Brown
Sue Summer is a small-town journalist embroiled in a big public records fight with an even bigger state agency. And, so far, she’s winning.
“I didn’t want to ignore this story,” Summer said during a recent phone interview from her home in Newberry as her 3-year-old granddaughter played in the background.
Summer, a semi-retired reporter and columnist who freelances for her local paper, The Newberry Observer, was in good spirits. Days earlier, on July 8, a circuit judge had ordered state Attorney General Alan Wilson to turn over all the documents that Summer requested as part of her investigation into the tangled estate of the late James Brown, the Godfather of Soul.
One of her attorneys, Thomas Pope III of Pope & Hudgens in Newberry, called the ruling, which found that Wilson had violated the Freedom of Information Act, a “great victory for the FOIA.”
“If a public body uses a document, it should be produced,” he added, “and that’s what the judge ordered.”
Another attorney for Summer, Jay Bender of Baker, Ravenel & Bender in Columbia, said the order also makes it clear that residents can file suit in their home county against a state agency, rather than having to sue in Columbia.
“You don’t have the expense of coming to Columbia and dealing with Richland County’s crowded docket,” he said.
Summer sued Wilson in December 2012, after she said he refused to give her public records that would reveal the details of a settlement that his predecessor, former Attorney General Harry McMaster, orchestrated for the Brown estate. The South Carolina Supreme Court voided that settlement, finding that McMaster had, essentially, overstepped his bounds.
Brown’s will left the bulk of his fortune to the “I Feel Good” scholarship trust for underprivileged children in Georgia and South Carolina. But McMaster’s settlement created a new entity, the Legacy Trust, when disputes over the original trust threatened to leave it in legal purgatory.
Under McMaster’s settlement, several of Brown’s relatives who challenged the will, including his companion Tomi Rae Hynie, were allowed to benefit from the estate— despite Brown’s instruction in an audio recording of his will that anyone who contested his final wishes be disinherited.
While the Supreme Court decision nixed the settlement and left Brown’s will intact, it did not dismantle the Legacy Trust. Now, Summer wants to know more about the trust and how it is structured, which remains a mystery.
“What happened to the money?” she said. “I just know that no scholarships are being given. It’s been seven years since Mr. Brown died.”
She also questions why a trustee, Richard Bauknight, whom McMaster appointed to oversee Brown’s estate, valued the estate at only $4.7 million. Other earlier appraisals had valued the estate, which includes Brown’s musical empire and the use of his image in advertising, at around $100 million.
“I know people in Newberry who have houses at the lake that are worth that,” she said of Bauknight’s valuation. “I find it hard to believe that an appraiser, if given valid documents, would come up with that number. I want to know what documents that appraisal is based on.”
Finally, Summer has asked Wilson for Hynie’s diaries. She claims to be Brown’s wife, but Summer believes the writings could reveal that the two were not legally married.
FOIA ‘would be crippled’
Wilson had argued, unsuccessfully, that he should not have to give Summer some of the documents she’d requested, including the Hynie diaries, because they are the subject of discovery motions in another case in Richland County that is tied to Brown’s estate.
Circuit Judge Eugene Griffith wrote in his order that FOIA “would be crippled if a public body could refuse to release documents based on discovery disputes or orders in other cases.”
In the Richland case, Wilson, Bauknight, and a group of other plaintiffs hired Kenneth Wingate of Sweeny, Wingate & Barrow in Columbia to sue two former Brown trustees, Adele Pope and Robert Buchanan, for damaging the estate by appealing McMaster’s settlement deal to the state Supreme Court. The case was filed in 2010 and is still pending,
Adele Pope is married to Thomas Pope, Summer’s attorney. He has no involvement in his wife’s case.
Adele Pope also filed a public records request with Wilson seeking many of the same documents that Summer wants. But a different judge in Newberry, Frank Addy Jr., consolidated her FOIA request with the Richland case in 2011. Since then, her request has stagnated, said her attorney, Adam Silvernail of Columbia.
“We believe that our case is entitled to the same treatment that Judge Griffith gave to Summer’s case,” he said. “After seeing his order, we are enthusiastic that our very similar case will reach a similar result shortly, after three years of waiting.”
Adele Pope is seeking documents pertaining to the arrangement between Wilson and Wingate in their suit against Pope and Buchanan. The case, Silvernail said, is the “first instance in our state—or any other state that I’m aware of—where an attorney general has joined with private citizens in suing two of his own citizens for money.”
According to Silvernail, Wilson has denied having involvement in the suit, though the Supreme Court stated in its opinion in the Brown estate settlement that Wilson reported that he was withdrawing as a party in the suit but would “maintain a monitoring role.”
“If the attorney general’s office is to be believed, Bauknight and a private law firm in Columbia were out using his name to sue people with no authorization,” Silvernail said. “If I went out and started suing people with the AG’s name, I’d be a good candidate for discipline. But there’s no indication that has happened.”
He added, “The FOIA cases hopefully will resolve how the attorney general turned up as a plaintiff in a lawsuit that he now claims he has no involvement in.”
‘Happy’ for appellate review
Wilson was unavailable for an interview, according to his spokesman, Mark Powell. He said the attorney general’s office was still reviewing the order on July 14 and would “be in touch after we determine our response to it.”
Wilson wrote in a letter to Lawyers Weekly last year in reaction to an article about Summer’s suit over public records that his “office has always been fully responsive to every FOIA request we have received, and we will continue to do so.”
Wilson could still assert that the documents Summer requested are confidential. But he will have to file a sworn statement explaining the basis for his decision as it applies to each document he withholds.
“It would be very hard for that position to be sustainable,” said Bender, one of Summer’s attorneys.
He added, “The documents she requested seem to be related to the attorney general getting involved in an estate when the South Carolina Supreme Court has said that his involvement was not appropriate and not sanctioned by the law.”
Griffith also shot down Wilson’s assertion that Bauknight and the other plaintiffs in the Richland case could intervene in Summer’s public records suit and prevent the release of the documents she’s seeking.
“To allow such intervention would defeat the purpose of FOIA,” he wrote in his order, which gave Wilson’s office 15 days to comply with Summer’s request. Pope, her attorney, said he “wouldn’t be surprised” if Wilson appealed the order.
“I’d be happy for the appellate courts to review this,” he added.
Follow Phillip Bantz on Twitter @SCLWBantz