Freezing out the 'public'

fmcaden@islandpacket.comJuly 5, 2014 

gavel

In theory, South Carolina’s courts are open. The state’s Constitution says as much in Article 1, Section 9: “All courts shall be public ...”

In reality, it doesn’t always work out that way. In several recent high-profile cases in Beaufort County, judges have sealed documents, sometimes bypassing rules requiring them to consider the public’s interest in the documents.

It’s unusual for judges to shut the public out of courtrooms, but not unheard of. In a case last month, a judge closed a courtroom after getting advice from a deputy sheriff, according to a lawyer who was present. The deputy told the judge what he thought the rules were for closing the hearing, but he was mistaken.

‘They’re not coming in’

The hearing on June 23 involved state Rep. Andy Patrick of Hilton Head Island. The issue before the Family Court judge was whether Patrick should be held in contempt for not paying $4,000 to a lawyer involved in the legislator’s divorce case, as he’d been ordered.

While a reporter from The Island Packet and The Beaufort Gazette waited outside the courtroom, where two deputies guarded the door, a discussion was going on inside.

“The press is here and wants to come in,” a bailiff told the judge, according to attorney Douglas Brannon.

The judge asked what the local rule was for allowing reporters in courtrooms, Brannon said.

A deputy answered, “There’s a form that has to be filled out with the clerk of court before they’re admitted into the courtroom, “ Brannon said.

The judge asked the bailiff whether such a form had been filled out.

“Not that I’m aware of,” the bailiff answered, according to Brannon.

“And the judge said, ‘Then they’re not coming in.’ ”

But the deputy was mistaken.

Permission forms are not required for reporters seeking to observe a court proceeding. Forms are required for photographers and videographers.

“You don’t need a form to sit there and listen to what’s going on,” according to Vanessa Bryan, division chief of Beaufort County Family Court. “I don’t know if that information got to the judge correctly. You don’t need to fill out a form just to sit in the courtroom.”

The judge, Gordon “Bubber” Jenkinson, was in Beaufort County Family Court on temporary assignment from Kingstree, S.C. Jenkinson declined to discuss his decision to close the courtroom, so it’s not clear why he relied on a deputy sheriff to explain the rules, or why he thought rules that are uniform throughout the state could be different in Beaufort County.

SEALED RECORDS

Instances of Beaufort County judges sealing records in cases is not unusual, and judges sometimes do it without adhering strictly to court rules aimed at keeping the public informed.

In July 2013, for example, Family Court Judge Peter Fuge sealed a file containing documents on the Patrick case. When the documents came to light months later, they raised questions about whether Patrick had prudently and ethically handled his personal finances. At the time, Patrick was running for Congress. After losing, he launched a short-lived campaign for state superintendent of education. The information in Patrick’s file raised questions about his qualifications for public office, and when it came out, he dropped out of the race for education superintendent.

Judge Fuge said he sealed Patrick’s divorce file because “both the lawyers consented to it — there wasn’t any argument about it.”

However, court rules require more than agreement between lawyers to seal a file. The rules outline in detail steps lawyers and judges must take before sealing.

Lawyers have to submit a request in writing identifying “with specificity” the documents they want sealed; “state the reasons why sealing is necessary;” and “satisfy the court that the balance of public and private interests favors sealing the documents.”

Judges must then weigh “why the public interest ... is best served by sealing the documents.” The judge’s decision should “set forth with specificity the reasons” for sealing a case, the rules say.

The rules weren’t followed before Fuge sealed the file in the Patrick case. After a brief tele-conference with lawyers, Fuge issued a two-sentence sealing order that revealed nothing about his reasoning.

EMS CASE

In another highly publicized case, Beaufort County Circuit Judge Carmen Mullen signed a “protective order” forbidding disclosure of information from the personnel files of two Beaufort County paramedics. The paramedics were accused in a lawsuit of botching treatment of a severely beaten man.

The fallout from the case raised questions in the community about the professionalism of the county’s Emergency Medical Services. But Mullen’s order said documents in the case could not be seen by anyone except “qualified persons” — lawyers, their clients, court personnel and others directly involved. Her order further said that if any of the confidential information came up in the courtroom, people who weren’t “qualified” would have to leave.

As in the Patrick case, lawyers on both sides of the case had agreed to the order beforehand. The steps that judges and lawyers are supposed to take before sealing documents went by the wayside.

Jay Bender, a media lawyer who reviewed the case, said at the time that issuing the order was “inconsistent with what the courts require.”

ONE-SIDED HEARING

Another aspect of the EMS case seemed amiss to Joel Bailey, a Beaufort lawyer who represented the man who’d been beaten. Bailey claimed Mullen and the opposing lawyer had twice engaged in “improper ex parte communication” — private discussions that didn’t include Bailey.

Bailey said he wasn’t given the opportunity to participate in either discussion, which he said violated ethics rules.

MULLEN EMAIL

Mullen, responding to a request for an interview for this story, sent an email: “As I can only speak for myself, In my nine years on the bench, I have never closed my courtroom.”

“As to the sealed documents,” she continued, “any order sealing a document by me states specifically the reason and the authority for doing so whether it be Constitutional, statutory or decisional law, and should be referred to.”

‘ABSOLUTE EVIDENCE’

Mullen has recently sealed documents in a high-stakes case involving Coral Resorts LLC, a company that operates four timeshares on Hilton Head Island.

A couple who bought a timeshare unit in one of the resorts in 2010, Albert and Eileen LaFleur, claim they were cheated by Coral Resorts.

Transcripts of hearings state the LaFleurs thought they could use their a unit at Island Links every year, but it turned out they could only visit every three years. Another purchaser suing Coral Resorts claimed they were given a contract to review the night before the closing, but presented with a different contract to sign the next day.

Altogether, more than two dozen other timeshare purchasers have suits pending against Coral Resorts. Many others have complained to the S.C. Real Estate Commission.

Key to their cases is paperwork that has been sealed: more than 700 pages of internal Coral Reef documents and, more importantly, a transcript recounting the discussion at a hearing held by the Real Estate Commission on Jan 23, 2013.

The Real Estate Commission had asked the company to explain why its resorts were years behind in paying annual fees to the state — 12 years behind in the case of one resort.

During the hearing, Coral Resorts lawyers acknowledged the company’s fees were past due and agreed to pay promptly. Then a question arose about whether the lapses in fee payments might mean Coral Resorts’ registration with the Real Estate Commission had also lapsed.

The issue is pivotal: If Coral Resorts’ timeshare registrations lapsed because the company didn’t pay its fees, unhappy purchasers could argue that contracts they signed during the lapses were null and void because an unregistered company can’t legally sell timeshares.

“The heart of the allegation ... is that Coral Resorts let their timeshare registration lapse,” said Zach Naert, one of the lawyers representing the purchasers during one of many hearings on the case. If the transcript were unsealed, it would be “absolute, direct evidence” supporting his clients’ cases, he said.

Coral Resorts attorneys argue that the company’s timeshare registrations are not tied to payment of annual fees. Once a timeshare is registered with the Real Estate Commission, it’s registered forever, they contend. They said the Real Estate Commission agrees.

The Real Estate Commission “has determined that there was no problem — ever — and that (Coral Resorts) ... has been in complete compliance,” Nekki Shutt, a Coral Resorts attorney, told Judge Mullen.

But because the file is sealed, it’s impossible to know what the commission’s position is.

Shutt said Coral Resorts’ biggest objection to unsealing the transcript and the internal documents is that they provided “a recipe” for competing companies to operate timeshares.

A ‘GENUINE INTEREST’

The transcript — vital to the disgruntled purchasers’ suits, their lawyers say — can’t be used as evidence because it’s sealed. Not only did Judge Mullen sealed it; so did the Real Estate Commission and a special court that reviews actions of state regulatory agencies like the commission. Now the S.C. Court of Appeals has the case and it, too, has sealed records until it rules on the case.

Naert and DuBois have a copy of the transcript, which was sent to them in a box with no return address, apparently by an employee connected with the Real Estate Commission. They held up the transcript during a hearing before Judge Marvin Dukes in May 2013, but it wasn’t public for very long.

Shutt, Coral Resorts’ attorney, got Mullen involved in the case on June 10. Shutt drove from Columbia to Myrtle Beach, where Mullen was holding court as a visiting judge, and asked Mullen to issue a temporary order sealing the transcript and the other documents.

Mullen issued the temporary order and subsequently held two hearings on whether the transcript and internal documents should remain sealed. At one point during the second hearing, she expressed concern “about stifling people’s ability to bring a lawsuit. ... I think it’s important that the public have access to things that are public records so they can make an educated decision.”

Ultimately, though, Mullen ordered the transcript and internal documents sealed. Naert and DuBois challenged Mullen’s decision in the S.C. Court of Appeals, where the case awaits consideration.

The Island Packet and The Beaufort Gazette have asked the Court of Appeals for permission to intervene in the case. The newspapers want the sealed documents opened for two reasons: because courtrooms and court records in South Carolina are supposed to be open and because “the public has a legitimate and genuine interest in the conduct of business activities” in the community, according to a pleading filed by Bender, the media lawyer.

PRESTON OATES SEAL

Judge Mullen also sealed an important document in the case of Preston Oates, the tow-truck driver charged in the 2010 shooting death of a man whose van Oates had “booted.” The case aroused considerable public interest in Beaufort County.

Oates originally was charged with voluntary manslaughter in 2011. But on Feb. 20, 2014, a grand jury increased the charge to murder. Oates’ attorney went to Mullen the same day and asked her to seal the new murder indictment. The prosecutor, deputy solicitor Sean Thornton didn’t object, and Mullen ordered the murder indictment sealed to prevent “undue pretrial publicity.”

It wasn’t until four months later, when Oates’ trial began, that the murder indictment was revealed.

Actions taken before the indictment was sealed don’t appear to comply with the S.C. Rules of Criminal Procedure, Bender said. The rules say that unless a court reporter is present to record the discussion between lawyers and the judge, motions must be made in writing and must “state with paticularity the grounds” justifying the motion.

No court reporter was at the hearing, according to Clerk of Court Jerri Ann Roseneau.

“It was oral. It was all done orally,” she said.

Nor was the motion to seal made by Oates’ attorney submitted in writing, as the rule requires if a court reporter isn’t present.

“Nothing was filed by either one of the lawyers — not Oates’ lawyer or the solicitor,” Roseneau said.

‘A BIGGER PROBLEM’

Bender said issues involving court openness “are a bigger problem in the lower part of the state than anywhere else.”

“I’ve had judges down there seal a record and then seal the order sealing the record, so nobody knows what’s going on,” he said.

It’s not clear how many pending cases in Beaufort County are sealed. The county’s Clerk of Court office maintains records on court cases and carefully protects cases that are sealed, but Roseneau could not be contacted for information on the number of cases closed to the public.

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