Auditor: federal court should respect opinion of Chancery Court

Pickering says federal court should respect opinion of Chancery Court

jphampton@sunherald.comDecember 20, 2013 

GULFPORT -- The legal tug of war between state and federal officials over documents sought by the Sun Herald is a question of comity, not federal supremacy, lawyers for the State Auditor's Office argue in a federal filing Friday.

Comity is a legal doctrine that a court in one jurisdiction should, out of courtesy, respect the decisions of a court in another jurisdiction. In this instance, the Auditor's Office is arguing that the federal District Court for the Southern District should respect a decision of the Chancery Court in Harrison County that the documents sought are public records.

Auditor Stacey Pickering asked the federal court early this month to release the records, which are under federal grand jury subpoena in Jackson, so they can be copied and turned over to Chancery Judge Jennifer Schloegel in Gulfport.

Schloegel is considering holding Pickering and his office in contempt for failing to turn the records over as she ordered in October. After that order, the U.S. Attorney's Office subpoenaed them and the Auditor's Office arranged for them to be taken to Jackson before they could be copied.

The Sun Herald first requested the records detailing spending and other actions by the state Department of Marine Resources in the fall of 2012. The agency argued the records were part of the investigation by state and federal authorities and refused to turn them over. That investigation has led to the indictment of seven former officials and employees of the DMR. Three of them face charges in federal court but none filed a response to the auditor's request to release the records.

Months before the indictments were returned, the Sun Herald sued the DMR and the Auditor's Office to obtain the records. Schloegel ruled in the paper's favor on Oct. 31. The records were taken to Jackson on Nov. 4.

The U.S. Attorney's Office on Thursday filed a response that argued among other things that making the records public could jeopardize its case and the defendants' right to a fair trial.

John Corlew, the attorney for the Auditor's Office, said the prosecutor, and the defense by not responding, failed to explain specifically how the case would be harmed. He also said neither side explained what grand jury secrets were in the records nor how they "morphed" from public records into investigative records subject to protection under federal law. The court had asked for those explanations in a Dec. 6 hearing on the Pickering's request.

Corlew also argued the federal government had mischaracterized Pickering's petition as "for the sole purpose of copying to comply with a state court order that would release the records to the Sun Herald newspaper for probably publication."

He said the case was no longer just about the newspaper's quest to get the records but also a "very serious matter of federal-state comity."

"The records in question are subject to 'another judicial proceeding,'" Corlew wrote in his response. "Comity would suggest that this Court give measured consideration to the state court proceedings consistent with preservation of the integrity of the federal grand jury proceedings."

U.S. District Judge Keith Starrett, who heard the case, later Friday ordered the federal prosecutor's office to release the documents.

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