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Welsh Alderman, victim of SLAPP lawsuit, SLAPPS back; wins dismissal, court costs, attorney fees of up to $16,000

Posted in Corruption, Ethics, Finances, Lawsuits, Legislature, Legislators, Public Records, Transparency on November 10, 2017| 3 Comments »

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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First Circuit Court of Appeal to hear arguments in state’s appeal of district court’s rejection of workers’ comp rules

Posted in ALEC, American Legislative Exchange Council, Contract, Contracts, Corruption, Courts, Ethics, Governor's Office, Judges, Lawsuits, Privatization on November 6, 2017| 5 Comments »

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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State spends $300,000 to settle ATC case for $250,00; lays out additional $186,000 to settle 2nd for undisclosed terms

Posted in ATC, Contract, Contracts, Ethics, Finances, Governor's Office, Lawsuits, Louisiana Purchase on October 23, 2017| 6 Comments »

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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More than $100 million approved by legislature in 2016 session to pay lawsuit judgments still has not been paid

Posted in Budget, Courts, DOA, Finances, Governor's Office, Lawsuits, Legislature, Legislators, Office of Risk Management, ORM, Office of Risk Management, Privatization, Revenue on October 20, 2017| 6 Comments »

It’s a plaintiff attorney’s and a legislator’s nightmare.

As an illustration of just how bad the state’s fiscal condition really is, one need only examine the 40 court judgments stemming from litigation against the state in 2016 that have yet to be paid.

As former Speaker of the U.S. House Tip O’Neill once said, all politics is local and when a constituent wins or settles a lawsuit against the state, that person’s legislator is usually prompt in filing a bill in the House to appropriate funds for pay the judgment. That’s important to legislators. The state, after all, has denied classified employees pay raises for the better part of a decade but never missed paying a judgment other than the Jean Boudreaux case—until now.

It’s also a good indication of just how dire the state’s fiscal condition really is.

In all judgments of road hazard cases—cases involving auto accidents where the state is found at fault for inadequate signage, poor road maintenance or improper construction—as well as certain other claims like general liability or medical malpractice, funds must be appropriated via a bill submitted by a legislator.

In past years, with the exception of one major judgment, that has not been a problem. Only the $91.8 million class action judgment resulting from the 1983 flood in Tangipahoa Parish was never paid. In that case, lead plaintiff Jean Boudreaux claimed that construction of Interstate 12 impeded the natural flow of the Tangipahoa River, causing unnecessary flooding of homes and businesses north of I-12.

But in 2016, Rep. Steve Pugh of Ponchatoula submitted a bill to appropriate funds to pay the judgment. He did the same in 2017. It still remains unpaid, along with 36 other judgments totaling another $9.5 million for which bills were approved.

That puts the overall total judgments, including the 34-year-old Boudreaux case at more than $101 million.

And that doesn’t count the cost of attorney fees, expert fees, or court reporter fees, amounts practically impossible to calculate without reviewing the complete payment files on a case-by-case basis.

Twenty-four of the cases had two or more plaintiffs who were awarded money.

In 19 cases, awards were for $100,000 or more and three of those were for more than a million dollars—if indeed the money is ever paid.

In the meantime, judicial interest is still running on some of those judgments, which could run the tab even higher.

A list of those who were either awarded or settled cases in excess of $100,000 that remain unpaid and their parishes include:

  • Michael and Mary Aleshire, Calcasieu Parish: $104,380.82;
  • Kayla Schexnayder and Emily Legarde, Assumption Parish: $1,068,004;
  • Debra Stutes, Calcasieu Parish: $850,000;
  • Peter Mueller, Orleans Parish: $245,000;
  • Steve Brengettsy and Elro McQuarter, West Feliciana: $205,000;
  • Jeffrey and Lillie Christopher, Iberville Parish: $175,000;
  • Donald Ragusa and Tina Cristina, East Baton Rouge: $175,000;
  • Stephanie Landry and Tommie Varnado, Orleans Parish: $135,000;
  • Jennie Lynn Badeaux Russ, Lafourche Parish: $1.5 million;
  • Adermon and Gloria Rideaux and Brian Brooks, Calcasieu Parish: $1.375 million;
  • Theresa Melancon and DHH Medicaid Program, Rapides Parish: $750,000;
  • Rebecca, Kevin and Cheryl Cole and Travelers Insurance, East Baton Rouge: $400,000;
  • Samuel and Susan Weaver, Lafourche Parish: $240,000;
  • Henry Clark, Denise Ramsey and Lady of Lourdes Medical Center, Lafayette Parish: $326,000;
  • Anya and Abigail Falcon and Landon and Nikki Hanchett, Iberville Parish, $946,732.53;
  • Adam Moore and James Herrington, East Carroll Parish: $150,000;
  • Traci Newsom, Gerald Blow, DHH Medicaid and Ameril-Health Caritas, Tangipahoa Parish: $150,000;
  • Michael Villavaso, Orleans Parish: $443,352.51.

Lawsuits against all state agencies are handled by the Office of Risk Management (ORM), which Bobby Jindal privatized in 2011 in order to save the state money.

The privatization didn’t realize the savings Jindal had anticipated but now, at least, it looks as though the Division of Administration has found another way to save money on litigation costs:

Don’t pay the judgments.

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Baton Rouge TV station neglects to answer lawsuit, hit with $2.5 million defamation judgment that likely will not stand

Posted in Corruption, Ethics, Judges, Lawsuits, Media, Public Records, State Police on October 18, 2017| 11 Comments »

There’s an old saying from back in the days of my long-lost youth that sometimes you have to hit a mule in the head with a two-by-four to get his attention,

And before I start getting bombarded by animal rights activists, I’m not advocating hitting mules or any other animal with anything.

And I’m not calling the good folks at WBRZ-TV in Baton Rouge mules. But a $2.5 million preliminary default judgment levied against the station and its investigative reporter after the station failed to answer a defamation LAWSUIT against it and reporter Chris Nakamoto was the club that got the station’s attorneys’ attention.

The two-page JUDGMENT, signed in chambers by 21st Judicial District Court Judge Doug Hughes of Denham Springs, isn’t likely to stand for a number or reasons put forth by station attorney Stephen Babcock of Baton Rouge.

But the main point to be taken from this litigation is that it may well be the first volley fired across the bow of Baton Rouge media as part of a growing trend toward the filing of the so-called SLAPP lawsuits.

SLAPP is the acronym for Strategic Litigation Against Public Participation and that’s precisely what it means: lawsuits filed not to win a judgment, but to discourage legitimate questions about official misconduct lest citizens asking the questions—or in this instance, the reporter and his news medium—be forced to shell out tens of thousands of dollars defending themselves.

In this case, WBRZ, as opposed to an ordinary citizen like Welsh City Alderman JACOB COLBY PERRY, has legal liability insurance and can well afford to defend itself. Still, such lawsuits call a station’s and reporter’s integrity and credibility into question and can conceivably injure the reporter’s career opportunities.

An editor in my professional past once told me, “If you haven’t been sued, you aren’t doing your job.” Well, that’s a form of validation I can live without. It’s not unlike being pecked to death by a duck.

I’ll leave it to WBRZ, Nakamoto and their legal team to explain why they never bothered to answer the lawsuit filed by Livingston attorney Wyman Bankston on behalf of State Police Lt. Robert Burns of Livingston Parish—if they care to put forth an explanation. But I will say from my layman’s viewpoint, it’s unwise to ignore litigation. People are trying to get into your pocket and it’s prudent that you defend yourself.

In this case, Nakamoto had done a perfectly legitimate STORY, which it based in its entirety on public records obtained from LSP, on the 64-hour suspension imposed on Burns by Louisiana State Police (LSP) following an Internal Affairs investigation into his conducting 52 illegal computer searches on his ex-wife, her fiance and a former boyfriend over a period of almost three years—from November 2013 to October 2016.

Burns, in his defense—which LSP investigators, by the way, didn’t buy—said that in 46 of those occasions, he was conducting a search of his own license plate and that the “spin-off” searches of his wife were a result of “unintended inquiries generated by an automated system.”

That explanation, however, does not explain the two searches on his former wife’s current fiance and the four searches on her ex-boyfriend. Those searches, besides vehicle and driver’s license records, also included computerized criminal histories on the two men. You can’t explain that away by saying you were doing a search on your own license number. And the obvious question: why was it necessary to conduct 46 searches of his own license number anyway?

Nor does it explain why he subsequently disseminated some of the information he had found (according to WBRZ’s belated response) or why he texted his ex-wife to request that she not report his actions because he “could get fired for doing so.”

Why could he have been fired? Because the searches were “for non-law enforcement purposes, in violation of (LSP) department policy and federal law,” according to a letter from LSP notifying him of an impending suspension.

When neither WBRZ, Nakamoto, nor their legal counsel filed an answer to the lawsuit and when they failed to appear in court on Sept. 28, and without the plaintiff’s submitting any evidence of his claims that Nakamoto had not read the entire LSP report as Burns claimed in his petition, Judge Hughes—in chambers—ruled that the station and Nakamoto were at fault and awarded $1.5 million to Burns and $1 million to his wife, Hilary Burns.

That got WBRZ’s attorney’s rear in gear. On Oct. 12, Babcock filed a 19-page (10 pages longer than Burn’s original petition) MEMORANDUM in support of a motion for a new trial.

In that motion, the station’s attorney argued that a default judgment can be handed down only if the plaintiff presents “competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits” and that he “must prove each element of his claim as fully as if each of the allegations of the petition had been specifically denied by the defendant.”

“Plaintiff is required to adhere to the rules of evidence despite there being no opponent to urge objections,” Babcock wrote in his motion, and that the “trial judge should be vigilant to assure that the judgment rests on admissible evidence.”

Babcock cited a decision by the U.S. Fifth Circuit Court of Appeals in which the court said:

  • Judges, acting with the benefit of hindsight, must resist the temptation to edit journalists aggressively. Reporters must have some freedom to respond to journalistic exigencies without fear that even a slight, and understandable, mistake will subject them to liability. Exuberant judicial blue-penciling after-the-fact would blunt the quills of even the most honorable journalists.

On Monday, Judge Hughes signed a one-page ORDER setting 9 a.m. Monday, Dec. 11, as the time and date that Burns must show cause why a new trial should not be granted.

Burns would probably be wise not to buy that beachfront property in Gulf Shores just yet.

And WBRZ, you just got scooped on your own story.

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