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Archive for the ‘Lawsuits’ Category

We have apparently entered into an era in which a public servant who does his job as he should now runs the risk of being named a defendant in one of those strategic lawsuits against public participation (SLAPP) discussed in recent LouisianaVoice posts.

The very prospect of Legislative Auditor Daryl Purpera being sued for issuing a press release about an audit report his office performed should send a chill throughout the Fourth Estate—mainstream media as well as bloggers. Who’s to say you can’t be sued for discussing an audit report over a Frappuccino at Starbucks?

Welsh Alderman Jacob Colby Perry recently won a court victory when the judge threw out not one, but four SLAPP LAWSUITS against him but now the attorney for the four who sued him—the Welsh mayor, her children, and the police chief—is attempting to get the presiding judge recused from the case in a desperate attempt to keep the frivolous lawsuits alive.

Louviere v Perry

Johnson v Perry

Cormier v Perry

And now we have a STORY in the Baton Rouge Advocate telling us that Baton Rouge attorney Jill Craft is suing Purpera on behalf of her client, former Secretary of Veterans’ Affairs David LaCerte—not because an investigative audit by Purpera’s office found that LaCerte, a Bobby Jindal appointee, allowed fraudulent behavior in his department, but because Purpera had the audacity to issue a press release saying so.

The state asked that 19th Judicial District Court Judge William Morvant dismiss the lawsuit on the grounds that Purpera was protected by the same statute that protects the speech of legislators.

Incredulously, Morvant ruled that while the auditor’s investigative report was protected, the press release issued by Purpera’s office was not. “I don’t think the press release falls within that immunity,” Morvant said, apparently with a straight face.

That immediately raises the question of whether or not the media are free to write their own story from the report. In other words, yer honor, can I, as a news reporter, write a comprehensive story that accurately reflects the contents of the audit without fear of some attorney swooping down and SLAPPing me?

  • Can LouisianaVoice or The Advocate, or any other medium be SLAPPed for writing that a contract for the privatization of a state hospital contained 50 blank pages, even though it did?
  • Is it defamation that reporters wrote about the oil and gas industry pouring contributions into the campaigns of a governor who killed a lawsuit against 97 oil and gas companies?
  • Can Lamar White be SLAPPed because he wrote about U.S. Rep. Steven Scalise speaking at an event attended by David Duke? That certainly didn’t reflect well on Scalise’s image.
  • Can Bob Mann be SLAPPed for admonishing Republican politicians to quit calling themselves “pro-life” if they “can’t speak out on behalf of sick kids” after Louisiana’s congressional delegation remained silent after Congress allowed the CHIP program to expire? That was, after all, a pretty damning condemnation of those self-righteous Republicans who seem to believe life begins at conception and ends at birth.
  • Can Robert Burns be SLAPPed for documenting payroll fraud on the part of an employee of a state board?
  • Can The Lens, a New Orleans online news service, be SLAPPed for exposing the Orleans Parish District Attorney for issuing bogus subpoenas?
  • Can a Houma blogger be SLAPPed for criticizing Sheriff Jerry Larpenter? Apparently the sheriff thought he could be at least raided. Instead Larpenter wound up having to pay substantial damages in the ensuing lawsuit, so at least there’s that.

We’ve already seen SLAPP suits where Superintendent of Education JOHN WHITE sued private citizen James Finney over Finney’s request for public records.

That followed a similar lawsuit filed by 4th Judicial District JUDGES against the Ouachita Citizen over the newspaper’s unmitigated gall in seeking public records from the court.

When the audit was issued, LaCerte’s attorney at the time called the audit’s findings “blatantly false. Both the interim secretary and the newly-appointed secretary of Veterans’ Affairs agreed with the findings and had taken corrective actions, Purpera’s news release said. The news release also noted that LaCerte’s attorney at the time called the audit’s findings “blatantly false.”

One thing Louisiana’s anti-SLAPP laws do is provide for the awarding of legal fees should a defendant prevail in one of these outrageous attempts to stifle public discourse.

Perry stands to collect something on the order of $16,000 in attorney fees. If plaintiff attorney Ronald Richard persists in pursuing this matter, he will be doing his clients a disservice because those attorney fees for Perry can only continue to climb.

LouisianaVoice also collected attorney fees in a recent SLAPP action when the presiding judge ruled in our favor. But there appears to be no shortage of plaintiffs willing to sue and unless judges start imposing sanctions, there will be no incentive for attorneys to refrain from collecting legal fees to represent them.

Morvant’s ruling, for lack of a better term, is an absurd interpretation of the First Amendment held in such high esteem by Thomas Jefferson who once said if forced to choose between a government without newspapers or newspapers without a government, “I should not hesitate a moment to prefer the latter.”

This is just the kind of ruling, if it is allowed to stand, that can send us barreling down the slippery slope to a government without newspapers—or any other independent media with courage enough to report the truth.

Somewhere in the great hereafter, Richard Nixon and Spiro Agnew are applauding Morvant’s ruling and should he learn of it, Donald Trump will no doubt be tweeting the glad tidings of great joy about the “fake news” comeuppance.

 

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LouisianaVoice keeps trying to prod the Attorney General’s office into getting off its backside in the investigation of that RAPE of a 17-year-old girl by a convicted rapist in a Union Parish Detention Center cell in April 2016, but it seems Jeff Landry is far too occupied with some grand scheme that he thinks will ultimately land him in the governor’s office.

In our monthly tabulation, it has now been 19 months and counting since the girl, who was being held in a cell after being picked up on a drug charge, was raped not once, but twice, by an inmate who had already been convicted of aggravated rape in Claiborne Parish and was awaiting sentencing while being held in adjacent Union Parish.

To refresh your memory, because the district attorney is a member of the Union Parish Detention Center Commission which operates the center, DA John Belton recused himself and requested that the AG conduct an investigation of the incident. The victim has since filed a LAWSUIT over the incident and now Landry’s office is attempting to lean on that as a legitimate reason for not providing a status of its so-called criminal investigation.

Back on Oct. 17, we submitted our monthly request as to the status of the assault investigation to both the AG’s Public Information Office and to its Criminal Investigation Section. The next day, Oct. 18, we received following response:

—–Original Message—–
From: AG Landry News [mailto:aglandrynews@ag.louisiana.gov]
Sent: Wednesday, October 18, 2017 1:49 PM
To: Tom Aswell <azspeak@cox.net>
Subject: Re: QUESTION

This matter is under investigation.

Thanks!

Ruth

So, we did our obligatory monthly report of inactivity on Landry’s part. But then on Wednesday (Nov. 15), we received the following response from Assistant Attorney General Luke Donovan, Executive Division:

From: Donovan, Luke [mailto:DonovanL@ag.louisiana.gov]
Sent: Wednesday, November 15, 2017 4:30 PM
To: azspeak@cox.net
Cc: Dirmann, Shannon <DirmannS@ag.louisiana.gov>
Subject: PRR 17-0159 Tom Aswell, Louisiana Voice

Good afternoon Mr. Aswell,

In response to your public records request pursuant to La. R.S. 44:1 et seq, the information you requested has been processed. You sought records related to the following:​

… any documents or reports pertaining to the status of the attorney general’s investigation of the rape of the 17-year-old girl in the Union Parish jail cell last April. That’s the investigation 3rd JDC District Attorney John Belton asked the attorney general’s office to investigate because of a conflict of interests.

Louisiana’s Public Records Act, specifically La. R.S. 44:3(A)(1), exempts records held by the office of the attorney general which pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled….”  

Therefore, the records which you seek are exempt from production at this time.

If our office can be of any further assistance, please let us know.

Sincerely,

Luke Donovan

Assistant Attorney General, Executive Division
Office of Attorney General Jeff Landry
Phone: (225) 326-6712  Fax: (225) 326-6098
www.AGJeffLandry.com

Well, that prompted my immediate response:

Your response is pure, unadulterated B.S.

That’s only because your boss is more interested in promoting his campaign for governor than doing anything on this case for the past 19 months. I’m not at all sure what you mean by “criminal litigation,” but I do know what “criminal investigation” and “civil litigation” are. The first is an investigation and, if warranted, an indictment and trial on criminal charges—and I suggest 19 months to investigate an assault in a confined area when the date, the victim and the assailant are all known to prosecutors is more than enough time to conclude an investigation and to indict. Any litigation would be a civil matter and completely unrelated to criminal charges as that would be a separate matter altogether. The information I am seeking is the status of the criminal investigation, i.e. has the alleged perpetrator been formally charged? If so, what was the charge and is there an arraignment/trial date?

To try and hide behind “pending criminal litigation” is a bit disingenuous. But then I would expect nothing better from Jeff Landry.

The only thing I neglected to say (and I wish I had, so I’ll say it here) is this:

Judging from the manner in which he can drag a matter out, perhaps Landry should consider offering his services as defense counsel for Roy Moore.

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Welsh Alderman Jacob Colby Perry is the second defendant in recent weeks to prevail against the so-called SLAPP lawsuits and in so doing, may teach the plaintiffs a little economic lesson.

SLAPP is an acronym for strategic lawsuits against public participation or in a more familiar vernacular, they could simply be called frivolous or harassment lawsuits. There intent is precisely what the acronym means: to prevent critics from participating in public discourse by filing costly lawsuits against critics.

On Tuesday, 31st Judicial District Court Judge Steve Gunnell dismissed all four defamation lawsuits against Perry and in finding the litigation to be without merit, he assessed the four plaintiffs with court costs and Perry’s attorney fees.

An affidavit filed with the court by Perry claims those attorney fees to be $16,000, or $4,000 per plaintiff which would make the idea of a SLAPP suit seem somewhat counterproductive in that it cost the plaintiffs pretty tidy sums of money and they still didn’t shut him up.

Judge Gunnell held off making a decision as to whether or not the suit should be dismissed with or without prejudice until he conducts further research on the matter. With prejudice would mean the plaintiffs would be unable to resurrect the lawsuit while a dismissal without prejudice would leave the plaintiffs open to pursue the suit at a later date.

“The legislature finds and declares that there has been a disturbing increase in lawsuits brought to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances,” Perry said in his Memorandum of Support for the Special Motion to Strike pursuant to the state’s anti-SLAPP legislation. “The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Ace shall be construed broadly,” his memorandum said.

LouisianaVoice recently prevailed in another SLAPP suit for defamation and was also awarded attorney fees, though substantially less than Perry’s award.

Perry has openly questioned the need of a town of 3,200 residents for 18 police cars, a budget of $593,000 for patrol, $295,000 for police communications and a projected police department expenditure for the entire year of nearly $1.1 million, or nearly $114,000 in excess of the department’s budget. That amount includes a $76,120 salary for Police Chief Marcus Crochet, an amount that represents a 37.5 percent increase in his base pay. And that doesn’t count the $6,000 in annual supplemental pay from the state.

Despite the fiscal drain on the city budget, Crochet created a separate account called “Welsh Police Department Equipment & Maintenance and has diverted more than $178,000 from traffic fines into that account instead into the city’s general fund—all with the acquiescence of the mayor, one of four plaintiffs who sued Perry for DEFAMATION.

Mayor Carolyn Louviere, her daughter, Nancy Cormier; her son, William Johnson, and Crochet all filed separate defamation suits and all four used the same attorney, Ronald C. Richard of Lake Charles, to do so.

Not only that, but Perry was on the receiving end of several other negative actions:

  • A recall petition was started against him while he was in Japan on military orders, serving his annual two-week training;
  • Postcards were mailed to Welsh residents that depicted Perry and Andrea King, also a member of the Board of Aldermen, as “terrorists” (See story HERE) and that Perry violated campaign finance laws by failing to report income from a strip club in Texas of which he was said to be part owner and which allegedly was under federal investigation for prostitution, money laundering and drug trafficking (See story HERE);
  • He was removed from the town of Welsh’s Facebook page (most likely the least offensive of the reprisals.

Each of the nuisance suits say essentially the same thing: that Perry besmirched the reputations of her honor the mayor, both of her children, and the bastion of law enforcement and fiscal prudence, Chief Crochet.

And Mayor Louviere, who inexplicably wants to build a new city hall when the town is flat broke, is currently under investigation by the Louisiana Board of Ethics, according to the Lake Charles American Press AMERICAN PRESS. She also wants to shut down a bar that just happens to be adjacent to a business owned by her son.

And her son, William Joseph Johnson, who Perry says used his mother’s office in an attempt to shut the bar down, has a story all his own.

Johnson, back in 2011, was sentenced in federal court to serve as the guest of the federal prison system for charges related to a $77,000 fraud he perpetrated against a hotel chain in Natchitoches between October 2006 and January 2007. And that wasn’t his first time to run afoul of the law.

At the time of his sentencing for the Louisiana theft, he was still wanted on several felony charges in Spokane County, Washington, after being accused of being hired as financial controller for the Davenport Hotel of Spokane under a stolen identity, giving him access to the hotel’s financial operations and then stealing from the hotel.

The only thing preventing Spokane authorities from extraditing him to Washington, Spokane County Deputy Prosecutor Shane Smith said, was that “we just don’t have the funds to bring him back.” The Spokane Review, quoting court documents, said, “Police believe Johnson is a longtime con artist who has swindled expensive hotels across the country.” (Click HERE for that story.)

“William Joseph Johnson, Jr. remains on federal probation,” Perry said. “He has yet to pay back all of the restitution that he owes.

In his lawsuit against Perry, Johnson says he “has a long-standing positive reputation in his community and parish” and that he (Johnson) suffered “harm to reputation (and) mental anguish.”

In a written statement following the ruling, Perry said:

“I am very pleased with the outcome of this matter,” Perry said. “I look forward to returning to the job that the People of Welsh elected me to perform. I also applaud my experienced legal team for their outstanding work.

“The rights of citizens to engage in the decision-making of government and provide input are unique to our country. These unique values make our country great. And, more Americans

should participate in government today.

“SLAPPs infringe on the rights granted to the citizens of the United States of America. Litigation should not be used to censor, silence, and intimidate those who are only exercising their rights as an American.

I am proud to be a citizen of a state, the State of Louisiana which is one of 28 states in the United States, that has implemented Anti-SLAPP laws to protect the Constitutional rights of its citizens from frivolous lawsuits filed by lawyers overzealous for clients and publicity.”

There was no immediate word on whether or not Richard would appeal the decision on behalf of his clients.

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A three-judge panel of the First Circuit Court of Appeal in Baton Rouge has scheduled arguments for Tuesday in the state’s appeal of a DECISION by a 19th Judicial District Court judge last March that knocked down much of the Jindal administration’s arbitrary rule changes in the approval of medical treatment for state employees injured on the job.

The decision was another in a long line of “reform” movements by Jindal—and pushed by the American Legislative Exchange Council (ALEC)—that were subsequently found to be unconstitutional or simply fell apart. Some of those included public education funding, group medical coverage for state employees, public-private partnerships in the operation of state hospitals, prison privatizations and tax proposals.

In his March 30 seven-page REASONS for JUDGMENT that followed a Feb. 7 bench trial, District Judge Don Johnson noted that:

Because the legislature did not authorize OWC to create a new rule creating a “tacit denial” when the provider simply ignores a request for treatment, “the Office of Workers Compensation exceeded its legislative authority as (it) lacks the authority to create and implement procedural regulations that authorize the ‘tacit denial of requested medical treatment which is statutorily obligated to the injured worker by the employer pursuant to (state statute).”

Johnson also found that OWC promulgated rules requiring injured workers to meet a higher burden than the state statute for any variance in an injured worker’s treatment schedule are “vague and the regulations are arbitrary, denying injured workers’ medical treatment that Louisiana employers are statutorily obligated to provide…”

Johnson also found that the “scheme” for determining whether an injured worker can receive medical treatment outside the Louisiana medical treatment guidelines (MTG) “is unduly burdensome.”

Special Assistant to the Director Carey Holliday testified that he was hired to help “bring the judges into conformity,” according to the answer to the state’s appeal filed by attorney J. Arthur Smith III on behalf of several plaintiffs. Holiday did that by implementing judicial performance evaluations. While he acknowledged he could not tell judges how to rule, he could “put them together and let them talk” and that “there will be some conformity…to come out of that,” Smith said in his answer.

The most damning revelation to come out of last February’s trial was testimony of improper Ex Parte communication between insurance carriers and defense attorneys about the merits of injury claims pending before OWC judges. Those communications were usually in the form of emails.

For example, one such email from a workers’ compensation defense attorney to former OWC Director Wes Hataway, Holliday, and the OWC chief judge contained complaints that one judge had ruled against an employer. The email went on to say of the judge, “He should be fired immediately,” and implied that the judge’s skills were less than those of a first-year law student. “He will do as he pleases no matter what,” the email said. “If this isn’t grounds to fire a judge, I don’t know what is.” The defense attorney ended his email by saying, “I think it’s time for the W.C. judges to become accountable for their actions.”

Judge Johnson took a dim view of this disregard for judicial independence by the 2011 decision to remove of the decision-making authority of the OWC judges and place it in the hands of the OWC Medical Director, Dr. Christopher Rich.

Johnson ruled that OWC “has violated the separation of powers doctrine by compromising judicial independence” by giving unpreceded powers to Dr. Rich, who was awarded a $500,000 contract to serve as medical director.

Rich, if nothing else, is consistent. Previously involved in ethical problems with another state contract, LouisianaVoice wrote about an apparent conflict of interest. In March 2011, the State Ethics Board ruled that he was prohibited, in his capacity as Medical director of OWC from participating in any matter involving Central Louisiana Surgical Hospital, a facility in which he owned an interest and which provided medical treatment to injured workers.

As OWC Medical Director, he could deny coverage to a state employee and then refer the employee to Central Louisiana Surgical Hospital for private treatment.

And did he ever deny coverage to state employees once ensconced as medical director. He even testified in February that he ignored the clinical judgment of treating physicians, even specialists, giving no weight to the recommendations of treating physicians. Moreover, according to his own testimony, he never examined an injured worker even though he made the final decision on what, if any, medical treatment the employee would receive. He even overruled a neurosurgeon’s recommendation that an employee undergo a cervical fusion because he, Rich, did not deem it necessary.

Attorney Janice Valois Barber testified in February that Rich had denied 100 percent of her clients’ requests for medical treatment variances. Dr. John Logan also testified by deposition that 100 percent of his variances likewise had been denied by Dr. Rich. Dr. Logan said that many of his patients simply gave up, knowing they would never get approval for the medical treatment they needed.

Dr. Pierce Nunley testified that he performs spinal surgery on almost a daily basis. He said he has attempted to contact Dr. Rich regarding Rich’s repeated refusals of request for treatments that vary from the MTG but was never able to get through to Rich nor did Rich return his calls.

So now, the state is continuing to pour good money after bad by appealing the decision of the lower court in an effort to uphold what was—and is—a very bad policy in dealing with people’s lives.

To us, it doesn’t seem quite right that one man, who never even once examined a patient would deny 100 percent of all requests for variances in the normal medical treatment guidelines. Surely there were a couple of valid claims in all of that.

But by consistently rejecting each and every claim, Dr. Rich was enforcing the Bobby Jindal code of justice and fair play.

It might be fine for Jindal to sell his books to his foundation in order to divert money from his non-profit into his pockets but no injured worker had a right to receive treatment for his injuries.

It might be fine for a legislator to lease luxury automobiles, pay ethics fines or even income taxes from campaign funds or for legislators to place relatives in state employment, but we just can’t have judges giving these deadbeat state employees a decent break.

And why not? The money-sucking appeals aren’t costing elected officials and bureaucrats anything. The tab is being picked by those clueless taxpayers. And besides, the state has plenty money.

The three-judge panel hearing the case includes appeal court judges John Michael Guidry, John T. Pettigrew and William J. Crain.

 

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The State of Louisiana shelled out almost a half-million dollars over a three-year period to a single law firm to defend two lawsuits against the former director of the Office of Alcohol and Tobacco Control (ATC)—both of which went against the state.

Records obtained from the Division of Administration reveal that both lawsuits, defended by Renee Culotta of the New Orleans law firm of Frilot, LLC, were settled in favor of the plaintiffs. The most recent of the two, filed by one current ATC and two former agents, all African-Americans, was settled for $250,000.

Prior to that, the case of another former agent, Lisa Pike, was also settled but the terms of that settlement were held confidential by the court.

ATC, under the leadership of former director Troy Hebert, was riddled with controversy and in the end, possible criminal wrongdoing, according to no less authority than Hebert himself. Hebert, at one point in the proceedings of yet a third pending CIVIL ACTION against him, filed a MEMORANDUM in Support of his Motion for Protective Order.

In the LAWSUIT filed by Charles Gilmore of Baton Rouge, Daimin McDowell of Bossier Parish, and Larry Hingle of Jefferson Parish, the case that was settled recently for $250,000, Frilot was paid $309,00 in attorney fees–$150,000 more than the final settlement.

Another $186,400 was spent by the State in defense of the Lisa Pike matter.

PAYMENTS TO FRILOT

And while the terms of that settlement are not known, it might seem prudent for the State to consider cutting its losses in all litigation pertaining to Hebert’s stormy tenure as Bobby Jindal’s boy at ATC.

For that matter, how far must a given case proceed for the defendant—in this case, the State—to realize it is defending the indefensible? At what point should the decision to walk away be made before wasting more taxpayer dollars?

Hebert’s deposition, taken in December 2016 in which he refused to answer questions on the grounds that it might leave him exposed to criminal prosecution should have been the signal to the State to throw in the towel and settle. What better justification could there be to settle? Why keep the meter running? That, nonetheless, is precisely what the State elected to do.

Throwing good money after bad has just always seemed like a bad proposition in any endeavor and these cases are no exception.

 

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