AG loses another public records fight in James Brown case

A tenacious Newberry reporter was feeling good – and a little anxious – as she awaited the delivery of a package of documents that could provide answers to a question she’s been trying to answer for two years: Why did the state attorney general meddle in the estate of legendary soul singer James Brown?

“Still nothing,” Sue Summer said on Monday afternoon, which was deadline day for Attorney General Alan Wilson. Ten days earlier a judge had ordered him to hand over a series of emails among lawyers in the Brown case along with other emails related to the diary of Tomi Rae Hynie, who claims to be Brown’s widow.

Summer ended up receiving the emails – and a surprise bombshell from an anonymous sender in Augusta: Hynie’s diary, which has been under seal for years. Her attorney, Thomas Pope III of Pope & Hudgens in Newberry, said the diary was sent to The Newberry Observer, where Summer works as a freelance reporter.

Summer planned to make the diary public after she’d read it, Pope said. She had just begun to review the diary and emails last week and was not ready to discuss the contents of the documents as of press time.

Circuit Judge Eugene Griffith’s order marked Summer’s second public records victory against Wilson in less than a year. In July, Griffith also found that Wilson had violated the state’s Freedom of Information Act by refusing to share public records in Brown’s case.

“I feel like anybody who has ever worked for open government has a dog in this fight,” Summer said.

Summer has been doggedly investigating the attorney general’s role in orchestrating an unorthodox settlement that divvied up the Godfather of Soul’s estate in a way that violated his final wishes.

Brown intended for the bulk of his fortune to be used to create the “I Feel Good” scholarship trust for impoverished children in Georgia and South Carolina. But former state Attorney General Henry McMaster, Wilson’s predecessor, gave more than half of the charity money to Brown’s relatives after they challenged the will. Then he created a new entity called the “Legacy Trust.” But no scholarships have been awarded from the trust since Brown’s death on Christmas Day in 2006.

“In his will he set up this opportunity for all of these young people and it’s been eight years and it’s still not resolved as to how it’s going to look or what’s going to be in the trust when all this is over,” Summer said. “I’m trying to figure out what, exactly, has happened and where we go from here in terms of what’s going to happen with this charity.”

‘A matter of public interest’

The South Carolina Supreme Court found that McMaster, now the state’s lieutenant governor, overstepped his authority by meddling in Brown’s estate after the two trustees challenged the deal. While the court reversed the settlement and left Brown’s will intact, the justices did not dismantle the Legacy Trust.

In the wake of the court’s decision, the Columbia law firm of Sweeny, Wingate & Barrow sued the trustees in 2010 on behalf of the attorney general’s office for damaging Brown’s estate.

But Wilson maintains that his office never entered into a contract with the firm. He has refused to publicly release a series of emails in which the firm’s lawyers and attorneys for the trustees discuss filing suit.

Wilson argued that sharing the emails would violate attorney-client privilege, an assertion that Griffith rejected based on the fact that the case involves a public official – the attorney general.

“Since the Wingate firm brought the suit … on behalf of the Attorney General and the legacy Trust … and since the Attorney General contends that he has never seen the agreement, these emails are particularly important as a matter of public interest,” Griffith wrote in his order.

Jay Bender of Baker, Ravenel & Bender in Columbia, who also represents Summer, said Wilson’s argument was based on an overly broad view of attorney-client privilege. He added that if Wilson had prevailed “public bodies all over the state would be trying to stretch attorney-client privilege into an unrecognizable form.”

Griffith also ordered Wilson to release emails pertaining to the Hynie diary, but not the diary itself. He said he would let Summer argue for the diary to be made public after she’s seen the emails. She believes the diary could reveal that Hynie was not legally married to Brown.

Hynie and her attorney maintain that she and Brown were married, andCircuit Judge Doyet Early determined that Hynie was Brown’s wife at the time of his death. But Brown reportedly filed to have the marriage annulled in 2004 after he learned that she was already married to another man.

“Her diaries at this point are very important,” Summer said. “They’re going to let us know whether [Early] made a very wise decision or not a very wise decision.”

The two original trustees distributed transcripts of Hynie’s diary among the parties in the Brown case, but Early ordered that the documents be returned to the court and placed gag orders on everyone who had read the diary.

Early stated that he would hold a hearing on the gag order 10 days after imposing it in 2008. But that hearing never happened, and the order has been in effect ever since.

“A gag order that long is unprecedented,” Pope said. “Our position is that it’s inherently unconstitutional to have a gag order in a civil case for more than 10 days.”

Phantom records?

The attorney general’s office also has not produced public records pertaining to the creation of the Legacy Trust and an attorney general-appointed trustee’s $4.7 million appraisal of Brown’s estate. Other appraisals came in at around $100 million.

While the attorney general’s office referenced the trust and appraisal documents in various court proceedings, Wilson asserted that his office never saw the $4.7 million appraisal and that the Legacy Trust documents do not exist, according to Griffith’s order.

“I just find that difficult to believe that they would not have seen that,” Summer said.

But Griffith concluded that because Wilson claims he does not have the documents “there is nothing further this Court can do.”

– Follow Phillip Bantz on Twitter @SCLWBantz