…with this ridiculous threat of imprisonment against the LSU Board of Supervisors Monday.
A district judge in Baton Rouge ordered the LSU Board of Supervisors on Monday to turn over records related to the university’s presidential search, or face consequences that could include stopping all further court proceedings, suspending the board of supervisors, or imprisonment.
Saying “the court is very loathe to take these measures,” Judge Janice Clark told LSU’s lawyer that she “strongly urges and encourages your clients to comply” with her orders and turn over the records immediately.
She told the attorneys to return to the 19th Judicial District Court at 9:30 a.m. Tuesday, when she will determine whether LSU has complied with her orders.
Back in April, Clark ordered the LSU board to turn over the names of all the candidates for the job of the university’s president, and opted to fine the university $500 per day for every day it didn’t comply.
LSU has chosen to let the fines rack up – they come to around $59,000 at this point – rather than cough up the names. LSU has indicated it intends to appeal Clark’s ruling – but she refuses to make the ruling final so that Jimmy Faircloth, LSU’s attorney, can file his appeal. LSU attempted to get the state Supreme Court to stay her ruling, but it refused – without passing on the merits of the case.
Clark’s final ruling would include the amount of the award of attorney’s fees to the plaintiffs in the case and some other details. Her position is that she won’t do any of that until those names get coughed up, and Monday’s hearing included a whole lot of haughty rhetoric from the judge…
Clark, who ruled in April that those records are indeed public, stressed Monday that it makes no sense to give the public the right to demand records of its public bodies and institutions if there is no remedy available when those records are withheld from public view.
“The law does not intend for that consequence to occur,” she said.
Clark noted she is interested in compliance, not punishment, and added that Faircloth has not given her any rational reason why he has advised the board not to abide by a court order.
“The court has to enforce its order,” she told Faircloth. “The Board of Supervisors continues to defy the court’s order. The court is ordering you to comply with it immediately.”
The judge called for a complete and immediate delivery of the records.
“My client wants to exercise its constitutional right to appeal,” Faircloth replied to the judge.
Clark nevertheless persisted.
“This court intends for you and your client to comply with the order. This court intends to have compliance,” she said.
Faircloth apologized and said neither he nor the board are being disrespectful to the court.
At that point, the judge said she would consider additional sanctions, including possible jail time. She said it would be wise for Faircloth to strongly urge his clients to comply with her order.
A stunned Faircloth had little to say after the hearing. When asked if the threat of jail time could apply to him as well, Faircloth replied, “I’m not sure.”
Turning over the names would make the appeal moot. LSU believes it will win the case on appeal, because it doesn’t believe that the names of presidential candidates who were not officially interviewed are subject to a public-records request. The case came about because the Times-Picayune and the Baton Rouge Advocate filed suit against LSU to force the board to identify the candidates for the job.
Without passing judgement on the correctness of LSU’s case – they might be completely wrong and they could get clobbered in that appeal, for all we know, or maybe they’re right; after all, the LSU Reveille filed a nearly identical case that was tossed out by another judge in the 19th Judicial District – LSU’s board has the right to appeal a judgement of a trial court. The right to appeal in court is a fairly basic right, and a trial judge who attempts to intimidate a party in a case who’s appealing her judgement seems pretty clearly to be committing misconduct. Said judge who refuses to make her ruling final, with the effect of that refusal being the prevention of the appeal, is engaging in flagrant misconduct.
The law says you have the right to appeal a court case. When the point of an appeal is to avoid having to do the thing the case is about, forcing you to do that thing before your appeal is decided is tantamount to denying you the right to appeal. Refusing to make her ruling final because she says you’re in contempt of court for not doing the thing you want to appeal the case in an effort to avoid having to do…that’s not tantamount to denying you the right to appeal, it’s explicitly denying you the right to appeal.
Which Clark defends by saying that unless she does what she’s doing, there is somehow no remedy to force LSU to disclose the names of the candidates. That is, of course, poppycock – that remedy isn’t damaged one bit by allowing the legal process to run its course. LSU has already hired F. King Alexander for the job, so the names of the candidates are a matter of history at this point just as they will be in a few months when an appeal is decided.
Again, LSU might be all wet on whether it can keep the names of the candidates for the president’s job hidden. That’s not the issue here. They have the right to appeal the case, and until the appeal has been exhausted they have the right to keep the case alive. Disclosing the names of the candidates would make the case moot. And Clark is demanding that LSU, for all intents and purposes, drop its appeal while at the same time preventing LSU from even filing the appeal.
She must have been absent the day they taught law at Southern’s law school.
What’s more, threatening to imprison members of LSU’s Board of Supervisors for the crime of following the advice of their legal counsel in the course of their appointed duties as public servants is something quite alien to American jurisprudence. It’s bizarre.
It may become even more bizarre tomorrow if Clark orders the board members arrested, or suspended, or denying any further proceedings in the court case until LSU caves in. That last option would merely rack up $500 per day in fines for perpetuity, without her ever making her ruling final to enable an appeal or bringing about a final disposition of the case.
It’s a tinkling contest at this point and it’s idiotic.
A judge should be about the law. Janice Clark pretty clearly is about Janice Clark.
UPDATE: So today, Clark sicced the Sheriff’s office on LSU’s Board of Supervisors…
State District Judge Janice Clark has ordered the East Baton Rouge Parish Sheriff’s Office to confiscate records from LSU’s recently concluded president’s search.
Clark on Tuesday also told the Sheriff’s Office to enforce her April 30 order and make public the records from the LSU Board of Supervisors.
The April 30 order came after The Advocate filed suit after the university board refused to release the records. The Times-Picayune joined the case a week later.
“The power, authority and dignity of this court continues to be frustrated,” Clark said in court Tuesday.
Clark instructed the Sheriff’s Office take whatever actions necessary, including the use of warrants, to collect the documents.
One assumes, short of immediate injunctive relief to be provided by an appellate court, that this will be the end of the case. But when Clark refuses to make her ruling final, thus preventing an appeal, it’s hard to see how this isn’t going to end poorly.
What happens when someone on the list of candidates which is made public as a result of today’s drama decides to sue for a violation of his or her privacy?
What a mess.