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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Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).


Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.

Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".

In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.


In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.

Trollfest '09 is a pet-friendly event as well. Feel free to bring your dog with you and do not worry if your pet gets hungry, as employees of the Jackson Zoo will be on hand to provide some of their animals as food when it gets to be feeding time for your little loved one.

Relax at the Fox News Tent. Since there are only three blonde reporters in Jackson (being blonde is a requirement for working at Fox News), Megan and Kathryn from WAPT and Wendy from WLBT will be on loan to Fox. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both and a torn-up Obama yard sign will entitle you to free drinks served by Megan, Wendy, and Kathryn. Get your tickets now. Since this is an event for trolls, no ID is required. Just bring the hate. Bring the family, Trollfest '09 is for EVERYONE!!!

This is definitely a Beaver production.


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Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.

There will be a hugging booth where in exchange for your young son, Frank Melton will give you a loooong hug. Trollfest will have a dunking booth where Muhammed the terrorist will curse you to Allah as you try to hit a target that will drop him into a vat of pig grease. However, in the true spirit of Separate But Equal, Don Imus and someone from NE Jackson will also sit in the dunking booth for an equal amount of time. Tom Head will give a reading for two hours on why he can't figure out who the hell he is. Cliff Cargill will give lessons with his .80 caliber desert eagle, using Frank Melton photos as targets. Tackleberry will be on hand for an autograph session. KIM Waaaaaade will be passing out free titles and deeds to crackhouses formerly owned by The Wood Street Players.

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!!!

This is definitely a Beaver production.

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