Feeds:
Posts
Comments

Archive for the ‘Judges’ Category

When I was a boy, my grandfather kept feed for his livestock in what we referred to as the corn crib in our barn. Naturally, rats, attracted to the grain, were a major problem.

One day, I moved a 55-gallon metal barrel into the crib. I put a couple of handsful of grain in the bottom of the barrel and propped a wooden plank outside the barrel against the open top. That night, about half-a-dozen not-so-smart rats climbed up the board and jumped into the barrel to get the grain. Too late they found they couldn’t get out.

I killed the rats and repeated the process each night, thereby eliminating quite a large number of the vermin because they too dumb to comprehend the peril of leaping before then looked.

The Senate passage (87-12) Tuesday of the CRIMINAL JUSTICE REFORM BILL has put Louisiana Attorney General Jeff Landry in a metaphorically similar barrel and it’s going to be interesting to see if he can climb out or if he learns from it.

Landry, you see, has spent the duration of his term of office either attacking every initiative of Gov. John Bel Edwards or praising every action of his acknowledged hero, Donald Trump.

He has been especially critical of the governor’s Criminal Justice Reform Program designed to relieve the state of its dubious title as the world’s incarceration center. Until passage of the Criminal Justice Reform Program, Louisiana had the highest rate of incarceration in a nation that had the highest incarceration rate in the civilized world.

No one would try to say there wouldn’t be repeat offenders. That goes with any prison system anywhere but Landry was quick to jump into the fray back in August when he issued a blistering PRESS RELEASE and newspaper OP-EDS proclaiming to anyone who would listen that nearly 25 percent of inmates released under the program had reoffended.

In an especially self-righteous display of sanctimony designed to garner sympathy, he called upon Edwards to apologize to the victims.

A noble but, coming from Landry, a somewhat empty sentiment intended to curry favor while having little to do with any real concern for anyone other than his own political capital. Consider this remark in his press release:

“The governor’s reckless approach to empty our jails simply so he can take credit for a smaller prison population remains a threat to Louisiana citizens. It further highlights the need for truth in sentencing.”

Well, first of all, there was never any intent to “empty our jails.” That’s almost laughable, ranking right up there with some of Trump’s wildly exaggerated claims. As for “truth in sentencing,” I bring to the stand the innumerable investigative audits conducted by the Louisiana Legislative Auditor’s Office that were simply filed away somewhere with no action taken against those responsible for mismanagement, malfeasance and embezzlement.

A statewide elected official can let state taxpayers pay his fine for sexual harassment and move on with his life but let some kid from the ghetto get busted for an ounce of pot and all hell breaks loose. Authorities swoop down on him, hustle him off to jail where he is most probably raped as he awaits his trial and sentencing to hard time. How’s that for “truth in sentencing,” Jeff?

It must have kept Landry awake last night just knowing that his hero (Trump) and his nemesis (Edwards) actually worked together in coming up with the criminal justice reform bill, a bill favored by Trump and for which First Son-in-law Jared Kushner actually lobbied.

It must have also upset the folks over at The Hayride after their EDITORIAL last August in which they called for Republican supporters of the Edwards prison reforms “to step away quietly…”

Basically, this is what the criminal justice reform bill does:

  • Sends up to 4,000 prisoners home by increasing the amount of time inmates can cut off of their sentences due to good behavior.
  • Allow more male and female inmates to serve time in house arrest or halfway facilities instead of prison cells, with exceptions for high-risk inmates.
  • Require that prisoners be placed within 500 miles of family.
  • Outlaw shackling during child birth.
  • Mandate the provision of sanitary napkins and tampons to female inmates.
  • Reduce the mandatory penalty from life to 25 years for a third conviction of certain drug offenses, and from 25 to 15 years for a second conviction.
  • Prohibit the doubling up, or “stacking,” of mandatory sentences for certain gun and drug offenses.
  • Give judges more discretion in giving less than the mandatory minimum for certain low-level crimes.
  • Make the 2010 Fair Sentencing Act retroactive, which changed sentencing guidelines to treat offenses involving crack and powder cocaine equally. This could impact nearly 2,600 federal inmates.

The bill would only impact the 180,789 incarcerated in federal prisons, but many of the changes reflect reforms already implemented in many states.

It now goes back to the House, where it is expected to pass with equal ease.

At least one Louisiana politician remained true to his beliefs, however self-serving they may be.

U.S. Sen. JOHN KENNEDY was one of only 12 Republicans in the Senate and the only one from Louisiana to vote against the bill, calling it a “violation of American public safety. He sniffed last August that Edwards “calls it prison reform, I call it prison release.”

Never one to abandon a snippy sound bite if it gets him on camera, he repeated an eerily similar CLAIM last Friday: “This is not a criminal justice bill. It is a prisoner release bill.”

It’s a pity neither is running for governor. It would have been a darn interesting election from an entertainment perspective.

Advertisements

Read Full Post »

Apparently, if you are drowning, lifeguards are under no obligation to protect you from harm.

If a maniac is careening down the interstate, weaving in and out of traffic at breakneck speeds, state police are not required to protect other motorists.

If that same maniac causes an accident in which you are gravely injured, first responders have no duty to try and save your life.

If someone is breaking into your home, don’t bother calling 911; they don’t have to come to your aid. Not their job.

The fire department is no longer duty-bound to respond when your home is consumed in flames.

If you witness child abuse, don’t bother calling Child Services. They have paperwork to do.

Teachers are under no requirement to teach our kids.

Why bother the rape crisis hotline? You were probably dressed provocatively anyway and brought it on yourself.

The Hippocratic Oath is out the window for physicians.

The rules of the game have apparently changed. Police departments exist now to promote fundraising projects for benefits and pensions.

Sheriffs’ departments are only for awarding political allies with jobs as deputies.

Social welfare agencies exist only to allow employees to qualify for retirement.

Extreme? Of course.

Fantasy? Not necessarily.

Not if the ruling by a federal judge in Florida is any indication of the future.

U.S. District Judge Beth Bloom has dismissed a lawsuit by 15 students of Marjory Stoneman Douglas High School who somehow had the audacity to expect that school officials and the Broward County Sheriff’s Office had a duty to protect them from a mass murderer.

Read the full story HERE.

In an incredible reach, Judge Bloom said that Broward schools and the sheriff’s office had no legal duty to protect students during the attack in which Nikolas Cruz killed 17 and wounded another 17 on Feb. 14, 2018.

She said the two agencies had no constitutional duty to protect students who were not in custody.

As outrageous as her decision is, one of our readers informs us she was merely complying with established U.S. Supreme Court rulings. The first, titled TOWN of CASTLE ROCK v. GONZALES, said a police department could not be sued for failure to enforce a restraining order after the estranged husband of a woman killed their three children. The other, DeSHANEY v. WINNEBAGO COUNTY, said that a state government agency’s failure to prevent child abuse by a custodial parent does not violate the child’s right to liberty for the purposes of the 14th Amendment to the U.S. Constitution.

Next, there will be no responsibility on the part of federal agencies to protect us from tainted meat, workplace dangers, environmental threats, consumer fraud, employer harassment, racial discrimination, bogus universities, or payday loan abuses.

Oh, wait. Strike that last paragraph. We’re already there.

As our late friend C.B. Forgotston would have said: you can’t make this stuff up.

Read Full Post »

There is an interesting story in today’s Baton Rouge Advocate (click HERE to read the story) about former Secretary of State Tom Schedler.

It seems that in addition to being forced from office by his settlement of a sexual harassment lawsuit, his successor, Kyle Ardoin, diverted $90,000 in state funds earmarked for computer upgrades to pay Schedler’s portion of the settlement.

That’s questionable use of public funds by practically any definition I know but beyond that little indiscretion lies a more fundamental question and that is just why was the state on the hook for the bulk of the payout for his behavior in the first place?

Schedler resigned in May of this year in the wake of accusations that he had sexually harassed a female employee for years.

The woman filed suit against Schedler and the state and the case was settled in August for $167,500, plus another $35,000 in attorney fees.

Of that $202,500 total, Schedler personally paid only $18,425 with state taxpayers picking the remaining $184,075–$90,450 covered by the secretary of state’s office and $93,625 by the Office of Risk Management, the state office that insures all state agencies in cases of legal liability.

But why would taxpayers be called upon to foot the bill for nearly $185,000 for personal actions committed by Schedler?

That was the question posed by a reader who said, “We need somebody to pass a law that anybody settling a sexual harassment case related to their employment with the state has to pay ALL of it from their own pockets. If Schedler wasn’t 100 percent responsible for this, who was, the state? And who, in this case, is the state?

Good questions all and an observation that cuts the heart of the legal issue.

To our reader’s advocacy that a law needs to be passed, he’s correct—except the law is already in place. It’s just not applied by judges who preside over these cases.

There is even a legal term (Latin, what else?) that addresses this very case.

RESPONDEAT SUPERIOR is the Latin phrase for “Let the master answer.” While it is an English Common Law doctrine (Louisiana’s laws are based on the Napoleonic Code), it would still apply in Schedler’s—and others’—cases if only the judges would apply the principle.

Established in the 17th century, the doctrine was adopted in this country and has been broadly applied in agency law. Literally, Respondeat Superior means the employer (in this case, the state) is liable for the injuries caused by an employee who is working within the scope of his employment relationship (emphasis mine). The person who does the work for the employer is the agent and the theory behind the law says the principal (employer, or agency) controls the agent’s behavior and must then assume some responsibility for the agent’s actions.

It means that if, as a state employee, your supervisor or legal counsel directed or advised you to do something later determined to be illegal, then the state would be liable for any fines, courts costs, etc. If, however, you did something illegal at work that was not work-related (harassment or assault of a subordinate, stealing from the coke machine, extortion, etc.), then you and you alone should be held liable for any damages imposed. If, the first case, the court had imposed a $50,000 fine, the Office of Risk Management would be responsible for paying the penalty. In the second case, if you were fined (whatever amount), the full responsibility for payment should fall upon you because what you did was not job-related, or within the scope and authority of your job responsibilities.

The question then becomes was the employee (Schedler) acting within the scope of employment during his off-the-rails behavior. The answer, of course, is certainly not.

That is the sticking point here and, in a case involving LouisianaVoice a few years back. We sued Commissioner of Administration Kristy Nichols over her failure to provide public records in the time prescribed by law. LouisianaVoice won the case and Nichols was personally assessed financial penalties. But she appealed, lost and eventually settled with LouisianaVoice. But the state paid for all her attorney fees at the state and appeal court levels as well as for the settlement itself.

The judge held her personally liable because she did not rely on the advice of the DOA legal counsel in dragging out her response to our records request. She was not, the court deemed, acting “within the scope of her employment” by delaying production of the records. Still, when push came to shove, it was the state, i.e. taxpayers, that paid in the end.

Same with Schedler. Sexual harassment certainly is never within the scope of anyone’s employment. Therefore, what Schedler did, he did as a freelancer, not as part of his duties as an employee (or in this case, the very head of the agency). Accordingly, he should have been held personally liable for all damages and legal costs.

That he was not speaks to the inexcusable laxity exercised by the court system in this case. This was the ideal chance for the judiciary to send a clear message to public servants—and employees in the private sector—that acting outside the boundaries of their job descriptions has consequences.

Sadly, that opportunity was missed.

Read Full Post »

A state district court last week knocked down action taken by the Vermilion Parish School Board for violations of the state’s Open Meetings Law. In what must surely be a first, I find myself in agreement with Attorney General Jeff Landry on the whole affair.

Suffice it to say, however, that Landry waited until there was a judicial ruling to take his courageous stand, a ruling 10 months in the making, while LouisianaVoice took a similar position on the removal of a teacher from a board meeting immediately.

For that matter, why the hell did it take 15th Judicial District Court Judge David Smith 10 months to issue a ruling on a matter that is supposed to be fast-tracked: the issue of public meetings of governmental bodies? To take 10 months to decide what was obviously a violation of state law is somewhat ludicrous.

Be that as it may, Smith not only ruled the school board violated the Open Meetings Law by having a teacher, Deyshia Hargrave, a Kaplan middle school English teacher, arrested and removed from the meeting because she questioned the board action of awarding Superintendent Jerome Puyau a $30,000 raise, from $110,190 to $140,188, while teachers have gone years without a pay increase.

Puyau, in an interview with a Lafayette television station, said, “By the time the teacher stood up in the audience to the time she was at the door, it was 53 seconds. During that 53 seconds, she was asked to sit multiple times, the gavel struck multiple times.”

Yes, she was asked to sit and yes, the gavel was struck multiple times in a desperate effort to keep Hargrave from further publicly embarrassing the board and Puyau. When the raise for Puyau came up on the agenda, Hargrave, the parish’s 2015-16 Teacher of the Year, attempted to ask how the board could award Puyau a raise “when you’re basically taking from the teachers.”

Board President ANTHONY HARGRAVE, an Abbeville attorney who should have known better, rapped his gavel while informing Hargrave she was not on the agenda and the item being discussed was the superintendent’s contract.

Hargrave was quick to point out that she was addressing the very issue the board was considering, his gavel-rapping notwithstanding. “This directly speaks to what you’re voting on,” Hargrave said as a city marshal moved in to slap handcuffs on her and lead her from the meeting.

To view the complete video, click HERE.

The video prompted a flood of outrage from throughout the country. News organizations, from the Charlotte Observer, to The Washington Post, to The New York Times, to US News & World Report, to NPR, to NBC, to the La Crosse (Wisc.) Tribune, and even the Baton Rouge Tiger Droppings picked up on the school board’s action.

Meanwhile, Fontana, referring to Hargrave as “the poor little lady,” said, “If a teacher has the authority to send a student, who is acting up and she can’t control, out of the classroom to the principal’s office, under our policy we have the same rules.” Apparently, Fontana believed he could treat teachers as children and that getting arrested is the equivalent to being sent to the principal’s office.

And perhaps Fontana, after 25 years on the board, should have retired before deciding he was the final authority on open meetings and freedom of speech First Amendment rights.

And while Judge Smith took his time in issuing his ruling, he did take it to its ultimate conclusion in negating the school board’s approval of Puyau’s contract and his $30,000 raise—because the action was taken in what Smith said was a meeting held in violation of the Open Meetings Law.

Puyau, obviously feeling he had been grievously wronged by the ruling (never mind the manner in which the board treated Hargrave—one of its teachers, no less), told Lafayette TV station KATC reporter Chris Wetly that he would appeal the decision.

“It has ruined myself and my family,” he sniffed. “It has broken me personally. It has changed me as a person…to understand that politics is ugly and they (whoever “they” is) will do anything they can to get rid of me as Superintendent.”

Hey, Puyau, trying getting arrested, being handcuffed, and led out a public meeting—for simply exercising your First Amendment right of free speech. Then you can talk about your life being “ruined” and your life “changed.”

And of course, there is Landry, always ready and willing to pick the low-hanging fruit. Here’s the headline from his news release on Monday:

Vermilion Ruling A Victory for Teachers, Public Declares Jeff Landry
AG Landry Pledges Continued Enforcement of Open Meetings Law 

“I applaud Judge Smith for remedying this injustice,” Landry said of the ruling, adding that Hargrave and her fellow teachers, “who have not received a pay increase in many years despite growing class sizes, should have absolutely been heard.”

Of course, that was an easy call to make for Landry, ever the politician on the prowl for votes wherever and whenever he can find them. “And I pledge to continue diligent enforcement of our Open Meetings Law,” he said.

That’s a curious “pledge” for him to make. The Louisiana Constitution prohibits his intervention in parish affairs unless specifically requested to do so by the local district attorney. And as attorney general, he represents state boards, commissions, and agencies, meaning he is mandated to protect their interest, not ours. That means that in litigation over open meetings or public records, rather than enforcing the law, he defends state boards, commissions and agencies.

As ample illustration of that important distinction, observant readers will note that while LouisianaVoice WEIGHED IN on the controversy immediately, Landry, once a ruling had been made, had an opportunity to characteristically grab the spotlight with his news release. Prior to Judge Smith’s ruling, however, he had absolutely zero to say about the matter.

Nothing.

Nil.

Zilch.

So much for “diligent enforcement.”

 

Read Full Post »

It was the end of February 1968 and John J. McKeithen was just completing his first term of office. (Unlike today, when statewide inaugurations are held in January, state elected officials then took their oaths of office in May.)

McKeithen had earlier upset long-standing tradition when he managed to change the State Constitution during his first term so that he could run for re-election. Previous governors could serve only a single four-year term before being required to (a) seek another office or (b) start raising funds and lining up support for a return four years hence. In other words, governors were barred from serving two consecutive terms.

But this isn’t about McKeithen’s savvy political machinations that allowed him to become the first modern-day governor to succeed himself. It is instead about another precedent set by the Caldwell Parish native: The invoking of gubernatorial powers under Article IX, Section 8 of the 1921 Louisiana State Constitution which resulted in the heretofore unthinkable act of suspending a sitting sheriff from office.

It’s about how the current State Constitution, adopted in 1974, removed that authority from the governor.

And it’s about how, given the freewheeling manner in which some sheriffs wield power in their respective parishes, it might not be a bad idea if that authority was reinstated if for no other reason than to serve as a constant reminder to sheriffs that their actions could have consequences.

Yes, sheriffs are elected officials answerable to their constituents and if they keep getting elected, what business would a governor have in being able to say otherwise, especially if the sheriff and governor were political adversaries?

And if the sheriff can fool the electorate, there are always the courts. But face it, the local district attorney and the sheriff are usually strong political allies who present a formidable team to anyone who would question their authority. There are exceptions, like DA Earl Taylor and Sheriff Bobby Guidroz in St. Landry, who don’t exactly gee-haw on much of anything.

But then there is Louis Ackal in Iberia Parish whose strong-arm tactics, especially where blacks are concerned, has become a source of embarrassment to the locals—or at least should be—and would be even more of a pariah if the local newspaper, the Daily Iberian, was courageous enough to call him out for his egregious flaunting of basic human dignity and his contemptuous trampling of constitutional rights.

In the case of Jessel Ourso of Iberville Parish, across the Mississippi River from Baton Rouge, it was just a matter of a little Louisiana extortion that prompted McKEITHEN TO OUST OURSO on Feb. 9, 1968. Iberville was in the midst of a construction explosion with chemical plants sprouting up all along the Mississippi and the high sheriff was in a unique position to take full advantage of the boom.

Ourso placed his brother in a no-show job as a union steward for the Teamsters at one plant and contractors were ordered to lease equipment from Ourso’s nephew, State Trooper Jackie Jackson. The tipping point, though, was apparently Ourso’s requirement that contractors use a guard service owned and operated by the sheriff.

One witness described an atmosphere of “just plain racketeering and shakedowns through collusion of individual law enforcement officers and labor.” (Imagine that: the word collusion was being bantered about half-a-century ago.)

McKeithen’s decision to suspend Ourso was based on the recommendation of then-State Comptroller Roy Theriot, a recommendation which in turn stemmed from a report by Legislative Auditor J.B. Lancaster which laid out Ourso’s strong-arm tactics, including his preventing contractors from firing workers who were performing no work.

In Ackal’s case prisoners have died under mysterious circumstances, dogs have been loosed on helpless prisoners in the parish detention center, prisoners have been sexually abused, and women employees have sued—and won settlements—over sexual harassment claims.

A television network recently aired a documentary on Ackal’s fiefdom, concentrating on the death of Victor White, III, who, while he sat in a patrol car with his hands cuffed, was fatally shot in the chest—a shooting that was ruled by the local coroner as a suicide, as improbable as that had to be, considering his hands were cuffed behind him.

Ackal’s office has paid out more than $3 million in legal judgments and settlements in his 10 years in office—a rate of $25,000 for each of the 120 months he has been in office. And that’s not even counting the attorney fees of about $1.5 million. Those numbers are far more than any other parish in the state except perhaps Orleans.

And there are other cases currently pending against Ackal and the Iberia Parish Sheriff’s Office.

Like the LAWSUIT just filed in U.S. District Court for the Western District of Louisiana in Lafayette by Michael and Suzzanne Williams.

In that action, the pair said that sheriff’s detective Jacques LeBlanc, who has since left the department, obtained a search warrant for their home because he “thought” he had reason to believe the couple was in possession of “illegal narcotics, drug paraphernalia, currency and other controlled dangerous substance(s).”

When voices were heard outside their bedroom, Michael Williams went to the front door. When he opened it, he was ordered out of the house and deputies stormed the house. They forced Mrs. Williams outside clad only in bra and panties, refusing to allow her to dress. Williams was handcuffed and placed in the back of a patrol car while deputies ransacked their home.

Officers “did not find a scintilla” of illegal drugs, drug paraphernalia or illegal narcotics, their petition says. Following a fruitless search, they were released with no charges being filed.

Williams subsequently appeared at the sheriff’s office on numerous occasions in an attempt to obtain a copy of the search warrant and affidavit but were provided with neither, although they have since obtained a copy of the search warrant through other sources. They still do not have the affidavit on which the warrant ostensibly was based. Instead, they were told by Dist. Judge Lewis Pittman, who signed the warrant, that LeBlanc swore under oath that he had good reason to believe they were in possession of drugs.

They are claiming that LeBlanc knew his statement to the effect that he believed they had drugs was false and that he committed perjury in order to obtain the warrant.

They are seeking $2 million in damages in their lawsuit.

Read Full Post »

« Newer Posts - Older Posts »