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Archive for the ‘Judges’ Category

Is it a mere coincidence that Louisiana has the FIFTH-WORST dental health in the nation? Or that our state has the eighth-worst oral health or the worst dental habits and care?

Could the fact that we rank dead last in the percentage of adults who visited a dentist in the past year somehow correlate with the fact that Louisiana is also dead last in the number of dentists per capita? Or second-worst in the percentage of adults with low life satisfaction due to oral condition?

Or could it be that the Louisiana State Board of Dentistry is just more interested in assessing fines and penalties as a means of amassing funds to perpetuate its existence than it is in promoting good dental health?

In 2010, the Louisiana Board of Dentistry revoked the license of Dr. Ryan Haygood of Shreveport. He was forced to endure a four-day hearing he describes as a “kangaroo court,” during which he had no rights and no due process.

“While this sounds unbelievable and extreme,” he told the Senate Commerce Committee last April, “the courts have agreed.”

A three-dentist panel found him guilty on eight specifics under two separate charges. In addition to taking his license to practice, the panel assessed him with more than $173,000 in fines and legal and investigative fees.

Incredibly, the conviction included several charges that the board had already dismissed and on the other charges, the board produced no evidence against him.

It took years, but the revocation was overturned by a unanimous ruling by the Fourth Circuit Court of Appeal. The court, in a strongly-worded rebuke of the dental board, said, “We hold this conduct is violative of the Louisiana Administrative Procedure Act and Dr. Haygood’s due process right to a neutral adjudicator and a fair hearing.

In 2011, Haygood filed suit against the board attorney, its investigator (who has since has his own private investigator’s license revoked), two unlicensed investigators and several local dentists who he said conspired with the board to take his license

Haygood, in his Senate testimony, said that in November 2013, the Second Circuit Court of Appeal cited the aforementioned Fourth Circuit ruling which suggested the potential of a corrupted investigation and a strong inference that members of the board engaged in the conduct attributed to Dr. Ross Dies (a local competitor of Haygood). If some of the allegations regarding Dies’ behavior are proved, the court added, they “would strongly suggest that Dies’ conduct was motivated less by altruistic concern for the public than animus to suppress a competitor. They would also prove that other board members agreed with Dr. Dies to engage in conduct to accomplish those objectives.

In December 2017, Caddo district court Judge Michael Pitman said:

This court reviewed many e-mails and correspondence between members of the board and the investigation team and the attorneys handling the matter before the board. I did so in-camera. Those matters are under seal because of the confidential nature of the investigation. But the things in those correspondence(s) were rather shocking with the unprofessionalism that was shown during this investigation, and I won’t go into specifics because those matters are under seal, but I was shocked at some of the things I read, some of the unprofessionalism that took place during this investigation by the board members, attorneys, so on and so forth…

The bottom line is there were—the proceedings that too place in this investigation were shocking. I just can’t think of another word to describe it. It was absolutely shocking.

Yet, despite overwhelming evidence of the board’s employment of a private investigator whose license was under threat of revocation (and eventually was revoked), despite testimony of destruction of records by the board, and despite former board employee Diana Chenevert’s meeting with investigators from the Office of Inspector General (OIG) on four different occasions during which she provided details of these, as well as citing examples of threats, extortion, and anti-competitive activities of the board, and despite having been told by OIG personnel that arrests were eminent, nothing happened.

In fact, in a January 25, 2018, letter to State Sen. Barrow Peacock, State Inspector General Steven Street said, among other things, “the evidence did not support criminal charges against any current or former Dental Board employees, board members or contractors.”

To read the full text of Street’s incredulous letter, go HERE.

Apparently, Street saw nothing wrong with the manner in which the board extorts money from dentists or the manner in which it conspired with the LSU School of Dentistry to ruin the career of one Dr. Randall Schaffer. To read his story, go HERE.

It’s not much of a stretch to say that Street has become something of a caricature of the clueless Sgt. Schultz character on Hogan’s Heroes who was best-known for his oft-repeated line, “I see nothing, I see nothing.”

Schaffer is the one who, back in 1989, realized that a joint replacement device for temporomandibular jaw (TMJ) sufferers developed at the LSU Dental School and being marketed by a Houston company named Vitek, was defective.

When Schaffer, then a resident at LSU, became aware of the 100 percent failure rate of the device, he informed Dr. John Kent, head of LSU’s School of Dentistry’s Oral and Maxillofacial Surgery Department, who had developed the device.

But Kent had been given stock in Vitek and was earning royalties of 2 percent to 4 percent on the sale of Vitek products, so the word of disfigurement, excruciating pain and at least eight suicides was unwelcome news. The obvious solution was to get rid of Schaffer and shut him up.

Today, Schaffer lives in Iowa, driven out of Louisiana by the Dentistry Board which joined with LSU to persecute the messenger even as 675 patients combined as a class for discovery purposes, leaving the state exposed to about $1 billion in legal liability.

Schaffer, you see, was named as a witness and consultant in the class action case and the Board of Dentistry retaliated by launching its investigation of Schaffer

In 1992, the first case was settled for $1 million.

Meanwhile, the board continued with its unique method of imposing its own brand of justice on dentists who it deemed troublesome or a threat. And of course, the board took no corrective actions regarding Dr. Kent and his joint replacement device.

 

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Just the good ol’ boys
Never meanin’ no harm
Beats all you never saw
Been in trouble with the law
Since the day they was born

                                  —Theme from The Dukes of Hazzard by Waylon Jennings

The recent actions of State Rep. STEVE PYLANT (R-Winnsboro) most probably were not the intended consequences of the CRIMINAL JUSTICE REFORMS passed by the Louisiana Legislature in 2017.

Pylant represents House District 20 which includes all or parts of the parishes of Caldwell, Catahoula, LaSalle, Tensas and Franklin.

In 2013, Pylant was one of only two members to vote against a bill to give special consideration to veterans of the armed forces who are arrested or convicted of a crime: “I support veterans 110 percent,” he sniffed at the time, “but when someone violates the law, we should be fair and impartial, no matter who they are. Everyone has problems … I don’t think it’s fair to be more lenient on some than others because of their military background.”

He currently serves a vice chair of the House Committee on the Administration of Criminal Justice and in 2015, he voted against reducing the penalties for the possession of marijuana.

The following year—and again in 2017—he voted against Senate Bill 180 (Act 343) which provided exemptions from prosecution for anyone lawfully possessing medical marijuana.

In 2017, he voted in favor of Senate Bill 70 (Act 108) that make misbranding or adulteration of drugs under certain circumstances a felony.

He also supported drug testing of welfare recipients and the right of concealed carry in restaurants that sell alcoholic beverages;

That seems about right for the man who, before entered the Louisiana Legislature in 2012, served for 16 years (1996-2012) as the high sheriff of Franklin Parish.

So, with all those law and order credentials, how did it come to be that Rep. (formerly Sheriff) Pylant would come galloping in on his white horse to secure a property bond of $90,000 to spring four convicted felons from jail in Catahoula Parish in December 2018?

Perhaps they weren’t members of the military, thus earning them greater consideration for leniency.

Or perhaps one of those arrested is the brother of a member of the Franklin Parish Sheriff’s Office and the judge, a tad more adherent to the law than those seeking to exert political influence, noted that he could not grant bail to one and not the others.

All or none, in other words, so Rep. Pylant obligingly ponied up the $90,000 property bond for all four defendants, each of whom had prior drug convictions as well as other assorted convictions spread among them.

The four were said to have been hunting on private property in Tensas Parish and were originally booked on promises to appear in Catahoula court on bonds of $5,000 each as set by Judge John Reeves. But Seventh Judicial District Attorney Brad Burget said when he reviewed the clerk’s file that showed the four were all convicted felons, he determined that “an appropriate bond” had not been set.

Booked on Dec. 8 were Jamie Dewayne Roberts, 45, Michael S. Linder, 49, and Trampas Barton, 43, all of Wisner, and Steve Drane, 50, of Gilbert.

Roberts, at the time of the arrests, was armed with a CVA Elite Stalker 35 Whelen rifle and in addition, had a concealed .22 magnum North American Arms revolver in his front pocket. Barton had a Model 7400 Remington 30.06 rifle. Linder had in his possession of CVA Elite Stalker 35 Whelen rifle, and Drane had a Browning A bold 325 WSM rifle.

Convicted felons are prohibited by law from possessing firearms.

Catahoula Parish Sheriff Toney Edwards said that after the four were booked, he received a call from Bryan Linder who asked that his brother, Michael Linder, be released on a PTA—promise to appear in court.

Bryan Linder works for the Franklin Parish Sheriff’s Office, the office once headed by Rep. Pylant, so it’s pretty easy to connect the dots on how things went down from that point.

But, for the moment, let us examine those felony conviction records of the four.

  • Jamie Dewayne Roberts: possession of methamphetamine in 2010; theft of anhydrous ammonia (used in the manufacture of methamphetamine, or meth) in 2016, an indication he didn’t learn much from his first conviction.
  • Trampas Barton: Distribution of methamphetamine in 2016, five additional convictions for burglaries and two more for drugs.
  • Michael S. Linder: Manufacture of methamphetamines.
  • Steve Drane: Manufacturing meth and on parole until 2021.

At least they weren’t involved in the possession or distribution of marijuana. That’s something Pylant, as your basic law and order representative, just couldn’t abide.

So thank your lucky stars you’ve got protection
Walk the line and never mind the cost
And don’t wonder who them lawmen was protecting
When they nailed the savior to the cross

                            —The Law is for Protection of the People, Kris Kristofferson

 

 

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He’s been gone from office for three years now but the legacy of Troy Hebert lives on at the Louisiana Office of Alcohol and Tobacco Control (ATC).

Hebert recently prevailed in a federal lawsuit filed for fired ATC agent Brette Tingle and that decision is currently being appealed.

But another suit  by fired agent Randall Kling, tried in state court resulted in a jury award of nearly $400,000, plus legal interest from May 26, 2011, the date Kling filed his suit in 19th Judicial District Court in Baton Rouge.

That decision, which somehow flew under the radar of all Baton Rouge news media, including LouisianaVoice, was rendered just over a year ago, on December 30, 2017 and like the Tingle decision, is currently under appeal.

Baton Rouge attorney J. Arthur Smith represented both Tingle and Kling in their litigation.

In that action, Kling had claimed that when he made official complaints of what he deemed was offensive behavior on the part of Hebert on March 16, 22, and 25 in 2011, Hebert fired him on March 30.

The jury verdict form revealed that jurors determined by a 9-3 vote that Kling “was engaged in protected speech on a matter of public concern” under the Louisiana Constitution. It then said, by an 11-1 vote, that “His termination was substantially motivated by his protected speech.”

The breakdown of the award was $243,045 in lost wages, $75,000 for mental anguish and distress and another $75,000 for loss of enjoyment of life.

Nineteenth JDC Judge William Morvant, in writing the formal judgment, somehow managed to circumvent the usual 6 percent per annum interest the state pays on judgments and set total interest at $9,538.06.

At 6 percent, interest would normally accrue at a rate of about $24,000 for each year since the suit was filed in May 2011 until final resolution, which is still pending.

If applied as in other judgments against the state, that would mean Kling would be entitled to more than $168,000 to date.

In any case, it will be the taxpayers of the State of Louisiana, and not Hebert, who will be called on to pay the judgment should the verdict be upheld by the First Circuit Court of Appeal and, should it advance that far, the Louisiana Supreme Court.

And that $400,000 doesn’t even include the cost of the state’s having to pay a contract attorney to defend Hebert and the Department of Revenue, costs paid through the Louisiana Office of Risk Management.

It’s another example of state officials, in this case, Troy Hebert, not being held personally accountable for their actions and taxpayers having to pick up the tab for their bad behavior.

Morvant, by the way, is the same judge who only yesterday (January 10, 2019) declined to hold Attorney General Jeff Landry personally liable for refusing to allow an Indiana woman access to what were clearly public records.

Unless some real teeth are put into these judgments, Louisiana’s public officials will go on disregarding the law in the knowledge they will suffer no personal consequences.

This needs to change.

 

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Until judges begin holding public officials personally liable—and making it hurt—for their continued disregard of Louisiana’s public records law, there’s simply little incentive to get them to change their habit of attempt to conceal information that could prove embarrassing or even incriminating.

Louisiana Attorney General Jeff Landry, who is on record via his own press release, as saying he was committed “to continue diligent enforcement of our Open Meetings Law,” recently attempted to deny access to public records to an Indiana woman on the shaky argument that as a non-citizen of Louisiana, she was not entitled to the records—never mind the fact he had already turned over 6000 pages of records to her and never mind that the state’s open meetings and public records laws go hand in hand to the public’s right to know what public officials are up to.

Apparently, she was starting to make him a bit uncomfortable so he cut her off and she FILED SUIT in an attempt to get the information she sought.

On Thursday, State District Judge William Morvant, thoroughly pissed at both sides over the numerous—and voluminous—filings in connection with an otherwise cut and dried matter, delivered a smack-down to Landry by refusing to dismiss Scarlett Martin’s suit.

Martin is seeking records concerning Landry’s perceived coziness with the oil and bas industry, including his travel, vehicle purchases, speaking fees and contracts, prompting Landry’s public information officer Ruth Wisher to say, “We can only hope it is not a political witch hunt (wonder where she got that term?) distracting from the important work of our office.”

Funny, but the state’s Public Records Act makes no mention of any requirement of state citizenship as a requisite for obtaining records nor does it cite motives, including “political witch hunts” as reasons to deny access to public information. Even funnier that such a lame line of reasoning would be advanced by the office of the state’s attorney general, presumably the premier legal authority to whom public agencies go for counsel.

Melinda Deslatte, In an Associated Press STORY, said Morvant in making his ruling, said he would not impose overly severe penalties on Landry for the lengthy time it took his office to turn over the records requested by Martin.

Instead, he said, he would only hit Landry’s office with attorney’s fees, fees that Martin’s attorney, Chris Whittington, estimated in the neighborhood of $25,000. And that doesn’t even include the cost of the state’s attorney fees for defending the indefensible.

And there’s the fly in the ointment.

Louisiana Revised Statute 44:35(E)(1) says the following.

If the court finds that the custodian arbitrarily or capriciously withheld the requested record, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian. It may also award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays and legal public holidays, for each such day of such failure to give notification (emphasis mine).

Additionally, LRS 44:35(E)(2) says:

The custodian shall be personally liable for the payment of any such damages and shall be held liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of legal counsel representing the public body in which the office of such custodian is located. In the event the custodian retains private legal counsel for his defense in connection with the request for records, the court may award attorney’s fees to the custodian (emphasis mine).

In this case, Landry was the legal counsel and the custodian of the records. Accordingly, he should have been held personally liable and hit with a penalty of $100 per day—except for the fact that Judge Morvant decided to go easy on him.

The ruling prompted a Lafayette reader to say, “Ironically, this is the same issue (ignoring public records requests) that brought… Lafayette City Marshal (Brian) Pope down. And similar favoritism was shown to Marshal Pope until media pressure was brought to bear on the issue. The judge of record, Judge Jules Edwards, showed considerable favoritism to the marshal as DA Keith Stutes. The elite protect the elite.”

And those attorney fees? Whether Morvant does award $25,000 or something less, rest assured that Landry won’t be paying it. Instead, you, Mr. and Mrs. Louisiana Taxpayer, will be the ones picking up the tab for that Landry’s little misapplication of a law any sixth-grader should be able to understand. You have already paid Landry’s attorneys and now you’ll pay the other side’s, as well.

Landry? He’s not out one red cent.

And until these judges, pissed or not, start holding public officials personally accountable for their blatant disregard of state law, nothing is going to change. The next official who finds public records requests hitting a little too close to home will try the same tactics of delay and deny, knowing that if he is sued and loses, the state’s taxpayers, not him or her, will pay the piper.

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That story about the north Louisiana contractor who was drummed out of business by the Louisiana Department of Transportation and Development (DOTD) and subsequently sued and won a $20 million judgment only to have it overturned on appeal just gets curiouser and curiouser with a couple of really bizarre developments.

Jeff Mercer, a Mangham contractor who had six contracts totaling nearly $9 million for which he was never paid, said his problems began when he complained that DOTD inspector Willis Jenkins attempted to shake him down to “put some green” in his hand or that Mercer place a new electric generator “under his carport” the following day.”

You can read the initial LouisianaVoice story by clicking HERE.

Mercer, armed with emails and other correspondence, filed suit against DOTD, claiming there was collusion among DOTD officials to “make the jobs as costly and difficult as possible” for him. A 12-person jury in 4th Judicial District Court in Monroe unanimously returned with an AWARD of $20 million in Mercer’s favor in 2015.

The jury, employing such terms as “collusion,” “bribery,” “extortion,” “conspiracy,” and “corruption,” not only held DOTD liable for damages, but also held four individual DOTD employees—Willis Jenkins, Michael Murphy, Barry Lacy and John Eason—personally liable.

But wait. Judge Henry N. Brown, as Chief Judge of the Second Circuit, had the responsibility of assigning cases and in Mercer’s case, he chose to assign it to himself—and wrote the decision that didn’t just reduce but obliterated the award in its entirety in OVERTURNING the lower court verdict.

Brown’s logic was that Mercer still had his contractor’s license and was still free to bid on state jobs. But when that same contractor is owed $9 million that the state refuses to pay him, he can’t meet payroll and he can’t purchase—or keep—equipment needed to perform the work. Nor can he afford worker’s comp and liability insurance.

Mercer says he was forced to sell off all his equipment—backhoes, trackhoes, dozers, trucks, etc. He estimates he lost another $2 million by being forced to sell his equipment for less than its real value. So, he is effectively out of business, Judge Brown’s opinion notwithstanding.

Meanwhile, a separate lawsuit in which Mercer still seeks payment of the $9 million that he’s never been paid makes its way slowly through the legal system.

The only problem with that was Judge Brown’s failure to recuse himself or even disclose his huge potential bias stemming from the fact that his father, Henry N. Brown, Sr., had been a civil engineer for DOTD for 44 years which “undermines the very fabric of our people’s faith in the judicial integrity of the Second Circuit Court of Appeal,” according to a MEMORANDUM in Support of Application for Rehearing and a Motion to Recuse and Vacate the Panel’s Opinion filed by Mercer’s attorney, David Doughty of Rayville.

At the trial, attorneys for both Mercer and for DOTD specifically asked each potential juror if they or any member of their family had ever worked for DOTD. “That was the first question asked every potential juror,” Mercer says. “If anyone answered yes, they were immediately excused.”

The case took 30 days to try, with thousands and thousands of pages of testimony. Yet, the Brown’s decision was rendered only 22 days after the appeal was filed, making it likely that he cherry-picked what he wanted to write since it was highly doubtful that the entire trial record could have been adequately reviewed in such a short time. The alternative would be that an attorney for DOTD drafted the decision for him and he signed off on it.

All of which can justifiably be labeled old news, already thoroughly rehashed on this site, right?

Right.

Except for a couple of recent news stories that loop right back into Mercer’s original claim of corruption, favoritism, bribery, extortion and otherwise unethical behavior by those in control of the dollars and the legal system.

Like this STORY from October 1 by KTBS-TV in Shreveport.

Judge Henry Brown was ordered by the Louisiana Supreme Court to vacate the Second Circuit Court of Appeal building in downtown Shreveport and to refrain from taking any further judicial actions after complaints that he had created a hostile environment toward colleagues who were hearing the appeal of a civil lawsuit against one of his friends from whom Brown had purchased a home.

Although Brown had recused himself from hearing the appeal because of the obvious conflict, members of the court found evidence that computer files where judges’ memos and drafts of opinions are kept had been hacked. A law clerk who worked for Brown was subsequently fired and banned from the courthouse.

And then there was this STORY by WAFB-TV in Baton Rouge that showed that one of the defendants in Mercer’s lawsuit may have had a too-cozy relationship with a DOTD contractor who manages to keep getting contracts through the agency despite repeated fines for failure to complete jobs on time.

The television station showed several photographs of DOTD engineer Barry Lacy on fishing trips, hunting trips, and at crawfish boils, and golf tournaments with officials of Coastal Bridge of Baton Rouge.

Lacy was one of four DOTD employees who were held personally liable in Mercer’s lawsuit.

DOTD Secretary Dr. Shawn Wilson said that while Lacy has no authority to award contracts to firms, he does make recommendations on such decisions.

It was not immediately clear if Lacy received the hunting and fishing trips or invitations to the crawfish boils or golf tournaments as gratuities but numerous OPINIONS by the Louisiana Board of Governmental Ethics have repeatedly said that “no public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director agent, or employee of such person if such public servant knows or reasonably should know that such person:

  • Has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency, or
  • Is seeking, for compensation, to influence the passage or defeat of legislation by the public servant’s agency.”

Meanwhile, Mercer, who was only trying to make a living, has been put out of business by a system that seems to consistently disregard the tenets of human decency, fair treatment, and equal opportunity in favor of preferential treatment, prestige, and power—with little or no consideration of the human consequences.

 

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