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

• Decision Date: 30 March 1989
• Docket Number: No. 88-CA-2057,88-CA-2057
• Citation: 542 So.2d 56
• Parties: BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Through Dennis P. JUGE v. Nick NEYREY, Jr. 542 So.2d 56
• Court: Court of Appeal of Louisiana — District of US

Page 56

542 So.2d 56

BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS, Through Dennis P. JUGE v. Nick NEYREY, Jr.

No. 88-CA-2057.

542 So.2d 56

Court of Appeal of Louisiana, Fourth Circuit.

March 30, 1989.

Rehearing Denied May 17, 1989.

Ernest N. Morial, Donna D. Fraiche, Sandra A. Vujnovich, Brook, Morial, Cassibry, Fraiche & Pizza, New Orleans, for Louisiana Bd. of Examiners of Certified Shorthand Reporters, plaintiff-appellee.

Ernest E. Barrow, II, Grant & Barrow, Gretna, for Nick Neyrey, Jr., defendant-appellant.

Before SHORTESS, CARTER and LINDSAY, JJ., ad hoc.

LINDSAY, Judge ad hoc.

The plaintiff in reconvention, Nick Neyrey, appeals a trial court judgment sustaining an exception of no cause of action filed by the defendants in reconvention, the Board of Examiners of Certified Shorthand Reporters and its individual members, Stephen R. Plotkin, Denis P. Juge, Helen Deitrich, George Barbato, Jr., Rose Marie Bye Sandra Tremel and Donald Mellina. For the following reasons, we reverse and vacate the trial court judgment and remand this case to the trial court for further proceedings. ¹

FACTS

The Board of Examiners of Certified Shorthand Reporters was created in 1970 for the purpose of overseeing the practice of shorthand reporting as a profession. LSA-R.S. 37:2551. The Board has authority to determine the qualifications of shorthand reporting, make rules for examination of applicants, and issue certified shorthand reporter certificates to qualified individuals. LSA-R.S. 37:2554.

In 1983, the Board received an anonymous complaint that Neyrey was engaged in taking depositions without certification by the Board. The Board conducted an investigation into the complaint and obtained an opinion from the attorney general that Neyrey's activities were prohibited by the statutes which govern the regulation of court reporters by the Board. The Board held a hearing and requested that Neyrey voluntarily cease taking depositions without proper certification from the Board. Neyrey refused.

On August 8, 1985, the Board filed suit against Neyrey seeking an injunction to prohibit him from the practice of general or freelance reporting in Orleans Parish without a properly issued certificate.

Neyrey answered the petition. He admitted taking the deposition by means of audio visual recording equipment, but asserted that he was not engaged in shorthand reporting within the statutory definition of that term and therefore he was not subject to regulation by the Board. In addition, Neyrey filed a reconventional demand for damages against the Board and its individual members.

PRIOR DECISION

A hearing on the injunction was held on May 28, 1986. At the hearing, many of the facts were stipulated. It was stipulated that Neyrey was domiciled and works in Jefferson Parish and that he does not have a certificate from the Board and is not a certified shorthand reporter. Neyrey is engaged in taking depositions by means of audio video recordings. Parties to the depositions agree to this method. On July 28, 1983, Neyrey took a deposition and administered an oath to the deponent in New Orleans and transcribed the deposition in Jefferson Parish. It was further stipulated that on November 10, 1984, the Board found Neyrey to be in violation of LSA-R.S. 37:2556(B)(1) which prohibits general or freelance reporting in parishes with a population of more than 500,000 without a certificate from the Board. It was stipulated that the population of Orleans Parish exceeds 500,000, that LSA-R.S. 37:2554 established the Board of Examiners of Certified Shorthand Reporters, and that LSA-R.S. 37:2555 had been amended.

At the hearing, Neyrey contended that the Board lacked the statutory authority to regulate audio visual recording of depositions. He contended that he was not taking depositions by shorthand reporting within the definition contained in the statute. He also argued that the parties to the deposition stipulated that he could take the deposition, thus avoiding the requirement of LSA-C.C.P. Art. 1434, which provides that a deposition must be taken before a person authorized to administer oaths.

Following the hearing, the trial court took the case under advisement. On August 22, 1985, the trial court rendered a judgment permanently enjoining Neyrey from taking depositions without a certificate from the Board of Examiners.

In written reasons for judgment, the trial court found that the Board did have the authority to investigate Neyrey's activities in taking depositions without Board certification and to regulate those activities. The court also stated that the Board had the authority to obtain an injunction against Neyrey until he became properly certified by the Board.

The trial court found that the Board had authority over court reporting performed in a courtroom and also over general or free-lance reporting. The court stated that LSA-R.S. 37:2556(B)(2) defined general or free-lance reporting to cover any person engaged in the reporting of depositions, sworn statements, public hearings or proceedings, whether self-employed or through any business, firm, corporation or agency engaged in the reporting of depositions, sworn statements, or public hearings or proceedings.

The court also found that the defendant violated the provisions of LSA-C.C.P. Art. 1434. That article requires 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. The court found that authorization to administer oaths was conferred by means of proper certification by the Board of Examiners under LSA-R.S. 37:2554(E) and, therefore, because Neyrey lacked certification, he was unauthorized to report matters required to be taken under oath. The court also considered Neyrey's argument that LSA-C.C.P. Art. 1436 provided that the parties to a deposition could stipulate in writing that the deposition could be taken by any person, not just a person authorized to administer oaths. The court found that the parties involved in the deposition in question did not sign a written stipulation and therefore Neyrey's argument that he was exempt from the requirement of LSA-C.C.P. Art. 1434 was meritless.

Therefore, the trial court permanently enjoined Neyrey from taking depositions without certification by the Board.

Neyrey appealed that decision, urging numerous assignments of error. Neyrey argued the trial court erred in finding that his activities fell under the definition of general or free-lance reporting contained in LSA-R.S. 37:2555(B)(2) and in failing to recognize that the parties to the deposition agreed to allow Neyrey to administer the oath to the deponent. Neyrey also argued that the trial court erred in finding that under LSA-R.S. 37:2551 et seq. the Board had authority to regulate his court reporting activities. Further, Neyrey asserted that the trial court erred in not finding the statute to be unconstitutional because its application was limited to parishes with populations over 500,000. He also contended that the trial court erred in failing to find that the Board did not properly notify him of its findings during the original investigatory hearings.

The case was argued before a panel of this court on April 3, 1987. At argument, the Attorney General's Office by letter informed the court that portions of LSA-R.S. 37:2551, et seq. had been amended by Acts of 1986, No. 365 which became effective January 1, 1987.

The amendments contained in Act 365 deleted the application of the statutes only to parishes with populations over 500,000. The act also indicated that the statutes were not applicable to court reporting by means of video tape or electronic recording.

On July 8, 1987, this court rendered a decision in the case. Board of Examiners of Certified Shorthand Reporters, Through Juge v. Neyrey, 511 So.2d 463 (La.App. 4th Cir.1987), writ denied 514 So.2d 460 (La.1987). In its opinion, the court only dealt with Neyrey's assignment of error which concerned the Board's authority to enjoin him from practicing court reporting by means of video and electronic recording without certification by the Board. The court found that the legislature intended to exempt video and electronic recording from the operation of the statute and regulation by the Board and therefore the injunction against Neyrey could not be upheld. The court stated, "In accordance with that legislative intent we find that the provisions of R.S. 37:2551 et seq. do not and did not apply to court reporting by means of video tapes or electronic recording." The court reversed the trial court judgment, invalidated the injunction against Neyrey and remanded the case to the trial court for consideration of Neyrey's reconventional demand. In a concurring opinion, Judge Barry stated, "The issue on remand is damages."

RECONVENTIONAL DEMAND

On remand, the trial court considered the allegations asserted in Neyrey's reconventional demand. Neyrey sought to recover damages from the Board and its individual members. There are three grounds upon which Neyrey bases his claim for damages.

First, Neyrey claims that he was never subject to regulation by the Board. He contends that the Board violated the statutes which allow regulation of shorthand reporting, in that the Board exceeded the authority granted to it and attempted to enforce, under color of state law, provisions not set forth in the statutes. He claims that by virtue of the action of the Board and its members in enjoining his court reporting activities, he suffered loss of income, defamation and invasion of privacy.

Second, Neyrey argues the Board was selective in its enforcement of the statute by proceeding against him alone even though there were numerous other businesses in the area engaged in the taking of video taped depositions.

Finally, Neyrey argues that under 42 U.S.C. Sec. 1983, his constitutional rights were...