Newspaper seeks contempt ruling against Pickering, auditor's office

calee@sunherald.comNovember 22, 2013 

The Sun Herald has filed a motion in Chancery Court asking that Judge Jennifer Schloegel hold State Auditor Stacey Pickering and his office in civil contempt of court for failing to produce public records, which the court had ordered and the auditor had agreed to do.

Pickering is asking that the Chancery Court case be stayed until the state Supreme Court can hear his appeal.

The Sun Herald sued the auditor for access to business records the newspaper had requested from the Mississippi Department of Marine Resources in November and December 2012. After the newspaper requested the records, the Auditor's Office seized them as part of an ongoing investigation of the DMR.

Pickering then claimed the records were exempt from disclosure under the criminal investigations exception to the state Public Records Act.

Schloegel ruled at the end of a two-day hearing Oct. 31 the records are public, not investigative reports compiled during the course of an investigation. She ordered the records brought to her courtroom. From there, the auditor was supposed to return the records to the DMR's office in Biloxi so they could be copied and supplied to the newspaper.

Schloegel then learned a federal grand jury had subpoenaed the records for Nov. 5. She entered a protective order over the records at 11:30 p.m., Nov. 4, command

ing the Auditor's Office to deliver them to her court for copying before they went to the grand jury. Instead, the records were sent to the grand jury in Jackson.

Schloegel then entered an order Nov. 16 directing the newspaper to file a contempt motion, if it intended to do so. She pointed out the federal government has had the opportunity since January, when the auditor took the records, to review them.

"The court's protective order would have in no way deprived either the federal or state law enforcement authorities of the originals of these public records," her Nov. 16 order said. She said indictments in the case were handed down the day after the grand jury subpoena was issued, and on the same day the federal grand jury asked that they be delivered to Jackson.

The subpoena, she said, did not prevent or restrict the records from being copied.

As custodian of the records at that point, she said, the Chancery Court should have been served with the subpoena. "At no time," she said, "did the court relinquish control of the records.

"The Mississippi Department of Audit had no authority to transport the documents out of this court's jurisdiction and custody without order from this court, which it most certainly did not seek," she wrote.

She also pointed out that, during a teleconference on the evening of Nov. 4, before she entered the protective order, auditor's attorney Melissa Patterson assured the court the records were in Biloxi and would be brought to Schloegel's Biloxi courtroom the morning of Nov. 5, and an auditor's representative would tell the grand jury in Jackson the records would be delivered as soon as they had been copied.

In its motion filed Friday, the Sun Herald seeks attorney's fees, along with the contempt finding against Pickering and his office. The newspaper is asking Schloegel to order that Pickering "purge himself" of contempt of court by returning the records to be copied.

The newspaper also wants the Auditor's Office to answer a number of questions under oath:

n Did the Auditor's Office ask the U.S. Attorney's Office in the Southern District of Mississippi, or the grand jury, to subpoena the records?

n Who decided -- and when, how and why did they decide -- to disregard the court's order requiring that the records be copied?

n Why didn't the Auditor's Office take action to protect the records for copying before they were delivered to Jackson, or move to quash the grand jury subpoena?

n Are the public records complete or have they been compromised?

The newspaper also asked, as the Public Records Act provides, for a $100 sanction for each and any violation the auditor and his office committed.

Pickering and Attorney General Jim Hood's office are seeking a stay in the case for appeal to the Mississippi Supreme Court. Schloegel maintained a previous notice of appeal was premature because she has not yet entered a final judgment that would serve as a basis for appeal.

In the latest appeal, Hood's office argues the Supreme Court should decide the case before a contempt hearing because a high court ruling in the auditor's favor would nullify any contempt citation.

The motion argues the high court should find Schloegel was wrong in declaring public the records from the DMR's artificial reef and emergency disaster-relief accounts.

The attorney general also argues the federal subpoena took precedent over Schloegel's order protecting the records for reproduction.

The motion for appeal says a federal grand jury's investigative powers "trump" any conflicting state law. "Here," the motion says, "the likelihood of success on appeal, the irreparable injury to the auditor and the public interest all support the issuance of a stay."

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