to La. C.C.P. art. 971(B). Moreover, as we have concluded herein that the trial court should have granted the special motions to strike of both Universal and the Seal defendants, we further hold that the Seal defendants are likewise entitled to an award of reasonable attorney fees and court costs pursuant to La. C.C.P. art. 971(B) as the prevailing party on their motion. Therefore, we will amend the February 14, 2017 judgment to so decree.

CONCLUSION

After careful consideration of the plaintiff's petition and governing law, we affirm that portion of the August 30, 2016 judgment sustaining the peremptory exceptions raising the objections of no cause of action filed by Universal and the Seal defendants. We also grant the respective answers to the appeal filed by Universal and the Seal defendants to reverse the remaining portion of the August 30, 2016 judgment, wherein the trial court denied the special motions to strike, and herein, we grant those motions. Additionally, we amend the February 14, 2017 judgment to decree the Seal defendants as prevailing parties on their special motion to strike and thereby entitled to an award of reasonable attorney fees and costs. All costs of this appeal are cast to the appellant, Lisa Seal Frigon, as administratrix of the estate of Adler Berriman Seal.

ANSWERS TO APPEAL GRANTED; AUGUST 30, 2016 JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND JUDGMENT RENDERED GRANTING THE SPECIAL MOTIONS TO STRIKE FILED BY UNIVERSAL CITY STUDIOS, LLC AND DEBORAH DUBOIS SEAL, DEAN BERRIMAN SEAL, AARON CHRISTOPHER SEAL, AND CHRISTINA SEAL WARMACK; FEBRUARY 14, 2017 JUDGMENT AMENDED TO DECREE DEBORAH DUBOIS SEAL, DEAN BERRIMAN SEAL, AARON CHRISTOPHER SEAL, AND CHRISTINA SEAL WARMACK PREVAILING PARTIES ON THEIR SPECIAL MOTION TO STRIKE ENTITLED TO REASONABLE ATTORNEY FEES AND COSTS PURSUANT TO LA. C.C.P. ART. 971(B).

Pettigrew, J. concurs with the Results, and assigns Reasons.

I note the majority did not address the issues raised by appellant concerning La. R.S. 14:102.21, enacted in 2006, which provides, as follows:

A. It shall be unlawful for any person to use for the purpose of advertising for the sale of any goods, wares, or merchandise, or for the solicitation of patronage by any business the name, portrait, or picture of any deceased soldier, without having obtained prior consent to such use by the soldier, or by the closest living relative, by blood or marriage, of the deceased.
B. Whoever violates the provisions of this Section shall be fined not more than one thousand dollars, imprisoned for not more than one year, or both.
C. For purposes of this Section, "soldier" means any active duty member or former member of the armed forces of the United States including any member who was killed in the line of duty.

Does this statute create a privacy and/or publicity right inheritable by the surviving spouse and heirs of the soldier? Should the succession representative be allowed to amend her petition to state a cause of action? See La. Code Civ. Proc. art. 934.

The majority relies on Tatum v. New Orleans Aviation Bd., 2011-1431, p. 3 (La. App. 4 Cir. 4/11/12), 102 So.3d 144, 147, writ denied, 2012-1847 (La. 11/9/12), 100 So.3d 838, for the proposition that the right of privacy of a deceased person is strictly personal and, as such, dies with the decedent Barry Seal. Generally, I accept this as correct except if the legislature creates such a right. I note that the Tatum case, which was decided after the enactment of La. R.S. 14:102.21, did not address said statute.

I realize a criminal statute is not in of itself definitive of civil liability. Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790, 793 (La. 1992). However, they may be guidelines for the court in fixing liability. Moreover, to determine existence of a civil duty, this court's inquiry must focus on whether the statute was intended to protect a particular plaintiff from the type of harm that ensued. Id. This inquiry was not done by the majority.

In my research, I do not find any jurisprudence that analyzes La. R.S. 14:102.21. Nor do I find any legislative minutes or history concerning said statute. It seems to have gone through the legislative process without comment and became law in 2006.

After reviewing La. R.S. 14:102.21, even if it did create an inheritable right of privacy or publicity, I do not believe it would be applicable to the instant case.

In my humble opinion, said statute's scope is limited to the facts of the soldier's military history. The case before us involves the life story of an alleged criminal and drug smuggler who was not killed while serving his country during military duty, but rather was killed while allegedly participating in alleged criminal activity. I am of the opinion the facts of this case do not fall within the scope of La. R.S. 14:102.21.

For these reasons I concur with the results reached by the majority.

      In 2017, Universal released a movie titled "American Made," starring Tom Cruise that portrayed some of the more infamous details of the life of the decedent, a Louisiana native.

      Initially, Ms. Frigon's appointment was only provisional, but was later made permanent.

      Universal was incorrectly identified as "Universal Pictures, Inc." in the petition.

      The record does not indicate that a hearing was held in conjunction with the rendering of the August 30, 2016 judgment. It appears that, in essence, the trial court granted a new trial on its own motion and without argument, which is allowed pursuant to La. C.C.P. art. 1971 and jurisprudence. We observe that the trial court's actions were timely, as the judgment had not yet become "final" so as to invoke the running of the appeal delay. See Horton v. Mayeaux, 05-1704, pp. 5-6 (La. 5/30/06), 931 So.2d 338, 341-42.
      Notice of the June 15, 2016 judgment was mailed on June 17, 2016. Therefore, without other action by the parties, the delay for seeking a new trial was until June 28, 2016; however, as Ms. Frigon's motion for partial new trial was timely filed on June 27, 2016, the delay for seeking a new trial by the trial court or other parties was further extended until Ms. Frigon's motion was decided. See Horton, 05-1704 at pp. 6-7, 931 So.2d at 342. Additionally, it has been held that a trial court is not required to hold a contradictory hearing on a new trial granted pursuant to its own motion. Robertson v. Weinmann, 00-0799, p. 5 (La. App. 4th Cir. 2/21/01), 782 So.2d 38, 41 ; McCrea v. Mobil Oil Corporation, 95-0537, p. 7 (La. App. 4th Cir. 9/28/95), 662 So.2d 143, 148.

      The actual date that appears on the judgment is February 15, 2016; however, it is evident that the wrong year was written, as the judgment further indicates that it emanated from the hearing held on December 5, 2016.

      The answer actually requests that this court award Universal "its reasonable attorneys' fees and costs," but the record discloses that such has already been awarded to Universal by the trial court in a judgment signed on April 17, 2017, which judgment is the subject of a separate appeal before this court. See Frigon v. Universal Pictures, Inc., 17-0994 (La. App. 1st Cir. 18), 255 So.3d 591.

      Universal also filed a motion to appeal the June 13, 2016 and February 14, 2017 judgments. Ms. Frigon filed an answer to the appeal by Universal and to the appeal filed by the Seal defendants, although the record contains no reference to an appeal filed by the Seal defendants. Nevertheless, pursuant to separate motions filed by Universal and the Seal defendants, this court issued orders on August 29, 2017 and November 8, 2017, to dismiss the appeals of Universal and the Seal defendants.
      As for Ms. Frigon's answer, we observe that the relief requested in her answer is the same as presented in the instant appeal and in her separate appeal of the April 17, 2017 judgment, wherein the trial court awarded Universal costs and attorney fees pursuant to La. C.C.P. art. 971(B). Accordingly, we will address the merits of her answer in our review of the appeals she has filed.

      The following is a summary of the substance of Ms. Frigon's allegations as to the other claims:
      Nullity: Ms. Frigon asserts that the "personal name, nickname, photographic likeness, and Life Story Rights of [the decedent] are assets belonging to the Estate" and not to the Seal defendants individually, and as such, the Seal defendants "did not have the authority to sell the Life Story Rights of [the decedent] without authority of the Court where the Estate of [the decedent] was being administered."
      Unfair Trade Practices: Ms. Frigon claims that Universal's failure to disclose its agreement with the Seal defendants, denial that she and her brother, Adler Berriman Seal Dodson, "had any protectable interest" in the life story rights of the decedent, and claim that information used was in the exercise of the right to free speech and available in the public domain constituted unfair trade practices.
      Misappropriation: Ms. Frigon alleges that the Seal defendants "are using the Life Story Rights, including the photographic likeness of [the decedent] for their financial gain and commercial advantage" in marketing the feature film based on the decedent's life and that Universal's activities of promoting and marketing the feature film "constitute misappropriation of the identity and persona" of the decedent. We observe that Ms. Frigon's allegations regarding this claim appear to be partially duplicative of her privacy claim. See Slocum v. Sears Roebuck & Co., 542 So.2d 777, 779 (La. App. 3d Cir. 1989) and right to privacy discussion infra.
      False Advertising: Ms. Frigon contends that Universal falsely advertised that it owns the decedent's life story rights and falsely marketed the feature film as the decedent's true life story without the consent or authority of the decedent's estate or the court.
      Conversion: Ms. Frigon asserts that the Seal defendants failed to remit any of the proceeds they received when they sold the decedent's life story rights, which rights she alleges were the property of the decedent's estate, but instead converted the money for their own personal use and benefit.

      Legislation has been proposed in the Louisiana Legislature to establish a right of publicity. See 2018 Original House Bill No. 276 of the Louisiana Legislature, which if enacted, would be referred to as the "Allen Toussaint Legacy Act" and would establish "a property right of identity" in Louisiana. See also 2017 Re-engrossed House Bill No. 415.

      In their memorandum in support of their peremptory exception raising the objection of no cause of action and in support of their special motion to strike, the Seal defendants acknowledged that they could not "add materially to the excellent recitation of the law and facts set forth" by Universal, and as such, "[r]ather than attempt to expound on the authorities set forth" by Universal, they simply adopted Universal's legal argument.

      Some notable examples being Dr. Martin Luther King Jr. in the movie "Selma" (2014), Howard Hughes in the movie "The Aviator" (2004), and Tupac Shaqur, in the movie "All Eyez on Me" (2017).

      Again, some notable examples being "Sully" (a 2016 movie about an airline pilot who made an emergency landing on the Hudson River in New York), "Dallas Buyers Club" (a 2013 movie about an AIDS patient who helped smuggle drugs into the United States to help treat others with the disease), and "War Dogs" (a 2016 movie about two young men who chanced upon a contract with the Pentagon to provide weapons to America's allies in Afghanistan).