Sept. 28, 2016 02:47 PM

Third Circuit finds The Independent is indeed a ‘person.’

Lafayette City Marshal Brian Pope and his criminal defense attorney, Kevin Stockstill, leaving district court earlier this year after a hearing in his ongoing public records battle with The IND.
Photo by Robin May

Lafayette City Marshal Brian Pope, who was indicted on five felony counts by a Lafayette Parish grand jury in August and may be facing additional counts as the grand jury continues its investigation, was dealt another blow by the Third Court of Appeal this week in his nearly year-long civil battle with The Independent over public records from his office.


The public records sought by the paper proved that the marshal colluded with the campaign of Scott Police Chief Chad Leger last year, using the resources of his office to benefit Leger’s unsuccessful bid for Lafayette Parish sheriff. Mark Garber, the target of what amounted to a smear job by Pope and Leger's campaign manager, Joe Castille, went on to win the election and was sworn into office in July.

Those public records are also at the center of the felony charges the marshal now faces — two for perjury, three for abuse of office, and perhaps more charges to come following allegations that Pope and his attorney used public money to pry into Garber’s divorce.

This week a three-judge panel of the appellate court — Judges Elizabeth A. Pickett, Billy Howard Ezell and Phyllis M. Keaty — affirmed 15th Judicial District Court Judge Jules Edwards January ruling that found the marshal “arbitrary and capricious” in his responses to two public records requests filed by The Independent, awarding the paper statutory penalties and attorney fees.

Pope’s primary appeal argument was that the state’s public records law requires that a “person,” in this case the two individuals filing the public records requests on behalf of the newspaper, Staff Writer Christiaan Mader and IND attorney Gary McGoffin, be plaintiffs in the civil action against him. He was sued in November by the paper’s parent legal entity, The Independent Weekly.

The Third Circuit disagreed and denied Pope’s “No Right of Action” exception, finding that The Independent is a “person” with an enforceable right to obtain public records. “[A] corporation can only inspect a document through its representatives,” Judge Pickett wrote in the decision.

In late June, the same appellate court denied a writ filed by Pope seeking a review of Edwards’ March 24 ruling holding the marshal in criminal contempt of court for refusing to turn over the documents The IND was seeking. Edwards sentenced Pope to serve seven days of home confinement, 173 hours of community service and nearly five years probation and ordered him to pay the newspaper roughly $100,000 in attorney’s fees and penalties. Pope now has a writ application pending with the Louisiana Supreme Court to review the March 24 contempt judgment of imprisonment and public service. He did not appeal the civil aspects of the contempt ruling, including the amount of penalties, attorney fees and costs.

The IND expects Pope to seek a review of the most recent Third Circuit decision from the state Supreme Court.

Also in this week’s ruling, the Third Circuit granted Pope’s motion to strike references to hearings in the case that took place after the Jan. 4 judgment, a decision that has no effect on the appeal itself.

Additionally, the Third Circuit found Pope to be liable in solido with the Marshal’s Office because Pope did not rely upon the advice of counsel in his responses to the paper’s public records requests. That counsel is Lafayette attorney Chuck Middleton, who is no longer representing the marshal and may himself soon have legal problems of his own. At last count, Pope is now up to a dozen attorneys who have counseled him in the civil and criminal cases against him, a figure that includes five attorneys from the law firm of Borne, Wilkes & Rabalais.

The public records act provides that Brian Pope and the marshal’s office are both liable for the penalties, attorney fees and costs since Pope was arbitrary and capricious in failing to provide the public records. If his office pays the judgment, the office can seek to recoup all or part of the payments from Brian Pope individually. However, because the city marshal is the only person who can make the decision to pursue reimbursement from Pope personally, that decision may fall to his successor.

In other words, if the decision holding Pope liable in solido with his office survives further legal challenge, creditors like The IND and its legal counsel can choose to pursue either or both of them in collecting on their judgments.

Thus far, the marshal has bled the public coffer for his civil and criminal defense to the tune of approximately $312,000.

Pickett writes:
Mr. Pope argues that because he relied on the advice of his counsel in responding to the public records request, he should not be held liable in solido with the Lafayette Marshal’s Office for failure to produce the records. We disagree. The evidence suggests that Mr. Pope denied that any records responsive to the records requests existed, and his attorney’s responses on his behalf consistently indicated that there were no documents, save for some third-party emails, that could be construed to be subject to production. Ultimately, Mr. Pope produced 588 pages of responsive documents, but failed to produce other responsive documents that were not subject to any exception or exemption to the Public Records Law, including the letters to and from Mr. Castille. We find the trial court did not commit error in finding that Mr. Pope did not rely on advice of his attorney in refusing to turn over these public documents.