Sun Herald MSSC Opinion
Sun Herald MSSC Opinion
Sun Herald MSSC Opinion
NO. 2013-CT-02002-SCT
v.
NO. 2014-CT-00894-SCT
v.
1. The Court of Appeals reversed and rendered a final judgment entered by the Harrison
County Chancery Court, in which the chancery court held that: (1) Gulf Publishings (GP)
records request under the Mississippi Public Records Act (MPRA) was not subject to any
exemptions contained in the act; (2) the Department of Marine Research (DMR) acted in bad
faith by asserting defenses for the purpose of delay in violation of the Mississippi Litigation
Accountability Act (MLAA); (3) DMR willfully and wrongfully denied GPs records
requests; (4) the State Auditor acted in bad faith and willfully and wrongfully denied GPs
requests; (5) the State Auditor was in civil contempt from November 4, 2013, until it purged
itself on December 5, 2013, when it filed a motion with the federal district court, seeking
permission to release the records requested by GP, which were then in the custody of a
federal grand jury; therefore, the State Auditor was liable for attorneys fees and expenses
resulting from the contempt; (6) GP was entitled to attorneys fees under the MPRA, the
MLAA, and relevant caselaw for contempt and monetary sanctions for bad faith; (7) DMR
and the State Auditor were jointly and severally liable for attorneys fees and other expenses;
and (8) the following individuals were fined $100 each pursuant to the MPRA, for their
participation in the willful and wrongful denial of GPs public-records request: State Auditor
Stacey Pickering, Attorney General Jim Hood; Director of Investigations David Huggins,
Investigator Chris Lott, Special Assistant Attorneys General Melissa Patterson, Joseph
3
2. GP petitioned this Court for writ of certiorari, which was granted. Having reviewed
the record and considered GPs claim(s), we find the Court of Appeals should not have
reached the question of whether the investigative-report exemption under the MPRA applied
in this instance. As will be explained, that claim was waived. Therefore, that portion of the
Court of Appeals judgment holding that the public records sought by GP were exempt under
3. We find that the Department of Audit, as a public body defined by Mississippi Code
Section 25-61-3(a), is liable to GP for the civil penalty prescribed Mississippi Code Section
25-61-15, along with reasonable expenses and attorneys fees as found by the chancery court,
for denying GP access to public records not exempt from the provisions of the MPRA.1
4. Also, we find no error in the chancery courts decision to fine Huggins $100 under the
penalty provision contained in MPRA. See Miss. Code Ann. 25-61-15 (Rev. 2010).
5. In 2012, a joint federal and state task force began investigating DMR for
several individuals, including former DMR Director Dr. Bill Walker; DMR Chief of Staff
1
For purposes of this opinion, the Department of Audit refers collectively to the
Mississippi Office of the State Auditor and the Mississippi State Auditor, Stacey Pickering,
unless otherwise stated.
2
Most of the facts and procedural history are taken from the Court of Appeals
opinion in Mississippi Department of Audit v. Gulf Publishing Co., Inc., 2016 WL 1212695
(Miss. Ct. App. March 29, 2016).
4
Joe Ziegler; DMR official Tina Shumate; DIberville City Manager Michael Janus; and Dr.
6. During the investigation, on November 14, 2012, GPs subsidiary newspaper, The Sun
Herald, submitted a written records request3 to DMR, in accordance with Mississippi Code
Section 25-61-5 of the MPRA. Miss. Code Ann. 25-61-5 (Rev. 2010). DMR
communicated its willingness to comply with the newspapers request, but DMR and the
7. The newspaper submitted a second request on December 27, 2012, for additional
records.4 Before DMRs compliance or response was due, the Harrison County grand jury
subpoenaed the same records covered by the newspapers November 14 and December 27
requests.
3
1. All paperwork, documents and records of money transfers, payments, invoices,
contracts, copies of checks, check stubs, an account of all money spent, including copies of
leases, on boats leased by the DMR from the Mississippi Marine Resource Foundation or
Marine Resource Foundation from 2006 to present. This should include records of
expenditures by the DMR for repairs to the boats. 2. All documents related to expenditures
and funding sources for the DMR account label 601. The funding source for the 601
account, all deposits; and all of DMRs New Sub-Grant Concurrence Worksheets that use
the 601 account as a funding source. 3. All MOUs, MOAs, documents, paperwork and
money exchanged between the DMR and the Institute for Marine Mammal Studies. 4. An
expanded, complete explanation, including project work sheet and applications, for the
Coastal Impact Assistance Program (CIAP) project listed on the Executive Summary Final
Mississippi Coastal Impact Assistance Plan (Revised), 2007-2010 Plan Update 1 (through
August 31, 2010), State of Mississippi. Mississippi Department of Marine Resources and
Boards of Supervisors for Jackson, Hancock and Harrison counties as MS.R.747 New
Beginnings for Marine Education USM GCRl $8,000,000.
4
[A]ccount receipts, expenditures & balances for Artificial Reef Program
Accountfor fiscal years ending June 30 of 2008, 2009, 2010, 2011, 2012.
5
8. The subpoenas, issued at the behest of the Department of Audit on January 6 and 9,
by agents of the Mississippi Office of State Auditor, and to be released to no entity other
than [the Department of Audit]. The subpoenas also stated, This subpoena . . . may be
satisfied by mailing or delivering a certified copy of said records[.] Alleging the subpoenas
prohibited DMR from releasing its records to anyone other than the state auditor, DMR
informed The Sun Herald in writing that it could no longer comply with the public-records
requests.
9. On January 15, 2013, the Department of Audit took possession of the records pursuant
to the subpoenas. Almost all of the records had electronic copies. But a few records existed
10. The next day, on January 16, 2013, GP sued DMR in the Harrison County Chancery
Court to compel production of the records, without service upon the Attorney General, but
11. A week later, on January 22, 2013, special assistant attorneys general assigned to both
DMR (Joseph Runnels) and the Department of Audit (Melissa Patterson), worked together
to submit a protective order to the Harrison County Circuit Court.5 DMR filed the motion
for protective order in the circuit court, and the Department of Audit, through Patterson,
signed off on the motion. The circuit court found the . . . subpoena . . . prohibit[ed DMR]
from complying with the [MPRA]. Therefore, the circuit court modified the subpoena to
5
Runnels and Harold Pizzetta, both of the Attorney Generals Office, presented the
motion and proposed order to the circuit court.
6
permit DMR to release to GP public records in its possession, even if those records also were
12. On January 23, 2013, Counsel for GP Henry Laird and Counsel for DMR Runnels
appeared before the chancery court. Laird told the chancery court that the parties were still
working on a resolution and announced that he did not see any reason to go forward with the
expedited hearing set for that day. Laird said there were two categories of records, one
computerized, the other comprised of hard copies, which were voluminous.6 According to
Laird, they were attempting to work out an arrangement for GP to have access to the boxes
containing the hard copies so GP could identify what documents, if any, within those boxes
they wanted, and then have DMR make copies for GP.
13. Days later, DMR downloaded 22,215 records to a DVD+R and handed it over to
GP. The only records that were not released to GP were the uncopied and unscanned
14. Another hearing was held on April 23, 2013, at which the chancery court heard GPs
claim that it was still seeking the records for which no electronic copy was available. DMR
moved to dismiss, claiming GP had failed to prove that DMR wrongfully had denied the
requests. The chancery court said it could not force DMR to turn over records that they no
longer possess or have access to[.] Thus, the chancery court deemed the Department of
Audit a necessary party since they are the ones in physical custody and possession of all the
6
There were approximately three to four boxes of uncopied and unscanned originals
scattered throughout approximately thirty-eight boxes and two filing cabinetsor sixty boxes
total.
7
documents that [GP] now seeks. The court ended the hearing by giving GP permission to
15. GP filed a motion to amend its first complaint four months later, on August 16, 2013.
And on August 26, 2013, GP filed a new, separate lawsuit, naming DMR and the Department
of Audit as defendants, which was properly served on the Attorney General. The motion to
amend was granted on September 10, 2013. The two lawsuits were consolidated.
16. DMR answered the second complaint by asserting that it had not wrongfully denied
GPs requests, and that GPs claim already had been litigated in the first lawsuit. As part of
its answer, the Department of Audit asserted the records in its possession were exempt under
the MPRAs investigative report exemption. See Miss. Code Ann. 25-61-3(f) (Supp.
2016).
17. The chancery court heard GPs second claim on October 30 and 31, 2013. During the
hearing, the chancellor instructed the Department of Audit to bring the records to the
courthouse. Before the records arrived, the chancery court had ruled from the bench that the
records did not fall under the investigative-reports exemption. The chancery court allowed
the documents to be taken from the courthouse and instructed the Department of Audit to
copy the records or put DMR in a position to comply with GPs requests.
18. Though the chancery court later would rescind this statement, the court stated at the
end of the hearing that there has been no evidence presented to the [c]ourt that . . . DMR has
done anything other than attempt to comply with the records request, at least based upon the
8
evidence the [c]ourt has been presented. The chancery court, however, reserved the right
to add, alter, amend, and/or revise her bench ruling when reduced to writing.
19. That same day, on October 31, an Assistant United States Attorney (AUSA) attempted
to contact the chancellor. The chancellor did not speak with the AUSA or return his phone
calls.
Federal Subpoena
20. Before the chancery courts bench ruling was reduced to writing, the Clerk of Court
for the United States District Court for the Southern District of Mississippi, through the
Director of Investigations, Huggins, to appear the next day, at 9 a.m., at the federal building
in Jackson, Mississippi, and to bring all the DMR records in the Department of Audits
possession.
21. Around 2:40 p.m. on November 4, Huggins informed the Department of Audit
attorney, Melissa Patterson, of the federal subpoena. At around 5 p.m. that evening,
Patterson notified the chancellor. Subsequently, at approximately 7:00 p.m. that evening,
Patterson and GPs attorney, Laird, had a telephonic hearing with the chancellor. Laird
suggested that Patterson seek a motion to quash or a protective order. But Patterson
represented that she thought Huggins could, instead, appear before the grand jury and explain
9
why he was unable to bring the records.7 The chancery court ended the hearing by ordering
emergency order immediately seizing the records and ordering they be delivered to the
chancery court so they could be copied and Bates-stamped before the Department of Audit
23. The next morning, on November 5, Patterson contacted Investigator Chris Lott with
the Department of Audit to arrange transportation of the records to the chancery court, but
learned the records already had been transported to Jackson. Patterson notified the
chancellor, and another hearing was held that day in which the chancellor found the
Department of Audit in contempt of her October 31 bench ruling and subsequent emergency
order filed by the court on the Mississippi Electronic Courts (MEC) system the night before
on November 4, directing the Department of Audit to deliver the DMR records to the
I have no choice at this time but to find that the Auditor by acting in
cooperation with the federal prosecutor is in direct contempt of my ruling and
my order of last week on October 31, and certainly in direct contempt of my
protective order which I issued last night. Now, even if the Auditor
cooperated with the federal prosecutor pursuant to the subpoena prior to my
protective order being issued last night, nevertheless, the Auditor was certainly
aware and under this Courts order to turn the documents over to the DMR.
7
According to the record, Patterson did not inform the chancellor that she (Patterson)
was no longer calling the shots and had been replaced by Pizzetta from the Attorney
Generals Office.
10
25. That same day, on November 5, the state grand jury and the federal grand jury indicted
Interlocutory Appeal
26. On November 6, 2013, the Attorney Generals Office submitted a motion in the
chancery court to stay all further proceedings pending appeal. And on November 8, 2013,
the Department of Audit submitted a combined motion to alter or amend the judgment, to
vacate the November 4, 2013, order, and to stay all proceedings pending appeal. On
November 21, 2013, the Department of Audit petitioned this Court for interlocutory appeal,
along with a motion to stay the chancery court proceedings. On December 3, this Court
denied both the petition for interlocutory appeal and the motion to stay.
Contempt
27. On November 16, 2013, in an order for direction, the chancellor invited GP to file a
motion for contempt because the federal grand jury subpoena itself did not prevent or
restrict the copying of the original records requested by the subpoena. GP subsequently
filed its motion for civil contempt and attorneys fees against the Department of Audit. GP
did not allege that DMR or any other individuals were in contempt.
28. The civil contempt hearing started on December 4, 2013. At the beginning of the
hearing, the Department of Audit moved for the chancellor to recuse herself, as she already
had found the Department of Audit to be in contempt and, thus, reasonably would be
perceived as already having bias in this matter. The chancellor held that the Department of
11
29. To make its case for contempt, GP first called State Auditor Stacey Pickering to testify
30. Huggins was then called to testify about the events leading up to the delivery of the
records to the federal grand jury, instead of the chancery court. According to Huggins, the
AUSA, who was running the federal side of the DMR investigation, contacted him on
November 1, 2013. The AUSA asked Huggins to come by the federal building on November
4, causing Huggins to suspect that he might be issued a subpoena. Already concerned about
a federal subpoena, Huggins had spoken with Attorney General Hood, who advised,
hypothetically, should a federal subpoena come down, Huggins should comply with it.
31. Huggins voluntarily went to the federal courthouse on November 4 and was issued
a federal subpoena. Huggins said he initially thought he could comply with both the
chancery courts ruling and the federal subpoena. He had the records sealed and hoped that
would be enough to appear before the grand jury the next day and explain why he did not
to show up at the federal grand jury or face federal penalties. Huggins said his decision was
based on his conversation with Attorney General Hood as well as a conversation with the
AUSA. Huggins told the AUSA his plan to try to comply with both the chancery courts
ruling and the federal subpoena, but the AUSA advised Huggins to comply with the
subpoena. Huggins testified that he called Lott at approximately 6:00 p.m. on November 4.
Huggins told Lott that he (Huggins) had been directed by the AUSA to have these records
12
in Jackson by 9:00 a.m. on November 5. Huggins said Lott called him an hour later and
33. The contempt hearing ended with the Department of Audit informing the chancery
court that necessary steps were being taken to release the records from the federal court.
Motion to Release
34. On December 5, 2013, the Department of Audit filed a motion with the federal district
court seeking permission to release the records to GP. On December 20, the federal district
court ruled the records were not subject to federal grand-jury secrecy and, therefore could be
35. Pursuant to the federal district court order, on December 27, 2013, the AUSA released
the records to the Department of Audit, which then delivered them to the chancery court.
Over the next two to three weeks, GP inspected and copied in part the records under
Final Order
36. On May 27, 2014, the chancellor entered a sixty-seven-page omnibus final order.
(4) DMR acted in bad faith, asserting defenses for the purpose of delay in
violation of the Mississippi Litigation Accountability Act (MLAA);
13
(5) DMR willfully and wrongfully denied GPs requests;
(6) The Department of Audit also acted in bad faith and willfully and
wrongfully denied GPs requests;
(7) The Department of Audit was in civil contempt from November 4, 2013,
until it purged itself on December 5, 2013. Therefore, the Department of Audit
was liable for attorneys fees and expenses resulting from the contempt;
(8) GP was awarded attorneys fees under the MPRA (Miss. Code Ann. 25-
61-15 (Supp. 2016)), the Mississippi Litigation Accountability Act (MLAA)
(Miss. Code Ann. 11-55-5 (Rev. 2012)), and relevant caselaw for contempt
and monetary sanctions for bad faith;
(9) DMR and the Department of Audit were jointly and severally liable for
$36,783.50 in attorneys fees and $1,249.95 in expenses; and
(10) The following individuals were fined $100 each pursuant to 25-61-15 .
. . for their participation in the willful and wrongful denial of [GPs] public
record requests:
DISCUSSION
14
37. As the Court of Appeals correctly found, the Department of Audit is considered a law-
possession are exempt from the MPRA. Miss. Code Ann. 25-61-12(2)(a) (Supp. 2016).
38. But as evinced by the language of the subpoenas issued at the behest of the
Department of Audit, the documents sought from DMR were original business records
having been used, being in use, or prepared, possessed or retained for use in the conduct,
or required to be maintained by [DMR]. Miss. Code Ann. 25-61-3. Each subpoena was
nearly identical to the records requests previously sought by The Sun Herald.
39. On appeal, the appellants assert (as did the Department of Audit in the chancery court)
that these documents are exempt under the MPRA under grand-jury secrecy principles. But
as the chancery court found, any such claim was waived in this case.
40. Again, GP sued DMR in chancery court under the MPRA after DMR informed GP
it could no longer comply with GPs record request due to the two grand jury subpoenas that
were issued to DMR. After GP filed suit against DMR, special assistant attorneys general
assigned to both DMR and the Department of Audit, along with the Attorney Generals
Office, drafted and submitted a protective order on behalf of DMR to the circuit court
requesting that the circuit court modify the grand jury subpoena(s) so as to allow DMR to
8
As the dissent points out, the protective order was submitted to the circuit court by
DMR. But it was [a]greed to by Patterson, Special Assistant Attorney General assigned
as counsel for the Department of Audit.
15
41. The circuit court signed the order. But the order was limited to only those records that
remained in DMRs possession, via electronic copies. The order did not provide for the
42. Thereafter, GP filed a new lawsuit naming DMR and the State Auditor as defendants.
As part of its answer, the Department of Audit claimed that the records in its possession were
exempt under the MPRAs investigative-report exemption. No defense was asserted in the
Department of Audits answer that these records were subject to grand-jury secrecy laws.
43. The chancery court heard GPs claims against DMR and the Department of Audit on
October 30 and 31, 2013. Testimony was provided at the hearings by two investigators for
the Department of Audit in support of the Department of Audits claim that the records in its
possession fell under the MPRAs investigative-report exemption. The investigators said
these records would disclose the identity of witnesses and impede the ongoing DMR
investigation.
44. But the investigators testified in general terms only. And their testimonies provided
no explanation or even illustration as to how the uncopied original records in the Department
of Audits possession differed in any way from those records also in the Department of
45. This, coupled with the fact that a protective order drafted by the aforementioned
special assistant attorneys general only partly modified the grand-jury subpoena(s), leads us
to no other conclusion than that reached by the chancery court: the uncopied original
16
documents in the Department of Audits possession did not constitute investigative reports
46. With much respect for the dissent, this is not the only reason why we agree with the
47. As mentioned, each subpoena contained the following language: This data is to be
retained in-place and shall be accessible upon demand by agents of the Mississippi Office
of the State Auditor and shall be released to no entity other than the Mississippi Office of the
State Auditor. (Emphasis added.) This language extended beyond a requirement to produce
documents to the grand jury, and was akin to a writ of mandamus or prohibition, that
prohibited a governmental official from performing a specific act. In other words, it can be
construed as requiring DMR not to honor a pending MPRA request. See e.g., Farson, Son
& Co. v. Bird, 248 U.S. 268, 270, 39 S. Ct. 111, 111, 63 L. Ed. 233 (1919) ([T]he prayer
was that the county treasurer be mandamused to pay. . . .). We also recognize, as did the
chancery court, that throughout all proceedings, all investigative agencies, state and federal,
48. Moreover, when the federal district court examined these documents for purposes of
[T]he documents are public records created by DMR and obtained by the State
Auditor independent of the grand jury proceedings. The record contains no
indication that disclosure would endanger the secrecy of the grand jury, which
is the substantive purpose of Rule 6(e)(2). Therefore, based on the information
currently before the Court, the DMR records are not a matter occurring before
the grand jury, and they are not subject to Rule 6(e)s secrecy requirement.
...
17
Accordingly, the Court finds that the need for the DMR records to remain
secret is outweighed by the State Auditors need to comply with the Chancery
Courts order, the Chancery Courts obligation to enforce Mississippis Public
Records Act, and the principle of comity.
United States v. Walker, No. 1:13-CR-89-KS-MTP, 2013 WL 6805121, at **3, 6 (S.D. Miss.
49. For these reasons, we find that the chancery court did not abuse its discretion in
finding that the Department of Audit violated the MPRA by denying GP access to the public
records.9 10
Even though the Department of Audit was not an original party to these
proceedings, the Department of Audit delayed and expanded this litigation with a series of
actions that defeated GPs records request, beginning with the issuance of subpoenas
9
Section 25-61-15 has since been amended and states as follows:
Any person who shall deny to any person access to any public record which
is not exempt from the provisions of this chapter or who charges an
unreasonable fee for providing a public record may be liable civilly in his
personal capacity in a sum not to exceed One Hundred Dollars ($100.00) per
violation, plus all reasonable expenses incurred by such person bringing the
proceeding.
18
demanding that no one else have access to the public records sought by GP. And when the
chancery court ultimately decided that these documents were not exempt under the MPRA,
the Department of Audit continued to frustrate GPs records request. The Department of
Audit therefore is liable for expenses and attorneys fees in the amounts found and calculated
50. We disagree with the chancery courts finding that DMR violated the MPRA. The
record illustrates, as the chancery court initially found, that DMR acted in good faith to
resolve the public-records request. Accordingly, we find that DMR is not joint and severally
liable for attorneys fees, costs, and expenses, and we vacate that portion of the judgment.
51. Additionally, we find no error in the chancery courts decision to fine Huggins $100
under Section 25-61-15. The record illustrates that Huggins knew on November 1, the day
after the chancery court issued its bench ruling on October 31, that he might be subpoenaed
by the AUSA to produce the DMR records in the Department of Audits custody. Instead
of contacting Patterson, Huggins called Attorney General Hood, who advised him to follow
the instructions of the AUSA. On November 4, Huggins went to the federal courthouse,
where he received a federal grand-jury subpoena, which mirrored the state grand-jury
subpoenas, albeit without the added language contained in the state subpoenas requiring the
11
We disagree with the dissent that the chancery court assessed the Department of
Audit attorneys fees and expenses solely on the basis that it found the Department of Audit
to be in contempt November 5 to December 5. Based on our reading of the chancery courts
order, the chancery court held both the Department of Audit and DMR joint and severally
liable for $36,783.50 in attorneys fees and $1,249.95 in expenses for violation of either the
MPRA, and/or the MLAA, and/or for contempt of court. Further, even when a party purges
itself of civil contempt, it still can be assessed attorneys fees and expenses for causing that
contempt order to have been issued.
19
DMR documents to remain in place and not be released to any entity other than the
Department of Audit. The federal grand-jury subpoena instructed that Huggins deliver the
DMR documents in the Department of Audits possession in Biloxi to the federal courthouse
52. Testimony from State Auditor Pickering at the December 4 and 6 hearings shows that
all attorneys representing him and the Department of Audit were assigned by the Attorney
Generals office. According to Pickering, his assigned attorney, Patterson, had agreed to
bring the DMR records to the courthouse as ordered by the chancery court. After the
chancery court issued its October 31 ruling, Pickering told his staff the Court has ruled these
records are public and open and should be copied, and lets move forward to do so. When
Pickering was informed that Huggins had been subpoenaed, he also was told there was a way
to comply with both the order and the federal subpoena. Pickering testified that Huggins
made the decision to transport the records to Jackson and he (Pickering) was not informed
of the decision until after the documents had been delivered to Jackson. Huggins testified
that he had been ordered by Pickering to make the DMR documents available to GP and had
been instructed to honor the chancery courts order. Huggins also testified he was aware that
Patterson had agreed to make the documents available to GP and to set up a procedure
whereby an agent could be present to maintain the Department of Audits chain of custody.
53. We agree with the chancery court that Huggins knowingly denied GP access to the
public documents after the October 31 ruling. Accordingly, we find no abuse of discretion
in the chancery courts decision to fine Huggins $100 under Section 25-61-15.
20
54. No record evidence was presented that Pickering, Lott, or Patterson participated in the
wrongful denial of GPs record requests. Attorney General Hood and Special Assistant
Attorneys General Runnels, Chestnut, and Pizzetta were neither noticed nor called to testify
at the December hearings. Therefore, we must vacate that portion of the chancery courts
55. Lastly, we speak briefly to the federal grand-jury subpoenas issued through the
AUSA, by reiterating to all concerned what the United States Supreme Court has stated:
Ponzi v. Fessenden, 258 U.S. 254, 42 S. Ct. 309, 66 L. Ed. 607 (1922) (emphasis added).
[t]he chief rule which preserves our two systems of courts from actual conflict
of jurisdiction is that the court which first takes the subject-matter of the
litigation into its control, whether this be person or property, must be permitted
to exhaust its remedy, to attain which it assumed control, before the other court
shall attempt to take it for its purpose.
Id. at 260.
56. In Covell v Heyman, 111 U.S. 176, 4 S. Ct. 355, 28 L. Ed. 390 (1884), the Court also
explained:
21
a single system, exercise towards each other, whereby conflicts are avoided,
by avoiding interference with the process of each other, is a principle of comity
with perhaps no higher sanction than the utility which comes from concord;
but between state courts and those of the United States, it is something more.
It is a principle of right and of law, and therefore of necessity. It leaves
nothing to discretion or mere conveni[e]nce. These courts do not belong to the
same system, so far as their jurisdiction is concurrent; and although[] they
co-exist in the same space, they are independent[,] and have no common
superior. They exercise jurisdiction, it is true, within the same territory, but
not in the same plane; and when one takes into its jurisdiction a specific thing,
that res is as much withdrawn from the judicial power of the other as if it had
been carried physically into a different territorial sovereignty. To attempt to
seize it by a foreign process is futile and void.
Id. at 182. Undoubtedly, much of this matter could have been avoided had this been
regarded.
CONCLUSION
57. For these reasons, we reverse and vacate that portion of the Court of Appeals
judgment holding that the records sought by GP in the Department of Audits possession
constituted investigative reports exempted by the MPRA. We reverse that portion of the
Court of Appeals judgment that reversed and rendered the chancery courts judgment against
the Department of Audit for violation of the MPRA. We reverse that portion of the Court
of Appeals judgment finding that Huggins was not liable for the $100 penalty provision
under Section 25-61-15. We affirm the chancery courts ruling that the Department of Audit
is liable for $36,783.50 in attorneys fees and $1,249.95 in expenses. We reverse and render
the chancery courts ruling that DMR is joint and severally liable for the same. We reverse
and vacate that portion of the chancery courts judgment assessing, pursuant to the MPRA,
a $100 fine to Pickering, Hood, Lott, Patterson, Runnels, Chestnut, and Pizzetta. This case
22
is remanded for proceedings consistent with this opinion.
59. I would affirm the Court of Appeals decision holding that the public records sought
by Gulf Publishing Company, Inc., were exempt under the Mississippi Public Records Acts
investigative-reports exemption and that reversed the chancellors finding of contempt by the
60. The chancellor found and the majority holds that the Department of Audit waived any
claim that the records sought by Gulf Publishing constituted investigative records and
therefore were exempt under the Public Records Act. The majority bases its holding that the
Department of Audit waived the exemption on the fact that two special assistant attorneys
general, assigned to both the Department of Marine Resources and the Department of Audit,
respectively, drafted and submitted a protective order requesting that the circuit court modify
the grand jury subpoena to allow the Department of Marine Resources to release to Gulf
Publishing copies of the public records. However, the majority cites no case or statutory law
to support the proposition that the Department of Audit, which was not yet a party to the
lawsuit, could have waived the exemption to the Public Records Act by the drafting of a
23
protective order by two special assistant attorneys general.
61. Mississippi Code Section 25-61-12(2)(a) provides that [w]hen in possession of a law
enforcement agency, investigative reports shall be exempt from the provisions of this
chapter; however, a law enforcement agency, in its discretion, may choose to make public
all or any part of the investigative report. Miss. Code Ann. 25-61-12(2)(a) (Supp. 2016)
(emphasis added). The statute does not provide that, if the law enforcement agency does
make public any part of the investigative report, it waives the right to withhold other,
undisclosed parts. In fact, it provides the exact opposite: that a law enforcement agency can
provide only part of the investigative report or all of the investigative report if it so chooses.
As the majority points out, the circuit courts protective order applied only to records in the
possession of the Department of Marine Resources, and did not apply to the contested,
original documents that were in the sole possession of the Department of Audit. (Maj. Op.
at 41). The Department of Audit did not waive the exemption as to records that the
attorney for the Department of Audit did not arrange to be included in the circuit courts
order. The chancellor made, and the majority makes, the mistake of applying an event and
order applicable only to the records possessed by Marine Resources to documents possessed
only by the Department of Audit. There exists no evidence in the record that the Department
62. Further, the protective order was submitted by the Department of Marine Resources,
and it wholly excluded the Department of Audit. The protective order was entered on
January 22, 2013. The Department of Audit did not become a party until August 2013. Prior
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to the Department of Audit becoming a party, Gulf Publishing never submitted a written
records request to the Department of Audit. Before being made a party, the Department of
Audit did every identifiable thing in its power to help the Department of Marine Resources,
which could not claim an exemption under the Public Records Act, to comply with the
records request. After being made a party, the Department of Audit immediately claimed the
exemption.
II. The records were exempt from disclosure under the Public Records
Act.
63. The subpoena issued by the Harrison County Grand Jury required the Department of
by agents of the Mississippi Office of State Auditor, and to be released to no entity other
than [the Department of Audit]. The grand jury never relinquished control of the records.
The subpoena designated the Department of Audit as the custodian of the records. Neither
the grand jury nor the Department of Audit in its custodial capacity ever received a written
The provisions of this chapter shall not be construed to conflict with, amend,
repeal, or supersede any constitutional law, state or federal statutory law, or
decision of a court of this state or the United States which at the time of this
chapter is effective or thereafter specifically declares a public record to be
confidential or privileged, or provides that a public record shall be exempt
from the provisions of this chapter.
65. Proceedings before the grand jury are secret. See Addkison v. State, 608 So. 2d 304,
25
312 (Miss. 1992) (It is elemental that grand jury proceedings are cloaked with secrecy.)
If a grand juror, witness, district attorney, clerk, sheriff, or any other officer of
the court, disclose the fact of an indictment being found or returned into court
against a defendant, or disclose any action or proceeding had in relation
thereto, before the finding of the indictment, or in six months thereafter, or
until after the defendant shall have been arrested or given bail or recognizance
to answer thereto, he shall be fined not more than two hundred dollars.
Miss. Code Ann. 97-9-53 (1972) (emphasis added); see also Miss. R. Crim. P. 13.5(b)(3).
In State Farm Fire and Casualty Co. v. Hood, the United States District Court for the
The only document brought to this courts attention that is arguably deserving
of protection is the grand jury subpoena issued to State Farm on August 23,
2007. However, . . . the court is not convinced that disclosure of this subpoena
would in any way reveal to the public the specifics of this grand jury
investigation. The subpoena does not reveal the target of any investigation or
the issues being investigated.
State Farm Fire & Cas. Co. v. Hood, No. 2:07CV188 KS-MTP, 2007 WL 4208288, at *1
(S.D. Miss. Nov. 2, 2007). In the present case, Investigator Chris Lott testified that he used
everything thats listed in [the] subpoena as part of the investigation and that the
undisclosed records related to the two accounts would disclose the identity of witnesses and
defendants and impede the ongoing investigation. The records would reveal the targets and
66. Further, Harrison County Circuit Court Judge Roger Clark issued a protective order
finding that the subpoena duces tecum prohibited the Department of Marine Resources from
26
complying with the Public Records Act and allowing the release of documents in the
Department of Marine Resources possession. Therefore, the subpoena requiring that the
requested records be released to no entity other than the Department of Audit created an
67. The majority further finds that the records at issue did not constitute investigative
reports exempted by the Public Records Act. Section 25-61-3 defines investigative reports
as follows:
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activities; or
Miss. Code Ann. 25-61-3(f) (Supp. 2016). We explained earlier in the year that:
Miss. Dept of Corr. v. Roderick & Solange MacArthur Justice Ctr., No. 2015-CA-00431-
68. After the protective order was entered, Gulf Publishing received all the records
requested except for certain unscanned, original documents related to two accounts. As
noted above, Investigator Chris Lott testified that everything in the subpoena was used during
the investigation and that the records would disclose the identity of witnesses and defendants
and frustrate the ongoing investigation if specifics were printed in the newspaper. It is clear
that the remaining documents, at least, fell within the investigative reports exemption to the
69. I am wholly unconvinced by the logic of the majority and the chancellor that, because
the circuit courts protective order only partly modified the grand jury subpoena, the
original, uncopied documents were not truly considered by the Department of Audit to be
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investigative reports. (Maj. Op. at 45). The modification to which I think the majority
refers, that documents within the possession of the Department of Marine Resources could
be produced to Gulf Publishing, continued the protection afforded by grand jury secrecy and
the investigative reports exception to the uncopied, original documents at issue. The record
shows not that the Department of Audit and its attorneys considered the uncopied, original
documents to be no different than those already in the possession of Marine Resources, but
rather that the Department of Audit and its attorneys continued to assert that they were
protected from disclosure. It cannot follow, as it must for the majority to be correct, that the
Department of Audits attorney, Patterson, involved herself in the proceedings in circuit court
and agreed to the protective order that continued to apply the exemption to the uncopied,
original documents even though she saw no distinctions between the copied and uncopied
70. The chancellors final order found the Department of Audit in civil contempt for
failing to abide by the chancellors orders directing that the documents be produced to Gulf
Publishing. As a penalty for the civil contempt, the chancellor ordered the Department of
Audit to pay court costs and reasonable attorneys fees for the contempt period, which the
chancellor found to be from November 5, 2013, to December 5, 2013. However, by the time
the chancellor ordered the sanctions, the Department of Audit had purged the contempt.
Accordingly, the sanctions were not issued in order to compel compliance with the
29
chancellors earlier orders but, rather, to punish. Therefore, the chancellor mischaracterized
the contempt as civil; it was criminal contempt. Furthermore, because much of the alleged
contemptuous behavior took place outside the personal knowledge of the chancellor, it was
constructive criminal contempt. The law on contempt required the chancellor to recuse
herself, but she did not. Her failure to follow the law on the instant point constitutes
reversible error.
71. The majority justifies affirmance of the contempt order by characterizing the
Any person who shall deny to any person access to any public record which is
not exempt from the provisions of this chapter or who charges an unreasonable
fee for providing a public record may be liable civilly in his personal capacity
in a sum not to exceed One Hundred Dollars ($100.00) per violation, plus all
reasonable expenses incurred by such person bringing the proceeding.
Miss. Code Ann. 25-61-15 (Supp. 2016) (emphasis added). Contrary to the majoritys
characterization of the chancellors decision, the chancellor did not sanction the Department
of Audit pursuant to Section 25-61-15. Rather, the chancellor entered a detailed order that
explained at length that the sanctions were intended as a civil contempt penalty. The
72. Moreover, there are at least two problems with the majoritys holding that the
chancellor did not err in making the Department of Audit pay court costs and one month of
Gulf Publishings attorneys fees pursuant to Section 25-61-15 alone. (Maj. Op. at 49).
First, the records in question are exempt form disclosure under the Public Records Act, so
the Department of Audit could not violate the statute. Second, the statute clearly states that
30
a person in his individual capacity can be liable under Section 25-61-15, not a public body.
Therefore, the Department of Audit, as a public body, cannot be liable under Section 25-61-
15.
73. Turning to the vehicle actually chosen by the chancellor, she found the Department
of Audit in civil contempt of her October 31, 2013, bench ruling ordering the Department of
Audit to copy and produce the disputed documents and her November 4, 2013, order
directing the Department of Audit hours before the federal subpoena directed him to
produce the documents to copy the documents under the Courts supervision.
74. In short, I agree with the Court of Appeals. The chancellor ordered the sanction in
her order dated May 27, 2014, but found therein that the Department of Audit had purged the
contempt on December 5, 2013. The purpose of civil contempt is to compel compliance with
a court order. In re McDonald, 98 So. 3d 1040, 1043 ( 7) (Miss. 2012). Because the
Department of Audit had complied with the courts order months before the court set the
sanctions, it is impossible that the sanctions were imposed to compel compliance. Rather,
the sanctions must be considered to be imposed for punishment and were, therefore, proper
75. Moreover, if contempt it was, the Department of Audits failure to comply was
constructive contempt rather than direct contempt. Constructive criminal contempt applies
when the contemptuous behavior occurs even in part outside the presence of the trial
judge. Id. at 1044 ( 6). On the other hand, direct criminal contempt occurs when the acts
in question occur in the very presence of the judge making all the elements of the offense
31
personal knowledge. Id. (citing Varvaris v. State, 512 So. 2d 886, 88788 (Miss.1987)).
In the case sub judice, the chancellor found the Department of Audit in contempt for several
acts that occurred outside her presence and as to which she lacked personal knowledge,
including delivering the contested documents to the federal grand jury and failing to produce
the contested records to the Department of Marine Resources. Accordingly, the contempt,
76. A trial judge who institutes constructive criminal contempt proceedings must recuse
and let the hearing be conducted by another judge. McDonald, 98 So. 3d at 1044 ( 9). The
Court has repeatedly so held. Id. In the instant case, the chancellor did not recuse herself;
the Court of Appeals correctly held that the finding of civil contempt against the Department
of Audit must be reversed. The chancellor further erred in finding that the Department of
Audit had waived her recusal, as the recusal is something the law requires directly of the
judge. Id. The party need not request it at all, and therefore cannot waive it by failing to
request it.
Conclusion
77. The facts of the instant case do not bear out the majoritys holding that the Department
of Audit waived the investigatory records exemption or grand jury secrecy as to the uncopied,
original documents that at the relevant time were in the sole possession of the Department
of Audit. The facts show the opposite: although the Department of Audit acted to facilitate
the dissemination of those records that had been copied and remained in the possession of
32
documents. Protection from disclosure not being waived, I would hold that the chancellor
78. Moreover, pursuant to well-established law, the chancellor erred in finding the
contempt award against the Department of Audit, the majority undermines fundamental due
contempt.
79. Finally, in affirming the chancellor and reversing the Court of Appeals, the majority
leaves unaddressed other assignments of error raised by the appellants that could result in a
reversal of the chancellor. For example, the Court of Appeals declined to consider the
Department of Marine Resources argument that the chancellor erred in recanting earlier
rulings in its favor because it found the investigative records exemption issue to be
dispositive of all issues. The majority today remains silent as to the issue and other issues
raised in the five appellants briefs, even though, on the merits, one or more of them might
well command a different holding from us. The choice of a majority of the Mississippi
Supreme Court to ignore issues raised by parties appearing before it troubles me. If the
majority does not wish to address them, perhaps the majority should remand the case to the
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