The city marshal’s appeal: holding technical

by Christiaan Mader

Ambiguous language in state public records law could jeopardize civil judgments against the city marshal in his dispute with The IND.

Pope exits a September hearing with criminal defense attorney Kevin Stockstill. Pope is appealing civil judgments against him in a public records suit that uncovered grounds for a five-count felony indictment. He now faces criminal prosecution even as he seeks to escape civil penalties.
Photo by Robin May

By the time a case meanders its way to an appeals court, there’s a tendency for things to get mischievously technical. Such is the top layer of the law — a forum for meta-legal argument in which trial cases and judgments often dry out in the arid heat of semantic jurisprudence.

Alas, this is no indictment of the process, but an explainer. Many of you know this newspaper has been long embroiled in a public records dispute with City Marshal Brian Pope, stemming from an awkward political attack on then-candidate-for-sheriff Mark Garber, staged by Pope in the broad-shouldered dress of an official marshal’s press conference.

Two public records requests, nine days in court and nearly a year later, The IND’s efforts uncovered Pope’s illegal collusion with the campaign manager of political ally Chad Leger, Garber’s opponent, in the perpetration of said awkward attack. Leger’s campaign manager, Joe Castille, scripted the whole conference, replete with stammering indictments of Garber’s character and phantom threats of undocumented migrants run amok.

Forced to go to court after Pope refused to turn over email records requested by The IND in connection with that press conference, a 15th Judicial District Court judge ultimately ruled that Pope’s dithering responses were “woefully inadequate” and “arbitrary and capricious,” triggering hefty penalties including fines, attorney fees awarded to The IND, community service and a mostly suspended house arrest sentence.

Back to the appeals court. Specifically, the Third Circuit Court of Appeal.

Whether The IND has the right to bring litigation against the marshal is the essential question raised by Pope’s appeals attorney, Mark Plaisance, a respected brief filer who’s argued successfully in front of the U.S. Supreme Court — receiving, oddly enough, Justice Antonin Scalia’s last dissenting opinion.

Why would The IND not be allowed to sue? Because, Plaisance argues, The IND is not a person.

By law, any “person” unlawfully denied access to public records he/she/it requested can file suit seeking what legal types call a “mandamus” action, essentially a court order to do your job. In this case, the court ordered Pope to turn over records correspondent to public records requests filed by The IND on Oct. 8 and Nov. 30.

The wrinkle is that yours truly, i.e. Christiaan Mader, signed the October request and not, specifically, The IND. On Plaisance’s view, it would thus be Christiaan Mader’s responsibility to bring suit against the marshal. Mader requests. Mader is denied. Mader ought to sue.

Never mind that Mader filed the request on behalf of The IND. Never mind that Mader used IND letterhead and identified himself as a representative. Never mind that for 10 months, the marshal’s local attorneys complained of no confusion regarding who was sending the request. Look through his attorneys’ itemized invoices, there’s never any doubt as to who they’re fighting and who they’re hiding records from.

Plaisance thus essentially argues that The IND is not a “person,” in the eyes of the public records statue, and cannot seek relief through the courts. Should the court agree, then poof goes the suit like it never existed in the first place.

One thinking man must tip his hat to another. It’s a frustratingly clever argument that does speak to a larger problem of ambiguity in the public records law. As written, the law makes note that the requester must be of the age of majority, i.e. 18 years old. That presents a curious metastatic conundrum in that it suggests that the requester must be a natural human being. We don’t typically think of institutions as maturing beings. They don’t get drafted. They don’t vote. Yet a corporation needs natural human beings to conduct its business, namely file lawsuits and investigate crooked lawmen.

A technically favorable Third Circuit ruling could thus spread a cancerous ambiguity.

It may very well require a decision by the Louisiana Supreme Court or a legislative rewrite to clarify the dangerous confusion. It’s not the only one either. Plaisance argued indeed that Pope “responded” to the request within the three day time frame stipulated by the public records statue. It doesn’t matter, he argued, that Pope essentially lied about his reasons for turning over the records — at first that he was conducting a sham investigation that protected the emails from prying eyes and then, later, that no records existed. We later recovered 588 pages of emails. So long as Pope responded, Plaisance contends, he should be covered.

For what it’s worth, Louisiana does recognize corporate personhood. As quoted in our attorney’s memo opposing Pope’s appeal:

Under the Louisiana Civil Code, there are two kinds of “persons”: natural persons and juridical persons (also called “juristic persons”). La. C.C. art. 24. A natural person is a human being; a juridical person is an entity to which the law attributes personality, such as a corporation or a partnership.

If you’re familiar with the landmark U.S. Supreme Court case Citizens United v. FEC, this should make a lot of sense to you. As a sticking point, other newspapers filing suit for public records have customarily opted to list the requesting reporter in the caption of named parties. In other words, this argument could have been avoided had The IND appended Christiaan Mader to the suit.

Nowhere in the law does it explicitly instruct litigants in a public records suit to caption their parties that way. In any case, the Fourth Circuit Court of Appeals has previously ruled that institutions or "judicial persons" can make public records requests.

If this numbs your mind to the possibility of morally wholesome justice, fear not; it’s still an uphill climb for Pope’s appeal. He needs three appellate judges to agree with him for the case to be thrown out. And if it does get thrown out, we’re still left with the facts of the case as born out in our published works and a five-count felony indictment.

There’s no dispute, in Pope's appeal, of the facts of his crimes. We’re left with the wake of two instances of perjury, three instances of abuse of office, and perhaps more charges to come following a district court judge’s recorded opinion that Pope used public money to pry into Garber’s divorce for a smear job.

On top of that, Louisiana’s public records law insists that ambiguities should be resolved in favor of access to public records. Should there be any confusion as to whether The IND has a right to bring suit, it would follow, the law should be applied in such a way as to favor transparency.

Should the marshal lose at this level, he still has the option of pursuing the case to the Louisiana Supreme Court, wherein we can continue to argue, with yet more abstraction, whether The IND is a person. Whether the marshal does so will hinge entirely on if the marshal can continue to tap hi his office for legal defense funds.

Plaisance cost the marshal’s office, and by extension the public, $15,000 for the appeal. Furthermore, every rung up the appellate ladder he climbs will expose him to yet larger attorneys' fees incurred by and thus owed to The IND. Part of the judgment against him back in January, which he has weakly appealed on merit, awarded The IND attorneys fees in accordance with the public records statute, a swelling pot of dollars the marshal has covered with public money.

All told, the marshal has put the public on the hook for more than $280,000 and climbing. His appeal could delete more than half of that by the wave of a technicality wand. But more than $100,000 in his own attorneys' fees would remain for the public to swallow. To say nothing of his well-documented crimes.