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Administrative court must give reasons for closure

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NEWS MEDIA UPDATE   ·   SOUTH CAROLINA   ·   Secret Courts   ·   Aug. 10, 2005

NEWS MEDIA UPDATE   ·   SOUTH CAROLINA   ·   Secret Courts   ·   Aug. 10, 2005


Administrative court must give reasons for closure

  • The state Supreme Court overturned an administrative judge’s decision to shield a doctor’s disciplinary proceedings from the public.

Aug. 10, 2005  ·   A state administrative judge must explain in writing why it was necessary to close proceedings in a physician’s appeal of disciplinary action, the South Carolina Supreme Court ruled Monday.

In reversing Administrative Law Court Chief Judge Marvin F. Kittrell’s decision to shield proceedings and records involving Hilton Head cardiologist Dr. James D. Johnston from the public, the court ruled 5-0 that Kittrell “should have engaged in an analysis that balanced the interests of the physician and the public and should have explained the need for closure.”

“I think it’s a victory both for the newspaper that brought the suit and for the public of South Carolina,” said media attorney John C. Moylan III of Wyche, Burgess, Freeman & Parham in Columbia, who helped represent The Island Packet.

The Hilton Head newspaper asked the state Supreme Court to intercede after Kittrell denied the paper’s requests for access or for an opportunity to voice its objections to the secrecy surrounding the Johnston case. A coalition of national media groups led by The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief in support of the newspaper.

Kittrell, who reviewed a decision by the state medical board to temporarily suspend Johnston’s license to practice medicine because of the doctor’s alleged alcohol abuse, had argued that disciplinary proceedings were secret under state law. (Since the suit was filed, the law has changed to allow public disclosure of complaints against doctors, with some exceptions.) Indeed, the Supreme Court, which referred to Johnston as “Anonymous Physician” in its opinion, said Kittrell did not err in closing the proceedings because the case was still in the “investigatory stage.”

But the Administrative Law Court — a quasi-court that is part of the state’s executive branch — is a “public body” whose judges are required to make explicit factual findings on the record before closing a proceeding, Justice James E. Moore wrote for the high court. The Supreme Court sent the case back to Kittrell to make requisite fact findings.

“It means that in essence, the Administrative Law Court will be held to the same standards that our Supreme Court has held applies to courts across the state, which is: If the press or the public desires to be present and be heard, that they have the right to do that, and at a very minimum, if they are to be excluded, the Administrative Law Court must give specific written reasons why the press and the public are being excluded,” said Moylan, who argued The Island Packet‘s case before the high court in March.

The court noted that Johnston has been ordered to stop practicing medicine — but he is listed as active until the end of 2007 by the state Department of Labor, Licensing and Regulation, The Island Packet reported Tuesday.

(The Island Packet v. Kittrell; Media Counsel: John C. Moylan III, Wyche, Burgess, Freeman & Parham, Columbia, S.C.)KK


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