Last week the U.S. attorney’s office tried to bail State Auditor Stacey Pickering out of his public records request mess by trying to pull rank on state court Judge Jennifer Schloegel of Gulfport. Here is the A.P.’s report.

It took U.S. District Judge Keith Starrett little time to reject what smelled like a back room deal to try to help Pickering save face. The Sun-Herald reported on Saturday:

A federal judge on Friday ordered the release of documents sought by the Sun Herald for more than a year in its investigation of the Department of Marine Resources.

District Judge Keith Starrett gave the U.S. Attorney’s Office 10 days to turn over the records…

“The United States represents that these documents are part of an ongoing grand jury investigation,” Starrett wrote in his order. “But the record contains no indication that they were presented to the grand jury before the indictments were issued Nov. 5, 2013.

“Furthermore, the United States conspicuously failed to represent that the documents would be presented to the grand jury at some point in the future. The government’s position appears to be that the DMR records are part of a grand jury proceeding because they were obtained by a grand jury subpoena, without regard for their actual role, if any, in the grand jury proceeding.”

He also said the government admitted in its brief that the rule against disclosing “a matter occurring before the grand jury” does not apply to “material obtained or created independently of the grand jury as long as the disclosure of such material does not reveal what transpired before or at the direction of the grand jury.”

He found the records could not reveal what transpired before the grand jury because there was no evidence they had been presented to the grand jury. The records, he wrote, “are public records created by the DMR and obtained by the state auditor independent of the grand jury proceedings.”

Starrett found that if he didn’t permit Pickering to disclose the DMR records, he could be held in contempt of court by Schloegel. And, he said, keeping the records secret would essentially nullify the authority of the Chancery Court and the Legislature, which passed the Public Records Act.

My Take:

Good for Judge Starrett. This was the right thing to do. The Mississippi Legislature has decided what are public records. Pickering and the U.S. attorney should not get to maneuver around that, regardless of their motive.

Speaking of motive, many people on the Coast assume that Pickering was trying to hide something because the defendants in the DMR investigation are big Republican supporters. That suspicion makes it even more important for these records to be released.

I’m not going to go so far as to say that this was a political disaster for Pickering. But the Coast is a region with a lot of Republican voters. This debacle will hurt him if he ever has to run in a contested Republican primary for U.S. Senate or another statewide office.

What is it with some government agencies and refusing to release public records? Public records are just that. Records that the public is entitled to under state law. Don’t like it? Too bad. That’s the law. Judges are in the business of enforcing the law. So refuse to follow a judges order to release public records at your own peril.

The big news last week was State Auditor Stacey Pickering refusing to turn over records to the Sun Herald pursuant to an order by Chancery Judge Jennifer Schloegel. Instead, Pickering’s staff drove the documents to Jackson over night and gave them to federal prosecutors.

Pickering says his office had cover because federal prosecutors issued a grand jury subpoena for the documents–after the judge issued her order to produce the records to the newspaper. Does a federal subpoena trump a Mississippi law and state court order? Not according to Judge Schloegel.

Late Friday afternoon Pickering and his attorneys requested a lifeline and asked for a conference call with U.S. District Judge Keith Starrett. Judge Starrett rejected Pickering’s request for help and informed them that Judge Schloegel’s order was the law. I smell a motion to recuse Judge Starrett.

Earlier last week, Pickering flailed around trying to get Judge Schloegel to recuse herself before asking the feds for help.

What are people on the Coast privately asking? They are asking what Pickering is hiding. That’s not good… for Pickering.

It’s not just Pickering. Jackson Jambalaya reported last week about the new City of Jackson administration not releasing public records.

What’s the deal? My guess is that not releasing public records makes people feel powerful. And for many peopl, feeling powerful feels good. Or maybe they are just stupid. Who knows?

But here’s a tip for anyone who ever is ordered to do something by a judge. Do it. Just do it. The Order is your cover. Don’t play Mr. Fancy Pants. Judges really don’t like people playing games with them.

And as Pickering is finding out, judges don’t like it when you don’t follow their orders.

In Pickering’s case, what he should have done was told the feds that Judge Schoelgel had made her order and he was going to comply unless the feds could get the judge to withdraw her order. That would have forced the feds to either enter the fray in state court, or go away.

Yea, he could have filed a motion for protective order, but if he wants to pretend he’s only trying to help the feds then he can let the feds carry their own water.

Instead, Pickering’s office played Mr. Fancy Pants and tried to make an end run around a state court judge. As always, the cover up is worse than the crime. No matter what happens from here, Pickering is a huge loser in this.

The Clarion-Ledger printed this story this morning by Miss. Business Journal writer Clay Chandler. The story covers the status of the non-economic damages caps debate following the 5th Circuit upholding the caps in Sears v. Learmonth.

The story extensively quoted MC Law School Professor Matt Steffey:

“The Mississippi Supreme Court is not by anyway bound by the Fifth Circuit’s opinion,” said Matt Steffey, professor at Mississippi College School of Law in Jackson. “They may or may not find it persuasive.”

Steffey said the part of the Fifth Circuit’s opinion that referred to the disposition as an “eerie guess” means the court is supposing what state law will be.

“It’s certainly not settling the matter,” he said.

The issue will likely reach the Mississippi Supreme Court in a way that it will be obligated to answer it, Steffey said, referring to the state court’s decision to pass on the issue last summer.

“By that, I mean it will be presented in such a way that it will be straight-forward constitutionally.

“Even if the Mississippi Supreme Court is persuaded by the Fifth Circuit’s reasoning on the central issue of this appeal, and that is the inviolate right to the jury guarantee, that’s the central holding of the Fifth Circuit’s opinion, and maybe the Mississippi Supreme Court finds that persuasive and adopts it,” he said.

Prof. Steffey is a good source for an article like this, since he is unbiased (compared to someone like me) and doesn’t have to worry about offending his clients (which keeps defense lawyers from publicly criticizing caps).

The big question now is when will the Supreme Court have to decide the issue. My opinion is that the Court can avoid the issue for as long as it wants. Others disagree.

Yesterday Ya’ll Politics had this post about the formation of Justice Mike Randolph’s campaign committee. It’s an impressive list of bar and business leaders in South Mississippi.

The list includes multiple past presidents of both the Mississippi Bar and the Mississippi Association for Justice, which is a bar group limited to plaintiff’s attorneys.

It’s an impressive list. Plugged in folks in South Mississippi will know, or know of, just about everyone on the committee. And if a football game breaks out, Justice Randolph can count on committee member Brett Favre to quarterback his squad. But if that happens, expect Randolph to get penalized 15 yards for piling on.

Meanwhile, Justice Randolph’s challenger—flamboyant Hattiesburg lawyer Tal Braddock—is off to a slower start. Braddock’s campaign finance filings show that he has raised a total of $500. Of that, $400 came from Braddock’s secretary. The other $100 came from Joseph Speed, an insurance agent from Madison. Incidentally, I didn’t think that candidates had to list donations of less than $100 on their finance report.

In pro wrestling (that’s right, I know my wrasslin) an extremely one-sided match that is over quickly is called a “squash.” Randolph is going to squash Braddock in this election.

After reviewing the Mississippi Supreme Court’s 77–page opinion upholding Gov. Barbour’s pardons, I ended up where I started: leaning to the conclusion that pardons aren’t valid when the Constitutional publication requirement wasn’t met. My take could simply be an example confirmation bias at work.

Majority Agrees that Constitution Requires Publication

The majority framed the issue as follows:

the controlling issue is not whether Section 124 requires applicants for pardons to publish notice – it clearly does. The controlling issue is whether the judicial branch of government has constitutional authority to void a facially-valid pardon issued by the coequal executive branch, where the only challenge is compliance with Section 124’s publication requirement.

*****

As stated earlier, the issue before us is not whether the thirty-day-notice provision must be complied with—it must. Instead, the question to be resolved today is which branchhas the final reviewing authority over whether the publication procedure was met.

The majority concluded that the Governor gets to decide if the notice provisions were complied with—even in cases when it’s stipulated that they weren’t. The majority’s opinion heavily relied on Ex. Parte Wren, 63 Miss. 512 (1886). More on that later.

Highlights from the dissents

The first sentence of Justice Randolph’s dissent garnered much attention:

Today’s decision is a stunning victory for some lawless convicted felons, and an immeasurable loss for the law-abiding citizens of our State.

But other sections of Randolph’s dissent are just as powerful:

Our Constitution limits the pardoning power of the governor. See Miss. Const. art. 5, § 124 (1890). In the absence of publication, a pardon is outside the scope of the governor’s authority.

***

Can these putative pardonees ignore the Constitution? The Constitution says no. Can the governor ignore the Constitution? The Constitution says no. Does the executive branch possess the right to deny and impair substantive rights “retained by, and inherent in, the people”? See Miss. Const. art. 3, § 32 (1890). The Constitution says no. Does the executive branch possess the right to waive the people’s substantive right to “petition the government on any subject”? See Miss. Const. art. 3, § 11 (1890). The Constitution says no. The majority relinquishes the constitutional question to the governor, and then concludes that the governor’s decision is not reviewable by a court. See Maj. Op. at ¶¶ 5, 27, 45. Where does the Constitution impart to the governor the power to be the sole judge of the validity or legality of his actions?

***

Mississippians did not bestow upon the governor an unconditional grant of authority to pardon.

From Chief Justice Waller’s dissent:

….Mississippi gave the governor the power to issue pardons and other forms of clemency. However, the people gave the governor this power only in certain situations.

From Justice Pierce’s dissent:

Many issues presented to this Court require complex analysis, not always because the words before us are hard to understand; rather, because we make them so. I find this case simply an analysis of words and a determination of their legal meaning. To be clear, Article 5, Section 124, of the 1890 Mississippi Constitution is neither hard to apply nor difficult to understand. ¶134. Section 124 calls to us from 1890 and beckons this Court to read it and apply its meaning–as written. In a real sense, Section 124 is dressed up and ready to go. Sadly, the majority drives by without so much as slowing down. Thus, Section 124 will forever be waiting–its word never judicially determined.

***

And by duty and necessity, the obligation of determining whether, in specific instances, one of the departments has exceeded the powers granted to it, “devolves” upon the judiciary. Albritton v. City of Winona, 178 So. 799, 803 (Miss. 1938).By its decision today, this Court has not only abdicated the judiciary department’s contemplated role under our theory of government, it has effectively amended Section 124 of the 1890 Mississippi Constitution back to Article 5, Section 10 of the 1868 Mississippi Constitution.

***

Here, this Court has been asked to resolve, authoritatively, whether the pardons issued by Governor Barbour complied with Section 124’s notice and publication requirements. But rather than decide the question, the majority re-embraces Hunt and Wren and expands their holdings to find the matter nonjusticiable. In so doing, the majority has effectively countenanced a view that almost any interpretation the executive or legislative departments may give to the Mississippi Constitution–no matter how erroneous–is now binding on the judiciary. This is a plank I choose not to walk.

My Take:

I didn’t buy it before, and I still don’t. The Court’s decision means that the Governor can do whatever he wants on pardons. Take your magic-marker and black out the Constitution’s publication requirements. If a Governor wants to sneak in a pardon for a political crony with no notice to anyone, it’s fine. The Mississippi Judiciary will not interfere.

That’s bad law in my book. Particularly for a State with a sordid history of abusing power and suppressing Civil Rights while the state judiciary sat on the sidelines—if not outright cooperated with the thugs—and left it to the federal government to enforce the law.

I particularly dislike the majority’s heavy reliance on an 1886 Mississippi Supreme Court decision(Ex Parte Wren). Wren was a traveling salesman from Louisiana who was arrested in Jackson for showing goods and taking orders on behalf of a New Orleans company (Philip Laal) without paying a newly enacted State tax of $25 “on each person traveling and selling goods or merchandise by sample or otherwise in this State”. Wren argued that the law was not passed by both houses of the Mississippi Legislature. The Mississippi Supreme Court ruled that it didn’t matter. The law was presumptively good.

The problem I have with the majority’s reliance on Wren is the historical context of Mississippi in 1886. This falls squarely into the period when whites were passing laws to disenfranchise blacks following the end of Reconstruction. In addition to disenfranchisement laws, the whites in power were murdering scores of black citizens in order to restore white supremacy. It was a corrupt and lawless time in the State of Mississippi. The Mississippi Supreme Court did not equally enforce the law. Nobody did until the federal government stepped in in the 1960’s. Of course the Mississippi Attorney General argued in favor of the arrest in Wren, he would have been in on what was going on in the State.

With all due respect for the Court, this 1886 opinion by the Mississippi Supreme Court should be given little, if any, precedent authority. The case upheld a bogus-sounding tax (approx. $600 in today’s dollars) on an out-of-state salesman. The effect of the tax and the Court’s ruling was probably going to be to run the New Orleans grocer out of Mississippi. And the law wasn’t even passed by the Legislature? In 1886? The very year that Mississippi disenfranchised blacks? Is that just a big conincidence? How can we trust that Wren was on honest legitimate decision?

In 1886 white power brokers inside Mississippi were consolidating their power and running off (or worse) anyone who got in their way. People like Wren were viewed as carpetbaggers who were taking money out of the pockets of local businessmen. I’m guessing that the Wren tax was not enforced on local Mississippi salesmen. I’m guessing it was a corrupt tax that was selectively enforced.

Bottom line is that Wren sounds real fishy. Given the year that Wren was decided and Mississippi’s political climate at the time, it can’t be trusted as an honest decision. It has no place in a 2012 opinion. Ironically, the Court uses Wren to support upholding pardons that many people feel were suspect.

I’ve heard from a lot of defense lawyers this week about what an abomination the Republicans’ “loser pays” legislation would be for the people of the State of Mississippi. My response is…..say it (play video):

Not to me. I get it. Say it to your elected representatives. Say it publicly. Don’t be afraid. You can do it.

Do not tell me that you are afraid that your clients would not like it if you say it.

First, you underestimate your clients. Those in-house lawyers and insurance adjusters you work for need the legal system just as bad as you do. What exactly is it you think they would be doing if they didn’t have you to manage? Like you, they are expendable. So they will not get bent out of shape if you speak up for the citizens of your state.

Second, you aren’t going to have any clients if this bill passes. Look to the lawyer to your right. Look to the lawyer to your left. Look at your legal assistant and secretary. None of you will have your current job in three years if this bill passes. Entire insurance defense firms will disappear. Litigation departments of full service firms will be gutted.

Most importantly, this bill is bad for the people of this state. And you know it.

As expected, Republicans are moving forward with “Loser Pays” legislation in the Mississippi Legislature. But there is a major twist. Only some losers pay. With the Republican party controlled by big business, can you guess which ones?

Here is Representative Gary Chism’s – House Bill 562. The title tells a lot: “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action…..”

The key provisions of the bill are:

• defendants may recover the “expenses which may include time spent in preparation of defense and other legitimate expenses to the court for approval of payment from the plaintiff and the plaintiff’s attorney to the defendant in the event that the decision is in favor of the defendant.”
• “If the plaintiff’s attorney has a payment arrangement of a set fee or an hourly fee as his remuneration from the the plaintiff, then the attorney will have no obligation to the defendant.”

This means that big corporations that can afford to pay their lawyers by the hour can sue whoever they want without risking the loser pays provision. The poor and middle class who can only sue if an attorney will take the case on a contingency fee run the risk of having to pay the big corporation’s legal fees if they lose. This would obviously force losing plaintiffs into bankruptcy.

And what happens if somebody does take on the big corporation and wins? No loser pays. The corporation gets away with just paying what it owed to get the plaintiff back to even.

Rep. Chism’s proposal would turn the American civil justice system on its head in Mississippi. Not only will it kill the legal profession, it gives corporations a license to disregard safety rules whenever they want. This bill would make Mississippi the most dangerous place to live in the United States.

It will be interesting to see if the defense bar and Mississippi Bar as a whole has the guts speak out against this bill.

Jackson Jambalaya has the video of the hearing before Hinds County Circuit Judge Tommie Green over Attorney General Jim Hood’s helping get the pardon recipients out of jail attempt to block the release of convicts who Gov. Barbour pardoned. I must confess, I didn’t watch it. I’ve never been much on pre-season games. I view the Circuit Court fight as a pre-season skirmish before the Supreme Court decides the issue.

Procedurally, this reminds me of when Judge Malcolm Harrison had to decide the case that challenged the personhood initiative. Everyone knew that the case involved constitutional issues that the Supreme Court would have to decide. Everyone except the Supreme Court that is. In hindsight, the Supreme Court deciding to not decide was sheer brilliance. But my point is that whatever Judge Harrison ruled, the Supreme Court would have final say. The same appears to apply to Judge Green’s decision regarding the Barbour pardons.

One argument being made to uphold the pardons is that the Governor’s decision on pardons are final and not subject to review. Cottonmouth was the first site that I saw raise this issue in this post. Anderson cited a dissent from a 1921 Mississippi Supreme Court case that stated that a Governor’s decision regarding whether publication was made is not open to judicial review. So far I’m not getting this argument.

The same Mississippi Constitution provision that creates the Governor’s right to pardon requires publication before the issuance of the pardon. I don’t see where the Constitution grants to Governor the right to pick and choose which provisions have to be followed. Perhaps the Governor does have that right with respect to pardons. But I want to hear it from the Supreme Court before I’m buying it. Or at least get a better justification than I’ve read so far.

Finally, I’m against what I perceive to be knee-jerk reaction to Barbour’s pardons that the pardon laws should be changed. Getting past the issue of whether that can be done without an amendment to the Constitution, I’m not in favor of throwing out the baby with the bathwater. There are situations where pardons are appropriate and just. I don’t want to take away the power to grant the “good” pardons because people don’t like how Gov. Barbour exercised that power. People who don’t agree with the pardons should be mad at Gov. Barbour—not the law.

Mississippi had two big wins recently in civil litigation headed by Attorney General Jim Hood.

Mississippi Recover $8.1 Million in Tobacco Litigation

A couple of weeks ago, Jackson County Chancery Judge Jaye Bradley ordered R.J. Reynolds to pay the State over $8.1 million based on the company under paying the State in money owed from the 1997 tobacco settlement. Here is the Clarion-Ledger article on the State’s win.

Can you believe it? A tobacco company lied about cigarettes. What’s the world coming to?

Meanwhile, General Hood’s opponent in the November A.G. election criticizes Hood’s use of out-of-state lawyers in A.G. litigation:

His opponent in this fall’s election, Steve Simpson, has criticized Hood for selecting law firms to represent the state without independent oversight.

“If elected, I will ask the Legislature to establish a procedure to review the reasonableness of the contingency fees after an application by the law firm,” Simpson said in a statement. “I believe that our law firms in Mississippi are some of the best in the country and will ask that these firms be given preferential treatment when outside counsel is required.”

So who were these lawyers who Hood hired for the recent tobacco litigation? The Ledger reports:

The state’s legal team was headed by Lee Young, who worked on the original tobacco settlement, Hood said.

So where is this “Lee Young” from? Oh, Pascagoula. Granted that’s in Mississippi, but barely.

Assisting Young on the tobacco case were Matthew Mestayer of Biloxi and Charles Mikhail of Moss Point.

Mississippi Recovers $38 Million in Drug Litigation

Wednesday’s Clarion-Ledger reports that the State is recovering $38 million from Sandoz, Inc. for inflating wholesale prices of prescription drugs:

Judge Thomas Zebert awarded Mississippi $23,661,618 in compensatory damages, $11,830,809 in punitive damages and $2,699,000 in penalties, for a total of $38,191,427.

In addition, the court entered an injunction on Sandoz reporting false average wholesale prices to Mississippi, the release stated.

“Sandoz, with its greed for more profits, caused Mississippi to overpay on drug prescriptions and some of our neediest citizens were being denied health care due to cost overruns,” Hood said in the release.

Representing Mississippi in the drug litigation was Ronnie Musgrove (name sounds familiar) of the Copeland Cook law firm in Ridgeland. The only odd thing about that is that Copeland Cook is a large insurance defense firm.

My Take:

In a two week period Jim Hood recovered $46 million for the State. And he did it with Mississippi lawyers. This was probably not the best two weeks for the Simpson campaign.

The problem that Republicans have in unseating Jim Hood is that Hood seems to be doing a credible job as A.G. I agree with Simpson that Mississippi lawyers should get preferential treatment when outside counsel is needed. But it’s not like Hood only uses out-of-state lawyers. Mississippi lawyers are sprinkled in even on the cases where out-of-state lawyers are used. I just don’t see Simpson getting much traction with this criticism of Hood.