Tuesday, March 29, 2016

Court of Appeals overturns Sun-Herald win against Pickering, hammers Chancellor

The Mississippi Court of Appeals overturned a contempt of court ruling against State Auditor Stacey Pickering today.  Harrison County Chancellor Jennifer Schloegel ruled he was in contempt of court after the State Auditor subpoenaed DMR records during the course of the DMR investigation in 2012.  Gulf Publishing, the owner of the Sun-Herald, sought the records. 
The Gulf Coast newspaper sought copies of DMR financial statements as it investigated the state agency. DMR previously turned over the records to the State Auditor.  State Auditor Stacey Pickering refused to release the records, as he argued they were part of an investigation.  The Sun-Herald sued for their release in Harrison County Chancery Court.  Chancellor Jennifer Schoegel ordered OSA to turn over the records to the newspaper.  The U.S. Attorney then subpoenaed the records.  Mr. Pickering's office turned the records over to the feds.  The SH filed a motion for contempt of court against Mr. Pickering.  The Chancellor ruled the State Auditor was in contempt of court for violating the Mississippi Public Records Act.  The Court of Appeals disagreed and dissolved the contempt of court ruling.  

The Court also held that the records at issue were not public records as they were part of the investigation once the subpoena was served.  The Chancellor ruled that DMR produced the records as a normal course of doing business and that they were not created by the investigation itself.  The Court of Appeals and Ethics Commission disagreed and held they were protected from disclosure.* The Court also spanked the Chancellor as it questioned whether she was clear on what exactly defined "contempt of court":

At the contempt hearing, the chancellor stated that the Auditor’s alleged contempt was civil;  however, “[t]he often confused labels that a trial judge uses in contempt charges do not control; the clarity or ambiguity of the contempt order as well as the procedures followed to enter the contempt sanctions are what govern.”.... “designed to punish the contemnor for disobedience of a court order.” In re Williamson, 838 So. 2d 226, 237 (¶29) (Miss. 2002). Unlike civil contempt, from which a person can purge himself by complying with the court order, criminal contempt punishes the past offenses and does not terminate upon the person’s complying with the order. Id. The content of the final order indicates the chancellor was punishing the Auditor for choosing to comply with the federal subpoena versus her bench ruling and protective order. Furthermore, although the chancellor stated that the release of the records purged the Auditor of the contempt, the chancellor found that “the willful and contumacious contempt by the . . . Auditor warrant[ed] sanctions of court costs and reasonable attorney’s fees against the . . . Auditor.” The chancellor then ordered that the Auditor be “liable for reasonable attorney’s fees, costs[,] and expenses resulting from [the] contempt.” Accordingly, we find the alleged contempt was criminal.

  The Court also dismissed the $100 fines the Chancellor levied against Mr. Pickering and several members of his staff.  None of those fined were sued in their "individual capacity" nor put on notice they could be fined.  The Court ruled their rights to due process were violated.


*So if a law enforcement agency subpoenas the minutes or budget of a municipal government, does that mean they are suddenly protected from disclosure? One can imagine a corrupt official getting a friendly D.A. to seal some uncomfortable public records by subpoenaing them as part of some vague "investigation".   Food for thought.  That was the opinion held by the dissent.




10 comments:

Anonymous said...

So Pickering was correct?

Where are all the Pickering haters now?

Anonymous said...

4:06, you know the Pickering haters will be out anyway. Doesn't matter what a court says to some folks on this site, their opinion is always a better one.

And KF, your theory about being able to hide a budget by a claim of investigation doesn't quite fit the conditions here - this was an obvious, public, ongoing investigation when the SH ran to a friendly (evidently ignorant or incompetent) judge and asked for access. Not quite the same thing as a DA, even one like we have here in Hinds, trying to create from whole cloth an investigation.

Anonymous said...

Good times at Disneyland this weekend. Crank up the RV, er, campaign bus!

Anonymous said...

Disneyland? That's a long drive.

Anonymous said...

Distance is no object. He has tons of comp-time built up.

Anonymous said...

Hopefully he enjoys that Auditor job. The Peter Principle in the flesh.

Anonymous said...

Stacie will be available for comment after the Wheels of Audit RV touches down in Disneyworld. He doesn't want to drive and talk while driving such a valuable campaign asset.

Anonymous said...

Don't be hatin'n on Stacey. When you are from Jones county, a Jayco 32' looks like a Thor motor coach. In a Disney parking lot.

Anonymous said...

Hard to beat political power, and Pickering has it.

Anonymous said...

They have this wonderful device now called a copy machine. Records could have been copied and then both Pickering and the newspaper could have had a copy. Pickering needs to learn to use modern technology, unless of course he was trying to hide something.


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If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!

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