Update: A state judge has scheduled an open hearing for 10:30 am Friday to address issues between SC House Speaker Bobby Harrell and Attorney General Alan Wilson, the Charleston Post and Courier is reporting:
The move came as the Post and Courier, along with other members of the S.C. Press Association, filed a legal motion this morning seeking to ensure that any hearing on Harrell’s request to have Wilson removed as prosecutor in his grand jury investigation be held in public.
It was not immediately clear if the hearing would address only the media access request, or include a full review of the issues surrounding Harrell and Wilson.
Bill Rogers, executive director of the South Carolina Press Association, called the development a good sign, but said he’s bothered by the ambiguity about what tomorrow’s hearing will actually entail.
“This shouldn’t even be debated whether we’re going to have a secret hearing or not,” he told CJR. “It should be a given—the whole thing.”
Press association attorney Jay Bender “has written a great brief [arguing that the proceedings on Wilson’s role should be public] and we’re ready to argue,” Rogers said.
Common Cause of South Carolina director John Crangle says he’s putting together a joint news conference after tomorrow’s meeting with the limited-government South Carolina Policy Council and other civic groups.
“W’re trying to put as much media attention on the matter as we can, which in turn puts pressure on Judge Hood to do the right thing,” Crangle told CJR.
Update 2, 2:24 pm March 20: The State’s John Monk, who first broke the news of the requested secret hearing, has a fuller write-up of the news about Friday’s hearing and the history of the case here.
Update 3, 2:15 pm March 21: The proceedings on Harrell’s request to have Wilson removed will be public after all, a judge ruled before a packed courtroom in Columbia this morning. The Post and Courier has an account of today’s hearing here; a ruling is expected next week.
Original story below published at 11:45 am March 19. The headline of this post has been changed.
CHARLESTON, SC — An investigation of one of the most powerful politicians in this state has turned into a key test of how open the courts here are, with media organizations arguing in print and—they hope—in the courtroom that key legal decisions shouldn’t be made behind closed doors.
For more than a year, the state’s Republican House Speaker, Bobby Harrell, has been under investigation for possible misuse of campaign funds and abuse of his public office, though Harrell maintains he has done nothing wrong. In January, South Carolina’s Republican Attorney General, Alan Wilson, sent the case to a state grand jury. Wilson’s office would prosecute the case should it end up at trial, and the situation has been prickly for the two Republicans, with Harrell accusing Wilson of trying to damage him politically.
The political intrigue blew up into an open-government concern a week ago, when John Monk of The State newspaper in Columbia, citing unnamed sources, reported that Harrell’s attorneys were secretly seeking a closed-door hearing before a state judge to argue that Wilson should be removed as the prosecutor. The substantive argument for disqualifying Wilson was unclear, Monk reported.
That might be a case of lawyers advocating as best they can for a client. But Monk’s report included this doozy of a line, summing up the extraordinary nature of the situation:
A secret decision by a lone judge in a hearing closed to the public that resulted in disqualifying South Carolina’s top elected prosecutor from prosecuting a high-profile case against one of the state’s most powerful politicians would be unprecedented.
The judge in question, Circuit Court Judge Robert E. Hood of Columbia, hasn’t commented publicly. Harrell’s attorneys have declined comment on the hearing request, saying that the grand jury process is secret by law. The attorney general’s office has said only that it is “strongly opposing both the request for a closed hearing and any disqualification of the attorney general.”
In other words, none of the parties involved have denied that such a request for a closed-door hearing exists or acknowledged whether a hearing has been scheduled. The Charleston Post and Courier reported Monday that a hearing is “expected to take place later this week in Columbia,” but the “time and place of the proceeding has not been formally released by court officials.”
In an interview with CJR on Wednesday, Monk said he understood a hearing had actually been scheduled for last week but was called off. “Now, a new hearing date has either been set that we don’t know about or is in the process of being set that we don’t know about,” he says.
In the meantime, local newspapers and the state press association have been pressuring the court to keep any hearing open—arguing that while grand jury proceedings themselves are secret, a hearing on removing one of the parties should be public.
South Carolina has a state constitutional provision that all courts should be public, says Jay Bender, counsel for the SC Press Association and The State. And other than a child’s testimony in a sex abuse case, “I don’t know of any case in South Carolina where a court has held a hearing closed to the public or press that was challenged where the decision to close the hearing was upheld,” Bender told CJR.
Bender says he’s asked Judge Hood for the opportunity to challenge any motion to close a court proceeding—should one exist. At the time this story was posted, Bender hadn’t heard back.
A day after Monk’s initial piece ran, The State published on its website a letter the reporter had written to Judge Hood.
From the letter:
If you have already decided in advance to hold a secret hearing on the possible removal of Alan Wilson, and/or the possible appointment of another prosecutor, I respectfully request that you tell me so our newspaper, The State, can have Jay Bender, our media and open government lawyer, appear before you to argue that such a proceeding should be open to the public. It is my understanding that the S.C. Supreme Court requires you to allow our lawyer to appear before you to make this argument for an open hearing. Chief Justice Jean Toal has long been a supporter of such open hearings before a decision to close a hearing.
This is a matter of great public importance and interest. The confidence of the public in its courts depends in large part upon the transparency of the court system, according to the U.S. Supreme Court. A secret court proceeding by you in which you secretly decide to kick the Attorney General off this important case could well undermine that confidence and public trust.
On Monday, the newspaper also published an editorial urging the judge hold any potential hearing in open court. “If our attorney general has done something so inappropriate as to merit his removal, we need to know that,” the editorial read. “If, on the other hand, this is simply a frivolous request, designed to impugn the attorney general’s reputation, perhaps in hopes of intimidating him into backing off, we need to know that as well.”
Since the news broke, organizations ranging from the state chapters of the League of Women Voters and Common Cause to Tea Party groups have expressed alarm about a lack of transparency, The State reported.
As for how last week’s story came about, Monk told CJR:
I developed the story in two ways, one of which was a very back-channel way of learning about it, that’s as much as I want to say about that. Secondly, the other key important part was to get confidential sources to confirm it. I had those confidential sources because I’ve been in the state for years. I’m a known quantity and people felt comfortable—either because they know me or they know mutual friends or news sources—of saying something about a secret court process that basically if you’re involved in that process, you’re sort of sworn not to talk about it. So it’s kind of an honor to have that kind of trust placed in you.
The public—and the press—should know this week whether any hearing will take place and whether it will be open or closed. Bender, the press association attorney, says he’ll keep fighting to keep the process transparent. And he had this to say about how the story originated and has played out over the past week.
What happens to our democratic society if newspapers go away? Who’s going to be out there asking these crucial questions and trying to push people in public positions to conduct public business in public view?
We’ll update this post as the situation changes.