Monday, December 9, 2013

DMR update: Stacey is as Stacey does

The battle between the Sun-Herald and State Auditor Stacey Pickering over DMR records raged in Harrison County Chancellor Jennifer Schloegel's courtroom as the newspaper sought to hold Mr. Pickering in contempt of court. The Sun-Herald reported:

Regardless of whether she finds State Auditor Stacey Pickering in civil contempt of court, Chancery Judge Jennifer Schloegel directed his office and the Mississippi Department of Marine Resources to produce public records by Monday, as she ordered in October

At the contempt hearing Wednesday, Pickering's chief of investigations, David Huggins, said under oath Assistant U.S. Attorney John Dowdy subpoenaed records from the DMR to avoid making them public -- not because a grand jury needed them.

The Sun Herald sued the DMR, Pickering and the Auditor's Office under the Mississippi Public Records Act for documents the DMR produced in the daily course of business. The auditor in January seized the records as part of an ongoing investigation into the DMR. After the newspaper's lawsuit was filed, the auditor agreed, then refused, to release copies to the newspaper.

Schloegel declared the records public Oct. 31 at the end of a two-day trial. The auditor's office once again agreed to make the records available for copying, but instead whisked them off in the night Nov. 4 to Jackson.

Pickering testified he was informed after the fact the records had been delivered to the grand jury. Schloegel recessed the hearing until Friday, when Assistant Attorney General Melissa Patterson is expected to testify.

Huggins told Patterson about the subpoena the day it was issued, Nov. 4, but she did not notify Schloegel until after business hours.

At the time, Patterson said she was under the impression the records were still on the Coast and could be copied before delivery to the grand jury. Huggins testified he thought so, too. In the past, he said, he has simply had to secure records, not deliver them to the grand jury....

Huggins said Dowdy subpoenaed the records to protect them, not for the grand jury investigation.

The state and federal investigation is not over, "not by any stretch of the imagination," Huggins said. "It's very active."

Schloegel learned Nov. 5 the records were gone from the Bolton Building in Biloxi, where both the DMR and auditor's investigators had offices. She said all the parties realized at that point the auditor appeared to be in contempt of her orders to protect and produce the records, but she wanted to research the issue before an official ruling. The records had been in her court's custody before they went to Jackson.

The Auditor's Office did not seek direction from Schloegel before taking the records to Jackson. Instead, Huggins said, Dowdy said Nov. 4 "we" were going to call Schloegel. Huggins assumed that meant Dowdy or another federal authority would talk to Schloegel that afternoon.

Then more finger-pointing took place:

Schloegel also refused Wednesday morning the auditor's request to close the hearing to the public. The auditor had cited the state and federal investigations of the DMR as his reason for the request.

Pickering said he had hoped his office could comply with both Schloegel's order to turn over the public records and with the grand jury subpoena. He said he left it up to his staff to do so.

Pickering petitioned the state Supreme Court on Nov. 21 to stay action in the Chancery Court case, including the contempt hearing, but the Supreme Court turned him down Monday.

Pickering told Schloegel he is now prepared to ask a federal judge to release the records so they can be copied for the newspaper. Rest of article

However, the State Auditor was not done as he asked a U.S. District Judge Keith Starrett to allow him to release the records in a motion filed last week. The motion is posted below.   The Sun-Herald again reported:

Mississippi State Auditor Stacey Pickering asked a federal court on Thursday to authorize the release of Mississippi Department of Marine Resources records that are being sought by a Gulf Coast newspaper.

Pickering's motion, filed Thursday in U.S. District Court in Gulfport, is in response to an order by Harrison County Chancery Judge Jennifer Schloegel.

Gulf Publishing and the Sun Herald newspaper have been fighting Pickering for the records. On Wednesday, Schloegel ordered the documents produced by Monday. She had issued a similar order in October.

Pickering had argued that a federal subpoena prevented his releasing documents seized from MDMR during a corruption investigation. Schloegel disagreed, saying the records were created by the agency, not as investigative reports. Rest of article
Kingfish note: Where is the line?  When is a public record not a public record? Suppose a federal grand jury subpoenas the minutes or budgets of a city?  When did federal law start superseding state public records laws, assuming such state laws are constitutional.  Honest questions as I'm not familiar with this area of the law.   Are all public records thus public but for the whims of the U.S. Attorney's office? Did anyone give a straight answer in court last week?


Anonymous said...

I hope everybody throughout the state remembers this photo of Stacey Pickering in the witness (in this case defendant) chair.He is spending thousands of taxpayers dollars to keep the same taxpayers from accessing public records. Which "DEAR FRIENDS" is he trying so hard to protect and cover for? When he announces his re-election or next political office bid I just he is recalled for what he is, offensive to the public's right to access. Stacey Pickering is just like a babies dirty diaper, they both need changing soon for the same reason.

Anonymous said...

Pickerinmg is covering up for his friends - remember the fundraiser at Joe Cloyd's home - next door to Scott Walker's home where Bill Walker sat on the front porch holding a baby while the guests showed up - they snuck in thru the rear door of the home - just like the rats they are! The whole bunch needs to go - Walkers, Cloyd, Malvaney, Pickering, Fitch, Santa Cruz, Zeigler, etal. They're just like a cockroaches, they keep popping up everywhere arould us!

Anonymous said...

1. Federal Judge Starrett, a former state court judge, cut Pickering off at the knees on his request for help from the feds, saying that Judge Schoegel's order was "the law"; he refused to get involved. So much for federal grand jury usurping state court judge's authority over state law matters.

2. AUSA that had the grand jury subpoena issued for the SOLE reason of avoiding the state court judge's order may have some troubles with DOJ and the State Bar. I say "may".

Anonymous said...


"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." U.S. Const. art. VI, Paragraph 2

Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme." Stone v. City and County of San Francisco, 968 F.2d 850, 862 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993).

Due to concerns of comity and federalism, the scope of federal injunctive relief against an agency of state government must always be narrowly tailored to enforce federal constitutional and statutory law only. Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). This is critical because "a federal district court's exercise of discretion to enjoin state political bodies raises serious questions regarding the legitimacy of its authority." Id.

Anonymous said...

4:19---Where you on the conference call? what else did you hear? Are you one of the lawyers for the Walkers?

Anonymous said...

I bet if the truth be known Stacey Pickering ask the US Atty. to issue the subpoena when he did not get the answers he wanted from the Ms. Supreme Court. If not he could have just ignored the Feds or made copies prior to departing for Jackson. The Pickering name just is not what it use to be.
His next movie part may well be alongside Steve Martin in Liar,Liar in Mississippi.

Anonymous said...

A state auditor should not be in a court room and called the defendant while in office.

Anonymous said...

The Sun Herald deserves a Pulitzer for fighting this battle on our behalf. You know there was great pressure to lay off Pickering.

Anonymous said...

A relatively unknown factor here in Central MS is the character of Judge Jennifer Thompson Schloegel. She is the oldest child of Jack Thompson who before his very untimely death in the early 1990s had built Stewart-Sneed-Hewes into the largest insurance agency in MS. Jack was a truly beloved and respected Coast native. Jennifer graduated from Emory Law andcounart returned to Gulfport to raise 5 terrific children.She is one of the most serious and wonderful Christians as well as a pillar of social Gulfport. Truly unique.Pickering is picking on the wrong Judge for sure. Go Jennifer, we Jackson Coastians love you.

Anonymous said...

Why doesn't someone demand look into Pickering's role with Howard Industries??? What Pickering did is criminal!!!!

Anonymous said...

Ever heard of Penaeus LTD of Lula MS? A William W. Walker of Pensacola Fl was one of the directors at some point.

Was this connected to Gulf Coast Research Lab and one of Sen Cochran's 1990s earmarks?

Anonymous said...

This is about Hood. Not Pickering. You will see. Dowdy...your hands aren't clean. You know it Boy.

DeLaughter's Ghost said...

4:30 recites the Supremacy Claus. But that claus pertains to Federal LAWS, treaties and statutes, i.e., the sort of minutia that's 'on the books' and appears in the Federal Register. I'm not thinking that applies to off the wall (and otherwise willy-nilly) knee-jerk demands made by a federal judge. If 4:30 was correct, which he's not, Holder could nullify every law in every state with strokes of his criminal pen.

Anonymous said...

There have been comments made here before about Pickering and Howard Industries. Kingfish, do you have any facts about what this person keeps talking about? I'm sure that I speak for many people that would like to know if he has a 10 foot skeleton in his closet.Personally, I think that Pickering has never done his job. He has made sure to prosecute all the smaller cases for thousands and let all the big guys with millions alone. He has protected the ones who have hurt the tax payers the most. I hope that he is never elected to any office again. 5:29 could not have said it any better.

Anonymous said...

Kingfish, do you have any facts about what this person keeps talking about?

What does your research reveal? Have you done ANY?

Anonymous said...

4:30 recites the Supremacy Claus.

Santa's brother?

Anonymous said... Some more opinions on Stacey Pickering. Seems that everyone thinks Pickering has done great damage to himself.

4:30 Confesses said...

12:55; I didn't 'recite' it. I 'cited' it. I also misspelled clause as Claus (I'm into the Christmas spirit). And you got the verb wrong in your shoot-from-the-hip attempt to correct me.

Anonymous said...

I hope that ultimately every shred of evidence is brought before the public for review. However, I think all of the arm-chair quarterbacking and condemning is premature. There is a reason the U.S. Attorney issued the subpoena. If there is an ongoing investigation and publicizing the records at this stage impedes the investigation, then Schloegel needs to slow her roll. If I was advising Stacey, and I'm not, it would be to request a conference for an in camera review of the documents. I'd have the U.S. Attorney there to explain why certain documents really need to stay confidential until the investigation is over. I think they are fighting this the wrong way.

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