Thursday, January 9, 2014

In the The Matter of the Guardianship of Thomas E. Baker

Tuesday, the Mississippi Court of Appeals handed down its decision in the Zebert v. the Guardianship of Thomas E. Baker; Case No. 2012-CA-01480-COA.

Jason Zebert was a Rankin County lawyer.  I say "was" because he is presently suspended from practicing law, and will likely be disbarred.  If I'm not mistaken, he currently sits in the Rankin County Jail until he "purges himself of contempt".  

The facts are these:  In 2000, the Rankin County Chancery Court appointed Zebert as guardian over the person and estate of Thomas E. Baker.  Whether from age or incapacity, Mr. Baker could not manage his own funds or take care of himself.  As guardian, Zebert handled Mr. Baker's funds.  Mr. Baker had approximately $164,910.00 in a bank account.  Every year, Zebert was required by Court Order to provide a simple accounting to the Chancery Court.  For many years, this was done without issue.  

However, for the year 2007-2008, Zebert failed to produce an accounting.  In 2009, Chancery Judge John Grant III issued a show cause order, directing Zebert to appear before the Court and produce the accounting.  Zebert was able to stall the Chancery Court for a couple of years.  Eventually, Judge Grant ordered Zebert incarcerated, but suspended the sentence for one week, to give Zebert one last chance to wake up and produce the accounting.



Prior to incarceration, Zebert produced a partial accounting.  This accounting indicated Zebert had disbursed three loans from the $164,910.00 in Mr. Baker's bank account.  One of those loans was to a "female acquaintance" of Zebert, and two others were to one of Zebert's employees.  Following the loans, Mr. Baker's bank account held only $6,555.50.  When asked to produce documentary evidence of the loans, including any liens taken to secure the loans, Zebert claimed "that documentation regarding the disbursements had been inadvertently destroyed by water damage to his office during a storm."  (The facts later indicated Zebert likely never made those "loans"; rather, he confiscated the funds for his own personal use.)

The Chancery Judge found Zebert to be in civil contempt and ordered him thrown in jail, not to come out until he purged himself of the contempt, i.e., presented an proper accounting to the court. 

Zebert appealed this decision to the Court of Appeals, arguing the order of contempt was criminal, not civil, in nature, and must be reversed.  The Court of Appeals disagreed.  

First, you must understand the difference between civil and criminal contempt.  "The purpose of civil contempt is to compel compliance with the court's orders, admonitions, and instructions, while the purpose of criminal contempt is to punish." Zebert, Par. 10 (quoting In re McDonald, 98 So. 3d 1040, 1043 (Miss. 2012)).  In civil contempt, punishment is indefinite, and the offending party can purge himself of the contempt by simply complying with the court's order.  As they say, the offending party "carries the key to his cell in his own pocket."  Criminal contempt, on the other hand, involves punitive goals and, typically, set incarceration sentences. Because it is criminal, there are additional procedural safeguards that must be met, i.e., notice requirements, due process rights, miranda warning, etc.  Because those additional procedural safeguards were not provided, Zebert argued he should be released.

To prove his point, Zebert argued he admittedly misappropriated the funds and committed fraud upon the court, i.e., a criminal act).  He further pointed to the fact federal criminal charges against him were coming down the chute.  Last but not least, he argued it was impossible for him to purge himself of contempt since there was no way he could produce an approved accounting since what he did was criminal, i.e., no Court would ever approve it. 

The Court of Appeals disagreed with these arguments.  In affirming the trial court, the Court of Appeals found Zebert was not required to produce an approved accounting, but rather to simply "provide a statement of all income and disbursements of Baker's funds", something Zebert never did. Zebert never showed the Court, with appropriate documentation, where the money went.  The appellate court noted there was plenty of time prior to incarceration for Zebert to produce the necessary paperwork.  Further, Zebert had opportunities during incarceration in which to produce the paperwork.  "A valid order of civil contempt does not become punitive simply because the contemnor persists in punishing himself."  Zebert, Par. 18 (quoting U.S. v. Harris, 582 F.3d 512, 520 (3d Cir. 2009)).

The dissent noted it doesn't matter what Zebert did with the money, the contempt ordered by the chancery court was still in the nature of constructive criminal contempt.  "If he tells the court that he squandered the money on 'wine, women, and song.' would that be a 'proper account' of the money?  I don't think so." Baker, Par. 30 (Griffis, J., dissent).  The dissent would have reversed and vacated the trial court's order of contempt and incarceration.  

1 comment:

Anonymous said...

Interesting... It's like having a local version of Law & Order! :)