July 1, 2009 - 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 #043</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;The Opinions handed down on the&nbsp;1st day of July, 2009, are as follows:&nbsp;BY KIMBALL, C.J.:<a href="/opinions/2009/07KK1853.opn.pdf">2007-KK-1853 C/W 2007-KK-1870 C/W 2008-CC-1066 IN RE: A MATTER UNDER INVESTIGATION</a>&nbsp;(Parish of Orleans) (Two Applications)JANE AND JOHN DOES v. CHARLES C. FOTI, ET AL. (Parish of East Baton Rouge)Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral argument and he has not participated in the deliberation of this case. Traylor, J., retired. Justice Traylor retired after oral argument and he has not participated in the deliberation of this case following his date of retirement, May 31, 2009.For the reasons set forth above, in the matters of 2007-KK-1853 and 2007-KK-1870 we find that CNN lacked standing to intervene in the Orleans Parish Criminal District Court proceeding, and we hereby dismiss CNN from that action. Furthermore, although we find that a La. R.S. 15:41 motion for return of seized property is properly brought under the jurisdiction of a criminal court, we also find that documents and copies produced pursuant to a subpoena duces tecum are not "property seized" within the meaning of La. R.S. 15:41. As such, the district court herein was without authority under La. R.S. 15:41 to order their return. For these reasons, we reverse and set aside the judgment of the trial court, and remand this case to the trial court for further proceedings consistent with this opinion.For the reasons set forth above, in the matter of 2008-CC-1066 we find that La. R.S. 44:3(A)(1) exempts from the required disclosure under the Public Records Act records held by the offices of the Attorney General and the District Attorney that pertain to any criminal litigation which can be reasonably anticipated until such litigation has been finally adjudicated or otherwise settled. The record in this case is insufficient to determine whether criminal litigation can be reasonably anticipated as provided in La. R.S. 44:3(A)(1). Accordingly, we reverse and set aside the judgment of the lower courts and remand this case to the trial court for further proceedings consistent with this opinion. 2007-KK-1853 - REVERSED AND SET ASIDE. CASE REMANDED TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS. 2007-KK-1870 - REVERSED AND SET ASIDE. CASE REMANDED TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS. 2008-CC-1066 - REVERSED AND SET ASIDE. CASE REMANDED TO THE 19TH JUDICIAL DISTRICT COURT FOR THE PARISH OF EAST BATON ROUGE.VICTORY, J., concurs in part and dissents in part and assigns reasons. KNOLL, J., dissents in part in Nos. 2007-KK-1853 and 2007-KK-1870, and concurs in the result in No. 2008-CC-1066, and assigns reasons. WEIMER, J., concurs.&nbsp;&nbsp;BY WEIMER, J.:<a href="/opinions/2009/09O0736.opn.pdf">2009-O -0736 IN RE: JUDGE TIMOTHY C. ELLENDER</a>Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.Accordingly, it is ordered that Judge Timothy C. Ellender of the Thirty-Second Judicial District Court for the Parish of Terrebonne, State of Louisiana, be and he is hereby suspended for thirty days without pay for violating Canons 1, 2A, and 3A(3) of the Code of Judicial Conduct, and Article V, &sect;25(C) of the Louisiana Constitution of 1974. It is further ordered that Judge Ellender reimburse the Louisiana Judiciary Commission $185.50, for costs incurred during the prosecution and investigation of this case. Additionally, Judge Ellender shall enroll in and complete instruction on addressing domestic violence cases.JOHNSON, J., concurs and assigns reasons. VICTORY, J., dissents and assigns reasons.&nbsp;&nbsp;PER CURIAM:<a href="/opinions/2009/08B2557.opn.pdf">2008-B -2557 IN RE: ROBERT LEE CURRY, III, PAUL D. SPILLERS AND EDWIN K. THEUS, JR.</a>Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired, recused.Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Robert Lee Curry, III, Louisiana Bar Roll number 4672, be and he hereby is suspended from the practice of law for six months, with three months deferred. It is further ordered that Paul D. Spillers, Louisiana Bar Roll number 12341, be and he hereby is suspended from the practice of law for six months, with three months deferred. It is further ordered that Edwin K. Theus, Jr., Louisiana Bar Roll number 12728, be and he hereby is suspended from the practice of law for six months, with three months deferred. All 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.VICTORY, J., dissents and assigns reasons.&nbsp;<a href="/opinions/2009/09KK0044.opn.pdf">2009-KK-0044 STATE OF LOUISIANA v. MARTY PALMER</a>&nbsp;(Parish of Natchitoches) (Possession of a Schedule III Controlled Dangerous Substance with the Intent to Distribute)Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.Accordingly, the decision of the Third Circuit is reversed, the ruling of the trial court denying the motion to suppress is reinstated, and this case is remanded to the district court for further proceedings consistent with the views expressed herein. DECISION OF COURT OF APPEAL REVERSED; TRIAL COURT'S DENIAL OF MOTION TO SUPPRESS REINSTATED; CASE REMANDED.JOHNSON, J., concurs.<div></div>&nbsp;&nbsp;
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