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| Monday, Jan 27, 2003 |
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Posted on January 22, 2003 Toal sticks by decision for secret settlement ban COLUMBIA -- Chief Justice Jean Toal spent a lot of time Tuesday defending what she called her "modest little suggestion" that the General Assembly pass a statewide rule barring confidential court settlements. At a public meeting, doctors warned of skyrocketing malpractice rates. Defense attorneys spoke about clogging of court dockets. And Family Court lawyers fretted that divorce settlements full of Social Security and credit card numbers as well as other personal information would be available to anyone. Advocates of the ban on secret settlements included Jay Bender, a lawyer for news organizations, who said that the public has a right to see how its tax money works. Also, Brenda Bryant of Lexington County said she wished she could have seen the malpractice settlements against her husband's doctor before his botched open-heart surgery. Written comments solicited before the public hearing held in the state Supreme Court's chambers were about 2-to-1 against the ban, which is already in place at the federal court level. The speakers Tuesday went against the idea at about the same ratio. Several lawyers said Toal had done enough by reminding her judges last year about a 1991 state Supreme Court ruling that said there were only a handful of reasons, including ensuring a fair trial and possible harm to the parties, that allowed a judge to seal court documents. "I doubt seriously a sealed document of any kind is going to be hard to come by for a while," lawyer William S. Davies Jr. said. But Toal said in the past decade, that decision has been "honored more in breach than in the observance." The critical part of the proposal, called Rule 38, reads: "No settlement agreement filed with the court shall be sealed pursuant to this Rule." The push for a ban in secret settlements started in South Carolina's federal court. Joe Anderson, South Carolina's chief federal judge, worried about the increase in confidential agreements that may have slowed the discovery of faulty products. , such as the Firestone tires the government says contributed to 300 deaths in the late 1990s. Toal has to submit her rule to the same General Assembly that will decide whether she remain chief justice in 2004. The lawmakers, one in five of whom also are attorneys, must approve the ban by a three-fifths vote. House Judiciary Committee Chairman Jim Harrison, R-Columbia, said some form of a ban likely would pass this year. "I won't say we'll automatically sign off on anything she proposes, but I anticipate she will make a good proposal." Toal promises Family Court attorneys and judges that she will carefully monitor settlements in those courts to make sure private information is kept confidential. Associate Justice Costa Pleicones said he understands why defense attorneys would want to keep the amount of money won in a settlement private. Opponents pointed out while federal court in South Carolina has issued a blanket ban, judges can ignore any rule, including the ban on secret settlements, if they think the issue is compelling enough. State courts have no such rule. The ban would not apply to parties that settle out-of-court without a judge's approval, leading some proponents of the new rule to suggest it will encourage more people to use arbitration to settle disputes. And while opponents of the ban worried about clogged courts if confidential settlements are not allowed, they said they do not have any studies or data supporting that conclusion. Supporters of banning confidential settlements included University of South Carolina law professor John Freeman, who praised Toal for taking a stand before the rest of the country did. Freeman, quoting a federal court decision, said "democracy dies behind closed doors." South Carolina's proposed rules go further to open up court records than those in any other state, said Mary Alexander, president of the 56,000-member Association of Trial Lawyers of America. Four states -- Arkansas, Florida, Louisiana and Washington -- ban privacy agreements in cases involving hazardous products. Twelve other states have rules to guide judges on when they can seal court records, according to the association. |
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