Vol. 6, No. 6, Pg. 32. THE CONSTITUTION AND THE CHALLENGE TO THE CULTURE OF CONFIDENTIALITY.

• Author: By Jay Bender

South Carolina Lawyer

1995.

Vol. 6, No. 6, Pg. 32.

THE CONSTITUTION AND THE CHALLENGE TO THE CULTURE OF CONFIDENTIALITY

32THE CONSTITUTION AND THE CHALLENGE TO THE CULTURE OF CONFIDENTIALITYBy Jay BenderWhen state ethics violations and inquiries into judicial misconduct are considered, secrecy is the hallmark of the process. The argument is made that proceedings and documents must remain confidential to protect the reputations of the accused and the integrity of the political or judicial process.

This argument has been persuasive for a number of years and has resulted in a culture of confidentiality. Codified by statute and court rule, this culture of confidentiality is intended to guard against the harm to reputation that may flow from the filing of baseless complaints.

In South Carolina, the Supreme Court and the Judicial Standards Commission operate confidentially pursuant to Paragraph 33 of Rule 502, SCACR, which provides in part:

(a) Prior to the issuance of an Order by the Supreme Court directing the suspension, discipline or retirement or removal for disability of a judge, no member of the Commission or its staff, members of the Court, witnesses, or any other person shall disclose the existence or contents of the investigation or proceedings nor any testimony taken nor the papers filed therein unless otherwise directed by the Court.

Violations of the confidentiality rule are subject to the contempt power of the Court. In the case of former Lexington County Probate Judge John Land Johnson, that power was exercised to impose a fine of $1,000 and a jail sentence of 30 days. Johnson released to a newspaper reporter a copy of his letter to former Chief Justice David Harwell complaining of the way Johnson's complaint against another judge had been handled by the Commission. The letter identified the judge and the substance of Johnson's complaint. The fine and jail sentence were suspended on the condition that Johnson not breach the confidentiality provision of Rule 502 in the future. (Sup. Ct. Order of 9/26/94, In the Matter of John Land Johnson)

The argument is made that proceedings and documents must remain confidential to protect the reputations of the accused and the integrity of the political or judicial process.

Criminal penalties may also be imposed under the state Ethics Act, which provides at § 8-13-320(10)(g):

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