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.