MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING, JIM HOOD, CHRIS LOTT, DAVID HUGGINS, MELISSA C. PATTERSON, JOSEPH A. RUNNELS, JR., SANDRA R. CHESTNUT AND HAROLD E. PIZZETTA, III
GULF PUBLISHING COMPANY, INC. MELISSA C. PATTERSON, STACEY PICKERING, INDIVIDUALLY, DAVID HUGGINS, INDIVIDUALLY, CHRIS LOTT, INDIVIDUALLY, MISSISSIPPI DEPARTMENT OF AUDIT, STACEY PICKERING IN HIS OFFICIAL CAPACITY AS STATE AUDITOR FOR THE STATE OF MISSISSIPPI, HAROLD E. PIZZETTA, III, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES, JOSEPH A. RUNNELS, JR., SANDRA R. CHESNUT AND JIM HOOD
GULF PUBLISHING COMPANY, INC.
OF JUDGMENT: 11/04/2013
OF JUDGMENT: 05/27/2014
COUNTY CHANCERY COURT, HON. JENNIFER T. SCHLOEGEL
ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY:
MARGARET P. ELLIS JUDY T. MARTIN ARTHUR F. JERNIGAN, JR. JOHN
G. CORLEW ROBERT V. GREENLEE ALAN M. PURDIE MELISSA C.
PATTERSON RONALD G. PERESICH ROY MERRITT TIPTON WILLIAM V.
WESTBROOK, III SAMUEL E. L. ANDERSON LYNN CHAIN WALL JOHN T.
KITCHENS THOMAS EUGENE WHITFIELD, JR. DION JEFFERY SHANLEY
ATTORNEY FOR APPELLEE: HENRY LAIRD
ATTORNEYS FOR APPELLANT: ARTHUR F. JERNIGAN RONALD G.
PERESICH JOHN T. KITCHENS ALAN M. PURDIE MARGARET P. ELLIS
JOHN G. CORLEW WILLIAM V. WESTBROOK ROY MERRITT TIPTON DION
JEFFERY SHANLEY MELISSA C. PATTERSON SAMUEL E. L. ANDERSON
JUDY T. MARTIN LYNN CHAIN WALL ROBERT V. GREENLEE THOMAS
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 Publishing's (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 GP's
records requests; (4) the State Auditor acted in bad faith
and willfully and wrongfully denied GP's 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 attorney's fees and expenses
resulting from the contempt; (6) GP was entitled to
attorney's 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 attorney's 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 GP's 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
Runnels, Sandra Chestnut, and Harold Pizzetta.
GP petitioned this Court for writ of certiorari, which was
granted. Having reviewed the record and considered GP's
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 the MPRA's
investigative-report exemption is overruled.
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 attorney's
fees as found by the chancery court, for denying GP access to
public records not exempt from the provisions of the
Also, we find no error in the chancery court's decision
to fine Huggins $100 under the penalty provision contained in
MPRA. See Miss. Code Ann. § 25-61-15 (Rev.
AND PROCEDURAL HISTORY
In 2012, a joint federal and state task force began
investigating DMR for misappropriation of funds. The
investigation lead to the indictments and convictions of
several individuals, including former DMR Director Dr. Bill
Walker; DMR Chief of Staff Joe Ziegler; DMR official Tina
Shumate; D'Iberville City Manager Michael Janus; and Dr.
Walker's son, Scott Walker.
During the investigation, on November 14, 2012, GP's
subsidiary newspaper, The Sun Herald,
submitted a written records request 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 newspaper's request, but DMR and the
newspaper could not agree on costs.
The newspaper submitted a second request on December 27,
2012, for additional records. Before DMR's compliance or
response was due, the Harrison County grand jury subpoenaed
the same records covered by the newspaper's November 14
and December 27 requests.
The subpoenas, issued at the behest of the Department of
Audit on January 6 and 9, 2013, required DMR's records to
"to be 'retained in-place, '" to "be
accessible upon demand 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.
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 as
uncopied and unscanned originals.
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
instead upon DMR's director.
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. 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 permit DMR to release to GP public
records in its possession, even if those records also were
subject to the subpoena.
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. 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.
Days later, DMR downloaded 22, 215 records to a
"DVD" and handed it over to GP. The only records
that were not released to GP were the uncopied and unscanned
originals no longer in DMR's possession, but in the
Department of Audit's possession. ¶14. Another
hearing was held on April 23, 2013, at which the chancery
court heard GP's 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 documents that [GP] now
seeks." The court ended the hearing by giving GP
permission to join the Department of Audit as a necessary
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.
DMR answered the second complaint by asserting that it had
not wrongfully denied GP's requests, and that GP's
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 MPRA's
"investigative report" exemption. See
Miss. Code Ann. § 25-61-3(f) (Supp. 2016).
The chancery court heard GP's 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 GP's requests.
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 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.
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
Before the chancery court's bench ruling was reduced to
writing, the Clerk of Court for the United States District
Court for the Southern District of Mississippi, through the
AUSA, issued a subpoena on November 4, 2013, commanding the
Department of Audit's 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 Audit's possession.
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 GP's 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 why he was
unable to bring the records. The chancery court ended the
hearing by ordering Patterson to produce the records to the
chancery court by 9 a.m. on November 5.
Shortly before midnight on November 4, the chancellor
electronically filed an 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 complied with the federal subpoena.
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 Harrison County Courthouse at
The chancery court issued a bench ruling on November 5,
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 Court's order to turn the documents over to
That same day, on November 5, the state grand jury and the
federal grand jury indicted several individuals in relation
to the DMR investigation.
On November 6, 2013, the Attorney General's 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
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 attorney's fees against the Department
of Audit. GP did not allege that DMR or any other individuals
were in contempt.
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 Audit had
waived the issue and denied the motion.
To make its case for contempt, GP first called State Auditor
Stacey Pickering to testify as to why his office chose to
comply with the federal subpoena.
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.
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
court's 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
bring the records.
Unbeknownst to Patterson, around 6 p.m. on November 4,
Huggins decided he had 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 court's
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 in Jackson by 9:00 a.m. on November 5. Huggins
said Lott called him an hour later and said, "We've
decided to move tonight."
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.
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 released. See United
States v. Walker, No. 1:13-CR-89-KS-MTP, 2013 WL
6805121, at *7 (S.D.Miss. Dec. 20, 2013).
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 supervision of the chancery court.