Board of Examiners of Certified Shorthand Reporters Through Juge v. Neyrey

Citation511 So.2d 463
Decision Date08 July 1987
Docket NumberNo. CA-6761,CA-6761
PartiesBOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Through Denis P. JUGE v. Nick NEYREY, Jr.
CourtCourt of Appeal of Louisiana (US)

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Lois C. Davis, Asst. Atty. Gen., Arthur J. Finn, Staff Atty., New Orleans, for plaintiff-appellant.

Ernest E. Barrow, II, Grant & Barrow, Gretna, for defendant-appellee.

Before GULOTTA, GARRISON and BARRY, JJ.

GARRISON, Judge.

This is an appeal from a judgment of the district court providing as follows:

"IT IS ORDERED, ADJUDGED, AND DECREED THAT:

1. The preliminary Injunction issued herein is made permanent.

2. Nick Neyrey, Jr., is restrained, prohibited and enjoined from engaging in general reporting or free-lance reporting in the Parish of Orleans, State of Louisiana."

The suit for injunction was instituted by the Attorney General's Office at the request of the Board of Examiners of Certified Shorthand Reporters. The Board received an anonymous complaint in a Labourdette & Gluth envelope that Nick Neyrey, Jr. had been taking depositions without a license from the Board. Enclosed was the front page of a deposition. The front page of the deposition contained the statement "Reported By: Nick Neyrey, Audio-Video Court Reporter." The front page was typed on paper on which the letterhead "Audio-Video Court Reporters, Inc." was printed.

In response thereto, the Board conducted an investigation and requested that suit be filed. At the trial on the injunction, the trial court judge provided the following written reasons for judgment:

"Action by Certified Shorthand Reporters Board to enjoin defendant from free-lance reporting in parishes under its jurisdiction.

It was stipulated that the defendant was not a Certified Court Reporter nor an Official Court Reporter.

UNDER THE CODE OF CIVIL PROCEDURE:

R.S. 13:3743, as enacted by Act 202 of 1952, in part said:

'A deposition shall be taken before an officer authorized to administer oaths----.'

Act 15 of 1960 re-enacted R.S. 13:3743 as C.C.P. Art. 1423. This codal article in part said: "A deposition shall be taken before an officer authorized to administer oaths----."

Act 574 of 1976 re-enacted C.C.P. Art. 1423 as C.C.P. Art. 1434. This article in part said: 'A deposition shall be taken before an officer authorized to administer oaths----.'

Finally, the Preliminary Statement to C.C.P. Chapter 3, Depositions and Discovery, as contained in the Official Edition of Act 15 of 1960, as reprinted by Claitors Publishing Division, re-printed 1972, in part said: 'Fed. Rule 28 permits the court to appoint anyone to take a deposition, and confers upon such persons pro tempore authority to administer oaths. This provision was not included in the Louisiana Statute. Art. 1423, infra, merely provides that depositions shall be taken before an officer authorized to administer oaths who is not an employee or attorney of any of the parties or otherwise interested in the outcome of the case. This avoids the problem of whether the legislature could constitutionally authorize the judiciary to confer upon private individuals the authority to administer oaths even under such limited circumstances.'

Defendant Neyrey has not offered any proof that he is an official authorized to administer oaths. Hence, under the provisions of C.C.P. Art. 1434 it appears that he is unauthorized to report any evidentiary matters required to be taken under oath.

However, defendant points to C.C.P. Arts. 1425, 1434, 1436, and 1440 as authorizing his right to free-lance reporting.

C.C.P. Arts. 1425, 1434, and 1440, offer no relief to defendant.

C.C.P. Art. 1436 in part provides: 'Unless the court orders otherwise and except as provided by Article 1425, the parties may by written stipulation provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like any other deposition, and modify the procedures provided by these rules for other methods of discovery.'

Firstly, the permissive 'may' of C.C.P. Art. 1436 cannot be construed to overide [sic] the mandatory 'shall' in C.C.P. Art. 1434.

Secondly, it must be construed that the Legislature by its consistent use of the mandatory 'shall' in R.S. 13:3743, and C.C.P. Arts. 1423 and 1434, 'A deposition shall be taken before an officer authorized to administer oaths--.', [sic] did not intend to grant to private parties the power to authorize any person to administer oaths by its use of the permissive 'may' in C.C.P. Art. 1436.

UNDER THE PROVISIONS OF R.S. 37:2551 THROUGH R.S. 37:2559

R.S. 37:2554E in part provides: 'Every certificate holder hereunder shall be deemed a certified shorthand reporter-------------and at his expense shall receive-------a metal seal----. such [sic] certificate and seal shall authorize the holder thereof to issue affidavits with respect to his regular duties, to subpoena witnesses for depositions, to administer oaths and affirmations and to take depositions and sworn statements.'

R.S. 37:2556B(1) provides that no person shall practice free-lance reporting in any parish having a population of over five hundred thousand unless he currently holds a valid certificate hereunder.

Defendant does not hold a valid certificate under this act, nor does he qualify under the exemptions of R.S. 37:2556A, nor does defendant qualify for a temporary certificate under R.S. 37:2556A(2), nor does defendant qualify as an emergency reporter under R.S. 37:2556A(2).

It must be concluded that defendant does not qualify as a general reporter or free-lance reporter under the articles of the Code of Civil Procedure nor under the provisions of the Certified Sharthand [sic] Reporters Act.

The temporary injunction issued herein will be made permanent."

At oral argument, council for the Attorney General's office presented this Court with a copy of the following letter, made part of the record herein:

"The above-captioned matter is set for oral argument at 1:00 p.m. today. Please see that the judges on this panel receive this before argument. The suit involves an attack on the constitutionality of portions of La.R.S. 37:2551, et seq."

"Act 365 of the 1986 Legislative Session amended those statutes under attack in this matter. Those amendments, which had an effective date of January 1, 1987, effectively moot many of the arguments of the defendant-appellants. Act 365, Sec. 1 eliminated the 'Five hundred thousand people' requirement and made the Board state-wide. Therefore, defendant-appellant's arguments of special and/or local legislation are no longer valid."

"Further, Act 365, Sec. 4 states, 'Nothing contained herein shall apply to court reporting by means of video tape or electronic recording.' The Legislature has defined that this section no longer applies to any other court reporting other than shorthand reporting. Although the district court's decision was correct at that time, this amendment would make useless any injunction obtained under the former statute. Since this amendment changes to whom this law applies, this basis for this suit is now moot."

"This information is provided to keep the Court aware of information which affects an appeal in its jurisdiction."

Because the remedy granted was an injunction, at oral argument both sides agreed that the injunction was invalid and the issue was moot as of January 1, 1987.

In the official volume of the State of Louisiana Acts of the Legislature Vol. I Regular Session of 1986 at pages 696-701 published by the Secretary of State in Baton Rouge, Act 365 of 1986 provides and looks as follows:

_____

ACT No. 365

Senate Bill No. 270.

By: Mr. Hudson.

AN ACT

To amend and reenact R.S. 37:2551(A), (B) and (C), 2552(A), 2553(C) and (D), 2554(A), (C) and (F), 2555(A), 2556(A)(1) and (2) and (B)(1) and (2), 2557(A), (B), and (C), and 2558; to rename the title to Chapter 32 of Title 37 of the Louisiana Revised Statutes of 1950; to repeal R.S. 37:2551(E), 2554(G), and 2556(A)(3), relative to certified shorthand reporters; to provide for membership of the Board of Examiners of Certified Shorthand Reporters; to provide for terms of office of the board members; to provide for duties of the board; to define shorthand reporting; to provide for certification of shorthand reporters; to provide for exemption from certification of official court reporters of a court of record; to provide for suspension or revocation of certificates; to provide for certification without examination; to provide for liability of the board members for investigations; and to provide for related matters.

Be it enacted by the Legislature of Louisiana:

Section 1. R.S. 37:2551(A), (B) and (C), 2552(A), 2553(C) and (D), 2554(A), (C) and (F), 2555(A), 2556(A)(1) and (2) and (B)(1) and (2), 2557(A), (B), and (C), and 2558 are hereby amended and reenacted and the title to Chapter 32 of Title 37 of the Louisiana Revised Statutes of 1950 is hereby renamed to read as follows:

CHAPTER 32

. CERTIFIED SHORTHAND REPORTERS

§ 2551. Creation of board of examiners; purposes; membership; expenses

A. There is hereby created a Board of Examiners of Certified Shorthand Reporters for the purpose of encouraging proficiency in the practice of shorthand reporting as a profession, promoting efficiency in court and general reporting, and extending to the courts and to the public the protection afforded by a standardized profession by establishing a standard of competency for those persons engaged in it.

B. Within thirty days from the effective date of this Section, the governor shall appoint nine persons to membership on the board of examiners. Each appointment by the governor shall be submitted to the Senate for confirmation.

C. Six appointees shall be certified shorthand reporters, two appointees shall be attorneys, and one appointee shall be a judge....

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