text:
    Angela JACKSON v. FAMILY DOLLAR STORES OF LOUISIANA INC., S & S Janitorial Services, LLC, SMS Assist, LLC
    No. 2018-C-0170
    Supreme Court of Louisiana.
    June 27, 2018
   PER CURIAM

In this workers' compensation case, we are called upon to decide whether the employer's appeal, taken within the devolutive appeal delays but outside of the suspensive appeal delays, is timely under the special provisions of La. R.S. 23:1310.5(C). For the reasons that follow, we find the appeal should be maintained as timely, but because the appeal is devolutive in nature, the judgment awarding benefits is subject to immediate execution.

FACTS AND PROCEDURAL HISTORY

The facts of this case are largely undisputed. Claimant, Angela Jackson, was injured in the course and scope of her employment with Family Dollar Stores of Louisiana ("Family Dollar"). By judgment dated January 30, 2017, the Office of Workers' Compensation ("OWC") awarded claimant medical expenses, total temporary disability, and supplemental earnings benefits. The OWC also assessed penalties and attorney's fees against Family Dollar. Family Dollar filed a motion for new trial, which the OWC denied on March 22, 2017.

On May 4, 2017, Family Dollar filed a motion for appeal. Family Dollar did not designate the appeal as a suspensive or a devolutive appeal.

After the appeal was lodged, claimant filed a motion to dismiss the appeal. Citing La. R.S. 23:1310.5(C), claimant argued that because the statute required the employer to post a bond in connection with a judgment awarding benefits, it followed that any appeal must be suspensive in nature. Because Family Dollar's appeal was filed outside of the suspensive appeal delays, claimant argued it was untimely.

The court of appeal found La. R.S. 23:1310.5(C) permitted both suspensive and devolutive appeals where the claimant has been awarded benefits, but required a bond in such appeals. It further found the delay for posting the bond does not begin to run until the appellant gets notification of the amount of the bond. Because no bond had yet been set or posted, the court of appeal determined that it could not entertain the appeal, and therefore remanded the case to the OWC for purposes of compliance with La. R.S. 23:1310.5(C). Jackson v. Family Dollar Stores of Louisiana, Inc. , 17-0712 (La. App. 4th Cir. 1/5/18), --- So.3d ----.

Upon claimant's application, we granted certiorari to consider the correctness of that decision. Jackson v. Family Dollar Stores of Louisiana, Inc. , 18-0170 (La. 4/18/18), 247 So.3d 727. The sole issue presented for our consideration is whether Family Dollar's appeal is timely.

DISCUSSION

In Pierce Foundations, Inc. v. Jaroy Constr., Inc. , 15-0785 (La. 5/3/16), 190 So.3d 298, 303, we summarized the relevant principles of statutory construction as follows:

Legislation is the solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for the legislative intent. Cat's Meow, Inc. v. City of New Orleans , 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198 ; La. Safety Ass'n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass'n , 09-0023, p. 8 (La. 6/26/09), 17 So.3d 350, 355-56. See also La. R.S. 24:177(B)(1). When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written, with no further interpretation made in search of the legislative intent. La. R.S. 1:4. The starting point for interpretation of any statute is the language of the statute itself. See, e.g., Cat's Meow , 98-0601, p. 15, 720 So.2d at 1198 ; Timbermen , 09-0023, p. 8, 17 So.3d at 356. Additionally, "all laws pertaining to the same subject matter must be interpreted in pari materia, or in reference to each other." See, e.g. , State v. Williams , 10-1514 (La. 3/15/11), 60 So.3d 1189, 1191 ; La. C.C. art. 13. When, on the other hand, a statute is not clear and unambiguous, or its application leads to absurd consequences, we rely on secondary rules of statutory interpretation to discern the meaning of the statute at issue. See Red Stick Studio Dev., L.L.C. v. State ex rel. Dep't of Econ. Dev. , 10-0193, p. 10 (La. 1/19/11), 56 So.3d 181, 187-88 (quotation omitted). In such cases, the statute "must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole." Id.

With these principles in mind, we now turn to an examination of the relevant sections of La. R.S. 23:1310.5, which provides in pertinent part:

B. The decision of the workers' compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.
C. When there has been an award of benefits by the workers' compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers' compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law. [emphasis added].

While we acknowledge La. R.S. 23:1310.5 is not a model of legislative clarity, some broad conclusions may be drawn from its language. At the outset, we observe La. R.S. 23:1310.5(B) expressly recognizes two types of appeals: (1) an appeal which suspends the effect or execution of an appealable judgment or order and must be filed within thirty days; and (2) an appeal which does not suspend the effect or execution of an appealable judgment or order and must be filed within sixty days. Notably, there is no reference in La. R.S. 23:1310.5(B) to any bond requirement. However, La. R.S. 23:1310.5(C) sets forth a special provision for those cases where the OWC has awarded benefits. In such cases, the statute provides no appeal by an employer shall be "entertained" by the appellate court unless the employer secures a bond guaranteeing that the employer will pay the amount of the award plus interest and costs.

Nothing in La. R.S. 23:1310.5(C) specifies the time period in which this appeal must be filed. Most significantly, there is no language indicating the appeal under this subsection has the effect of suspending the execution of the judgment. This omission stands in stark contrast to La. Code Civ. P. art. 2123(A), which refers to "an appeal that suspends the effect or the execution of an appealable order or judgment...."

However, claimant asserts that by referencing a bond, the statute must implicitly limit the employer to a suspensive appeal. We do not find the reference to a bond in La. R.S. 23:1310.5(C) compels the conclusion that the legislature intended for the appeal to be suspensive. We are aware of no principle of law which holds that a bond requirement is exclusive to suspensive appeals. Indeed, it is noteworthy that prior to 1977, bonds were required in both suspensive and devolutive appeals. See Killeen v. Jenkins , 98-2675 (La. 11/5/99), 752 So.2d 146 (explaining that initially "a bond was required for the prosecution of all appeals, whether suspensive or devolutive," but "in 1977, the legislature amended La. Code Civ. P. art. 2124 to provide that no security is required for a devolutive appeal."). Thus, we do not believe the mere reference to a bond in La. R.S. 23:1310.5(C) compels the conclusion that the legislature anticipated the employer's appeal would be limited to a suspensive appeal.

Moreover, in the absence of any specific statutory language to the contrary, we do not believe there is any basis to find the court of appeal lacks jurisdiction to consider an appeal which has been filed within the devolutive appeal delays. In Baton Rouge Bank & Trust Co. v. Coleman , 582 So.2d 191, 192 (La. 1991), we explained that the failure to file a suspensive appeal timely does not result in a jurisdictional defect which precludes the court from hearing an appeal which has otherwise been filed within the devolutive appeal delays:

Thus, when an appellant fails to file a devolutive appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment. However, when an appellant fails to file a suspensive appeal from a final judgment timely, the judgment does not thereby acquire the authority of the thing adjudged, and the court of appeal does have jurisdiction to reverse, revise or modify the judgment (as long as the appeal was filed within the time limit for appealing devolutively) . [italics in original; boldfacing added].

Claimant's argument is contrary to this bedrock principle of appellate law and would incorrectly accord jurisdictional status to a suspensive appeal. The language of La. R.S. 23:1310.5(C) also makes it clear that the statute does not contemplate dismissal of the appeal as a remedy for the employer's failure to file the bond. Rather, the statute provides no appeal by an employer shall be "entertained" unless the employer secures a bond. The word "entertain" is defined in the Merriam-Webster Dictionary as "to receive and take into consideration." Therefore, rather than creating a jurisdictional defect mandating dismissal of the appeal, the failure to file the bond constitutes a procedural defect preventing the court of appeal from considering the appeal until the bond is posted. See Hurst v. Arabi Taxi and Delivery Serv. , 96-108, pp. 2-3 (La. App. 5th Cir. 5/28/96), 675 So.2d 1210, 1211 (holding the appeal was "premature" until there has been compliance with the requirements of La. R.S. 23:1310.5(C) ).

Claimant's argument also runs contrary to the well-settled principle that appeals are favored in the law. Unless the ground urged for dismissal is free from doubt, the appeal should be maintained.

U.S. Fire Insurance Co. v. Swann , 424 So.2d 240, 244-45 (La.1982). Without specific and explicit legislative authority requiring the appeal to be filed in thirty days, the ground for dismissal urged by claimant is clearly not free from doubt.

Accordingly, we interpret La. R.S. 23:1310.5 as recognizing the right to take a suspensive or devolutive appeal, but with the special condition that in those cases where the employer appeals a judgment awarding benefits, the employer must post a bond covering the judgment (plus interest and costs) irrespective of whether the appeal is designated as suspensive or devolutive. In those cases where the appeal is filed within the applicable suspensive appeal delays and the bond is properly posted, the appeal will act to suspend the judgment pending the appeal. In those cases where the appeal is filed outside of the suspensive appeal delays but within the devolutive appeal delays, the court of appeal shall retain jurisdiction to entertain the appeal once the bond is posted but the judgment awarding benefits shall be subject to execution. In this latter instance, the bond does not serve to suspend the judgment but is an additional form of protection to the employee in the event the employer becomes insolvent or otherwise unable to pay the judgment.

We acknowledge that La. R.S. 23:1310.5(C) conditions the posting of the bond on an uncertain event insofar as it provides the time for posting the bond "shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law." In cases where the employer chooses to take a devolutive appeal, the delay for posting the bond does not adversely affect the employee (who may execute on the judgment once the suspensive appeal delays have passed), but there is a potential for undue delay in cases where an employer files a suspensive appeal. To minimize delays, employers should submit a request to fix the bond along with their motion for appeal, and the OWC should be vigilant in setting the bond as soon as practicable.

In summary, we conclude the court of appeal reached the correct result insofar as it determined it had jurisdiction to consider this devolutive appeal, although it could not entertain the appeal until the bond was posted. Family Dollar has now submitted evidence that the bond has been set and posted. As a result, there is no longer any impediment to consideration of the appeal. Accordingly, we will remand the case to the court of appeal for consideration of the appeal on the merits.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed insofar as it determined it had jurisdiction over this devolutive appeal. As the procedural impediment to entertaining the appeal has now been removed, the case is remanded to the court of appeal for consideration on the merits.

In this case, an injured worker was awarded benefits in January 2017, but has yet to receive these benefits because of undue delay caused by the actions of her employer and the ruling of the court of appeal. The majority of this court now perpetuates the delay in reaching a final resolution of Ms. Jackson's claim.

Angela Jackson was injured while working for Family Dollar Stores of Louisiana. She was awarded worker's compensation benefits on January 30, 2017, consisting of medical expenses, total temporary disability, and supplemental earnings benefits. Additionally, Family Dollar was assessed with penalties and attorney's fees. Family Dollar filed a motion for new trial, which was denied on March 22, 2017. Family Dollar then filed a motion for appeal on May 4, 2017. Family Dollar did not designate its appeal as suspensive or devolutive, and did not request the setting of a bond. Ms. Jackson filed a motion to dismiss Family Dollar's appeal, arguing it was untimely pursuant to La. R.S. 23:1310.5(C) because it was not filed within the delays for suspensive appeals. The court of appeal determined that La. R.S. 23:1310.5(C) allowed for devolutive appeals, but required a bond. Thus, since no bond had been set, the court remanded the case to the OWC to set a bond in compliance with La. R.S. 23:1310.5(C). Ms. Jackson then filed the instant writ application in this court.

La. R.S. 23:1310.5(C) provides:

When there has been an award of benefits by the workers' compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers' compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure , but shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law.

The statute clearly requires a bond in cases where an employee has been awarded benefits, and requires that the bond be perfected within the time limits provided in the Code of Civil Procedure. The only provision in the Code of Civil Procedure that references a time period for perfecting a bond is La. C.C.P. art. 2123, which provides a thirty-day time period for taking a suspensive appeal and providing security therefor. Contrary to the majority, I find that by requiring the posting of the bond, La. R.S. 23:1310.5(C) can only be read as providing for suspensive appeals, and not devolutive appeals, in cases where benefits have been awarded. As such, the statute requires that the appeal be filed and bond be perfected within thirty days pursuant to La. C.C.P. art. 2123(A). If the employer fails to do so, its appeal is deemed untimely.

The concurrence cites to Baton Rouge Bank & Tr. Co. v. Coleman , 582 So.2d 191, 192 (La. 1991) and Professor Maraist's treatise for the premise that the failure to perfect a suspensive appeal timely is not a jurisdictional defect. While this is true under general civil procedure principles, this proposition is not applicable in specialized situations, such as La. R.S. 23:1310.5(C), where the legislature has provided for specific limited appeal delays. (See also , e.g. , La. R.S. 18:1409 (D) & (G) providing limited appeal times in election cases). In such cases, the failure to perfect the appeal by filing and posting the bond within the designated time period is a jurisdictional defect requiring dismissal of the appeal, even if the appeal is filed within the time period for devolutive appeals set forth in the Code of Civil Procedure.

Furthermore, the majority's interpretation of the statute prejudices the employee by allowing the employer to purposefully delay consideration of any appeal. The purpose of the Worker's Compensation Act is to provide an injured employee with timely payments of benefits and medical expenses, and worker's compensation law must be interpreted to assure the delivery of those benefits. See La. R.S. 23:1020.1. While recognizing the potential of abusive delay by the employer, the majority offers a "solution" by suggesting that "employers should submit a request to fix the bond along with their motion for appeal, and the OWC should be vigilant in setting the bond as soon as practicable." However, this suggestion provides no mandate to the employer and no method of enforcement for the disadvantaged employee. The concurrence suggests that the burden of requesting a bond be set may be placed on the employee. I cannot agree. While some delay in consideration of the appeal may be inevitable since the statute provides the time period does not begin to run until the employer is notified by the workers' compensation judge as to the amount of the bond, the statute clearly requires the employer to perfect the bond within 30 days, and the employer should be required to request the bond be set when the appeal is filed, as in other civil appeals.

Employees are entitled to a quick and efficient final resolution of their worker's compensation claims. It is clear to me that the legislature, in limiting employers to file suspensive appeals in these cases, intended to protect the worker by ensuring appeals challenging an award of benefits move forward expeditiously and by ensuring the worker can collect on the judgment regardless of the solvency of the employer, through the posting of a bond.

For these reasons, I respectfully dissent, finding Family Dollar's appeal should be dismissed as untimely.

I respectfully dissent.

While I believe the majority opinion reaches a facially equitable result in allowing the employer's appeal to go forward, I am convinced that the result is not the one ordained by the language of the statute and by longstanding principles of statutory construction. In an effort to construe a statute described as lacking "legislative clarity," the majority opinion elevates the jurisprudential presumption favoring appeals over the language of the statute, which, while admittedly challenging to parse, is nevertheless clear. In the process, relying for authority on a bond for costs that has not been a part of the law for 41 years, the majority opinion creates a new and unique species of devolutive appeal-one which does not suspend the effect of the judgment, but which nevertheless requires a bond in the full amount of the judgment, together with interest and all costs (i.e. , in an amount similar to that required for a suspensive appeal), and which effectively rewards delay on the part of an appealing employer and prolongs, rather than expedites, the resolution of an injured worker's claim. I do not believe that this was the intent of the legislature or that such an interpretation is supported by the language of the statute.

At issue in this case is La. R.S. 23:1310.5, which sets forth hearing and appellate procedures in workers' compensation cases. Subsection B of the statute describes the types of appeals available to aggrieved litigants, and the time delays for filing. It provides, in relevant part:

An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.

La. R.S. 23:1310.5(B).

Thus, subsection B provides for both suspensive and devolutive appeals from decisions of the workers' compensation courts and further provides for the effects of both: a suspensive appeal suspends the effect or execution of a judgment and must be filed within 30 days, whereas a devolutive appeal does not suspend the effect or execution of a judgment and must be filed within 60 days. In this regard, the provisions of subsection B are co-extensive with, and identical to, the provisions of the Louisiana Code of Civil Procedure. See, La. C.C.P. art. 2087(A) ("Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following ....") and La. C.C.P. art. 2123(A) ("Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following ....").

Subsection C carves out an exception for employers when the workers' compensation court has made an award of benefits to an injured worker. It provides:

When there has been an award of benefits by the workers' compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers' compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law.

La. R.S. 23:310.5(C).

A plain reading of this article, in conjunction with subsection B, indicates that the only appeal available to the employer when there is an award of benefits is a suspensive appeal. This is because, by definition, only a suspensive appeal (an appeal which suspends the effect or execution of an appealable order or judgment) requires a bond. La. R.S. 23:1310.5(B) ; La. C.C.P. art. 2123(A). A devolutive appeal (an appeal which does not suspend the effect or execution of an appealable order or judgment, La. R.S. 23:1310.5(B) ; La. C.C.P. art. 2087(A) ), does not require a bond. See La. C.C.P. art. 2124(A) ("No security is required for a devolutive appeal."). It is inconsistent with the language of La. R.S. 23:1310.5(B), which essentially adopts the definitions of suspensive and devolutive appeals appearing in the La. Code of Civil Procedure, to suggest that La. R.S. 23:1310.5(C), simply by virtue of not specifically stating whether the appeal under this subsection has the effect of suspending the execution of the judgment, creates a species of devolutive appeal which does not suspend the effect or execution of an appealable order or judgment but which nevertheless requires a bond in an amount similar to that required in a suspensive appeal-the full amount of the award plus interest and all costs. See La. C.C.P. art. 2124(B)(1).

Indeed, the contrary conclusion is warranted by the plain language of the statute. Subsection C specifically directs that the time limits for perfecting the bond shall be as provided in the La. Code of Civil Procedure. La. R.S. 23:1310.5(C) ("The time limits for perfecting the bond shall be as provided in the La. Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law."). The only applicable article in the La. Code of Civil Procedure, and the only one the statute (La. R.S. 1310.5(C) ) can refer to, is section A of La. C.C.P. art. 2123, entitled "Delay for taking suspensive appeal ," which provides, in pertinent part: "Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following ...." La. C.C.P. art. 2123(A) (emphasis added). Thus, by specifically incorporating the La. Code of Civil Procedure article that sets forth the time limits for perfecting the bond-an article that applies exclusively to suspensive appeals, the statute directs that the only appeal available to the employer in a workers' compensation case in which there has been an award of benefits is a suspensive appeal.

While, admittedly, the legislature might have made the task of the litigants and this court simpler in this case by plainly stating that only a suspensive appeal is allowed from a judgment awarding benefits, as worded, the statute leads inevitably to that conclusion. In limiting appeals in cases in which there has been an award of benefits to suspensive appeals, the legislature has struck a balance between the competing interests of employers and injured workers. The statute protects the injured worker who has been awarded benefits by expediting the appeal process and ensuring there are funds available to satisfy the judgment in the event the employer becomes insolvent or otherwise unable to pay the judgment; and any burden on employers who are limited to the suspensive appeal is ameliorated by the provisions which state that the delays for perfecting the appeal by posting the required security do not begin to run until after the workers' compensation judge has fixed the amount of the bond.

This reading of the statute, La. R.S. 23:1310.5, is consistent with its literal language and avoids the absurd result, acknowledged by the majority, of interpreting the statute to allow an employer the option of appealing either suspensively or devolutively, but requiring a bond in an amount sufficient to satisfy the judgment in either event. See Jackson v. Family Dollar Stores of Louisiana Inc. , 18-0170, 251 So.3d 368, 373 n.2 (La. 6/27/18) (noting that, as a practical matter, it is difficult to determine why, under the majority's interpretation of the statute, an employer would ever choose to file a devolutive appeal). It also avoids the necessity of resurrecting-in defense of the proposition that no principle of law limits the bond requirement exclusively to suspensive appeals-a vestige of the law that has not existed since 1977-the devolutive appeal bond. Id. , at 371-72. Apart from the fact that the bond required for a devolutive appeal in La. C.C.P. art 2125 prior to its revision in 1977 was limited to "an amount sufficient to secure the payment of costs," the concept of a devolutive appeal secured by a bond has not existed in Louisiana law for over four decades, as previously noted.

Under current law, the only appeal that requires the posting of a bond under the La. Code of Civil Procedure is the suspensive appeal. La. R.S. 23:1310.5(C) specifically incorporates the provisions of the La. Code of Civil Procedure for purposes of establishing the time limits for perfecting the required bond; and La. C.C.P. art. 2123(A), which establishes those time limits, addresses only the suspensive appeal. It follows, therefore, that pursuant to La. R.S. 23:1310.5(C), the employer is limited to a suspensive appeal.

The majority's reluctance to adopt the foregoing analysis appears to be prompted by a rigid adherence to the principle that appeals are favored in the law and that, unless the ground urged for dismissal is free from doubt, the appeal should be maintained. See Jackson , op. at 372 (citing U.S. Fire Insurance Co. v. Swann , 424 So.2d 240, 244-45 (La. 1982) ). This principle, while well-settled, cannot prevail over a clear statutory directive. Moreover, the provisions of La. R.S. 23:1310.5(C) do not adversely impact the right to appeal, but rather, in the limited situation in which there has been an award of benefits to an injured worker, the statute simply limits the time and type of appeal to a suspensive appeal.

In conclusion, a plain reading of the provisions of La. R.S. 23:1310.5(C) reflects a legislative intent to protect the injured worker who has received an award of benefits by expediting the appeal process and ensuring there are funds available to satisfy the judgment. The interpretation of the statute adopted by the majority opinion undermines this objective and rewards an employer who engages in dilatory tactics, as evidenced by the facts of this case. Judgment in this case was rendered on January 30, 2017, and a motion for new trial filed by the employer was denied on March 22, 2017. A motion for appeal was filed on May 4, 2017. The employer did not designate the appeal as suspensive or devolutive, did not submit a motion seeking an order fixing the bond, and allowed the appeal to be lodged in the absence of a bond (requiring the employee to move for dismissal of the appeal; otherwise the appeal might have languished indefinitely), thereby managing to prolong the appellate process for over a year. Clearly, it was not the intent of La. R.S. 23:1310.5(C) to sanction such an inordinate delay.

Because I find that the employer in this case was limited to a suspensive appeal under La. R.S. 23:1310.5(C), his appeal, filed outside the 30-day time period required for filing suspensive appeals, was untimely and should be dismissed.

GUIDRY, J., concurs.

I agree in all respects with the Court's per curiam in this matter, as it comports with our well-settled tenet that appeals are favored under Louisiana law. However, I write separately to emphasize that La. R.S. 23:1310.5 is, indeed, a statute that does not provide great clarity on the appellate process in the Workers' Compensation Act. In an effort to avoid the possibilities of abusive and unnecessary delays that could occur when an employer files an appeal (but does not post a bond), the per curiam correctly dictates that the employer should immediately request the fixing of a bond along with a motion for appeal. Alternatively, the employee may do the same. In my view, the legislature may also wish to further refine this area of the law, aligning it with the general appellate procedures in the Louisiana Code of Civil Procedure.

Finally, I disagree with the dissenting views in this matter for the primary reason that they essentially deem a judgment in this case final and definitive after thirty days. As the per curiam notes, the statute's reference to a bond does not limit the employer's appeal to a suspensive one. And again, as the Court has held here, the failure to perfect a suspensive appeal timely is not a jurisdictional defect, because a judgment does not become final until after the devolutive appeal delays have run. See Maraist, I Louisiana Civil Law Treatise (2nd Ed. 2008), § 14:10 ; Baton Rouge Bank & Trust Co. v. Coleman , 582 So.2d 191 (La. 1991).

      La. R.S. 23:1310.5(C) provides:
      When there has been an award of benefits by the workers' compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers' compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers' compensation judge as to the amount of the bond fixed in accordance with law.

      We recognize that as a practical matter, it is likely most employers would prefer to take a suspensive appeal because a bond is required regardless of whether the appeal is suspensive or devolutive. However, for purposes of determining jurisdiction over the appeal, there is nothing in the statute which prohibits employers from taking a devolutive appeal should they wish to do so.

      La. C.C.P. art 2123 provides in relevant part: "A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
      (1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
      (2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
      B. Whenever one or more parties file motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court."
      * * *

      1 La. Civ. L. Treatise, Civil Procedure § 14:10 (2d ed.)

      Jackson v. Family Dollar Stores of Louisiana Inc. , 18-0170, 251 So.3d 368, 376-77 (La. 6/27/18).

      A worker who is awarded benefits in a judgment has undeniably suffered some work-related injury and is potentially disabled. In crafting the statute, the legislature presumably recognized that delay can adversely impact the circumstances of a disabled worker who may be impecunious.

      Practically speaking, I am unsure who would write such a bond, as it would presumably be immediately executable.

      While I note the suspensive appeal of an employer cannot be "entertained" until the employer secures a bond approved by the workers' compensation judges, I would assume the workers' compensation judges would expeditiously discharge their statutory duties to avoid delaying the appeal. See La. R.S. 23:1310.5(C).

      The legislature can, and has, shortened appeal delays. See, e.g., La. R.S. 18:1409. The fact that the legislature has chosen to do so in La. 23:1310.5(C), which applies in this case, renders irrelevant the general rule, cited in the additional concurring opinion, that the failure to perfect a suspensive appeal timely is not a jurisdictional defect because a judgment does not become final until after the devolutive appeal delays have run. The general rule simply has no application in this case where the language of the statute limits the appeal to a suspensive appeal.

      "When district judges were removed as the tribunal of first instance for workers' compensation matters, it was necessary to insert into the Act some rudiments of an appellate process ....[s]ince the provisions of the Act are a bit sparse on appellate procedure, the cases have necessarily had to fill in some of the gaps. With very few exceptions these cases make the appellate process surrounding the rulings of the workers' compensation judge look very similar to the process governing ordinary civil matters, as to post-trial matters, the finality and appealability of judgments, time period for appeal, procedure in the appellate court itself, and other issues."
      H. Alston Johnson III, 13 La. Civ. L. Treatise, Workers' Compensation Law and Practice § 391 (5th Ed.) (internal citations omitted)


source: Caselaw Access Project

author: GUIDRY, Justice Hughes, J., dissenting.

license: Public Domain

text:
    BEER INDUSTRY LEAGUE OF LOUISIANA and Wine and Spirits Foundation of Louisiana, Inc. v. The CITY OF NEW ORLEANS and Norman S. Foster, in His Official Capacity as Chief Financial Officer and Director of Finance for the City of New Orleans
    Louisiana Restaurant Association, Inc. v. The City of New Orleans and Norman S. Foster, in His Official Capacity as Chief Financial Officer and Director of Finance for the City of New Orleans
    No. 2018-CA-0280 No. 2018-CA-0285
    Supreme Court of Louisiana.
    June 27, 2018
    ON APPEAL FROM THE ORLEANS CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
   GUIDRY, Justice

In this case, we are called upon to decide whether an ordinance of the City of New Orleans levying a gallonage tax based on volume upon dealers who handle high alcoholic content beverages is a valid exercise of its authority to levy and collect occupational license taxes within the meaning of La. Const. Art. VI, § 28, which permits a local governmental subdivision to impose an occupational license tax not greater than that imposed by the state. This case is before us pursuant to our appellate jurisdiction, La. Const. Art. V, § 5 (D), because the ordinance has been declared unlawful and unconstitutional by the trial court. For the following reasons, we find the portion of the ordinance at issue is not an unconstitutional exercise of the City's taxing authority. We thus reverse the trial court's grant of summary judgment in favor of the plaintiffs, and remand to the trial court for further proceedings.

FACTS and PROCEDURAL HISTORY

On November 3, 2016, the New Orleans City Council passed an ordinance to "amend and reordain" Sections 10-501, 10-502, and 10-511 of the New Orleans Municipal Code relative to the imposition and collection of "an occupational license tax or excise tax on dealers of alcoholic beverages...." Ord. No. 27179, Nov. 3, 2016. The ordinance, which is set forth in full below, was to take effect on January 1, 2017. Id. , § 2. The Beer Industry League of Louisiana and Wine and Spirits Foundation of Louisiana, Inc. filed a Petition for Injunctive Relief and Declaratory Judgment on December 22, 2016, against the defendants, the City of New Orleans and Norman S. Foster, then the Chief Financial Officer and the Director of Finance for the City of New Orleans. The Louisiana Restaurant Association, Inc., on January 13, 2017, filed a similar petition, which was thereafter consolidated with the suit filed by the Beer Industry League and the Wine and Spirits Foundation, all of whom will be referred to as the plaintiffs. That same day the district court issued a temporary restraining order, which ordered the defendants "restrained, enjoined, and prohibited from attempting to levy, or imposing, or collecting fees or taxes pursuant to New Orleans Code of Ordinances Secs. 10-501 and 10-511." The district court also set a hearing on the preliminary injunction.

On January 30, 2017, the district court denied the preliminary injunction and dissolved the temporary restraining order previously issued. Thereafter, in April 2017, the City sent out a notice to certain alcohol dealers that it would begin enforcing the license taxes. The plaintiffs later filed a Motion to Escrow Funds seeking leave to deposit into the registry of the court any amounts collected pursuant to Section 10-501 et seq. The trial court granted the motion on August 30, 2017.

Ordinance No. 27179 provides as follows:

AN ORDINANCE to amend and reordain Sections 10-501, 10-502, and 10-511 of the Code of the City of New Orleans, relative to imposition and collection of an occupational license tax or excise tax on dealers of alcoholic beverages, and to otherwise provide with respect thereto.
WHEREAS , Article VI, Section 28 of the Louisiana Constitution authorizes a local governmental subdivision to impose an occupational license tax not greater than that imposed by the state; and
WHEREAS , Louisiana Revised Statutes 26:341 and 26:342 impose an excise or license tax on all beverages of high and low alcoholic content that are handled in the state; and
WHEREAS , the taxes imposed by the City of New Orleans are not greater than those imposed by the state; NOW THEREFORE
SECTION 1. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY ORDAINS , That Sections 10-501, 10-502, 10-511 of the Code of the City of New Orleans are hereby amended and reordained to read as follows:
"Sec. 10-501.-Rates of tax on beverages of high alcoholic content.
Excise or license taxes are imposed upon dealers of alcoholic beverages referred to in this article at the following prices and rates:
(1) Liquors and sparkling wines at the rate of $0.40 per standard wine gallon or fraction thereof.
(2) Still wines having an alcoholic content of 14 to 24 percent volume, at the rate of $0.10 per standard wine gallon or fraction thereof.
(3) Still wines having an alcoholic content of under 14 percent by volume, at the rate of $0.05 per standard wine gallon.
(4) Barrels containing not over 50 gallons for still wines containing 14 to 24 percent of alcohol by volume, at the rate of $0.10 per standard wine gallon in such containers.
(5) Kegs containing not over five gallons and still wines containing 14 to 24 percent alcohol by volume, at the rate of $0.10 per standard wine gallon in such containers.
(6) Barrels containing still wines having under 14 percent of alcohol by volume, at the rate of $0.05 per standard wine gallon in such containers.
(7) Kegs containing not over five gallons of still wines having under 14 percent of alcohol by volume, at the rate of $0.05 per standard wine gallon in such containers.
(8) Barrel, keg or bottle for still wines having an alcoholic content in excess of 24 percent by volume, at the rate of $0.40 per standard wine gallon.
(9) Beer, ale, stout, lager beer, porter and the like, together with any other beverages of high alcoholic content up to 24 percent of alcohol by volume shall take the same rate of tax as provided for in subsections (1) to (8) in this section.
Sec. 10-502.-Additional tax on beverages of low alcoholic content.
In addition to all license taxes presently imposed, or permitted to be imposed, there is hereby levied a tax on dealers of all beverages of low alcoholic content, of $1.50 per standard 31-gallon barrel, or at a like rate of any other quantity or fractional parts of such beverages sold and consumed within the city, to be collected from dealers pursuant to Section 10-511 of this Division.
Sec. 10-511.-Who is liable for tax.
The taxes levied in Sections 10-501 and 10-502 of this Division shall be collected, as far as practicable, from the dealer who first handles the alcoholic beverages in the City. If for any reason the dealer who first handled the taxable alcoholic beverages has escaped payment of the taxes, those taxes shall be collected from any dealer in whose hands the taxable beverages are found."
SECTION 2. That the provisions of this ordinance shall become effective on January 1, 2017.

In their petitions, the plaintiffs asserted the City of New Orleans exceeded its authority under the Louisiana Constitution and statutes by imposing licensing fees and taxes upon the alcohol beverage industry in excess of the amounts allowed by law. The plaintiffs sought a judgment declaring Sections 10-501 and 10-511 of the Municipal Code unlawful and unenforceable.

The plaintiffs asserted La. R.S. 47:360(D) and La. R.S. 26:491 prohibit the imposition of occupational license taxes or license or excise taxes on wholesale dealers of alcohol. The plaintiffs eventually moved for partial summary judgment, seeking a declaration that certain parts of the City's ordinance were unlawful and unenforceable, namely Sections 10-501 and 10-511. The plaintiffs asserted the tax sought to be collected by the City was not an "occupational license tax" permitted under La. Const. Art. VI, § 28, which allows local governmental subdivisions to impose an occupational license tax not greater than that imposed by the state. The plaintiffs argued the City's tax, which is referred to as the "Gallonage Tax," was in addition to the limit of the occupational license taxes permitted by La. R.S. 47:354. The plaintiffs argued Art. VI, § 28 does not permit local governments to impose an "excise or license tax" as described in Sections 10-501 and 10-511. The plaintiffs also argued La. R.S. 26:492(D) specifically prohibits municipalities from imposing a local tax on beverages of high and low alcohol content other than those imposed therein.

The City responded and also requested summary judgment asserting the excise or license taxes in Sections 10-501 and 10-511 were imposed in a manner "consistent with the Louisiana Constitution, state law, and the City's Home Rule Charter." The City argued that La. Const. Art. VI, § 28 permits a local governmental subdivision to impose an occupational license tax not greater than that imposed by the state. The City asserted the state in La. R.S. 26:341 and 26:342 imposes an excise or license tax on all beverages of high and low alcoholic content that are handled in the state. The City argued this gallonage tax was an occupational license tax, and that the City therefore could impose a similar occupational license tax, so long as it did not exceed the limits of the state's occupational license tax. The City noted that its tax is substantially less than that imposed by the state statute. The City also argued that its home rule charter preceded the 1974 Constitution, and thus it retained all the powers to tax that were not inconsistent with the constitution. The City argued it validly exercised its independent taxing authority under La. Const. Art. VI, § 4 and its home rule charter.

The trial court granted partial summary judgment in favor of the plaintiffs, declaring Section 10-501 unlawful, unconstitutional, and unenforceable. The trial court found that the state gallonage tax, as set forth in La. R.S. 26:341 and 26:342, and mirrored by the City in Sections 10-501 and 10-511, was not an occupational license tax. The trial court found that the term "occupational license tax" or "indirect" tax is reserved for taxes imposed on the privilege of engaging in a particular activity, as opposed to a "direct" tax on designated property. The trial court reasoned that the gallonage tax is not exclusively imposed on the activity of being the first dealer in the state to handle a beverage with high alcohol content, but instead, the tax can be collected from any dealer in whose possession the beverage is found, if the first dealer escapes payment. The trial court reasoned that this provision "makes liability for the tax more incidental to the possession of property than to the activity of dealing with it." The trial court also rejected the City's reliance on La. Const. Art. VI, § 4, noting the provision allows the City to retain only those home rule powers that are not inconsistent with the Louisiana Constitution, and that the gallonage tax is inconsistent with the constitutional provision vesting exclusive taxing authority in the state, except as otherwise provided in the constitution.

The City now appeals the holding of the trial court. For the reasons set forth below, we reverse the trial court's partial summary judgment in favor of the plaintiffs and find that Section 10-501 is neither unconstitutional nor unlawful.

LAW and ANALYSIS

This case comes to us on a partial motion for summary judgment. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co. , 06-363, p. 3 (La. 11/29/06), 950 So.2d 544, 546, see La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light , 06-1181, p. 17 (La. 3/9/07), 951 So.2d 1058, 1070.

In the instant case, the trial court has declared a portion of the City's ordinance to be unconstitutional and unlawful. The principles for determining the constitutionality of an ordinance were summarized by this court in Fransen v. City of New Orleans , 08-0076, 08-0087 (La. 7/1/08), 988 So.2d 225. An ordinance, like a state statute, is presumed to be constitutional. Theriot v. Terrebonne Parish Police Jury , 436 So.2d 515, 520 (La. 1983). In construing a municipal ordinance, courts use the same guidelines as those used in construing a state statute. Cox Cable New Orleans, Inc. v. City of New Orleans , 624 So.2d 890, 894 n. 5 (La. 1993). The presumption of a statute's constitutionality is especially forceful in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation and public finance. Caddo-Shreveport Sales and Use Tax Conmm'n v. Office of Motor Vehicles through Dep't of Public Safety and Corrections , 97-2233, p. 5 (La. 4/14/98), 710 So.2d 776, 779. Unlike the federal constitution, Louisiana's constitutional provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people. State v. All Prop. and Cas. Ins. Carriers Authorized and Licensed to do Business in the State , 06-2030, p. 6 (La. 8/25/06), 937 So.2d 313, 319 ; Louisiana Dep't of Agric. and Forestry v. Sumrall , 98-1587, p. 5-6 (La. 3/2/99), 728 So.2d 1254, 1259. Pursuant to Article VI of the Louisiana Constitution, a municipal authority governed by a home rule charter possesses powers, in affairs of local concern within its jurisdiction, that are as broad as those of the state, except when limited by the constitution, laws permitted by the constitution or its own home rule charter. La. Const. Art. VI, §§ 4 - 5 ; Civil Serv. Comm'n of the City of New Orleans v. The City of New Orleans , 02-1812, p. 4 (La. 9/9/03), 854 So.2d 322, 326. Because the City of New Orleans is governed by a home rule charter, principles for the determination of the constitutionality of a legislative enactment are equally applicable to the ordinance at issue here. Fransen, supra .

Statutes are presumed constitutional; therefore, the party challenging the statute bears the burden of clearly proving its unconstitutionality. Louisiana Federation of Teachers v. State , 13-2010 (La. 5/7/13), 118 So.3d 1033, 1048 ; Wooley v. State Farm Fire and Cas. Ins. Co. , 04-0882, p. 19 (La. 1/19/05), 893 So.2d 746, 762. A party seeking a declaration of unconstitutionality must show clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute in question. Caddo-Shreveport Sales and Use Tax Comm'n , 97-2233 at 5-6, 710 So.2d at 779 ; Polk v. Edwards , 626 So.2d 1128, 1132 (La. 1993). However, a constitutional limitation on legislative power may either be express or implied. Caddo-Shreveport Sales and Use Tax Comm'n , 97-2233 at 6, 710 So.2d at 779-80. When a constitutional challenge is made, the court must determine whether the constitution limits the legislature, either expressly or impliedly, from enacting the statute at issue. Board of Dir. of the Indus. Dev. Bd. of the City of Gonzales v. All Taxpayers, Property Owners , 05-2298, p. 14 (La. 9/6/06), 938 So.2d 11, 20. The constitution is the supreme law to which all legislative acts must yield. Caddo-Shreveport Sales and Use Tax Comm'n , 97-2233 at 6, 710 So.2d at 780. When a statute conflicts with a constitutional provision, the statute must fall. Id. , 97-2233 at 6, 710 So.2d at 780. If a statute is susceptible of two constructions, one of which would render it unconstitutional, or raise grave constitutional questions, the court will adopt the interpretation of the statute that, without doing violence to its language, will maintain its constitutionality. City of New Orleans v. La. Assessors' Retirement Fund , 05-2548, p. 12 (La. 10/1/07), 986 So.2d 1, 12-13.

With these principles in mind, we turn to the issues before us. The City primarily contends the trial court erred in finding the gallonage tax is not an occupational license tax the City may constitutionally impose. Thus, we must decide whether the tax levied by the City on dealers who handle high alcohol content beverages is an occupational license tax permitted under La. Const. Art. VI, § 28. The plaintiffs contend the gallonage tax at issue is not expressly allowed by either the constitution or the legislature, and therefore is unconstitutional.

La. Const. Art. VII, § 1 (A) provides that "Except as otherwise provided in this constitution, the power of taxation shall be vested in the legislature, shall never be surrendered, suspended, or contracted away, and shall be exercised for public purposes only." La. Const. Art. VII, § 30(A) provides that municipalities may exercise the power of taxation, but subject to the limitations elsewhere provided in the constitution under the authority granted by the legislature for parish, municipal, and other local purposes. However, La. Const. Art. VI, § 28 specifically allows municipalities to impose "an occupational license tax" no greater than that imposed by the state.

In amending and reordaining Sections 10-501 and 10-511, the City specifically referenced La. R.S. 26:341 and 26:342. The City and the plaintiffs disagree as to whether the gallonage tax set forth in the state statutes and the City's corresponding gallonage tax constitute occupational license taxes. If the state tax is an occupational license tax, then the City is authorized by the Louisiana Constitution to impose a similar tax under Art. VI, § 28. If the state gallonage tax is instead a tax directly on persons or property, then the City would be precluded from collecting it under La. Const. Art. VI, § 28. Accordingly, we must determine whether the state gallonage tax is an occupational license tax within the meaning of Art. VI, § 28(A).

In classifying a tax, courts look to its "operational effect rather than ... the descriptive language used in drafting the enactment." See City of New Orleans v. Scramuzza , 507 So.2d 215 (La. 1987). Courts have generally defined an "occupational license tax" as one "imposed on the activity or privilege of conducting a business or practicing a profession," which constitutes an indirect tax on the acts of persons. See Mire v. City of Lake Charles , 540 So.2d 950 (La. 1989) ; see also Louisiana State Dept. of Agriculture v. Sibille , 207 La. 877, 22 So.2d 202 (1945) ; Lionel's Cigar Store v. McFarland , 162 La. 956, 111 So. 341 (1927).

Chapter 3 of Title 47 of the Revised Statutes, entitled "Occupational License Tax," includes provisions relating to the imposition of license taxes on businesses, La. R.S. 47:341 et seq . La. R.S. 47:341, entitled "Imposition of tax; municipalities and parishes," provides that "[a]ny municipality or parish shall have the right to impose a license tax on any person conducting any business herein enumerated within the territorial jurisdiction of the municipality or parish at a rate which shall not exceed the maximum tax rates set forth in this Chapter...," that is, Chapter 3 of Title 47. The plaintiffs correctly point out that wholesale dealers of alcohol are expressly exempt from the license tax authorized in Title 47 by virtue of a specific exemption set forth in La. R.S. 47:360. Yet, as the City points out, this provision by its own language expressly limits the exemption to a "license tax imposed, assessed, or collected under the provisions of this Chapter ," that is, Chapter 3 of Title 47. La. R.S. 47:360(D) (emphasis supplied). The City contends, and we agree, this language contemplates that wholesale alcohol dealers may be assessed occupational license taxes pursuant to other chapters of the Revised Statutes, i.e. , Chapter 2 of Title 26 governing alcoholic beverage control and taxation.

Indeed, Title 26 of the Revised Statutes, entitled "Alcoholic Beverage Control Law," separately regulates alcohol sales as well as permitting and licensing requirements, with licensing and revenue provisions specific to the alcohol industry. La. R.S. 26:341 and 26:344, found in Part III of Chapter 2, and entitled "Gallonage Tax," require alcohol "dealers" to pay an "excise or license tax" that is based on the volume of all high alcoholic content beverages "handled in Louisiana." This tax is "in lieu of and exclusive of all other such state excise or license taxes." La. R.S. 26:343. As the City notes, there is no statutory exemption from these "excise or license taxes" for wholesale dealers of high alcoholic content beverages. "Dealer" for purposes of the Chapter is defined as "every person who manufactures alcoholic beverages within Louisiana for handling in Louisiana or who imports alcoholic beverages from any state, territory, possession, or foreign country for handling in Louisiana or who, not being able to prove that the tax levied by this Chapter has been previously paid, sells, offers for sale, of has in possession for sale or other handling beverages of high alcoholic content." La. R.S. 26:241(4). "Handle" is defined as "sell, use, distribute, store, consume, or otherwise handle." La. R.S. 26:241(6).

The City contends the gallonage tax is an occupational license tax because it indirectly taxes the handling of liquor and does not constitute a property tax upon the liquor itself. The gallonage tax expressly provides the tax is "upon dealers," rather than consumers or the product itself. The tax is likewise triggered by business conduct, the City avers, namely the professional handling of alcohol, and designates a specific class of merchants (dealers) who are responsible for payment. The City argues the statute makes clear the gallonage tax is a prerequisite to the privilege of participating in the liquor industry by stating that dealers who fail to furnish the bond required by La. R.S. 26:348 in connection with the payment of state gallonage taxes may be ruled into court and "ordered to cease business as a dealer." La. R.S. 26:348(B)(2). Furthermore, "[a]ny dealer who fails to file reports and pay the taxes due ... shall automatically be suspended from doing business and shall ... forfeit his bond." La. R.S. 26:354(H).

The plaintiffs counter that the characteristics of the state gallonage tax demonstrate that it is a direct tax on property in the control of whomever has possession of it and not an occupational license tax upon the activities of the dealer in handling the property. The plaintiffs point out that the language of La. R.S. 26:341 provides that it is a tax "levied on all beverages of high alcoholic content handled in Louisiana." While it is collected by the "dealer who first handles the alcoholic beverages in Louisiana," La. R.S. 26:344, the plaintiffs note the gallonage tax is described as "taxes on beverages of high alcoholic content...." La. R.S. 26:343. As noted previously, see Note 11, supra, the plaintiffs contend the legislature's recent revision of La. R.S. 26:341 striking the term "license" from the statute evinces the legislative intent to differentiate gallonage taxes from occupational license taxes of the sort contained in Title 47 or contemplated by La. Const. Art. VI, § 28. Further, the plaintiffs argue, La. R.S. 26:491 explicitly provides: "No tax on the manufacture, distribution, transportation, or importation of alcoholic beverages shall be imposed by way of licenses, excise taxes, or otherwise by any police jury, municipality, or other local taxing authorities despite any special or general law to the contrary, except as expressly authorized by this Chapter." The plaintiffs contend that, other than for low alcoholic content beverages, see La. R.S. 26:492, there is no provision that authorizes municipalities to impose a tax similar to the state gallonage tax.

Occupational license tax is not defined in Art. VI, § 28 ; nor is it defined anywhere else in the Constitution or by statute. Therefore, we must examine the characteristics of the state gallonage tax to determine if it is a tax on activity or a tax on property. The nature of a tax is determined not by its title, but by its incidents, attributes, and operational effect. Reed v. City of New Orleans , 593 So.2d 368, 371 (La. 1992). The realities and substance of the tax must be examined, rather than its form. Id. ; City of New Orleans v. Scramuzza , 507 So.2d 215, 218 (La. 1987). Courts have generally defined an "occupational license tax" as one "imposed on the activity or privilege of conducting a business or practicing a profession." Mire v. City of Lake Charles , 540 So.2d 950, 952 (La. 1989) (emphasis in original).

In Radiofone, Inc. v. City of New Orleans , 630 So.2d 694 (La. 1994), this court was called upon to determine whether a tax on the privilege of engaging in a telecommunications business was an occupational license tax, even though it was based on the gross receipts of the taxpayer and did not subject the defaulting taxpayer to an injunction of his taxable business pursuits. In determining the tax was an occupational license tax, this court explained:

The term occupational license tax consistently has been used to refer to any tax on the activity or privilege of conducting a business or practicing a profession. Mire v. City of Lake Charles , 540 So.2d 950, 952 (La.1989) ; Roberts v. City of Baton Rouge , 236 La. 521, 108 So.2d 111 (1958) ; Giamalva v. Cooper , 217 La. 979, 47 So.2d 790 (1950) ; Mouledoux v. Maestri , 197 La. 526, 2 So.2d 11 (1941). Also, gross receipts taxes, whose amounts are calculated by reference to the total revenue, are generally considered to be occupational license taxes although economically they operate as sales taxes. Like other occupational license taxes, they are subject to constitutional restraints on the power to tax. See 4 Sands & Libonati, Local Government Law § 23.20 (1982).

Radiofone , 630 So.2d at 699-700.

In Mire , this court determined that a tax on the practice of law, based on gross earnings, was an occupational license tax, and not a prohibited income tax. The Mire court explained that an "occupational license tax" is one that is "imposed on the activity or privilege of conducting a business or practicing a profession." Mire , 540 So.2d at 952. The court quoted with approval the definition of an "occupation tax" found in Black's Law Dictionary 974 (5th ed. 1979):

"A tax imposed upon an occupation or the prosecution of the business, trade, or profession; not a tax on property, or even the capital employed in the business, but an excise tax on the business itself; to be distinguished from a 'license tax,' which is a fee or exaction for the privilege of engaging in the business, not for its prosecution. An occupation tax is [a] form of excise tax imposed upon persons for [the] privilege of carrying on [a] business, trade or occupation. "

Id. , 540 So.2d at 952 (emphasis added). The court explained that "[a] major distinction between an occupation tax and an income tax is that the former is an indirect tax and the latter is a direct tax." Id. , 540 So.2d at 952. The Mire court observed that "the terms 'excise tax', 'license tax' and 'privilege tax' are synonymous and are used interchangeably to the extent that they are all 'indirect taxes' which are imposed upon the acts of persons, whereas a 'direct tax' is one which is imposed upon the persons themselves or upon the property owned by them ...."). Id. , 540 So.2d at 952-53 (emphasis in original)(quoting Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958) ). The Mire court cited a number of cases from this court holding that an occupation tax is one imposed upon the activity in a particular calling or business and is not a tax upon the property involved in the business. Id. , 540 So.2d at 953.

Two additional cases from this court are on point with the issue presented here. In Louisiana State Dept. of Agriculture v. Sibille , 207 La. 877, 22 So.2d 202 (1945), this court found that a tax on all sweet potatoes shipped in Louisiana at the rate of two cents per bushel was a license tax and not a property tax, because it did not have as its basis, and was not governed by, the ownership of the product, but instead became due and collectable only when shipments took place. The Sibille court, relying on Lionel's Cigar Store v. McFarland, supra , reasoned that the tax levied a license tax and not a property tax because it was "imposed on the privilege of shipping the commodity and putting it into trade channels." 207 La. at 886, 22 So.2d at 205.

In Lionel's Cigar Store , this court considered the distinction between an excise or license tax and a property tax, with regard to a tax levied on the retailing of tobacco and tobacco products. The court had to determine whether the tax was levied on the ownership of the product or on the privilege of selling at retail tobacco and tobacco products. The court first rejected the premise that the language of the taxing statute, to the effect that the tax was levied "upon tobacco and tobacco products," required it to be classified as a tax on property. The court reasoned that the title of the act and the language therein made it clear that the tax was to be levied on and paid by the retailer, and thus the tax was not levied on the ownership but on the right to sell at retail. The court explained that because the tax was collectable only from persons, firms, and corporations engaged in selling tobacco and tobacco products, the tax was an excise or license tax on the privilege of selling tobacco and tobacco products at retail and not a tax on the products themselves. The court further explained:

What characterizes this tax as a license tax, and not a property tax, is that it is collectable only from those who are engaged in the business of selling tobacco and tobacco products at retail and is measured in proportion to the retail selling price.
Even though the retail selling price may be regarded as the value of the article, and the tax therefore as a proportion of the value, that alone would not make the tax a property tax. Gulf Refining Co. v. McFarland, Supervisor of Public Accounts , 154 La. 251, 97 So. 433 [ (1923) ]. The incident or feature that makes the tax a license tax and not a property tax is that it is not levied on or collectable from the owner of the property unless he is engaged in the business of selling it at retail, and that it is levied and collected then only in proportion, approximately, to the amount of the retail sales. * * *

Lionel's Cigar Store , 162 La. at 965, 111 So. at 344.

Lastly, this court in Roberts, supra , distinguished excise, license, and privilege taxes from property taxes. See Mire , 540 So.2d at 952-53. The Roberts court was required to determine whether the city's occupational license tax as measured by the gross sales of gasoline used in the generation of motive power was a prohibited "excise, license or privilege tax" on gasoline under the 1921 Constitution. The Roberts court found that it was not a property tax, and explained as follows:

When a license tax is levied on [classes of persons, associations of persons and corporations pursuing any trade, business, occupation, vocation or profession], it is a tax levied on the activity or occupation of selling or otherwise dealing in or with certain property and perforce becomes a license, excise or privilege tax on the activity or occupation and not a direct tax on the property. It must be conceded that neither our general law nor our well-known jurisprudence recognizes an 'excise', 'license' or 'privilege' tax on property. It therefore becomes apparent that the tax levied by the Baton Rouge City Ordinance is not upon the gasoline itself as a property but is an excise, license or privilege tax levied upon the activity or occupation of selling at retail prices or otherwise dealing with gasoline or other motor fuels, i.e., an occupational license, excise or privilege tax which unmistakably means a tax upon the privilege of pursuing the said vocation or business or calling. Such an occupational tax has none of the attributes of an ad valorem tax. The tax does not fall upon the owner merely because of ownership. It is not measured by the value of gasoline and is not laid directly upon the property itself. The value of the gasoline may fluctuate at will by the amount per gallon but the tax remains constant.

Roberts , 236 La. at 540, 108 So.2d at 117-18. Notably for our purposes, in examining the definition of an excise tax the Roberts court opined that an "excise tax" has "a wider and more comprehensive meaning" than a license tax, and " 'now includes every form of taxation which is not a burden levied directly upon persons or property, every form of charge imposed by public authority for the purpose of raising revenue upon the performance of an act, the enjoyment of a privilege, or the engaging in an occupation.' " 236 La. at 535, 108 So.2d at 115-16 (quoting Ballentine's Law Dictionary, 1930 Ed, supplemented to 1954, p. 460).

Applying the reasoning of this court's jurisprudence, we find the state gallonage tax is an occupational license tax on dealers for the privilege of handling high alcoholic content beverages. The City's gallonage tax is similarly an occupational license tax on dealers engaged in the handling of high alcoholic content beverages, and thus is permitted by La. Const. Art. VI, § 28, so long as it does not exceed the amount of tax on such beverages levied by the state.

CONCLUSION

For the reasons set forth above, we find the trial court erred in holding the City's gallonage tax set forth in Section 10-501 is unlawful, unenforceable, and unconstitutional under La. Const. Art. VI, § 28. We thus reverse the partial summary judgment in favor of the plaintiffs and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED

Hughes, J., dissenting.

Respectfully, I believe the City exceeds its authority. The Legislature in Chapter 3 of Title 47 of the Revised Statutes, entitled "Occupational License Tax," provides for the imposition of license taxes on businesses, including by municipalities. Separately, in Title 26, entitled "Alcoholic Beverage Control Law," the Legislature established regulations for the sale of alcohol, including Part III of Chapter 2, entitled "Gallonage Tax". The tax scheme here proposed by the City exceeds the mandate of the Legislature.

      According to the plaintiffs' petitions, although the tax had existed for several years, it had not been previously enforced or collected.

      Though Ordinance No. 27179 also amended and reordained Section 10-502, with respect to low alcoholic content beverages, enforcement of that section has not been challenged by the defendants here.

      The plaintiffs also challenged the City's collection of permit fees pursuant to Sect. 10-122 of the Municipal Code, but that challenge is not a subject of this proceeding.

      La. R.S. 47:360(D) provides:
      Wholesale dealers in certain alcoholic beverages. There shall be no license tax imposed, assessed, or collected under the provisions of this Chapter on any person engaged in the business of selling at wholesale, malt, vinous, spirituous, alcoholic, or intoxicating liquor containing more than six per centum of alcohol by volume, and beer, porter, ale, fruit juices, and wine containing more than one-half per centum of alcohol by volume.

      La. R.S. 26:491 provides:
      No tax on the manufacture, distribution, transportation, or importation of alcoholic beverages shall be imposed by way of licenses, excise taxes, or otherwise by any police jury, municipality, or other local taxing authorities despite any special or general law to the contrary, except as expressly authorized by this Chapter.

      La. Const. Art. VI, § 28 provides:
      The governing authority of a local governmental subdivision may impose an occupational license tax not greater than that imposed by the state. Those who pay a municipal occupational license tax shall be exempt from a parish occupational license tax in the amount of the municipal tax. The governing authority of a local governmental subdivision may impose an occupational license tax greater than that imposed by the state when authorized by law enacted by the favorable vote of two-thirds of the elected members of each house of the legislature.

      The corresponding state tax is called the "Gallonage Tax" located in Part III of Chapter 2 of Title 26 of the Louisiana Revised Statutes. See La. R.S. 26:341 et seq.

      La. R.S. 47:354 provides for an occupational license tax on retail dealers in merchandise, services, and rentals, and is "based on the total business activity" and determined per the provided table. For example, if gross sales are between $1,000,000 and $1,500,000, the annual license is $1,200.

      La. R.S. 47:492, entitled "Local gallonage tax on beverages of low alcoholic content," provides as follows (emphasis supplied):
      A. Any parish or municipality, through its local governing body, may impose a tax on beverages of low alcoholic content of not more than one dollar and fifty cents per standard barrel of thirty-one gallons. The tax shall be based on the amount of these beverages sold and consumed within the parish or municipality. Parishes and municipalities imposing this tax shall furnish the secretary a certified copy of the ordinance levying it. The secretary shall collect the tax in the same manner as he collects the state tax and shall make such additional rules as are necessary. He shall remit, each quarter, the amount of tax collected less the cost of collection, to the parishes and municipalities levying the tax. If the failure to pay the tax when due is explained to the satisfaction of the secretary, he may, with the approval of the Board of Tax Appeals, remit or waive payment of the whole or any part of any penalty due under the provisions of this Chapter.
      B. All records, tax returns, and other information pertaining to the collection of parish and municipal taxes and the amount of such taxes collected in each parish and municipality by each wholesale dealer shall be made available to any parish or municipal governing authority and trade organization consisting of beer wholesale dealers licensed by the state.
      C. For accurately reporting and timely remitting the taxes due under the provisions of this Section, all taxpayers shall be allowed a discount of two percent of the amount of the tax otherwise due.
      D. Parishes and municipalities are prohibited from imposing any local tax on beverages of high or low alcohol content other than those imposed herein.

      Parishes and municipalities may require annual permits and fees from dealers under La. R.S. 26:74, and the amounts of such permit fees are limited.

      As the plaintiffs point out, the legislature post-enactment of the City's ordinance revised La. R.S. 26:341 to remove the term "license" from the provision, Acts 2017, No. 212, eff. June 14, 2017. However, as we explain elsewhere, the title ascribed to a particular tax does not determine the nature of the tax; instead, we must examine its incidents, attributes, and operational effect. See, e.g., Reed v. City of New Orleans , 593 So.2d 368, 371 (La. 1992).

      In Merriam v. City of New Orleans , 14 La.Ann. 318 (La. 1859), a license tax on every keeper of a billiard parlor, measured by the number of tables, was held not to be a tax on the table itself, but a license tax upon the particular calling or business of operating a billiard table for public use. In Hodgson v. City of New Orleans , 21 La.Ann. 301 (La. 1869), a tax on the business of operating a storage warehouse was determined not to be a tax upon the warehouse itself. And in State v. Heymann , 178 La. 479, 151 So. 901 (1933), a tax on the business of operating an office building, computed at one-tenth of one per cent of the gross revenues therefrom, was neither a direct tax upon the property nor an income tax on revenues from rental of property not employed in any business.

      We decline to determine on this record whether the City's occupational license tax exceeds that of the permitted occupational license tax. However, the City's gallonage tax levied on the volume of high alcoholic content beverages is on its face substantially less than the gallonage tax levied by the state. See and compare Municipal Code Section 10-501 and La. R.S. 26:341. For example, according to the City, the state rate for liquor is $0.80 per liter (La. R.S. 26:341(A)(1) ), whereas the City's rate on liquor is approximately $0.11 per liter (Section 10-501(1) ). Notwithstanding, the trial court made no findings as to whether the City's occupational license tax actually exceeded that permitted under La. Const. Art. § 28.


text:
    GLORIA'S RANCH, L.L.C. v. TAUREN EXPLORATION, INC., Cubic Energy, Inc., Wells Fargo Energy Capital, Inc., and EXCO USA Asset, Inc.
    No. 2017-C-1519 No. 2017-C-1518 No. 2017-C-1522
    Supreme Court of Louisiana.
    September 7, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
    Rehearing granted in part; denied in part. The rehearing application of Gloria's Ranch is denied. Tauren's rehearing application is granted for the limited purpose of remanding the matter for the trial court to consider the effect the reversal of Wells Fargo's liability has on the award, particularly as it relates to the virile share accounted for in the EXCO settlement. In all other respects, the motion for rehearing is denied.
    Retired Judge Hillary Crain assigned as Justice ad hoc, sitting for Crichton, J., recused.
   GENOVESE, Justice, would grant a limited rehearing.

For the reasons assigned in my prior dissent, I would grant Gloria's Ranch's application for rehearing with respect to the issue of this Court's interpretation of La. Mineral Code art. 140's provision for discretionary damages for non-payment of royalties. I join in the majority's grant of Tauren Exploration's application for rehearing for the limited purpose of remanding the matter for the trial court to consider the effect the reversal of Well's Fargo's liability has on the award, particularly as it relates to the virile share accounted for in the EXCO settlement. I also join in the majority's denial of the remainder of the applications for rehearing.


author: PER CURIAM Hughes, J., dissenting.

text:
    IN RE: Nichole GOUDEAU
    NO. 2018-B-0638
    Supreme Court of Louisiana.
    August 31, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Nichole Goudeau, an attorney licensed to practice law in Louisiana.

FORMAL CHARGES

On July 1, 2009, respondent became ineligible to practice law for failing to comply with mandatory continuing legal education ("MCLE") requirements. On September 9, 2009, she was declared ineligible to practice law for failing to pay bar dues and the disciplinary assessment. On November 30, 2009, she was declared ineligible to practice law for failing to file a trust account disclosure statement.

Despite being ineligible to practice law, in November 2009, respondent began representing Deana Harris in a divorce matter. Respondent quoted Ms. Harris a $135 per hour fee and required a $1,500 deposit, which Ms. Harris paid. Thereafter, respondent consulted with Ms. Harris multiple times and began drafting a petition and proposed order. However, before those pleadings were filed with the court, Ms. Harris requested that respondent stop working on the matter.

Respondent sent Ms. Harris a bill, showing a balance due of $2,345.80 after the deduction of the initial $1,500 deposit; the bill indicated respondent spent thirteen hours on legal research, four hours calculating child support using the Louisiana child support worksheet, and six and a half hours drafting a petition that was never finalized and filed. Ms. Harris did not pay the balance due, and respondent has not sought to collect the balance. Respondent has also not issued a refund of the $1,500 deposit.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment), 1.5 (fee arrangements - charging an unreasonable fee), and 5.5(a) (engaging in the unauthorized practice of law).

DISCIPLINARY PROCEEDINGS

In July 2011, the ODC filed formal charges against respondent. Respondent answered the formal charges, admitting to the factual allegations set forth therein. She also admitted to violating Rules 1.1(b) and 1.1(c) of the Rules of Professional Conduct but denied violating Rules 1.5 and 5.5(a).

The matter then proceeded to a formal hearing on the merits. Respondent did not appear at the hearing, and she filed nothing for the committee's consideration. The ODC introduced documentary evidence but did not call any witnesses to testify before the committee.

Hearing Committee Report

After considering the evidence presented at the hearing, the hearing committee found that respondent has been ineligible to practice law since 2009. The committee also found that respondent accepted a $1,500 fee and performed all of her work for Ms. Harris while she was ineligible to practice. Furthermore, the committee found that respondent charged an excessive fee because she spent thirteen hours researching basic family law issues, four hours calculating a basic child support worksheet, and six and a half hours drafting a petition that she admitted was taken largely from a Westlaw form. Based on these factual findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent knowingly violated duties owed to her client, the public, the legal system, and the legal profession. Her conduct caused actual harm in that she collected legal fees for work she was ineligible to perform. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension.

The only aggravating factor the committee found to be present was respondent's indifference to making restitution. In mitigation, the committee found the following: the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board, and inexperience in the practice of law (admitted 2007). Additionally in mitigation, the committee noted that respondent charged Ms. Harris a low hourly fee and that respondent initially cooperated with the ODC even though she did not appear for the hearing.

In light of the above findings and this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for six months, with all but thirty days deferred, followed by two years of unsupervised probation with the condition that she attend Ethics School.

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

Disciplinary Board Recommendation

After review, the disciplinary board adopted the hearing committee's factual findings, determining that they are supported by the record and are not manifestly erroneous. The board also adopted the committee's conclusion that respondent violated the Rules of Professional Conduct as charged.

The board then determined respondent acted knowingly and caused actual harm to her client, the public, and the legal profession. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board agreed with the committee that the baseline sanction is suspension.

After further considering this court's prior jurisprudence addressing similar misconduct and despite noting the multiple mitigating factors present, especially respondent's inexperience in the practice of law, the board determined that a period of actual suspension is warranted. Specifically, the board determined that a suspension from the practice of law for one year and one day was appropriate due to the length of time respondent has been ineligible to practice law, the many opportunities she has been given to correct her ineligibility, and her failure to participate in the formal hearing of this matter.

Accordingly, the board recommended respondent be suspended from the practice of law for one year and one day and be required to make restitution to her client.

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

DISCUSSION

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

In this matter, respondent accepted a legal fee and practiced law while ineligible to do so and then failed to refund the legal fee to her client. As such, she has violated the Rules of Professional Conduct as alleged in the formal charges.

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

The record supports a finding that respondent knowingly violated duties owed to her client, the public, and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is suspension.

Aggravating factors include bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency and indifference to making restitution. The following mitigating factors are present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, and inexperience in the practice of law.

Turning to the issue of an appropriate sanction, both the hearing committee and the disciplinary board noted that, in In re: Hardy , 03-0443 (La. 5/2/03), 848 So.2d 511, we specified the baseline sanction for respondent's conduct as a suspension from the practice of law for one year and one day, stating:

In cases in which an attorney has engaged in the practice of law while ineligible to do so for failing to pay bar dues or failing to comply with the mandatory continuing legal education requirements, this court has imposed suspensions to disbarment, with the baseline sanction generally being a one year and one day suspension from the practice of law.

Additional case law addressing similar misconduct further supports the imposition of a one year and one day suspension. In In re: Polk , 15-1408 (La. 9/25/15), 174 So.3d 1131, we suspended an attorney for one year and one day for practicing law while ineligible, neglecting a legal matter, and failing to refund an unearned fee. Similarly, in In re: Gbalazeh , 17-1704 (La. 12/5/17), 231 So.3d 21, we suspended an attorney for one year and one day for practicing law on two occasions by seeking to enroll as counsel on behalf of immigration clients while she was ineligible to practice law and failing to cooperate with the ODC in two investigations.

In light of this case law and the aggravating and mitigating factors present, we find a deviation from the baseline sanction we established in Hardy is unwarranted. Specifically, we find respondent's continued failure to correct her ineligibility and refund Ms. Harris' $1,500 makes a downward deviation from the baseline sanction inappropriate.

Accordingly, the board's recommendation will be adopted. We will suspend respondent from the practice of law for one year and one day and require her to make restitution to Ms. Harris.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Nichole Goudeau, Louisiana Bar Roll number 31175, be and she hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that respondent shall make restitution, with legal interest, to Deana Harris. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

HUGHES, J., dissents and would impose a lesser penalty.

Hughes, J., dissenting.

Respectfully, I would impose a lesser sanction following the recommendation of the Hearing Committee.


author: CLARK, J., would grant.

text:
    Will HARRIS, Jr. v. AMERICAN HOME ASSURANCE COMPANY, Healthcare Casualty Insurance Limited, Aggreko, LLC, and Touro Infirmary
    No. 2018-C-589
    Supreme Court of Louisiana.
    August 31, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
    CRICHTON, J., would grant reconsideration I would grant applicant's request for reconsideration in this matter. See Marable v. Empire Truck Sales of La., LLC, 16-0876, 0877, 0878 (La. App. 4 Cir. 6/23/17), 221 So.3d 880, writ denied , 17-1469 (La. 11/13/17), 230 So.3d 210, reconsideration denied , 17-1469 (La. 11/17/17), 230 So.3d 212.
   CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.


author: PER CURIAM:

text:
    STATE EX REL. Luther HICKMAN v. STATE of Louisiana
    No. 2017-KH-0158
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator's guilty plea waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby , 338 So.2d 584 (La. 1976). Finally, relator's sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

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:
    STATE of Louisiana v. Robert Leroy MCCOY
    NO. 2014-KA-1449
    Supreme Court of Louisiana.
    August 31, 2018
    ON REMAND FROM THE UNITED STATES SUPREME COURT
   PER CURIAM.

In McCoy v. Louisiana , --- U.S. ----, 138 S.Ct. 1500, 1512, 200 L.Ed.2d 821 (2018), the United States Supreme Court found that counsel's admission of defendant McCoy's guilt over defendant's clearly-stated and persistent objection was a structural error that is incompatible with the Sixth Amendment thereby mandating a new trial. In light of that ruling, we vacate defendant's convictions and sentences, and we remand to the district court for further proceedings consistent with McCoy v. Louisiana .

REVERSED AND REMANDED


author: PER CURIAM

text:
    IN RE: Michael J. BILLIOT
    NO. 2018-B-1098
    Supreme Court of Louisiana.
    August 31, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into respondent's arrests for driving while intoxicated. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Michael J. Billiot, Louisiana Bar Roll number 30223, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    STATE of Louisiana v. Jacob JOHNSTON
    No. 2018-KK-0604
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Writ granted. A defendant's receipt of misinformation as to his sentencing exposure may impede, if not foreclose, his ability to make a voluntary and intelligent choice among alternatives. See North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970) ; State ex rel. LaFleur v. Donnelly , 416 So.2d 82, 84 (La. 1982) (though it is critical that a defendant pleading guilty understand his Boykin rights, "it is probably much more important to the defendant's decision (about whether to plead guilty) that he understand the maximum penalty exposure."). This court previously remanded to the district court to determine in an evidentiary hearing whether defendant was advised that under the holding of Graham v. Florida , 560 U.S. 48, 65, 130 S.Ct. 2011, 2024, 176 L.Ed.2d 825 (2010), as effectuated in La. R.S. 15:574.4(D) at the time defendant pleaded guilty in 2014, if defendant had pleaded guilty as charged to aggravated rape, he could have been eligible for parole after serving 30 years of a life sentence. State v. Johnston , 16-1460 (La. 6/5/17), 221 So.3d 46 (per curiam). After remand, it is clear that defendant was misinformed of his sentencing exposure, i.e. he was told that he faced a sentence of life imprisonment without parole eligibility. We find that misinformation impeded his ability to make a voluntary and intelligent choice among the alternatives. Therefore, we grant the application to remand to the district court with instructions that defendant be given the opportunity to withdraw his guilty plea.

REMANDED

GENOVESE, J., would deny.