I’m Back: Fight over records in James Brown case returns to trial court

Freelance journalist Sue Summer had her toothbrush and other essentials packed in preparation for the worst. Her bag also contained a gift from her daughter, the memoir “Orange Is The New Black: My Year In a Women’s Prison.”

“For jail reading,” Summer said. The soft-spoken grandmother has spent the last two years fighting the state attorney general for public records and risking her freedom in an ongoing quest to untangle the knotted mess of litigation and secrecy surrounding the James Brown estate.

The 62-year-old began to steel herself for a stint behind bars following her decision to publish the diaries of Tommie Rae Brown, also known as Tomi Rae Hynie, on her Facebook page.

She posted the writings after an anonymous source mailed them to her just a few hours before Circuit Court Judge Doyet Early of Aiken issued a temporary restraining order that prohibited her from making the diaries public.

The diaries cast doubt on Tommie Rae’s claims that her marriage to Brown was legally valid. Following Brown’s death on Christmas Day in 2006, Tommie Rae and other would-be heirs challenged his will, which left the bulk of his fortune to create the “I Feel Good” scholarship trust for impoverished children in Georgia and South Carolina.

Former state attorney general Henry McMaster, now the state’s lieutenant governor, stepped into the fray – it is highly unusual for a public official to get involved in a private civil dispute – and negotiated a settlement that gave more than half of the charity money to Brown’s relatives, including Tommie Rae. The deal had violated Brown’s final wishes, which made clear that anyone who challenged his will would be disinherited.

The Supreme Court rejected and unraveled the settlement, finding that McMaster had overstepped his authority by getting involved in the matter. But Brown’s estate remains mired in litigation, and no scholarships have been awarded from the languishing trust.

“This trust should be producing millions a year for children and it’s producing nothing,” said one of Summer’s attorneys, Thomas Pope of Pope & Hudgens in Newberry.

‘I couldn’t turn away’

When Summer refused to take down the diaries, Tommie Rae’s attorney, Robert Rosen of Charleston, urged the state Supreme Court to enforce the restraining order. He also asked the court to force Summer to reveal her sources and hand over her notes, phone records and everything else she that she had collected during her reporting.

Summer says she would have gone to jail before she complied with Rosen’s request. But she never had to use that bag she’d packed. The Supreme Court determined in March that the restraining order was invalid because it violated Summer’s free speech and equal protection rights.

“Going to jail wasn’t something that I wanted to do,” she said, “but at the same time I felt like I couldn’t turn away. I certainly didn’t expect at 62 to be worried about these sorts of things,” she added with a laugh.

Because the restraining order was based on a gag order that Early issued in 2008 to prevent the release of Tommie Rae’s diaries, Summer and Pope now believe that the gag order also is meaningless.

“The Supreme Court has ruled, at least obliquely, that the gag order isn’t valid,” Pope said.

Rosen turned down an interview request but noted in an email that Early has ruled that Tommie Rae was legally married to Brown, though his order is under appeal. The attorney general’s office has declined to comment on the litigation.

Unfinished business

In early April, the Supreme Court refused to hear further arguments pertaining to Summer’s public records requests, concluding that the attorney general’s office had given her all the documents that it has been ordered to hand over, rendering the case moot.

But Pope and Summer say they’re not finished yet. The current attorney general, Alan Wilson, has only provided Summer with a series of emails between McMaster’s office and the Columbia law firm of Sweeny, Wingate & Barrow, which sued the original trustees for the Brown estate in 2010.

Wilson had asserted that the emails were protected by attorney-client privilege, but Newberry County Circuit Court Judge Eugene Griffith rejected Wilson’s argument based on the fact that a public official was involved in the case.

Summer also had asked for records to support a $4.7 million valuation of Brown’s estate by McMaster-appointed trustee Russell Bauknight of Columbia. Earlier appraisals had valued the estate at about $100 million.

Wilson claimed that he had never seen the appraisal papers, which led Summer and her attorneys to drop the issue, Pope said. By the time they learned that Wilson had tried to add the $4.7 million appraisal to the court record in the ongoing litigation over Brown’s estate, it was too late to renew Summer’s public records request and put the issue before the Supreme Court, Pope said.

Now, he and his co-counsel, noted First Amendment lawyer Jay Bender of Baker, Ravenel & Bender in Columbia, plan to ask Griffith to order Wilson’s office to provide the appraisal papers.

“They [the Supreme Court] may not have foreclosed Sue’s right to get that appraisal because the courts haven’t ruled on it,” Pope said. “It may be futile, but we’re going to try to get that appraisal.”

He and Summer believe that Bauknight, the trustee, has the appraisal. But Pope says that if Wilson used the document, it is a public record and should be made available to Summer under the Freedom of Information Act.

“How come there are so many lawyers fighting over this estate if it’s only worth $4.7 million? A third-grader would know that James Brown is worth more than that,” he said. “I think they’re trying to do the same thing that the Supreme Court already rejected. They’re trying to put a portion of the assets into the foundation, rather than all of the assets that the foundation is entitled to.”

Summer added that about 90 lawyers are involved in Brown’s case. She called the appraisal “critically important.”

She also plans to ask the trial court to order the attorney general to pick up the tab for her attorneys’ fees and other legal costs, which total about $71,000, according to Pope. He said the state should have to pay Summer’s fees because she prevailed in her public records request for the email correspondence that Wilson claimed was privileged.

“If fee awards weren’t built into the Freedom of Information Act, then it would certainly have fewer teeth,” Summer said. “If the attorneys don’t get paid for this work, then the next attorneys down the road will be reluctant to take on these cases.”

Follow Phillip Bantz on Twitter @SCLWBantz