At about 4 p.m. Thursday, The IND sent to Marshal Brian Pope and his legal team its official response to the marshal's refusal to turn over the mid-November motion his attorney drafted. On May 5 The IND sent Pope a public records request for the document. Read the letter attorney Gary McGoffin sent here. McGoffin also included the following in the body of the email.
Attached is our letter to Marshal Pope addressing his inadequate response to The Independent’s May 5 public record request. His response is attached for your convenience as well. Essentially, Marshal Pope seeks to avoid his duty to produce the requested motion by certifying that it is not in his office or on his computer.
In Times–Picayune Publishing Co. v. Johnson, 94-0790 (La. App. 4 Cir. 10/3/94); 645 So.2d 1174, the defendant legislators argued that they did not have custody of the requested records because they had transferred possession to Tulane University. The appellate court rejected that argument because the legislators were required by La. R.S. 44:36(A) to maintain the records for three years and therefore had “control” of the documents.
Moreover, the Johnson court held:
Although La. R.S. 44:1(A)(3) ... permits transfer of the physical custody to another, this does not mean legislators can avoid their responsibility to control their public records merely by transferring physical custody to another.
Likewise, Marshal Pope may not avoid his public record custodian duty to produce the requested motion which was prepared by his attorney of record who was paid by a check drawn on the City Marshal Cost Account. He simply needs to request a copy from his attorney or produce a copy of the motion filed into the Clerk’s record for which it was prepared.
It’s looking more and more like the city marshal has been using his office to support his political agenda.
Last week The Independent reported on a paper trail that appears to lead to one conclusion: Marshal Brian Pope used taxpayer dollars to cover the cost of last year’s legal action seeking to open the Garber divorce files.
Among the public records obtained by The Independent in its ongoing litigation against Pope is the November billing invoice from Charles Middleton, the first of now three attorneys to represent Pope in his court battle with this newspaper. Although the invoice — reproduced below — was redacted before being turned over, it shows that on Nov. 16 Middleton billed Pope for one hour of work, citing “Draft motion; text conference with Brian re (redaction).” The next day Middleton billed Pope for an additional 2.5 hours for “Revise draft of motion; legal research for motion; conference with Brian re (redacted).” At $200 per hour Middleton collected $700 from the marshal’s office for the work.
On Nov. 17 at 3:42 p.m., the same day the invoice indicated that Middleton revised a motion for Pope, a “Motion and Order to Unseal Record and Sealed Video and for Expidited [sic] Hearing” was filed in state district court by Troyce Thorla, the Broussard resident who sought to unseal the divorce files of then-sheriff candidate Mark Garber and his wife, Rachel Garber.
Thorla further attests in the affidavit that he picked up an envelope — presumably containing the motion to unseal the divorce files — at the Stewart Street office of the law firm Goforth & Lilly. Although he’s not part of the firm, Middleton leases office space from Goforth & Lilly at the same Stewart Street address.
So was what Thorla picked up the “motion” Middleton says he was working on for Pope on Nov. 16 and Nov. 17? (It's important to note that Middleton didn’t file anything into the court record titled “Motion” pertaining to The IND's litigation until Jan. 2. That motion was to suppress emails we received from Lafayette Consolidated Government on Dec. 24, which eliminates it as the Nov. 16-17 motion that Middleton prepared.)
Last Thursday we sent Pope a public records request for the motion and copied Middleton on it. The response — or lack thereof — was delivered to our attorney’s office this morning.
“The Marshal’s Office does not possess or is in custody of any motion drafted or revised on November 16 and 17, 2015, by attorney Charles K. Middleton,” the response reads.
Marshal Pope then signed the page certifying that he had searched his office and computer for documents responsive to our May 5 request but could not locate any.
He’ll have to look a little harder — or we’ll all be back in court soon. “A custodian must produce documents within his control,” McGoffin says. “Marshal Pope certainly controls his attorney of record who was paid from the City Marshal Cost Account for the preparation of that motion.”
And just in case you’re wondering whether Pope ever reimbursed the City Marshal Cost Account for any personal — or in this case political — legal costs, the answer would be “No.”