JUDGE H. STEPHENS WINTERS,
IN HIS CAPACITY AS CHIEF JUDGE
OF THE 4TH JUDICIAL DISTRICT COURT
4TH JUDICIAL DISTRICT COURT
VS.
STATE OF LOUISIANA
HANNA MEDIA, INC. d/b/a
THE OUACHITA CITIZEN
NO. 15-0770
PARISH OF OUACHITA
ANSWER TO PETITION FOR DECLARATORY JUDGMENT
AND RECONVENTIONAL DEMAND
NOW INTO COURT, through undersigned counsel, comes Defendant, Hanna
Media, Inc. d/b/a The Ouachita Citizen, and for answer to the Petition for Declaratory
Judgment filed herein by Plaintiff, Judge H. Stephens Winters, in his Capacity as Chief
Judge of the 4th Judicial District Court, respectfully states as follows:
1.
The allegations of Paragraph 1 are admitted.
2.
The allegations of Paragraph 2 are admitted.
3.
The allegations of Paragraph 3 are admitted, and in further answering, Defendant
avers this lawsuit is brought under the Public Records Law, LA R.S. 44:1 et seq.
4.
The allegations of Paragraph 4 are admitted inasmuch as Petitioner has partially
responded to the public records requests and otherwise denied.
5.
The allegations of Paragraph 5 contain legal conclusions which do not require a
response; however, out of an abundance of caution, these allegations are denied for lack
of sufficient information to justify a belief therein.
6.
The allegations of Paragraph 6 are denied except to admit that the public records
requests are the best evidence of their contents.
7.
The allegations of Paragraph 7 appear to be legal conclusions which do not
require a response; however, out of an abundance of caution, the allegations are denied
other than to admit that the Petitioner is required to respond to public records requests in
a timely and complete basis.
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8.
The allegations of Paragraph 8 are conclusions of law which do not require a
response; however, out of an abundance of caution, the allegations are denied for lack of
sufficient information to justify a belief therein.
9.
The allegations of Paragraph 9 are not factual but statements of law, and
Defendant denies them stating that the law cited is the best evidence of its contents. In
further answering, Trahan v. Larivee balanced the two constitutional issues—the public’s
right to know vs. the efficient government and privacy of the individual—and concluded
that in the case and the facts before it, the individual’s right to privacy prevailed over the
public’s “right to know.”
Defendant avers the facts are different in this case.
Specifically, while a general performance evaluation performed in regular order may be
deemed private, documentation on the issue of destruction or mishandling of public
records and/or matters filed with the Court are not, as the public interest in such matters
is superseding.
10.
The allegations of Paragraph 10 are not factual but statements of law, and
Defendant denies them stating that the law cited is the best evidence of its contents.
In
further answering, while it has been held that a public employee generally has a privacy
interest in the contents of her personnel file, the right of privacy may be limited by
society's right to be informed about legitimate subjects of public interest. Gannett v.
Hussey 557 So.2d 1154, 1157-58 (La. App. 2 Cir. 1990), writ denied, 561 So.2d 103 (La.
1990). Defendant avers the public interest may outweigh the privacy interest in this case.
11.
The allegations of Paragraph 11 are not factual but statements of law, and
Defendant denies them stating that the law cited is the best evidence of its contents.
In
further answering, the test for determining whether one has a reasonable expectation of
privacy which is constitutionally protected “is not only whether the person had an actual
or subjective expectation of privacy, but also whether that expectation is of a type which
society at large is prepared to recognize as being reasonable.” Skamangas v. Stockton,
37,996 (La. App. 2 Cir. 2004), 867 So.2d 1009, 1014, on reh'g (Apr. 1, 2004), writ
denied, 876 So.2d 839 (La. 2004), and writ denied, 876 So.2d 843 (La. 2004); Capital
City Press v. East Baton Rouge Parish Metropolitan Council, 696 So.2d 562. (La.1997).
12.
The allegations of Paragraph 12 appear to be legal conclusions which do not
require a response; however, out of an abundance of caution, the allegations are denied.
13.
The allegations of Paragraph 13 are denied for lack of sufficient information to
justify a belief therein.
RECONVENTIONAL DEMAND
AND NOW, Defendant, Hanna Media, Inc. d/b/a The Ouachita Citizen, assuming
the position of Plaintiff-in-Reconvention, respectfully states as follows:
14.
Plaintiff-in-Reconvention hereby incorporates and realleges its Answer as if
restated herein in full.
15.
Made Defendant/Respondent herein is Judge H. Stephens Winters, in his Capacity
as Chief Judge of the 4th Judicial District Court.
16.
Plaintiff-in-Reconvention, through its agent, Johnny Gunter, did cause five (5)
public records requests relating to the activities of 4 th District Law Clerk Allyson
Campbell to be propounded upon the Defendant-in-Reconvention on or about February
11, February 26, March 3, March 6, and March 10, 2015. See Exhibit A.
17.
Defendant-in-Reconvention has failed to completely and accurately respond to
these requests within three days as required by the Louisiana Public Records Law, and
has in fact refused to respond to certain requests. See Exhibit B.
18.
Defendant-in-Reconvention has failed to produce, generally, records relating to
any commendations or reprimands contained in Ms. Campbell's personnel file, reports of
any disciplinary actions or reprimands taken against any employees who received pay or
leave time for which they were not entitled, any documents showing the reasons why Ms.
Campbell was absent from work during May 2014, and any document filed by Monroe
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attorney Cody Rials at the request of 4th Judicial District Court Judge Wendell Manning
concerning missing files or the destruction of court records by Ms. Campbell.
19.
Plaintiff-in-reconvention has reported allegations that Ms. Campbell is suspected
of neglecting her duties, withholding and destroying court documents, delaying writ
applications and using court records as an end table in her office. These allegations are
now a matter of public significance and public controversy.
20.
These allegations surfaced after the State Legislative Auditor’s Office released a
financial audit saying that some 4th Judicial District employees had received payment for
unworked hours, a violation of state law.
21.
The allegations were further stoked by the filing of a Motion to Recuse Judge
Wilson Rambo in Palowsky v. W. Brandon Cork et al, 13-2059, 4th Judicial District
Court. The Memorandum in Support of the Motion to Recuse stated, in pertinent part:
Meanwhile, information surfaced regarding Judge Rambo’s
law clerk withholding and shredding court documents and
causing delay in domestic litigation. Still, other information
surfaced about Judge Rambo’s law clerk delaying scores of
writ applications and had, actually, used such court records
as an end table in her office. After this information was
brought to plaintiffs’ attention, he became suspicious of
multiple delays in his case, particularly after the Clerk of
Court advised that Judge Rambo’s office did pick up the
sealed documents the same day the sealed documents were
filed, namely March 14, 2014.
…
On August 13, 2014, the Judicial Administrator confirmed
in an in-person meeting with AESI’s counsel that
complaints had been made against Judge Rambo’s law
clerk in another case. The Judicial Administrator was then
advised of “missing” court filings, as well as undue delays
in rulings.
22.
In the Motion to Recuse, Ms. Campbell is also accused of inappropriately
admiring defense counsel and a Judge, being the “direct cause” of “juicy, ripe scandal,”
as well as promoting “lies” and “half-truths” in her Monroe News-Star society column.
23.
A writ of mandamus, which will “compel the performance of a ministerial duty
required by law,” La. C.C.P. Art. 3863, is appropriate to compel Defendant-inReconvention to abide by his statutory duty as custodian to produce the records, in whole
or in part, made subject of Plaintiff-in-Reconvention’s request.
24.
It is the law of Louisiana that: “No person shall be denied the right to observe the
deliberations of public bodies and examine public documents, except in cases established
by law.” La. Const. Art. 12, Sec. 3.
25.
Furthermore, “Providing access to public records is a responsibility and duty of
the appointive or elective office of a custodian and his employees.” La. Rev. Stat. Ann. §
44:31.
26.
“All persons and public bodies having custody and control of any public record,”
are required by law to preserve the public record “for a period of at least three years.”
La. Rev. Stat. Ann. § 44:36.
27.
A custodian of Public Records has three days, exclusive of Saturdays, Sundays
and legal public holidays, to produce public records readily available such as the e-mails
at issue in this Petition. La. Rev. Stat. Ann. § 44:33.
28.
Under the same law, any person who is denied the right to inspect or copy a
record “may institute proceedings for the issuance of a writ of mandamus, injunctive or
declaratory relief, together with attorney's fees, costs and damages as provided for by this
Section, in the district court for the parish in which the office of the custodian is located.”
La. Rev. Stat. Ann. § 44:35(A).
29.
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As stated in La. Rev. Stat. Ann. § 44:31(B)(3), the “burden of proving that a
public record is not subject to inspection, copying, or reproduction shall rest with the
custodian.”
30.
The Louisiana Supreme Court has further held that these laws should be
“construed liberally in favor of free and unrestricted access to the records, and that access
can be denied only when a law, specifically and unequivocally, provides otherwise....
Whenever there is doubt as to whether the public has the right of access to certain
records, the doubt must be resolved in favor of the public's right to see.” Title Research
Corp. v. Rausch, 450 So.2d 933, 936 (La. 1984).
31.
Plaintiff-in-reconvention asserts that as to the records requested, the right of
privacy may be limited by society's right to be informed about legitimate subjects of
public interest. Gannett v. Hussey 557 So.2d 1154, 1157-58 (La. App. 2 Cir. 1990), writ
denied, 561 So.2d 103 (La. 1990). Defendant avers the public interest may outweigh the
privacy interest in this case.
32.
Plaintiff-in-reconvention requests declaratory relief from this Honorable Court
that the public’s right to know does outweigh Ms. Campbell’s personal privacy interest,
and that the records sought are, in fact, public records.
33.
Petitioner furthermore avers that upon judgment of this Honorable Court, he
should be awarded reasonable attorneys’ fees and other costs of litigation under La. Rev.
Stat. Ann. § 44:35(D) (“[a prevailing petitioner] shall be awarded reasonable attorney's
fees and other costs of litigation.”). [Emphasis added.]
WHEREFORE, Defendant/Plaintiff-in-Reconvention, Hanna Media, Inc. d/b/a
The Ouachita Citizen, prays that this answer be deemed good and sufficient, and that
after due proceedings had, that this Honorable Court grant its Reconventional Demand
for mandamus and declaratory relief, order the records produced in whole or in part, and
declare the records at issue in this litigation are, in fact, public records;
Defendant/Plaintiff-in-Reconvention further requests in camera review of the records by
this Honorable Court pursuant to LA R.S. 44:§35(B), for a judgment in its favor and
against Petitioner, Judge H. Stephens Winters, in his Capacity as Chief Judge of the 4 th
Judicial District Court, dismissing Petitioner’s claims and awarding Defendant attorney's
fees, costs and damages as provided by LA R.S. 44:§35, his cost, and for all other general
and equitable relief the Court may deem fit.
Respectfully submitted:
BALDWIN HASPEL BURKE & MAYER, LLC
_______________________________________
SCOTT L. STERNBERG (#33390)
1100 Poydras Street, Ste. 3600
New Orleans, LA 70163
Telephone: 504-569-2900
Fax: 504-569-2099
Counsel for Defendant, Hanna Media, Inc.
d/b/a The Ouachita Citizen
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the above and foregoing pleading on all
counsel of record by the following designated method:
_____ Hand delivery;
_____ Fax;
_____ United States Mail, properly addressed, postage prepaid;
_____ Electronic transmission to the email address expressly designated by
counsel;
in accordance with Louisiana Code of Civil Procedure Article 1313, this 27 th day of
March, 2015.
__________________________________________
PLEASE SERVE:
Judge H. Stephens Winters,
in his Capacity as Chief Judge
of the 4th Judicial District Court,
Through his attorney of record:
Jon K. Guice, Esq.
Hammonds, Sills, Adkins & Guice, LLP
1881 Hudson Circle
Monroe, LA 71201
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