June 27, 2003 - Opinions - Louisiana Supreme Court

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<table cellpadding="5" cellspacing="0" width="90%"><tbody><tr valign="top"><td valign="top" width="63%">FOR IMMEDIATE NEWS RELEASE</td><td valign="top" width="37%"><div align="right">NEWS RELEASE #047</div></td></tr><tr valign="top"><td valign="top">FROM: CLERK OF SUPREME COURT OF LOUISIANA</td><td valign="top">&nbsp;</td></tr></tbody></table>&nbsp;<div style="text-align:justify;">The Opinions handed down on the&nbsp;27th day of June, 2003&nbsp;, are as follows:&nbsp;BY CALOGERO, C.J.&nbsp;:<a href="/opinions/2003/02k2208.opn.pdf">2002-K -2208&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;STATE OF LOUISIANA v. JEREMY SIMS&nbsp;</a>&nbsp;(Parish of Orleans) (Battery on a Police Officer) Accordingly, the officers lawfully arrested defendant for battery on a police officer, and the district court properly admitted the contraband recovered during the search incident to that arrest. COURT OF APPEAL REVERSED; CONVICTION AND SENTENCE REINSTATED; REMANDED TO DISTRICT COURT.JOHNSON, J., dissents and assigns reasons.&nbsp;&nbsp;BY KIMBALL, J.&nbsp;:<a href="/opinions/2003/02ka1463.opn.pdf">2002-KA-1463 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. SEDWRIC E. CLARK&nbsp;</a>(Parish of Richland) (First Degree Murder, Two Counts) For the reasons assigned herein, defendant's convictions for first-degree murder and his sentences of death are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules for rehearing of denial of certiorari, or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by La. R.S. 5:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La.R.S. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts. AFFIRMED.&nbsp;<a href="/opinions/2003/02c2660.opn.pdf">2002-C -2660 &nbsp;&nbsp;&nbsp; ARLEN B. CENAC, JR. v. PUBLIC ACCESS WATER RIGHTS&nbsp;ASSOCIATION, JAROMY DAVAINE, JOHN KING, ORAY SAVOIE, JR., SPENCE CRESSIONIE, ANDY LEBOEF, GERALD MATHERNE, BRYAN DUFRENE, CORKY DUFRENE, ROBERT DUFRENE, JOE TOUPS, BILLY CRESSIONIE, SR., BILLY CRESSIONIE, JR., NORRIS SAMPAY, DALLY BREAUX, JR., DEAN BREAUX, ANTHONY ('LIL TONY') MARTINEZ, CODY MARTINEZ AND RON ONCALE C/W MELVA CRESSIONIE v. ARLEN B. CENAC, JR.</a> (Parish of Lafourche) The judgment of the court of appeal, which affirmed the judgment of the trial court granting a permanent injunction as to the boat launch and reversed the judgment of the trial court declaring the canal to be dedicated to the public use by implied dedication, is affirmed. AFFIRMED.Retired Judge Robert J. Klees, assigned as Justice ad hoc, sitting for Associate Justice Chet D. Traylor, recused.WEIMER, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2003/03kk0330.opn.pdf">2003-KK-0330 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. JODY L. TOLBERT&nbsp;</a>(Parish of Orleans) (Aggravated Crime Against Nature) The judgment of the trial court denying defendant's motion to introduce evidence of the victim's prior municipal convictions for impeachment purposes is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion. REVERSED.&nbsp;&nbsp;BY VICTORY, J.&nbsp;:<a href="/opinions/2003/02ca2161.opn.pdf">2002-CA-2161 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; GREGG SMITH, ET AL. v. BOARD OF TRUSTEES OF LOUISIANA&nbsp;STATE EMPLOYEES' RETIREMENT SYSTEM</a> (Parish of E. Baton Rouge) For the reasons expressed herein, the judgment of the trial court declaring La. R.S. 11:416.1 to be unconstitutional is reversed and the matter is remanded to the trial court for judgment consistent with this opinion. REVERSED AND REMANDED.KNOLL, J., dissents and assigns reasons. WEIMER, J., dissents for reasons assigned by Knoll, J.&nbsp;<a href="/opinions/2003/02cc2870.opn.pdf">2002-CC-2870 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; L.D.SPEARS, JR. v. BEAUREGARD PARISH SCHOOL BOARD&nbsp;</a>(Parish of Beauregard) For the reasons expressed herein, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated. The case is remanded to the trial court for further proceedings. REVERSED AND REMANDEDJOHNSON, J., concurs in result.&nbsp;&nbsp;BY TRAYLOR, J.&nbsp;:<a href="/opinions/2003/02ka2222.opn.pdf">2002-KA-2222 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. KENNETH J. DILOSA AND JOHNNY L. WHITE, JR.&nbsp;</a>(Parish of Orleans)&nbsp;
 (Possession of Heroin, Two Counts) For the foregoing reasons, we affirm the trial court's quashing of defendants' indictment, and find that Article 412 of the Code of Criminal Procedure, as it was written in 1999, and Section 114 of Title 15 of the Louisiana Revised Statutes are unconstitutional in their entireties, and that Article 413, as it was written in 1999, and Article 414 of the Code of Criminal Procedure are unconstitutional in part, as designated above. To the extent that the judgment of the trial court might conflict with this opinion, if at all, it is overruled. The matter is remanded to trial court for further proceedings not inconsistent with this opinion. AFFIRMED.Judge Lemmie O. Hightower sitting as Justice Ad Hoc for Associate Justice Bernette J. Johnson, recused.&nbsp;<a href="/opinions/2003/02cc2852.opn.pdf">2002-CC-2852 &nbsp;&nbsp;C/W &nbsp;2002-CC-2853&nbsp;&nbsp; CHRISTINE MAYNARD BREWTON, ET UX v. UNDERWRITERS INSURANCE COMPANY, ET AL.&nbsp;</a>(Parish of Natchitoches) For the foregoing reasons, the judgment of the court of appeal is affirmed.JOHNSON, J., concurs and assigns reasons.&nbsp;<a href="/opinions/2003/02c2881.opn.pdf">2002-C -2881 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LANA MARIE DAILEY ABSHIRE, ET AL.v. VERMILION PARISH SCHOOL BOARD&nbsp;</a>(Parish of Vermilion) For the foregoing reasons, we reverse the judgment of the trial court and court of appeal. We remand this matter to the trial court for determination of whether the canal servitude has terminated for non- use. REVERSED AND REMANDED.KIMBALL, J., concurs in the result.&nbsp;&nbsp;BY KNOLL, J.&nbsp;:<a href="/opinions/2003/02c1525.opn.pdf">2002-C -1525 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; SONJA WISE v. BOSSIER PARISH SCHOOL BOARD&nbsp;</a>(Parish of Bossier) For the foregoing reasons, the judgment of the Court of Appeal, Second Circuit, is reversed and set aside. The decision of the Bossier Parish School Board to dismiss Sonja Wise as a tenured teacher is reinstated. REVERSED.JOHNSON, J., dissents and assigns reasons. WEIMER, J., dissents for reasons assigned by Johnson, J.&nbsp;<a href="/opinions/2003/02c1637.opn.pdf">2002-C - 1637 &nbsp;&nbsp;&nbsp;&nbsp; BRIAN CADWALLADER, ET AL. v. ALLSTATE INSURANCE COMPANY,&nbsp;ET AL.</a> (Parish of Orleans) For the foregoing reasons, the judgment of the court of appeal is reversed and set aside. The district court judgment in favor of Allstate and denying plaintiffs' motion for summary judgment is reinstated. This case is remanded to the district court for further proceedings. REVERSED AND REMANDED.JOHNSON, J., dissents and assigns reasons. WEIMER, J., concurs with additional reasons.&nbsp;&nbsp;BY WEIMER, J.&nbsp;:<a href="/opinions/2003/02c2404.opn.pdf">&nbsp;2002-C -2404 &nbsp;C/W&nbsp;&nbsp;2002-C -2421&nbsp;&nbsp; BARBARA HALL, ET UX v. BROOKSHIRE BROTHERS, LTD.,&nbsp;LOUISIANA PATIENT'S COMPENSATION FUND</a> (Parish of Calcasieu) For the foregoing reasons, we affirm the decision of the Third Circuit Court of Appeal in its entirety. AFFIRMED.CALOGERO, C.J., concurs.&nbsp;&nbsp;PER CURIAM&nbsp;:<a href="/opinions/2003/02k1043.pc.pdf">2002-K -1043 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; STATE OF LOUISIANA v. WOODROW DAVIS, JR.&nbsp;</a>(Parish of Rapides) (Unauthorized Entry of an Inhabited Dwelling) The decision below is therefore reversed and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermitted on original appeal. DECISION OF COURT OF APPEAL REVERSED; CASE REMANDED FOR ADDITIONAL CONSIDERATION.&nbsp;<a href="/opinions/2003/02b3006.pc.pdf">2002-B -3006 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: GEORGE A. GUIDRY, SR. </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name George A. Guidry, Sr., Louisiana Bar Roll No. 6478, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, &sect; 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;<a href="/opinions/2003/03b0062.pc.pdf">2003-B -0062 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: KATHERINE THOMPSON TOUSANT </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of Katherine Thompson Tousant, Louisiana Bar Roll number 21918, be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, &sect; 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;<a href="/opinions/2003/03b0234.pc.pdf">2003-B -0234 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: FERNAND L. LAUDUMIEY, III AND DENNIS S. MANN </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the names of Fernand L. Laudumiey, III, Louisiana Bar Roll number 8126, and Dennis S. Mann, Louisiana Bar Roll number 9095, be stricken from the roll of attorneys and that their licenses to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, &sect; 24(A), it is further ordered that respondents be permanently prohibited from being readmitted to the practice of law in this state. All&nbsp; costs and expenses in the matter are assessed against respondents in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;<a href="/opinions/2003/03b0274.pc.pdf">2003-B -0274 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: STEVEN YOUNG, I </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that respondent, Steven Young, I, Louisiana Bar Roll No. 13765, be suspended from the practice of law for a period of six months. It is further ordered that all but two months of this suspension shall be deferred. Following the completion of the active portion of this suspension, respondent shall be placed on probation for a period of six months, subject to the conditions identified in this opinion. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension &nbsp; executory, or imposing additional discipline, as appropriate. All &nbsp; costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest &nbsp; to commence thirty days from the date of finality of court's judgment &nbsp; until paid.VICTORY, J., dissents and would follow the Board's recommendation as to sanction. KNOLL, J., concurs with reasons.&nbsp;<a href="/opinions/2003/03b0425.pc.pdf">2003-B -0425 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: JEFFREY S. WITTENBRINK </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered Jeffrey S. Wittenbrink, Louisiana Bar Roll number 18511, is suspended from the practice of law for a &nbsp; period of one year. All but six months of said suspension shall be deferred, subject to a two-year period of probation and the conditions articulated by the disciplinary board. The deferred portion of the suspension may become executory, in the event of misconduct by the respondent during the period of suspension and probation. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.JOHNSON, J., dissents and would assign a more severe penalty. VICTORY, J., dissents and would follow the Board's recommendation as to penalty. TRAYLOR, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2003/03b0437.pc.pdf">2003-B -0437 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: JOSEPH F. LAHATTE, JR. </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered Joseph F. LaHatte, Jr., Louisiana Bar Roll number 8102, is suspended from the practice of law for a period of two years. It is further ordered that all but six months of said suspension shall be deferred. Following completion of the active portion of his suspension, respondent shall be placed on probation for a period of four years, subject to the conditions set forth in this opinion. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;<a href="/opinions/2003/03b0486.pc.pdf">2003-B -0486 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; IN RE: IVAN DAVID WARNER, III </a>(Disciplinary Proceedings) Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Ivan David Warner, III, Louisiana Bar Roll number 13247, be suspended from the practice of law in Louisiana for a period of one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.&nbsp;&nbsp;</div>
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