Jones v. LaBarbera

342 So. 2d 1125, 1977 La. App. LEXIS 4300
CourtLouisiana Court of Appeal
DecidedFebruary 7, 1977
DocketNo. 13234
StatusPublished
Cited by1 cases

This text of 342 So. 2d 1125 (Jones v. LaBarbera) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. LaBarbera, 342 So. 2d 1125, 1977 La. App. LEXIS 4300 (La. Ct. App. 1977).

Opinion

MARVIN, Judge.

Article 5, § 29, La.Const.1974, in part, requires that the coroner shall be a “licensed physician,” but that this requirement “. . . shall be inapplicable in any parish in which no licensed physician will accept the office.1

The issue presented is whether the appellant, who is licensed to practice medicine in Spain but not in Louisiana, may qualify as a candidate for coroner in Caddo Parish.

Appellant, a native-born citizen of the United States, received a degree as a Doctor of Medicine and Surgery from the University of Valladolid in Spain in 1974. He is a member of Southern Medical Association and the American Medical Association. He will not be eligible to be licensed in Louisiana until he has completed three years of training and has passed an examination as required by the Louisiana State Board of Medical Examiners.

Appellant filed papers to qualify as a candidate for coroner of Caddo Parish with the Caddo Parish Democratic Executive Committee. One other person, who is a physician licensed in Louisiana, qualified as [1127]*1127a candidate. A member of the Executive Committee formally objected to appellant’s qualifications to be a candidate. After a hearing by the Executive Committee, this objection was overruled. Suit was then brought in the district court to declare appellant unqualified and to set aside the Executive Committee’s certification of appellant as a candidate. Judgment below was as prayed for and was appealed here.

In considering constitutional provisions, we employ the same rules and principles of construction which are applicable to statutes. Barnett v. Develle, 289 So.2d 129 (La.1974). The safest rule of legislative interpretation is to look to the nature and object of the provision under consideration, with all the light and aid of contemporaneous history, and to give the provision such operation and force as is consistent with its legitimate purpose. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965).

The term license has been defined as the formal permission granted by a sovereign to a person to pursue some occupation, without which license the pursuit of the occupation permitted by the license would be illegal. Ewell v. Board of Supervisors, etc., 234 La. 419, 100 So.2d 221 (1958).

The 1921 Constitution (Art. 6, § 12) contained a statement of public policy against the unqualified practice of medicine in Louisiana. A definition of licensed physician, however, is not found in either of the most recent constitutions (of 1921 or 1974), or in the revised statutes. R.S. 37:1261 et seq., which establishes the Louisiana State Board of Medical Examiners and regulates the practice of medicine in Louisiana, makes definite reference to unlicensed physicians in section 1284.

“Unlicensed physicians shall not be exempt from jury or military duty, or be permitted to collect any fees or charges for services rendered, or be allowed to testify as a medical or surgical expert in any court, or execute public or legal documents as a physician or surgeon, or hold any medical office, or be recognized by the state or parish or municipal corporation as a physician or surgeon; or be entitled to enjoy any of the privileges, rights, or exemptions granted to physicians or surgeons by the laws of this state.” R.S. 37:1284. (Emphasis supplied).

The privileges, rights and exemptions granted to physicians by the laws of this state (as mentioned in the above section) are granted to those physicians who hold the certificate issued under Title 37 by the Board of Medical Examiners. See R.S. 37:1273, 1278-1280. Provisions of this type had been in our law for more than a half century at the time the 1921 Constitution was adopted. See Act 56 of 1914.

Our review of the transcript of the deliberations of the 1974 Constitutional Convention compels us to conclude the delegates intended the coroner to meet essentially the same requirements as the 1921 Constitution provided. See Vol. XI, Transcript of Constitutional Convention, August 24, 1974, 36th day, pp. 64-73. We are also of the opinion that the term licensed physician had acquired definite meaning during the course of the state’s history since 1914 of certifying physicians to practice in Louisiana, as distinguished from unlicensed physician, the direct opposite term.

We also take notice that the provisions of the 1974 Constitution (similarly again to the 1921 Constitution) relating respectively to Judges, District Attorneys and the Attorney General, require that each, as a qualification, “. . . shall have been admitted to the practice of law in this state for at least five years . . . 2 These provisions also stem from the 1921 Constitution. Both Constitutions can be said to require particular public officers of the legal professions to have been licensed in Louisiana for a term of years, without imposing a similar requirement on the coro[1128]*1128ner, a public officer, preferably of the medical profession. We conclude that the reason for the distinction is not that the convention delegates thought a physician licensed, say in Texas, would be acceptable as a coroner, while a lawyer admitted in Texas would not be acceptable as a judge or public attorney, but the distinction is that the delegates desired to require a minimum of five years experience in legal practice as a qualification for the other positions. We also take notice that the work of the 1974 Constitutional Convention was accomplished by committees and that ostensible differences in language in the several sections of the 1974 Constitution does not necessarily indicate substantive legal distinctions. Were it otherwise, the decision of who is and who is not a licensed physician (and thus qualified to be a candidate for coroner) would rest, not with a professional medical body, but with the party executive committees.

We hold therefore that licensed physician in Art. 5, § 29 of the 1974 Constitution means a physician licensed to practice medicine in Louisiana.

Appellant further contends the qualification provision (“The requirement that he be a licensed physician shall be inapplicable in any parish in which no licensed physician will accept the office.” Art. 5, § 29, La. Const.1974, in part), makes his eligibility for the office solely dependent upon the whim of licensed physicians within the parish and thereby deprives him of the equal protection guarantees of the federal and the state constitutions.

It appears the U.S. Supreme Court has recognized two approaches toward the issue. The most recent approach inquires whether the statutory provision in question either classifies persons on the basis of “suspect criteria” or arbitrarily infringes upon the “fundamental rights” of the complaining party. If either case (arbitrary infringement of fundamental right or classification upon suspect criteria) is present, it is incumbent upon the state to show a compelling state interest for the existence of the provision. In the absence of a finding of arbitrary infringement of a fundamental right or of classification on suspect criteria, the traditional equal protection approach is utilized. This approach requires the state to prove that the provision in question bears a rational relation to a valid legislative objective. See cases, infra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Montgomery
499 So. 2d 709 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
342 So. 2d 1125, 1977 La. App. LEXIS 4300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-labarbera-lactapp-1977.