South Carolina Supreme Court is unanimous in its support of open courts and open records.  Are the trial courts paying attention?

Published Sept. 2023

By SCPA Attorney Jay Bender

On September 6 the Supreme Court of South Carolina filed an opinion vacating an order which had reduced the prison sentence of convicted murderer Jeroid Price.  The case had received notoriety when reporters and First Circuit Solicitor David Pascoe raised questions about how the sentence had been reduced when there was no hearing and no public order.

The order reducing Price’s sentence from 35 years to 19 years was a “consent order” in that the language in the order had been agreed to by Price’s attorney, Richland County Representative Todd Rutherford, and Fifth Circuit Solicitor Byron Gipson. 

No motion seeking the sentence reduction was filed on the record, no hearing was held, and the order was signed by Judge Casey Manning on his final day in office prior to his age-mandated retirement.

The South Carolina judiciary is thought by many to be too deferential to lawyers who are members of the General Assembly.  This perception is aided by the fact that candidates for judgeships are screed by a committee with a majority of the members being members of the General Assembly, and judges are selected by a vote of the legislature with the House and Senate meeting in joint session. 

When the circumstances of the sentence reduction order became known, many thought Rutherford had gotten his way with the judge.  The picture isn’t so clear.  The request for sentence reduction under state law must be on a motion of the Solicitor.  In this case Gipson.

In response to a public outcry, fueled by the circumstances of the order and protests by the family of the murder victim, a popular college football player, the Attorney General entered the fray and sought an order from the Supreme Court revoking the sentence reduction.   The Supreme Court acted quickly and ordered Price returned to prison.  One problem:  Price was taking advantage of being sprung from the slammer, and was nowhere to be found.  Ultimately he was captured in New York City and returned to prison in South Carolina.

The Supreme Court was divided 3-2 on the question of vacating the order reducing Price’s sentence, but unanimous in its endorsement of the principle that courts and court records in South Carolina are presumed to be open to the public.  Justices in the majority and the dissent were critical of the absence of a filed motion seeking the sentence reduction, the absence of a hearing, and the sealing of the sentence reduction order.

The majority framed the issue as “whether the law permitted Judge Manning to conduct a closed hearing or seal the ‘ORDER REDUCING SENTENCE.’  The short answer is No.’”  The majority explained that both the South Carolina Constitution and the United States Constitution require that courts be open to the public and press, subject to closure in limited circumstances after a hearing on the question of closure.

With respect to court records the majority stated, “We have attempted on numerous occasions to make clear to the public, to the bench and to the bar that the sealing of any part of a court record is a serious matter requiring lawful authority and specific findings of fact that just justify the sealing.”

The dissent disputed the court’s process and substantive decision to vacate the sentence reduction order, but stated forcefully that court proceedings and court records are open to the public and press, “There is certainly unanimity in this Court that any court should exercise great care and discretion before closing proceedings or sealing any portion of a court record.”

If the law is this clear, why do trial courts, magistrates and circuit courts, lock the doors to keep the public at bay?  Why are records sealed, and in some cases even the order sealing the file is itself sealed?  Why do courts sign orders when there is no indication that a motion has been filed?  Why do courts sign orders when the court knows that the names of the parties are not correctly stated?  Why do courts sign orders when there is no indication that a case even exists?

Is it sloppiness, laziness, or something more nefarious?  Like so many of our public institutions the shrinkage of news coverage diminishes awareness and oversight of the judiciary.  It might be a step in the right direction if newspapers in South Carolina could send a reporter to the courts once in a while to look at what is shown in the record.  Even with that effort we know that the next time a famous athlete is brought before a magistrate for a hearing to which the public is excluded or a high-powered attorney submits a questionable order to a court, we won’t know about it.

The injunction in the medical profession comes to mind here:  “Physician, heal thyself.”  The judicial equivalent should be:  Judges, follow the law because sooner or later someone will be looking.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

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