FOR IMMEDIATE
NEWS RELEASE
NEWS RELEASE # 51
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 29th day of June,
2005, are as follows:
BY CALOGERO, C.J.:
2005-CC-0074
BECKY BOUTON STELLUTO v. DONALD LOUIS STELLUTO (Parish
of Orleans)
The judgment of the court of appeal reversing the trial
court's denial of Mr. Stelluto's exception of lack of subject
matter jurisdiction with respect to the custody claim is
reversed. The trial court's judgment denying the exception
is reinstated, and the case is remanded to the trial court
for determination of the custody claim and any other remaining
claims.
REVERSED AND REMANDED.
VICTORY, J., dissents for the reasons assigned by Weimer,
J.
TRAYLOR, J., dissents for reasons assigned by Weimer, J.
KNOLL, J., additionally concurs and assigns reasons.
WEIMER, J., dissents and assigns reasons.
2005-O- 0783 IN
RE: JUSTICE OF THE PEACE WADE COOK, JUSTICE OF THE PEACE
COURT
DISTRICT 1, PARISH OF SABINE, STATE OF LOUISIANA
(Judiciary Commission of Louisiana)
Accordingly, it is ordered, adjudged, and decreed that the
respondent, Justice of the Peace Wade Cook, District 1,
Parish of Sabine, State of Louisiana, be, and is hereby,
removed from office, and that his office be, and is hereby,
declared to be vacant. Furthermore, pursuant to La. Sup.
Ct. Rule XXIII, §22, we cast the respondent with $129.50
for the costs incurred in the investigation and prosecution
of his case.
REMOVAL FROM JUDICIAL OFFICE ORDERED.
BY KIMBALL, J.:
2004-C- 1089 MALLARD
BAY DRILLING, INC. v. JOHN NEELY KENNEDY, SECRETARY
OF
DEPARTMENT OF REVENUE, STATE OF LOUISIANA (Parish of Iberia)
For all the above reasons, we find that Act 40 is inapplicable
to the
instant suit which was pending prior to the Act's effective
date.
Furthermore, we find that under the provisions of La. R.S.
47:305.1(B)as they existed prior to the effective date of
Act 40, Mallard is not the owner or operator of a "vessel."
Accordingly, it is not entitled to the exemption provided
by La. R.S. 47:305.1(B). Furthermore, we find that the provisions
of La. R.S. 47:305(E)do not prohibit the imposition of the
sales tax on diesel fuel sold, delivered, and consumed in
Louisiana. Finally, we conclude that the imposition of the
tax does not violate the Commerce Clause. Mallard's request
for a refund of the sales taxes at issue was properly denied
by the DOR and the Board. The court of appeal's judgment
to the contrary is erroneous. Consequently, the judgment
of the court of appeal affirming the judgment of the district
court is reversed.
REVERSED.
JOHNSON, J., concurs in part, dissents in part and assigns
reasons.
WEIMER, J., concurs in the result.
BY VICTORY, J.:
2004-CC-2893
LEA SINCLAIR FILSON, ET AL. v. WINDSOR COURT HOTEL, ET AL.
(Parish of Orleans)
For the reasons expressed herein, the judgment of the court
of appeal is affirmed.
AFFIRMED.
CALOGERO, C.J., concurs and assigns reasons.
KIMBALL, J., dissents.
JOHNSON, J., dissents and assigns reasons.
TRAYLOR, J., dissents and assigns reasons.
2005-O- 0782 IN
RE: JUSTICE OF THE PEACE R. E. CHAFFIN, JUSTICE OF THE
PEACE COURT, WARD 4 PARISH OF EVANGELINE STATE OF LOUISIANA
(Judiciary Commission of Louisiana)
IT IS ORDERED that Justice of the Peace R. E. Chaffin be
suspended from the office of Justice of the Peace for a
period of one year, with the suspension being totally deferred.
It is further ordered that Justice of the Peace R.E. Chaffin
be placed on probation for the remainder of his term of
office, with the probationary condition being that he strictly
comply with the requirements of La. R.S. 49:251.1. Any failure
by Respondent to comply with this condition during the probationary
period will be grounds for making the deferred suspension
executory or imposing additional discipline, as appropriate.
IT IS FURTHER ORDERED that costs and expenses in the matter
in the amount of $220.50 are assessed against Respondent
with legal interest to commence 30 days from the date of
finality of this Court's judgment until paid.
KIMBALL, J., dissents and would impose an actual suspension.
JOHNSON, J., dissents and would impose a period of actual
suspension.
BY TRAYLOR, J.:
2004-C- 0485 JAMES
W. LONG, ET AL. v. STATE OF LOUISIANA, THROUGH THE DEPARTMENT
OF TRANSPORTATION AND DEVELOPMENT (Parish of Morehouse)
JUDGMENT REVERSED, CASE REMANDED TO THE TRIAL COURT FOR
FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.
JOHNSON, J., dissents and assigns reasons.
2004-KA-2137
STATE OF LOUISIANA v. GLENN D. SKIPPER (Parish of Orleans)
GRANTING OF MOTION TO QUASH BILL OF INFORMATION AFFIRMED;
RULING FINDING LA. R.S. 40:982 TO BE UNCONSTITUTIONAL IS
REVERSED.
2004-B- 2397 IN RE: ROGER W. JORDAN, JR.
(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 Roger W. Jordan,
Jr., Louisiana Bar Roll number 19642, be suspended from
the practice of law for a period of three months. It is
further ordered that the suspension shall be deferred in
its entirety, subject to the condition that any misconduct
by respondent during a one-year period following the date
of finality of this court's judgment may be grounds for
making the deferred suspension executory, or imposing additional
discipline, as appropriate. All costs and expenses in the
matter are assessed against respondent in accordance with
Supreme Court Rule XIX, §10.1, with legal interest
to commence thirty days from the date of finality of this
court's judgment until paid.
JOHNSON, J., concurs in part, dissents in part and assigns
reasons.
BY KNOLL, J.:
2003-KA-2418
STATE OF LOUISIANA v. JOHN DALE ALLEN (Parish of Red
River)
(First Degree Murder)
For the reasons assigned herein, the defendant's conviction
and sentence 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 their 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. Code Crim. Proc. art. 923 of finality
of direct appeal, and before signing the warrant of execution,
as provided by La. Rev. Stat. Ann. §15:567(B), immediately
notify the Louisiana Indigent Defense Assistance Board and
provide the Board with reasonable time in which: (1) to
enroll counsel to represent defendant in any state post-conviction
proceedings, if appropriate, pursuant to its authority under
La. Rev. Stat. Ann. §15:149.1; and (2) to litigate
expeditiously the claims raised in that original application,
if filed, in the state courts.
AFFIRMED.
JOHNSON, J., concurs in part, dissents in part and assigns
reasons.
2004-C- 2804 C/W
2004-C- 2857 DAVE F. AGUILLARD v. AUCTION MANAGEMENT
CORP., GILMORE AUCTION & REALTY COMPANY, BANK OF
NEW YORK, AND ITS SERVICER, NEW SOUTH FEDERAL SAVINGS BANK
(Parish of Calcasieu)
For the foregoing reasons, the judgments of the lower courts
that found the contract, including the arbitration clause,
adhesionary and lacking in mutuality are reversed, and this
matter is stayed pending arbitration.
REVERSED; STAY PENDING ARBITRATION GRANTED.
KIMBALL, J., concurs in the result.
JOHNSON, J., concurs in the result.
WEIMER, J., dissents & assigns reasons.
2004-O- 3031 IN
RE: JUDGE KIRK GRANIER, TWENTY-NINTH JUDICIAL DISTRICT
COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA
(Judiciary Commission of Louisiana)
For the reasons assigned, it is ordered that Judge Kirk
Granier be publicly censured for violating Canons 1, 2A
and 2B, and 3B4 of the Code of Judicial Conduct. It is further
ordered that Judge Kirk Granier reimburse the Judicial Expense
Fund of the 29th Judicial District Court $2,321.78 and the
Judiciary Commission of Louisiana $448.
KIMBALL, J., dissents and would impose a greater sanction.
JOHNSON, J., concurs.
TRAYLOR, J., dissents and would impose a greater sanction.
2005-CA-0374
WORLD TRADE CENTER TAXING DISTRICT v. ALL TAXPAYERS PROPERTY
OWNERS, AND CITIZENS OF WORLD TRADE CENTER TAXING DISTRICT
AND NONRESIDENTS OWNING PROPERTY OR SUBJECT TO TAXATION
THEREIN, AND ALL OTHER PERSONS INTERESTED IN OR AFFECTED
IN ANY WAY BY THE EXECUTION OF A COOPERATIVE ENDEAVOR AGREEMENT
BY AND AMONG THE WORLD TRADE CENTER TAXING DISTRICT, AND
WTC DEVELOPMENT, LIMITED PARTNERSHIP PROVIDING FOR THE LEVY
AND COLLECTION OF A TAX ON HOTEL ROOMS AND OVERNIGHT CAMPING
FACILITIES WITHIN THE WORLD TRADE CENTER TAXING DISTRICT
AND THE PLEDGE AND COLLATERAL ASSIGNMENT OF THE TAX PROCEEDS
TO WTC DEVELOPMENT, LIMITED PARTNERSHIP (Parish of Orleans)
For the foregoing reasons, we affirm the judgment of the
court of appeal.
AFFIRMED.
Retired Judge Lemmie O. Hightower assigned as Associate
Justice ad hoc, sitting for Associate Jusice Chet D. Traylor,
recused.
JOHNSON, J., dissents and will assign reasons.
BY WEIMER, J.:
2003-KA-2425
STATE OF LOUISIANA v. GLYNN JUNIORS, JR.(Parish of St.
James)
(First Degree Murder)
For the reasons assigned herein, defendant's conviction
and sentence 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 LSA-C.Cr.P. art. 923 of finality on
direct appeal, and before signing the warrant of execution,
as provided by LSA-R.S. 15:567(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
LSA-R.S. 15:149.1; and (2) to litigate expeditiously the
claims raised in that original application, if filed,
in the state courts.
AFFIRMED.
CALOGERO, C.J., concurs in part, dissents in part and assigns
reasons.
JOHNSON, J., concurs in part, dissents in part and assigns
reasons.
PER CURIAM:
2004-B- 2947 IN
RE: J. CLEMILLE SIMON
(Disciplinary Proceedings)
Upon review of the findings and recommendation of the hearing
committee and the disciplinary board, and considering the
record, briefs, and oral argument, it is ordered that J.
Clemille Simon, Louisiana Bar Roll number 19996, be and
he hereby is suspended from the practice of law for a period
of six months. It is further ordered that all but thirty
days of this suspension shall be deferred, subject to the
condition that respondent shall enroll in and attend the
next session of the Ethics School program offered by the
Louisiana State Bar Association's Practice Assistance and
Improvement Committee. Failure to comply with this condition
or any other misconduct within a period of one year from
the finality of this opinion may be grounds for making the
deferred portion of the suspension executory, or imposing
additional discipline, as appropriate. All costs and expenses
in the matter are assessed against respondent in accordance
with Supreme Court Rule XIX, §10.1, with legal interest
to commence thirty days from the date of finality of this
court's judgment until paid.
CALOGERO, C.J., concurs in part and dissents in part, and
assigns reasons.
JOHNSON, J., dissents and would impose a longer period of
actual suspension.
WEIMER, J., concurs in part and dissents in part and assigns
reasons.
