A Mangham contractor who successfully sued the state for $20 million in 2015 says the Second Circuit Court of Appeal should not have reversed the money verdict because the former chief judge, his law clerk and other judges either mishandled the contractor’s court documents or ignored them.
That was the gist of a petition to annul judgment filed Sept. 27 at Fourth Judicial District Court by Jeff Mercer, of Mangham. Mercer, who also filed the petition to annul judgment at the Second Circuit, based his allegations on information obtained from public records requests and criminal investigative reports and affidavits. Those documents, Mercer indicated, shed light on former Second Circuit Chief Judge Henry Brown Jr.’s sudden retirement in October 2018 and the controversy surrounding the judge’s exit.
Mercer originally sued the state Department of Transportation and Development and certain DOTD officials for retaliating against his business when he exposed a system of bribes involving a project on Louisville Avenue in Monroe.
After a lengthy trial, a 12-person jury unanimously decided in December 2015 to award $20 million to Mercer. After the appeals process, Brown, then chief judge, wrote a 51-page opinion in June 2017 reversing the unanimous jury verdict. Since the Second Circuit issued its opinion, Mercer has objected to the ruling by pointing out that Brown’s father, Henry Brown Sr., worked for 44 years as a civil engineer for DOTD. Brown’s father also worked in the same DOTD district as one of the defendants in Mercer’s case.
In his recent petition, Mercer alleged that Brown and his law clerk, Trina Chu, mishandled court documents from Mercer’s appeal along with documents from other cases.
“Given Judge Brown’s undisclosed conflict of interest, his failure to recuse himself, his law clerk modifying documents related to the Mercer case before the case was ever heard by the Second Circuit Panel, and before Judge Brown had ever seen any exhibits of the Mercer case, and his law clerk storing these documents on a private drive prohibited by Second Circuit policy and then transferring the documents to a removable USB drive, said actions constitute ‘ill practices’ sufficient to nullify the Second Circuit decision,” stated Mercer’s petition.
The lawsuit — Jeff Mercer LLC v. State of Louisiana through the Department of Transportation and Development, (DOTD Inspector) Willis Jenkins, (DOTD Engineer) John H. Eason and (DOTD Inspector) Pam Higginbotham and others — concerns allegations that DOTD officials tried to solicit bribes from Mercer while working on the state’s Louisville Avenue project. When Mercer refused to participate and reported the alleged solicitation, DOTD officials and others retaliated against him, the contractor’s lawsuit claimed.
As Mercer noted in his petition, it was “highly unusual” for a judges’ panel to reverse and render a unanimous jury verdict, so unusual that Mercer’s case is the only instance in the last 10 years.
Mercer filed a motion with the Second Circuit in June 2017 for a rehearing. Mercer also sought Brown’s recusal.
“Based on information obtained from Jennifer L. Brown, who was Judge Brown’s former permanent, supervising law clerk at the time and now general counsel for the Second Circuit, pursuant to public records request on July 23, 2019, Judge Brown admitted to her that he ‘would have challenged it (the recusal), too,’ ” stated Mercer’s petition. “This statement indicated Judge Brown’s own recognition of the appearance of impropriety by his sitting on the Mercer case in these circumstances.”
An Oct. 1, 2018 news report by KTBS detailed some of the allegations surrounding Brown’s sudden retirement from the Second Circuit. According to the news report, the Supreme Court ordered Brown to vacate the courthouse, and that Brown’s law clerk had improperly accessed computer files containing a draft of an appeal opinion.
Mercer’s petition offered comments on Brown’s retirement and the circumstances surrounding his exit from the court.
“He resigned/retired due to his trying to unduly influence a judge panel to find in favor of his friend, Hahn Williams, in a case on appeal to the Second Circuit Court of Appeal where a trial jury had found her liable for over a million dollars in damages,” stated Mercer’s petition.
“Based on information and belief, Judge Brown threatened and attempted to intimidate Second Circuit Judge Jeff Cox, who had also been on the Mercer panel with Judge Brown. Further, Judge Brown’s law clerk, Trina Chu at that time, was fired by the Second Circuit for making unauthorized access to case file information related to (a succession case involving Brown’s friend, Williams).”
According to Mercer’s petition, the Caddo Parish Sheriff’s Office investigated Brown’s law clerk, Chu. Mercer based his knowledge of the investigation on the investigative report and detective’s affidavit, which he obtained through a public records request in July.
“Documents related to the Mercer case were found in the forensic search of the Judge Brown and law clerks’ G: Drive and USB Drive, where this case information was forbidden by Second (Circuit) policy from being stored,” stated Mercer’s petition.
Mercer claimed the investigative report indicated Chu had accessed confidential case files without authorization. Specifically, the Sheriff’s Office investigated Chu, who was a close friend of Williams. In addition, Brown had recused from the succession case involving Williams.
“On August 7, 2018, Becky Flippo, Judge Brown’s judicial secretary, had found a large copy job on the network printer,” stated Mercer’s petition. “The print job was related to the Succession of Houston and had been printed by Trina Chu. Ritchie told police that as Judge Brown’s law clerk had no business accessing documents concerning a case from which the judge had recused himself. On August 8, 2018, Ritchie provided a memo to Chu explaining to her the importance of preventing even an appearance of impropriety that Judge Brown’s recusal had been breached.”
Sheriff’s investigators discovered that Brown’s law clerk had copied a folder with confidential case files and had been sending emails from her private email with confidential documents attached, including documents from Mercer’s lawsuit, according to Mercer’s petition.
“Judge Brown’s law clerk then emailed and communicated ex parte with Williams from her private email at home,” stated the petition. “Judge Brown’s law clerk actually drafted part of the briefs for Williams....Judge Brown’s law clerk also instructed Williams on how to send the document to Williams’ attorney so that it could not be traced back to her: ‘you can send the document to him (attorney) as is because it has no information that can be traced back to me on the document. Save it to a jump drive and give it to him so he won’t have to type much.’ This is only one of many emails involving ex parte communications between Judge Brown’s law clerk.”
Brown also received emails and documents from the succession case involving Williams, according to Mercer’s petition. Some of the documents on private hard drive belonging to Brown’s law clerk were related to Mercer’s case, before oral arguments in Mercer’s case proceeded to the appeal court, he claimed.
“It should be noted that Caddo did not investigate the Mercer case,” stated Mercer’s petition, which made an extensive list of apparent oversights in the Sheriff’s Office’s investigation. “Caddo did not investigate Judge Brown’s public or private email accounts, nor did they look at those of Jennifer Brown nor any other clerk or research attorney of Judge Brown.”
Mercer also claimed that the Second Circuit’s general counsel, Jennifer Brown (who was previously Brown’s law clerk and research attorney) had also used her private email to communicate with Mercer about his case. Mercer claimed the Second Circuit’s policy prohibited the use of private email communications for court documents.
de novo review
Mercer’s petition also accused the Second Circuit of failing to properly review his appeal.
The Second Circuit’s judges’ panel included Brown, Jeanette Garrett and Cox. The judges conducted a de novo review, which entails reviewing the evidence presented at trial without reference to the district court’s ruling.
“For the three of them to conduct a de novo review from the same record on a jury trial that took almost a month to try would have been physically impossible, especially given the workload of each judge,” stated Mercer’s petition. “The Mercer record is voluminous, containing testimony that lasted almost a month in the courtroom and thousands of pages of documents. The trial record alone is nineteen volumes with 4,038 total pages. The exhibits constituted nine volumes with a total of 4,650 pages. That’s a total of 8,688 pages of required reading by each judge doing a de novo review of the record.”
Mercer claimed the Second Circuit’s sign sheet for the Mercer record and exhibits showed the judges’ panel relied only on Brown’s review of the record. “Judge Cox never checked out either the record or the original or duplicate exhibits,” stated Mercer’s petition. “After the oral argument hearing on April 4, 2017 and through the date of the decision on June 7, 2017 (sixty-three total days), neither Judges Cox nor Garrett ever checked out the record.”
In addition, Mercer also objected to the timing of a court opinion issued about his application for a rehearing after the Second Circuit reversed the trial court’s ruling in Mercer’s case.
According to information Mercer obtained from the court, Second Circuit judges normally meet after a hearing to determine how they will vote, finalize their decision and write documents supporting their decision. Sometimes that means the court’s order or opinion may be issued on a different date from the hearing.
In Mercer’s case, he claimed the Second Circuit denied his motion to recuse Brown on Aug. 3, 2017, at 10:23 a.m. The opinion supporting the court’s decision was filed by the court clerk at 10:25 a.m., two minutes later. Retired Judge Joe Bleich, who served as judge pro tempore at the Second Circuit, wrote the opinion.
“Thus, it was impossible that Bleich’s supporting opinion was drafted and typed within the two-minute gap between the decision time at 10:23 a.m. and the filing time at 10:25 a.m.,” stated Mercer’s petition. “The logical explanation is that this supporting opinion was drafted prior to the hearing ever occurring.”
According to Mercer, the Second Circuit employed some questionable practices in other cases beyond Mercer’s as well.
“Further evidence obtained by Mercer via public records (requests) shows that Second Circuit judges would sometimes not attend the rehearing, miss votes, would let their law clerks sign for them, would simply email a proxy, or just go along with the others,” stated Mercer’s petition.
In another case, Cox gave his proxy to another judge stating that he would vote to deny but “would go along with what the panel wants to do,” according to Mercer. In the same case, Garrett asked, “Would it simplify matters if all are in agreement to deny rehearing before Thursday?”
“In other words, the court was making a decision on the case before the actual hearing was ever held,” stated Mercer’s petition.
Mercer’s petition stated he discovered no voting sheets recording each judge’s vote on his appeal.