Case: 25CH1:17-cv-000981 Document #: 5 Filed: 07/19/2017 Page 1 of 4

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

JOHN DOE APPELLANT

VS. CAUSE NO.: G2017.981T/1

THE UNIVERSITY OF MISSISSIPPI,

STEVE ROBERTSON, and APPELLEES

MOTION TO TRANSFER OR, IN THE ALTERNATIVE, FOR RECUSAL

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COMES NOW, the Appellee, Steve Robertson, and files his Motion to Transfer or, in

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the Alternative, for Recusal because Appellant first filed a petition addressing the relief he now

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seeks before the Honorable Chancellor Denise Owens. In support thereof, Steve Robertson
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would show unto the Court as follows:
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1. John Doe initially filed a Petition with the Hinds County Chancery Court, seeking
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the same relief prior to intervening as a non-party in the matter subjudice, which at the time was
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pending before the Mississippi Ethics Commission. Specifically, John Doe requested that the
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University of Mississippi be enjoined from releasing his name. See Final Order attached hereto
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as Exhibit A., pp. 4-5, f 1.11. While John Doe voluntarily dismissed the Chancery Court action, it
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was assigned to the Honorable Chancellor Denise Owens after the Honorable Chancellor Patricia

D. Wise recused herself. See Order of Recusal attached hereto as Exhibit B., p. 1; see also

Docket Sheet attached hereto as Exhibit C, p. 1.

2. Based on information and belief, an initial conference of the attorneys was held

during which time Judge Owens indicated that she intended to deny John Doe's request for

relief. In an attempt to avoid an adverse ruling, John Doe simply dismissed his lawsuit without

prejudice and thereafter sought to intervene in the matter pending before the Ethics Commission.
 Case: 25CH1:17-cv-000981 Document #: 5 Filed: 07/19/2017 Page 2 of 4

Dissatisfied with both the Ethics Commission and the Honorable Chancellor Denise Owens'

assignment of the case, John Doe is now attempting to "judge shop" in violation of Uniform

Chancery Court Rule 1.06.

3. The comment to Rule 1.06 indicates "[t]he purpose of this rule is to prevent

'judge shopping' within a district or a court." UCCR 1.06, cmt. \2 (2017). The comment to Rule

1.06 also provides:

Although voluntary dismissal is allowed under M.R.C.P. 41 at any time prior to

service by the adverse party of an answer or summary judgment, when a civil case

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is so dismissed and then refiled immediately thereafter with no substantial change
in the parties or claims, such practice, as an example, may be taken as a wilful

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violation of this rule. Wilful violation of this rule may constitute an offense

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subject to suspension and other discipline tinder Rule 3.4(c) of the Rules of

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Professional Conduct. Sanctions authorized by this rule are cumulative to
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discipline under the Rules of Professional Conduct.
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UCCR 1.06, cmt. ^2. Circumventing the assignment of Chancellor Denise Owens is exactly what
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is occurring here.
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4. Furthermore, "[i]f an attorney or party shall attempt to manipulate or defeat the

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purpose of this rule, the case shall be reassigned to the judge who would've otherwise received
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the assignment." UCCR 1.06(A) (2017). This dispute was originally assigned to Judge Owens
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(see Cause No. 17-747 W/4), and she is familiar with the facts of the case and the history of this
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litigation. Accordingly, this appeal should be assigned to Chancellor Owens under UCCR

1.06(A).

5. In the alternative, the Honorable Chancellor Dewayne Thomas should recuse

himself pursuant to UCCR 1.11. Said request for recusal is filed in good faith with the facts

listed in the undersigned's Rule 1.11 affidavit believed to be true. See Affidavit attached hereto as

Exhibit D., p. 1.

WHEREFORE, PREMISES CONSIDERED, Steve Robertson respectfully requests

 Case: 25CH1:17-cv-000981 Document #: 5 Filed: 07/19/2017 Page 3 of 4

the Court enter an order transferring this matter to the Honorable Chancellor Denise Owens. In

the alternative, Robertson respectfully requests the Honorable Chancellor Dewayne Thomas to

recuse himself from adjudicating this matter.

Robertson requests any such other and further relief as the Court may deem appropriate.

Respectfully submitted,

STEVE ROBERTSON

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By:
CASEY(L^O! 1, MBN inr.m

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Attorney for Appellee

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LANGSTON & LOTT, P.A.
100 South Main Street la
Post Office Box 382
Booneville, MS 38829
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Telephone: (662) 728-9733
Facsimile: (662) 728-1992
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 Case: 25CH1:17-cv-000981 Document #: 4 Filed: 07/19/2017 Page 1 of 6

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

JOHN DOE APPELLANT

VS. CAUSE NO. G2017.981T/1

THE UNIVERSITY OF MISSISSIPPI,

STEVE ROBERTSON, and APPELLEES

RESPONSE TO MOTION TO STAY COMMISSION'S FINAL ORDER

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COMES NOW, the Appellee, Steve Robertson, by and through counsel, and files his

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Response to John Doe's Motion to Stay Commission's Final Order, and in support thereof,

Appellee would show unto the Court as follows:

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1. On July 17, 2017, John Doe filed a notice of appeal from the Final Order of the

Mississippi Ethics Commission entered on July 14, 2017, in the matter of Public Records Case
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Nos. R-17-009, Robertson v. The University of Mississippi and R-17-020, Hendrix v. The
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University ofMississippi (Consolidated).

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2. Pursuant to Mississippi Code Annotated Section 25-61-13, only a "party may

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petition the chancery court of the county in which the public body is located to enforce or appeal
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any order of the Ethics Commission." Miss. Code. Ann. 25-61-13 (Rev. 2014). As indicated by

the case titles listed supra, John Doe was never a party in either of the matters from which this

appeal originates. The consolidated cases concernedthe release of public records withheld by the

University of Mississippi and the Complainants, Steve Robertson and . In other

words, John Doe was never a party. Moreover, the Ethics Commission did not consider John Doe

a party, and instead, specifically listed him as a "non-party." See Final Order attached hereto as
 Case: 25CH1:17-cv-000981 Document #: 4 Filed: 07/19/2017 Page 2 of 6

Exhibit A., p. 5,1(1.14. Consequently, John Doe lacks standing since he was a "non-party," and

therefore, he has no right to appeal under Mississippi Code Annotated 25-61-13.

3. Alternatively, there is no reasonable expectation of privacy for someone identified

in a "public record" as recently stated by the Mississippi Supreme Court. See Entergy

Mississippi, Inc. v. State, 132 So.3d 568, 575 (Miss. 2014). Specifically, "[individuals do not

have a reasonable expectation of privacy in their names or addresses, which appear in public

records . . .." Id. (emphasis added). Without a reasonable expectation of privacy in his name,

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John Doe lacks standing to appeal. Stated differently, John Doe lacks a "present, existent

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actionable interest," and therefore, he cannot appeal the Final Order from the Ethics

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Commission. See Posey v. Pope, 130 So.3d 1183, 1185-86 (Miss. Ct. App. 2014).
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4. Procedurally, John Doe is a "non-party" as explained supra. See Ex. A., p. 5,
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1(1.14. John Doe did not file the Complaint with the Ethics Commission, nor was he named as a
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Defendant. As such, Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) is inapplicable
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because John Doe was not a party to the Ethics Commission case, and he voluntarily dismissed
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his Chancery Court case. See Ex. A., p. 5,1(1.12 ("the booster voluntarily dismissed the chancery
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court action").
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5. John Doe recklessly quotes Albert v. Allied Glove Corp. as if it supports the relief

he seeks, but a closer reading demonstrates John Doe's reliance on Albert is misplaced. As the

Albert Court noted, John Doe must prove that he has been or will be "deprived of something in

which he held a protected interest." Albert v. Allied Glove Corp., 944 So.2d 1, 6 (Miss. 2006).

While a cause of action is a species of property, John Doe does not have a cause of action. As

stated supra, he was neither a Complainant nor a Defendant in the matter from which this appeal
 Case: 25CH1:17-cv-000981 Document #: 4 Filed: 07/19/2017 Page 3 of 6

originates. He is merely a "non-party" that has unsuccessfully tried to manifest a privacy interest

where none exists. See Entergy, 132 So.3d at 575 (no reasonable expectation of privacy in names

that appear in public records). Thus, he cannot show that he was deprived of something in which

he held a protected interest, which is fatal to his claim. See Albert, 944 So.2d at 6 ("we simply do

not know if there has been a deprivation").

6. John Doe's recitation of various sections of the Mississippi State Constitution is

likewise misguided. Procedurally, none of the constitutional provisions cited can be used as a

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sword to create standing where none exists. The Constitution provides no protection for litigants

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who do not have standing to sue. See S&FPub. Co., Inc. v. GulfPub. Co., Inc., 760 So.2d 38, 41

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(Miss. Ct. App. 2000) ("One of the fundamental concepts of litigation is that the party against
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whom relief is sought must be before the court.").
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7. John Doe has no right to judicial review in this case, because he was only allowed
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to respond as a "non-party." John Doe is merely a "non-party," much like a third-party

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submitting an amicus curiae brief. As such, Mississippi Code Section 25-61-13 is inapplicable
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since it only permits parties to appeal. See Miss. Code Ann. 25-61-13 (Rev. 2014). While John
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Doe references an alleged sister statute, the statutory scheme for appealing public records
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requests does not contain any right or provision for a stay. See Miss. Code Ann. 25-61-13

(Rev. 2014). Even if John Doe had standing to appeal (and he does not), his request for a stay

should be denied because it is not authorized by statute.

8. John Doe cannot possess a property right in something that does not exist. As is

clear in the recent Entergy holding, an individual, like John Doe, does not possess a reasonable

expectation of privacy in his name as it appears in a public document. Entergy, 132 So.3d at 575.
 Case: 25CH1:17-cv-000981 Document #: 4 Filed: 07/19/2017 Page 4 of 6

Other courts have followed this same reasoning and held that names in public documents are

subject to disclosure in response to a public records request. See State ex rel. Quolke v.

Strongsville City Sch. Dist. Bd. of Ed, 33 N.E. 30 (Ohio 2015) (records showing names of

replacement teachers employed by the school board during strike were not exempt from

disclosure); Capital City Press, LLC v. Louisiana State Univ. Sys. Bd. ofSup'rs, 168 So.3d 727

(La. Ct. App. 1st Cir. 2014) (candidates who interviewed for university president were applicants

whose names were subject to record disclosure); Aswell v. Lunt, 375 So.2d 142, 143 (La. Ct.

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App. 2nd Cir. 1979) (city and its employees did not have a reasonable expectation of privacy to

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prevent their names from appearing in a public record sought through a public records request).

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Because there is no expectation of privacy, there is no property interest to protect. Stated
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differently, John Doe will lose nothing ... he simply does not possess a viable property interest
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in the privacy of his name as there is no reasonable expectation of privacy concerning an

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individual's name listed in a public document. Consequently, John Doe's motion for stay should
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be denied.
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9. Alternatively, even if this Court finds that John Doe's name should temporarily
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remain anonymous, the Court should order the University of Mississippi to produce the names of
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other boosters identified in documents responsive to Robertson's public records requests. The

other boosters named have not asserted any right of privacy or sought any relief from the Ethics

Commission or any other court of law. Therefore, even if the Court grants John Doe's request for

temporary relief, it should nonetheless order copies of the documents in which the names of

other boosters appear to be produced immediately with only John Doe's name redacted.

WHEREFORE PREMISES CONSIDERED, Steve Robertson respectfully moves this

 Case: 25CH1:17-cv-000981 Document #: 4 Filed: 07/19/2017 Page 5 of 6

Honorable Court to deny John Doe's request for a Stay, because he lacks the requisite standing

to appeal the Final Order of the Ethics Commission since he is a "non-party" and has no

reasonable expectation of privacy in the disclosure of his name. Alternatively, Robertson

requests that the public records be disclosed, leaving only John Doe's name redacted.

Robertson requests any such other and further relief as the Court may deem appropriate.

Respectfully Submitted,

STEVE ROBERTSON

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By:

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CASEYWtfJTTfMBN 101766
Attorney for Steve Robertson
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LANGSTON & LOTT, P.A.
100 South Main Street
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Post Office Box 382

Booneville, Mississippi 38829
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Telephone: 662-728-9733
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Facsimile: 662-728-1992
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 Case: 25CH1:17-cv-000981 Document #: 3 Filed: 07/17/2017 Page 1 of 5

IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

JOHN DOE APPELLANT

v. No. G2017-981 T/1

THE UNIVERSITY OF MISSISSIPPI,

STEVE ROBERTSON, and APPELLEES

MOTION FOR STAY OF COMMISSIONS FINAL ORDER

Because the Legislature crafted an affirmative route of appeal from the Mississippi Ethics

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Commission in cases involving the Public Records Act, and because John Doe now seeks

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judicial review of the Commissions Final Order, a stay is proper.

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1. A stay of the Commissions Order should be granted so that John Does right to privacy
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may be reviewed by the Judicial Branch. John Doe was named in the 2017 Amended Notice of
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Allegations by the NCAA. The University had redacted the name of John Doe from public
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disclosure. Third parties sought to learn John Does identity. The Commission found that the
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University should disclose the information. John Doe appealed that decision within one business
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day.
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2. The sole issue in this appeal is whether the University of Mississippi must disclose John
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Does name to third parties. The Legislature provided a route of appeal from the Mississippi

Ethics Commission. Without a stay, the ability of John Doe to seek judicial review of that issue

will be irreparably damaged.

3. It is without question that in Mississippi a person has the right to privacy. Young v.

Jackson, 572 So.2d 378 (Miss. 1990). As a result, the Public Records Act specifically allows

private individuals to seek exemption from the disclosure of their information in public records.

Miss. Code. Ann. 25-61-11. In 2012, the Mississippi Supreme Court specifically addressed the

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 Case: 25CH1:17-cv-000981 Document #: 3 Filed: 07/17/2017 Page 2 of 5

rights of third persons, and ruled that the Act does not conflict with the courts authority to

declare a public record confidential or privileged. Est. of Cole v. Ferrell, 163 So. 3d 921, 925

(Miss. 2012).

4. Just as a person has a right to privacy, the United States Supreme Court has ruled that

citizens have a property right in their lawsuit. See Logan v. Zimmerman Brush Co., 455 U.S.

422, 428 (1982) (a cause of action is a species of property protected by the Fourteenth

Amendments Due Process Clause). The Court traditionally has held that the Due Process

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Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to

protect their property or as plaintiffs attempting to redress grievances. Id. at 429.

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5. Quoting Zimmerman, the Mississippi Supreme Court has recognized that [i]t is without

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question that a cause of action is a species of property protected by the Fourteenth
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Amendments Due Process Clause of the federal constitution. Albert v. Allied Glove Corp., 944
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So. 2d 1, 6 (Miss. 2006).

6. Additionally, the State Constitution creates multiple guarantees for citizens seeking
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redress through the court system. See Miss. Const. of 1890 art. 3, 24 (All courts shall be

open; and every person for an injury done to him, in his land, goods, person or reputation, shall
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have a remedy by due course of the law, and right and justice shall be administered, without sale,

denial, or delay); Miss. Const. of 1890, art. 3, 25 (No person shall be debarred from

prosecuting or defending any civil cause for or against him or herself, before any tribunal in the

state, by him or herself, or counsel, or both); Miss. Const. of 1890, art. 3, 31 (The right of

trial by jury shall remain inviolate).

7. John Doe was also given the property right to appeal by the Legislature, which set out

this process: Any party may petition the chancery court of the county in which the public body

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 Case: 25CH1:17-cv-000981 Document #: 3 Filed: 07/17/2017 Page 3 of 5

is located to enforce or appeal any order of the Ethics Commission issued pursuant to this

chapter, and in that appeal the chancery court shall conduct a de novo review. Miss. Code.

Ann. 25-61-13. Therefore the Legislature specifically allowed for judicial review of the

Commissions decisions regarding Public Records Act, as it has for employee matters. See Miss.

Code. Ann. 25-4-21 (allowing de novo appeal to circuit court). That sister statutes allows for

an immediate stay upon notice of appeal, since execution of the commissions decision shall be

stayed upon the filing of a notice of appeal. Miss. Code. Ann. 25-4-21. Reading the sister

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appeal statute in pari materia with the Public Records appeal process, a stay is also proper in

these types of cases in order to allow a litigant like John Doe their full right to judicial review.

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8. This is further important because the Commission admittedly did notand could not

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address all of John Does claims, such as how they have been deprived of meaningful process by
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the NCAA. Any violation of John Does right to due process in the matter investigated by the
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NCAA is outside the jurisdiction of the Ethics Commission and will not be specifically

addressed herein. Final Order, at 8.

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9. It is without question that John Doe has a property right in their privacy, their name, their

personal information, and from being harmed by that disclosure. John Doe also has a property
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right in this appeal from the Commission, and a property right in access to the court system. The

Commission noted in its Final Order that it could not and did not address important Due Process

concerns. A stay is proper in order to safeguard John Does right to privacy, right in this appeal,

and right of access to the court system. If John Does private information and name is ejected

into the public, the whole process is disrupted, and property rights lost forever. The

Legislatures assurance of an appeal is also nullified.

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10. For these reasons, a stay of the Commissions Final Order should be granted pending

judicial review.

WHEREFORE, PREMISES CONSIDERED, the Appellant John Doe respectfully

requests that this Honorable Court enter a STAY of the Final Order of the Mississippi Ethics

Commission pending judicial review.

RESPECTFULLY SUBMITTED, July 17, 2017.

APPELLANT JOHN DOE

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s/ David Neil McCarty
DAVID NEIL McCARTY
Miss. Bar No. 101620

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DAVID NEIL MCCARTY LAW FIRM, PLLC
416 East Amite Street

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Jackson, Miss. 39201
T: 601.874.0721
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E: dnmlaw@gmail.com
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W: www.McCartyAppeals.com
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 Case: 25CH1:17-cv-000981 Document #: 3 Filed: 07/17/2017 Page 5 of 5

CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that I have served by United States mail,
postage prepaid, or via hand delivery if specified, a true and correct copy of the above and
foregoing document, to the following persons at these addresses:

Counsel for University of Mississippi

Lee Tyner and Robert T. Jolly (by E-Mail and U.S. Mail)
OFFICE OF THE GENERAL COUNSEL, UNIVERSITY OF MISSISSIPPI
P.O. Box 1848
University, Miss. 38677
ltyner@olemiss.edu
rtjolly@olemiss.edu

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Counsel for Steve Robertson
Casey Lott (by E-Mail and U.S. Mail)
Langston & Lott

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100 S. Main St.
Booneville, MS 38829-0382

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clott@langstonlott.com la
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Administrative Agency
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Tom Hood, Executive Director and Chief Counsel (by E-Mail and U.S. Mail)
Chris Graham, Hearing Officer
MISSISSIPPI ETHICS COMMISSION
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660 North Street, Suite 100-C

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Jackson, Miss. 39202

THood@ethics.state.ms.us
CGraham@ethics.state.ms.us

On July 17, 2017.

s/ David Neil McCarty

David Neil McCarty

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