Recall that, at the outset of the Jones case, Grady Tollison asked Judge Lackey to put the case under seal to allow the parties to negotiate briefly.
There’s an idea being floated by the Scruggs-advocates (a meme) that somehow Judge Lackey went along with something analogous to the contact by Balducci when he granted the order to seal the case at the beginning. One source advancing this argument is Steve Eugster’s wikiscruggs page. I’m seeing it crop up elsewhere. And I’m tired of it.
The rules of procedure contemplate ex parte contact in limited circumstances. That’s why the rules against ex parte contact except what is legally allowed. For instance, Miss.R.Civ.Pro. 65 (and the federal analog) explicitly allows temporary restraining orders without notice where there is an emergency that justifies it. As a matter of routine in federal court, prosecutors seek to seal and keep sealed an indictment while there are negotiations about a potential resolution. Those discussions often begin ex parte, before the defendant even knows there is an indictment.
The rule about this is pretty simple. If for procedural reasons there is a need for ex parte contact, if ex parte contact gives neither party a procedural advantage, and everyone is going to get reasonable notice about what happened, the ex parte contact is legal. The ex parte contact needs to carry with it procedural safeguards that assure the other side will know the details, promptly.
What happened in Jones is this: Grady Tollison filed suit when the dispute got serious. Knowing that there were reasons both sides didn’t want this to become a public dispute, he asked Judge Lackey for the case to be sealed. This was: (a) an administrative ruling that (b) gave no party a procedural advantage and (c) was promptly disclosed to the other side, who immediately learned of the lawsuit and that it was under seal.
On the other hand, when Tim Balducci entered the case, he sought: (a) a substantive ruling that (b) gave Scruggs the relief he sought in the case and (c) had no intention of letting the other side know it was going on.
Can everyone agree that neither Grady Tollison nor Judge Lackey crossed a line by requesting and entering an order to seal at the beginning of the Jones case? Can everyone agree that what Balducci did at the behest of the Scruggs Law Firm was an outrageous breach of the rules, even before it turned to bribery?
And can everyone agree that it is pretty close to insane to equate secretly approaching a judge and bribing him with what was done at the beginning of the Jones case? Grady Tollison put everything he did on the record. When Scruggs’s lawyers entered the case, they knew it was under seal from the git-go. The record shows that Grady Tollison gave Scruggs hand-delivered notice of the complaint and seal <i>the same day the complaint was filed and the seal order entered</i>. By contrast, at no time did Scruggs’s side do anything to put on the record that they had made ex parte contact with Judge Lackey to bribe him to obtain an order.
I would invite the people spreading this meme (Steve Eugster included) to respond and explain to me how they are equating Tim Balducci’s criminal contact with the judge with Grady Tollison’s contact, and explain their suggestion that Judge Lackey did something illegal at the start of the case.
For those who are interested in the fundamental rules, here is the relevant Code of Judicial Conduct, from the Miss. Supreme Court website:
A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
a) where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized: provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
This is typical “Scorched Earth” Scruggs garbage that is part of Scruggs/”his people’s” M.O. While the majority of the people out there are able to see straight through it, the meme effect does allow the “thing” being repeated to gain credibility amongst LAZY people. Consider tactics used by Mr. Rove, Dick Morris….
Good job on your part for trying to head this one off at the pass.
The linked wiki discussions below are basic but still good reading.
http://en.wikipedia.org/wiki/Poisoning_the_well
http://en.wikipedia.org/wiki/Ad_hominem
It is particularly disgusting, given that the “entrapment theorists” for Scruggs et al… even after they’ve all admitted their GUILT… continue to search for ways to turn their unwarranted heroes into the victims, by attempting to vilify the one lawful person in this entire story, Judge Lackey.. and the one person to whom honesty and integrity can be credited. Beyond the pale to me,
I don’t put much stock in anything Steve E states.
Think Steve might be a friend of Belle’s?
irate-
Not meaning to sound pious, but I think that shows a marked degree of clear thinking on your part. He has to be some sort of a commissioned officer in Dickie’s Army.
who in the world is steve eugester?
An unashamed Scruggs drone, who by the way found Judge Biggers to be “mean-spirited” in his comments to Zach. Oh my.
“the former councilman; the failed county commission candidate; the serial litigator; our legendary domineering know-it-allish civic pain in the " ”
http://www.spokesmanreview.com/local/story.asp?ID=167953&page=all
I have wondered what about Scruggiana rang his own personal bell off there in the Pacific NW.
I agree with you NMC. When I first read that, I just chalked it up to an uninformed writer who did not know what he was talking about, or figured him to be an apologist for the Scruggs. No honest, objective analysis could logically compare the two scenarios presented.
I assumed his own legal troubles made him identify with Scruggs.
http://www.spokesmanreview.com/local/story.asp?ID=229324
jane: i can’t open the link. can you copy and paste.
you have to register to access the stories that Jane posted. i wonder if she could copy and paste a coupla excerpts?
Here’s part of the story:
Disbar Eugster, bar association panel recommends
Richard Roesler
Staff writer
January 26, 2008
OLYMPIA … A state bar association disciplinary board is recommending that Washington’s highest court disbar Spokane lawyer and former city councilman Steve Eugster for his handling of the case of an elderly widow who wanted to cut her son out of any inheritance.
The disbarment recommendation now goes to the state Supreme Court.
Eugster … who didn’t know about the decision until a reporter called him … had no immediate comment. Arguing against disbarment at a hearing last fall, he said he was trying to protect and help his client, whom he considered a family friend.
Eugster has retained Shawn Newman, a well-known Olympia lawyer, to represent him. Eugster has previously said he would contest disbarment before the high court. Scheduling oral arguments and getting a ruling would likely take months.
The case in question involves an 88-year-old Colville woman, Marion R. Stead, who hired Eugster in 2004 to rewrite her will and related documents. She told him she wanted to distance her estranged son, Roger Samuels, from her financial affairs.
Eugster quickly drafted a new will, trust and other documents, including a durable power of attorney that … at her request, he says … gave him the ability to make decisions for her.
Eugster eventually concluded that Stead’s concerns about her son … whom she apparently missed and wanted to reconcile with … were baseless. But when he told her that and tried to arrange a family reconciliation, she fired him.
NMC @ post 9
Probably the same thing that has rung your, Rossmiller, Lotus and Alan Lange’s bell about Dickie $cruggs would be my guess.
Needless to say the sanctimony is entertaining…..
sop
When he started commenting on YP a while back, I looked him up to try to understand what on earth… it took only a simply Google search to see what I was dealing with and easier still to dismiss anything else he posted.
Lotus, as you know I am no lover of Scruggs & Co, nor Steve E or Belle, and that I do love the law in a way Zach Scruggs can’t fathom ….
So, I’ll take a different side of the Tollison maneuver (and put on my flame retardant suit).
I don’t agree with what Grady did because it perpetuates the problem with our current legal image at least among the rest of the non-legal world. The ONLY reason he moved for the case to be sealed is that it was a dispute between lawyers. I ask you, “Does anyone, whether lawyer or not, ever want their dirty laundry aired in court?” Of course not. Why would Grady think attorneys are afforded special avenues that non-lawyers are not? These kinds of things tell the outside world that lawyers have special protections and don’t have to follow the law like everyone else does (yes, I know these are “rules” etc.)
Years ago, if we were to the point of suing, it was fairly common to go ahead and draft the complaint and mail it to the other side and advise that if we didn’t get this resolved within a certain time period the attached would be filed in court. I would have never ever dreamed of asking a Judge to secrete a filing. That just astonishes me.
Do I consider Tollison to be like Scruggs & Co.? — absolutely not. Do I give Tollison a halo? — absolutely not.
Curly 47: To a degree, I agree with your comment. Of course, the big difference here is that what Tollison did is within the rules. It is the rules themselves that need to be examined. The entire procedure smacks of blackmail, i.e., “settle with me or I air this dirty laundry for the world to see.”
I have problems with proceedings under seal, Curly, but view that as a separate and debatable issue. And Tollison did it for a VERY brief period– two weeks– while the parties were negotiating.
I know of non-lawyer disputes that people try to put under seal. The judges need to resist that, in my opinion. But that’s a separate issue from the question of equating what Scruggs did with the sealing of the pleadings for a brief time.
Sounds to me as though old Stevie would fit right in with Dickie’s bunch.
Jane: thanks.
Although it’s obvious that Eugster has identification issues with the Scruggs which color his commenting, I wouldn’t be too quick to take the SpokesmanReview as an unbiased source on him, given the way he has dogged its proprietor on her scandalous behaviour in Spokane. Just another nutty lawyer who confuses limelight with spotlight.
i made a little edit to the “warning ” at the start of his wikipage on Judge Lackey
Seems like the “under seal” tactic works at all levels….isn’t that what happened to the case in the Southern District with Jim Hood and State Farm?
The GOB Club is alive and well I’m glad to report….shocker ain’t it?
David Rossmiller says he keeps hearing of fifty sealed indictments. He admits it is rumor but puts credence in it. With that many names it would be hard to keep all of them secret. For us non-lawyer types those of you in the profession (talking to you, NMC) must have heard something you could share. Well??
Bluedog, I wonder about the keeping-them-all-secret issue, too. I keep hearing about all the stirring around in Jackson. I can say that there doesn’t seem to be a huge amount of action in Oxford. Some but not a huge amount.
I haven’t been able to tell what to make of the 50 target letter / 50 sealed indictments rumors.
If they don’t hit next week, I will have some serious doubts about them existing. What still doesn’t compute though, is the massive amount of investigative and proscutorial effort, as has been expended in this case, for five defendants, in a pretty simple case. That doesn’t mean that there won’t be some more charges coming in the future (look how long the delay was between the start of the investigation of Scruggs, and the actual unveiling of it).
The federal government is well known for not getting in a hurry when conducting criminal investigations, no matter how high the public interest in them.
But, if it does stop here, the taxpayers will have really taken it in the shorts on this one.
There remain a lot of questions–comments that need follow up. Money trails, goofy rulings, orders on a napkin etc.–yes it will indeed be a shame if they choose to cut it off at this stage of the game.