Scoppe: Order in the court: sealed records, closed doors

Associate EditorJuly 17, 2014 

OUR STATE constitution requires that South Carolina’s courts be open to the public, which also means that the work of the courts is supposed be open to the public, but until a little more than a decade ago, state judges routinely sealed settlements in lawsuits, even lawsuits involving state agencies.

That meant the public had no idea when businesses or individuals or even the government admitted to practices that endangered the public health or safety — and continued to do so. It also meant that taxpayers had no way of knowing how much of their money the government was paying for its own wrongdoing, or whether state officials had admitted to violating the law, and yet remained in power.

The state Supreme Court, following the lead of federal judges in South Carolina, changed that in 2003, with a rule that prohibited judges from sealing settlements in lawsuits involving public agencies or public health or safety. The rule still allowed some documents to be sealed, but it set out strict requirements judges had to meet in order to do that. Chief Justice Jean Toal echoed language from the new rule when she explained at the time that it was to “ensure that the constitutional principle of open courts is fulfilled.”

I know what you’re thinking: This is somehow about that message the Supreme Court might have sent to the lower court last week suggesting that it decide in secret whether Attorney General Alan Wilson remains in charge of the State Grand Jury investigation of House Speaker Bobby Harrell.

In fact, it’s not. If the high court indeed was sending a signal to close the courtroom, that would constitute a dramatic departure from its longstanding policy, and if that turns out to be the case, we will have ample opportunity to discuss that. At length.

No, today’s topic is disturbing news out of the Lowcountry that suggests that it could be time again for the court to intervene to make sure judges are adhering to the constitutional mandate for open courtrooms. According to a report from my friend Fitz McAden, executive editor of The Beaufort Gazette and Hilton Head’s Island Packet, not only are judges in Beaufort County frequently sealing documents in apparent violation of the 2003 rule, but they’ve even started closing courtrooms in situations that pretty clearly don’t meet the court’s standards.

Mr. McAden cited four recent cases with dubious file-sealing decisions, three of them involving Circuit Judge Carmen Mullen, who sealed documents regarding paramedics accused of botching the treatment of a severely beaten man, a murder suspect and a timeshare operator.

In the criminal case, the judge ordered the murder indictment sealed. Seriously.

Among the sealed documents in the timeshare case is a transcript from a hearing of the S.C. Real Estate Commission, a public body. Not only did the judge seal that document, but when she found out that someone had leaked a copy of the transcript to parties in a lawsuit, she ordered that document sealed as well. Judge Mullen told Mr. McAden in an email that she always complies with the court rules.

And then there’s Andy Patrick, the would-be congressman turned would-be education superintendent who turned into a retiring-after-just-two-terms S.C. House member when previously sealed records in his divorce case came to light. Family Court Judge Peter Fuge said he sealed the records last summer after both sides agreed to it, even though the 2003 rule was written to prevent that very practice, and require a much higher standard.

In January, Mr. Patrick dropped his bid for education superintendent, and announced his retirement from the House, two days after Mr. McAden got his hands on those previously sealed documents and published a story that showed a legislator who spent more money than he made, who had burned some clients financially, whose children received support from government programs including food stamps, and who had been living outside of his district.

In May, a process server came to the House chamber to serve the Hilton Head Republican with legal papers requiring him to appear in court to explain why he had not paid all the money a judge ordered him to pay his estranged wife’s attorney. (The House responded a week later by unanimously adopting a resolution to name a Hilton Head intersection after Mr. Patrick; Sen. Tom Davis appropriately blocked its approval in the Senate.)

The latest twist in Rep. Patrick’s soap-opera saga came on June 23, and really, you just can’t make this stuff up. It seems that one of Mr. McAden’s reporters showed up to cover the contempt hearing and found two deputies guarding the closed courtroom. Which was supposed to be open.

It’s not clear why the courtroom was closed. Mr. Patrick’s attorney and fellow House member, Douglas Brannon, told Mr. McAden he didn’t ask for it to be closed. But those judges do have to get re-elected by legislators, so maybe he didn’t need to ask.

In any event, when a bailiff told Family Court Judge Gordon “Bubber” Jenkinson that the reporter wanted to attend the hearing, the judge, who was in Beaufort County on temporary assignment from Kingstree, asked what the “local rule” was. A deputy said reporters were supposed to fill out a form with the clerk of court if they wanted to be admitted to the courtroom, the bailiff told the judge that no such form had been filled out, and according to Rep. Brannon, the judge said, “Then they’re not coming in.”

Never mind that such a requirement would violate actual court rules (those promulgated by the Supreme Court, approved by the Legislature and applicable statewide), and probably the statutes and certainly the constitution. It turns out it wasn’t even the “local rule.”

The actual “local rule,” Mr. McAden reports, is that members of the media have to fill out a form if they want to photograph or video court proceedings. And actually, that’s an actual court rule as well.

Mr. McAden reported that Judge Jenkinson declined to discuss his decision, “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.”

Media attorney Jay Bender told Mr. McAden that the rules seem to be different in the Lowcountry, where he says he has seen judges “seal a record and then seal the order sealing the record, so nobody knows what’s going on.”

I’d like to think he’s right about the Lowcountry being an outlier, but I have a bad feeling that there are a lot more instances of sealed records and even closed courtrooms that Mr. Bender, and the rest of us, simply don’t know about. And there could be a very high-profile example of that in our very near future.

Perhaps our justices might want to take a look. After all, it wouldn’t be a bad time for them to remind judges how serious they are about open courtrooms.

Ms. Scoppe can be reached

at cscoppe@thestate.com

or at (803) 771-8571.

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