Monroe Judge Holds Hearing on 2nd Circuit Controversy

Fourth Judicial District Court (Morehouse, Ouachita Parishes) Division C Judge Wilson Rambo yesterday stayed discovery by the plaintiff Jeff Mercer in his lawsuit seeking to overturn a Second Circuit Court of Appeals ruling that overturned an earlier jury verdict

The original 2015 jury trial awarded Mercer damages of $20 million after the jury found that Louisiana Department of Transportation & Development employees harassed and intimidated Mercer after he rebuffed a shakedown scheme from those employees. Mercer’s company at that time had several ongoing projects with the DOTD.

The 2nd Circuit ruling completely voided the jury verdict, because they claimed the jury was improperly instructed.

A year after that verdict, the 2nd Circuit’s Chief Judge Henry Brown abruptly retired after he was caught trying to influence the decision of fellow court members in a case involving a “close female friend” of Brown’s.

Mercer in his lawsuit alleges that Brown improperly influenced his adverse ruling, and has subpoenaed court records and documents that he says would prove his assertion.

In yesterday’s action, Rambo, clearly uncomfortable at having to hear a case that involves a court that supervises him, stayed any discovery from Mecer, and also denied the defendant’s motion to quash Mercer’s subpoenas. He later amended that denial to say that it would be held in abeyance until other matters could be ruled upon.

Rambo also did most of the talking during the 2 1/2 hour long hearing, and said that the other matter involved ruling on a motion from the defense claiming that the plaintiff had no cause of action to sue. Rambo said he would issue that ruling soon.

Jay O’Brien, one of the DOTD attorneys, argued that his clients did nothing wrong regarding the 2nd Circuit’s ruling.

Said O’Brian, “Where’s the ill practice?” on his clients part.

Mercer’s attorney, David Doty, said that what the 2nd Circuit did deprived his client to his right of a fair hearing, and that the documents sought were necessary to show what happened.

The 2nd Circuit’s attorney, Bernard Johnson, said that production of documents would jeopardize the court’s ability to deliberate freely without fear of their work papers being made public.

Johnson, on behalf of the 2nd Circuit, had filed a motion to seal all the court’s papers.

Doty replied that there was an overwhelming public interest in finding out whether or not the court acted properly, and that the people had a right to know.

Advertisement

Groundhog Day @ LPPJ

The Lincoln Parish Police Jury last night met in a twenty minute executive session to discuss the appointment of Registrar of Voters for Lincoln Parish. We believe that session was not legal.

Last night’s meeting of the jury was almost identical to a July, 2017 meeting where a jury committee illegally met in executive session. Both involved the interview and hiring of public employees.

It was reminiscent of the the movie Groundhog Day, where a TV weatherman caught in a time loop, repeatedly reliving the same day.

Here is the provision that is troubling:

LA RS 42:17 Exceptions to Open Meetings

A. A public body may hold an executive session pursuant to R.S. 42:16 for one or more of the following reasons:
(1) Discussion of the character, professional competence, or physical or mental health of a person, provided that such person is notified in writing at least twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the scheduled time contained in the notice of the meeting at which such executive session is to take place and that such person may require that such discussion be held at an open meeting. However, nothing in this Paragraph shall permit an executive session for discussion of the appointment of a person to a public body…

In 2017, the Third Judicial District Attorney’s Office admonished the jury for their behavior, and we have again complained to the DA and asked that they insure the jury and its employees are properly educated as to the requirements of the Open Meetings Law.

The meeting opened with jury Administrator Courtney Hall suggesting that executive session, to which a motion was made by District Five’s Logan Hunt and seconded by District Twelve’s Annette Straughter.

Local political activist Bill Smith, who frequently attends jury, school board, and city council meetings, objected.

After the 20 minute session, Smith renewed his questions, but was often ignored by jury President Joe Henderson.

Said Smith, “You are deliberately overlooking me when I got my hand up and I’m telling you that I have a question.”

The jury voted to allow Hall to compose a set of interview questions for the prospective hires, and set next Tuesday, March 3, 5:30 PM for interviews.

The applicants are Sharon Parnell, who is a Deputy Registrar, Bethany Collie, Dustin Hampton, and Vana Sasser.

The jury also discussed the possibility of distributing the agendas and information packets via email, instead of hand-delivering then by messenger to each individual juror.

Also notable at the juror’s table was newly appointed District Three juror Marvin Franks. Though not officially a juror since he hasn’t been sworn in, he sat in during the jury’s executive session.

Special LPPJ Meeting This Evening

A special called meeting of the Lincoln Parish Police Jury will be held this evening (Tuesday, February 25) at 5:30 PM at the Lincoln Parish Court House, third floor.

On the agenda is discussion/action on the interview process for Lincoln Parish Registrar of Voters.

Here’s the agenda.

Franks ‘Appointed’ to LPPJ after Much Discussion

Prior to his ‘appointment’ as a Lincoln Parish Police Juror from District Three, much of the discussion at last night’s meeting was about Marvin Franks’ candidacy last fall and whether or not he should have run in the first place.

Jury attorney Lewis Jones, who is also an Assistant District Attorney for the Third Judicial District, explained the federal government’s Hatch Act, its pertinence to Franks’ candidacy, and his eligibility to serve.

Said Lewis Jones, “If he violated the Hatch Act, it was by running for office, it was not by winning, it was not by being sworn in after he won. What I have been told by the Office of Special Counsel, if there was a violation, it was by running. If a complaint is filed, and they’re trying to decide what action to take, the fact that he did not ask to be sworn in, would mitigate in his favor. The fact that he is asking to be appointed would be an aggravating factor. He’s asking y’all to appoint to appoint him to an office that, according to what they told him, he shouldn’t have run for.”

He continued, “They can’t remove him from the police jury. They can take action against him and his retirement and his service with the (Army National) Guard. Once you appoint him, he’s in.”

About two dozen supporters of Franks were at the meeting, and through spokesman Lucius McGee, voiced their support for him.

Said McGee, “The voters spoke. The voters spoke a second time and put him in this position. One person, a bureaucrat in Washington DC decided that he could not serve. That same bureaucrat says he can be appointed to it. We all know that doesn’t make a bit of sense. But that’s the way the law’s written.”

Countered Simsboro resident Keith Canterbury “This thing has been missed up from the very beginning. He shouldn’t have been on the ballot to begin with. We should have some say so, whose going to be appointed, other than the jury appointing somebody.”

It appears that the Office of Special Counsel has said such an appointment is legal. A series of emails between Franks and that office that took place in late January, and the discussion went thus:

From: Franks, Marvin L Jr CW4 USARMY NG LAARNG (USA)
Sent: Monday, January 27, 2020 5:01 PM
To: Hamrick, Erica
Subject: RE: [Non-DoD Source] Hatch Act
Dear Erica Hamrick,

This is an update on my status. On January 13, 2020, when the Lincoln Parish Police Jurors were sworn in, I did not accept the position to which I was elected. According to Louisiana law, I have 30 days after this date to accept the position. My medical discharge from the Louisiana National Guard is in the final stages – I am told by my PEBLO (case manager) that it will be complete in 30 days or less. If my discharge is not complete by the deadline of February 12, I will not accept the police jury position. At that time the seat is then considered vacant and the police jury has 20 days to appoint someone to the position and they must later hold a special election within 12 months. Since according to the law, federal employees are allowed to be appointed to positions, I am asking for your confirmation that I am allowed to be appointed to the police jury position after it becomes vacant.

Thank you,
Marvin Franks

From: Hamrick, Erica
Sent: Thursday, January 30, 2020 6:39 AM
To: Franks, Marvin L Jr
Subject: RE: [Non-DoD Source] Hatch Act
Mr. Franks,

Based on the circumstances you describe below, OSC has concluded that it would not be problematic for you to be appointed to the vacant police juror position.

Erica S. Hamrick
Deputy Chief, Hatch Act Unit
U.S. Office of Special Counsel

As the discussion among the jurors went around the table, it was mostly agreed that the voters had spoken and that Franks should be appointed.

Typical of the comments was that from District Six’s Glenn Scriber, who said, “The people voiced their opinion, and it’s been cleared up that its legal what we’re doing.”

The only no vote was from District Four’s T. J. Cranford, who said he had supported Franks throughout the controversy, but didn’t agree with how the issue was being handled.

The vote to appoint Franks was 9-1-1, with Cranford voting no, and District One’s Theresa Wyatt abstaining. She noted, “I also heard (the discussion) that he won, but that he shouldn’t have run in the first place.”

The jury then voted to call a special election for November 3, the winner of which will serve out the remainder of the term through 12/31/23.

A letter from the Louisiana Secretary of State dated February 13 deemed that “by operation of law,” the District Three slot was vacant.

See here that letter.

In other business, the jury voted to declare a 9300 square foot tract of property near the Lincoln Parish Library as surplus so that bids could be entertained. An appraisal set a minimum bid of $185 thousand for that tract.

QuikTrip Corp. has expressed an interest in the property.

Also, a special called meeting was scheduled for Tuesday, February 25, 6:00 PM to interview applicants for the registrar of voters position.

Donna Doss New LPSB Member, Election Set

This morning’s meeting of the Lincoln Parish School Board lasted but ten minutes, and as expected Donna Doss of Hico was appointed by the board to replace Mike Barmore who has resigned effective March 1.

District Four covers northern Lincoln Parish from the Union Parish line in the north, southward to near Cypress Creek; and from the Claiborne Parish line in west, eastward to Hwy 33.

See here the map.

That appointment is only until an 11/3/20 election to fill the rest of the unexpired term which ends 12/31/22. A resolution calling that election was also approved.

Remarked Barmore, “It’s been a good 13 years, I’ve enjoyed it, made some good friends, some good people, and I look forward to turning it over to Mrs. Doss. It’s been great – most of it.”

Doss, a 41 year career educator – with 20 years in the classroom – is no stranger to board meetings, often making reports and presentations during her stint at the central office.

She also served as principal at both Dubach and Simsboro Schools.

Police Jury to Call Election, Make Appointment for District 3

A special called meeting of the Lincoln Parish Police Jury (LPPJ) has been scheduled for tomorrow (Thursday, February 20) at 5:30 PM, third floor, Lincoln Parish Court House.

On the agenda is the appointment of a juror for District Three. Presumably, Marvin Franks will be appointed.

However, it will be only for less than a year, as the jury also will be calling a special election to fill the remainder of the term, which ends 12/31/2023.

Also, the jury will consider action to interview applicants for Lincoln Parish Registrar of Voters.

Here is the agenda.

Barmore Resigns District 4 School Board Seat

District Four Lincoln Parish School Board Member Mike Barmore has resigned his seat, effective March 1, according to a memo received from the district office this morning.

See here the memo.

A special called meeting of the board has been scheduled for Thursday, February 20, 10:00 AM, at the Central Office, 410 South Farmerville Street, to schedule a special election, and to appoint a temporary replacement until that election.

See here the agenda.

District Superintendent Mike Milstead has recommended that retired Testing and Accounting Coordinator Donna Doss be appointed to the seat. He is also recommending that the new election be scheduled for Tuesday, November 3, 2020.

Qualifying for the position would be July 15, 16, and 17, 2020.

Testimony Begins in Drone Trial

Testimony from witnesses began yesterday afternoon in the “Drone Trial” of a Lincoln Parish man accused of criminal trespass for flying an unmanned aerial drone over neighbor’s property without permission. The bench trial is being held in Third Judicial District Court in Ruston.

Division C Judge Bruce Hampton first had to rule on three motions filed earlier in the day.

A motion by defense attorney Jordan Bird asking the court to allow expert testimony via skype was denied by Hampton. The ruling was likely damaging to defendant James Benson’s case, as case law for drones is a relatively new field.

Bird argued that the expert lived in Michigan, and they couldn’t afford the expense of flying the witness to Louisiana, and there are no similar experts in the local region. He added that the judge had discretion to allow the unconventional method of testimony, he thought, as the defendant was entitled to have an expert witness on his behalf.

Prosecutor Michelle Thompson countered that there was no statutory authority or court precedent that would allow that method of testimony. Hampton agreed.

Another motion, this one by Thompson, that new evidence of “crimes or other acts” be allowed at trial also went against the defendant.

In August, 2017, it was alleged, a drone was flown over the then under construction home of Erin and Matt Henderson, in the Spur/Rock Shop Road area northwest of Vienna.

Erin testified that the drone was about at tree-top level, hovered and that several other people who were working on the house saw it.

She said that within the next few days, at a chance encounter at an area convenience store, she overheard Benson, who they knew, discussing drone flying with another customer standing in the checkout line. She asked if the one she had seen over her house belonged to him, to which he gave a non-committal answer.

Erin then testified, “If Matt sees it, he’ll shoot it down.”

Erin said she then phoned her husband Matt and told him of the conversation. Immediately afterward, she said, Benson called her husband and they had a conversation about the issue.

On cross-examination, defense attorney bird asked Erin to describe the drone and the height that it flew. He also asked if Benson ever directly admitted that it was his craft, to which she replied, “He didn’t deny it.”

Next up, Matt Henderson testified to the same observations as his wife concerning the drone overflight of his property, and recounted his conversations with Benson. He said he also met with Benson.

At this point, it was revealed that Benson is a local builder/contractor and cabinet maker. Apparently, he has bid on several home construction jobs in the area and has done work on some of them.

Matt said that he and Benson discussed the ongoing construction at his home, but that Benson did no work on it.

Matt testified that Benson never explicitly admitted the drone flight, but that he took it to be his equipment since he promised “not to do it again.”

At this point Benson took the stand, and while not admitting that particular overflight of the Henderson property, he said that it was likely that he had overflown it at one time or another.

He also denied any low level surveillance, as it the drone would likely encounter trees, powerlines, and other obstacles during flight. He explained that a drone camera can only look in one direction and cannot “see” to the side, or up and down. The only way to fly at low levels with obstructions nearby is to stay within line-of-sight of the aircraft, he said. Flying at low levels with only the drone camera as guidance is not safe to do, Benson said.

He always operates the equipment at elevations near 400′, he claimed, as that is the upper flight level that the Federal Aviation Administration has placed on drones.

In arguing against admitting this “other act” as evidence, Bird noted that there was no arrest or conviction regarding the alleged incident, and that no police report was ever filed.

Hampton ruled that the testimony would be allowed at trial, because it might affect the overall weight of the evidence.

The third motion, a motion in limine by Thompson to exclude computer flight logs of the drone flights, was denied by Hampton.

Thompson argued that the logs hadn’t been authenticated, and might be flawed. Bird noted that the prosecution could have subpoenaed the data prior to the trial but never did so.

Hampton ruled that the prosecution would have ample time at trial to attack the accuracy of the evidence.

With the motions ruled upon, at about 4:15 PM, the state called its first witness, neighbor Regina Johnson.

She testified, in rather dramatic fashion, of a February, 2018 drone overflight of her recently occupied home in the neighborhood. She said the aircraft came down to second story roof level of home and hovered.

“Who’s watching me?” she thought at the time.

Several photos of the home and property were introduced as exhibits, with notations as to where on the property she was standing when the alleged overflight occurred.

Several days later, she said, another overflight occurred at tree-top level, and she noted that the craft headed into the direction of Benson’s home.

Johnson said she contacted Matt Henderson, who is a Lincoln Parish Sheriff’s Office (LPSO) deputy and told him of the incidents.

Thompson led Johnson through several pages of a text message group chat among the neighbors that included Benson.

On cross-examination, Bird asked Johnson about the relationship between Benson and her family, and she said they weren’t particularly cordial.

Benson had visited with the Johnson’s when they first moved in, as the Johnson home wasn’t completely finished, and Benson apparently was interested in work.

The last witness of the day was another neighbor at the time, Joni Baillo, who has since moved away.

Baillo recounted the group text discussion and that she had initiated the discussion. She said she knew Benson and considered him a friend.

She recalled a visit from Benson around the time of alleged February, 2018 incident, and him becoming agitated saying, “Nobody’s gonna shoot down my drone,” and “nobody can tell me what to do” with it.

At that time, Baillo asked him to leave, she said.

At about 5:30 PM, Hampton recessed the trial and took the two attorneys into the jury room to discuss another date to continue the trial, as it was evident that several more witnesses would be called, and the trial might take another day or more to complete.

Thursday, March 12, 10:30 AM was agreed upon by the parties.

One other notable item was the presence of several LPSO deputies in court, in addition to the regular courtroom bailiffs with whom we are familiar.

There were several other plainclothes law enforcement officers there, possibly investigators with the Attorney General’s Office.

Drone Trial Delayed to Afternoon

The Lincoln Parish “Drone Trial” that was set to begin at 9:00 AM this morning in Third Judicial District Division C Judge Bruce Hampton’s Ruston courtroom was delayed until 2:30 PM this afternoon, due to a lengthy misdemeanor docket.

The prosecutor, Louisiana Assistant Attorney General Michelle Thompson of Monroe and defense attorney Jordan Bird of Shreveport could be seen retiring to the court’s jury room early on, presumably to discuss logistics.

At their brief appearance at the bench, they said there were three motions for Hampton to consider prior to trial, two for the prosecution and one for the defense.

One of the prosecution motions is a request to introduce evidence of other “related crimes” that allegedly took place at another time, and the other is a motion in limine to exclude expert testimony by the defense.

The defense motion is a motion to introduce expert testimony via skype and have it projected upon a screen in the courtroom.

James Benson is accused of criminal trespass for overflying a neighbors property with his unmanned drone.

Franks Claims Fed OK to be “Appointed” to Office

Lincoln Parish Police Juror-elect (District Three) Marvin Franks said last night that the agency that regulates political activity by federal employees won’t allow him to be sworn in as an elected juror as long as he is a federal employee.

As of last night, he had not taken his oath of office.

However, he said, the Office of Special Counsel (OSC) has confirmed that he can be appointed to the position, were it vacant.

We asked for a copy of that OSC confirmation, and expect to get a copy today.

At a 1/22/20 meeting of the jury, Assistant District Attorney Lewis Jones said, “If if he does not ask to be sworn in to take his oath within 30 days of January 13, the seat will be declared to be vacant.”

That 30 day window closes at the end of business today.

Here is what the Louisiana Revised Statutes have to say:

RS 42:141

Time limitation on oath and bond; failure to comply

A. Each public officer, within thirty days after receipt of his commission or within thirty days after receipt of his commission certificate, whichever is later, shall take the oath of office prescribed by law, and give bond, when required, and file the same in the proper office in the manner required by law.

B. Subject to the time limitation set forth in Subsection A of this Section, a public officer may take his oath of office at any time after he receives his commission or commission certificate. An oath taken prior to the date shown on the commission shall be deemed to have been taken on and shall be effective on and after the date on which the term of office for which the oath is taken commences. In cases where the office is one for which no date for term of office is set, an oath taken prior to the date on the commission shall be deemed to have been taken on and shall be effective on and after the date on the commission.

C. Failure to comply with the requirements of this Section shall create a vacancy in the office, and the vacancy shall be filled in accordance with law as in other cases of vacancy.

Franks said that when he first decided to run for office, he thought that the police jury seat was non-partisan, and thus it was allowable for a federal employee to run. He based that opinion on advice from the Lincoln Parish Clerk of Court, who he said told him the office was non-partisan.

However, just prior to the runoff election in November, his supervisor directed him to contact the OSC for a ruling on whether or not the office was partisan. According to Franks, they said it was partisan, as each candidate’s party affiliation is listed on the election ballot.

In a prepared statement, Franks said, “And because of that, they ruled that I could not accept the position to which I was elected-unless I was no longer a federal employee.”

He added, “As all these events were transpiring, the Louisiana Army National Guard was already processing my discharge. When I received the final ruling from the Office of Special Counsel, I asked for that discharge process to be expedited. My discharge packet is now at the federal level and in the final stages of being complete. As soon as I am discharged from the National Guard, I will retire from my federal job so that I can be sworn into the Police Jury position to which I was elected.”

See here the complete statement.

Franks’ remarks were made at the beginning of last night’s regular monthly police jury meeting.

After the meeting, Lincoln Parish News Online asked Franks if he had prior to filing for office sought guidance from the OSC on whether or not he should run.

Said Franks, “No. I didn’t even know who they were. I’ve been a supervisor for 20 plus years, and I’ve never heard of the Office of Special Counsel.”