A Fourth Judicial District Court judge is expected to rule soon on a Mangham contractor’s request to nullify the Second Circuit Court of Appeal’s reversal of a jury verdict awarding the contractor $20 million in a lawsuit he brought against the state.
Last September, Jeff Mercer, of Mangham, filed a motion to nullify the Second Circuit’s ruling because a former Second Circuit judge and his law clerk allegedly mishandled his lawsuit against the state Department of Transportation and Development among others.
The Second Circuit reversed the jury’s $20-million verdict for Mercer in his 2007 lawsuit against the state Department of Transportation and Development. In his 2007 lawsuit, Mercer persuaded the jury with his claims that DOTD officials retaliated against his business when he exposed a system of bribes involving a project on Louisville Avenue in Monroe.
In Jeff Mercer LLC v. DOTD and others, several subpoenas for documents as well as motions to quash those subpoenas and other discovery requests remain pending. During a Feb. 27 court hearing, Fourth Judicial District Court Judge Wilson Rambo issued a stay on all discovery pending a ruling on the defendants’ exceptions of no cause of action.
According to Rambo, it was premature to argue the various discovery motions before the court ruled on the exceptions of no cause of action filed against Mercer by the defendants.
“I think it’s a little bit cart before the horse,” Rambo said.
The defendants filing motions to quash Mercer’s subpoenas include the Second Circuit, Caddo Parish Sheriff Steve Prator and Caddo Parish District Attorney James Stewart Sr.
“I’m not going to quash the subpoenas,” Rambo said. “The subpoenas are not quashed. The subpoenas are still there.”
“All that is sort of put aside,” he later added.
Shreveport attorney Bernard Johnson, who represents the Second Circuit, agreed with Rambo.
“I agree with you completely it’s cart before the horse,” Johnson said.
No rulings were issued last week.
“This is a complicated issue,” said Rambo, in explanation.
Later in the hearing, Rambo said he viewed it as problematic that he — a district court judge — might be called on to nullify a ruling from an appeal court.
Oral arguments concerning the defendants’ exceptions of no cause of action began with remarks by Baton Rouge attorney Juston O’Brien who represented the defendants as a special assistant attorney general along with Monroe attorney John Saye.
In an exception of no cause of action, the defendant must prove that the plaintiff failed to establish grounds for their lawsuit.
“Mercer’s opposition to the State Defendants’ motion is curious,” stated the defendants’ Feb. 24 reply memorandum in support of their motion to stay discovery pending resolution of the state defendants’ exceptions of no cause of action. “Mercer has not propounded any discovery to the State Defendants. Mercer’s petition has not alleged that any of the State Defendants were involved in any of the alleged ‘ill practices’ that form the basis of Mercer’s nullity action.”
“The big thing we’re not going to find in one of these allegations is a cause of action,” O’Brien said.
O’Brien referred to the numerous allegations in Mercer’s lawsuit that former Second Circuit Judge Henry Brown Jr. and his law clerk, Trina Chu, mishandled his lawsuit when the defendants appealed it to the Second Circuit.
According to Mercer’s lawsuit, Brown abruptly retired from the Second Circuit in late 2018 after it was discovered Brown had tried to influence a judge’s panel to rule in favor of his friend, Hahn Williams, in a case on appeal to the Second Circuit.
Brown threatened and tried to intimidate Second Circuit Judge Jeff Cox, and Brown’s law clerk, Chu, had made unauthorized access to case files concerning the Williams case and the Mercer case, according to Mercer’s lawsuit.
Unless Chu had a time machine, her actions could not constitute Mercer’s cause of action because the appeal in his case was closed six months before Chu was hired as a law clerk, according to O’Brien.
In response, Rayville attorney David Doughty argued he did not have to prove that DOTD or any of the individual defendants did anything wrong if the court itself was responsible for his client’s new legal action. Doughty is representing Mercer.
“That’s completely wrong,” said Doughty, of O’Brien’s arguments.
“What we’ve alleged is that the court did something improper or something that’s an ill practice,” Doughty said.
Doughty noted that the court must assume the allegations in the plaintiff’s petition were true for the sake of ruling on whether the plaintiff had a legitimate cause.
“They’re trying to stop us from getting these documents to find the truth of what happened,” said Doughty of the Second Circuit and other defendants.
Mercer’s lawsuit also accused the Second Circuit of failing to properly review the appeal of his case.
The Second Circuit’s judges’ panel included Brown, Jeanette Garrett and Cox. The judges claimed they 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. For more than 60 days after the oral argument hearing in April 2017, court documents showed neither Cox or Garrett checked out the record, according to Mercer.
“That would certainly be ill practices,” Doughty said.