By Walter F. Roche, Jr. and Duane W. Gang, The Tennessean
When a Davidson County judge closed his courtroom to the public during a conservatorship case involving actress Reese Witherspoon's father
last week, he didn't just close a day's proceedings: He sealed the
entire case history, something he has done in only a handful of other
In sealing the case from public view, 7th Circuit
Court Judge Randy Kennedy said the prejudice that would befall the
Witherspoon family outweighs the public's right to know. Kennedy sealed
the entire case file - not just individual medical or financial records -
and required the media to leave the courtroom.
blocking access can hinder efforts to curb guardianship abuse and
prevents the public from performing its watchdog role over the court
system, conservatorship reform advocates and a First Amendment expert
"Sealed records or hearings are giant red flags," said Elaine Renoire, head of the National Association to Stop Guardian Abuse.
times, the families involved in these cases think their privacy is
being protected by this practice, but in fact, what is happening is the
scrutiny of the public and/or the media is compromised or completely
blocked, leaving the wards and their families open to court-sanctioned
Conservatorships are a legal mechanism the courts use when
someone cannot care for himself. In such cases, which often deal with
mental capacity, the court appoints a conservator to oversee the
person's affairs - every detail from paying bills to deciding how much
money is spent on personal items.
Of the first 528 probate and
conservatorship cases filed in the first three months of 2012 in
Davidson County, only five have been sealed, a review of court docket
records shows. Kennedy handles both types of cases.
Kennedy said in court May 11 that there was a precedent for closing the Witherspoon hearing and sealing the records.
are numerous conservator cases that this court and courts across the
state have placed under seal," Kennedy said before ordering reporters
from the courtroom Friday.
"The primary overriding justification
for that has, in my estimation, been the protection of the private
interests of those private citizens whose health records, financial
records and personal courses of conduct would otherwise be laid open to
the scrutiny of the public, thereby jeopardizing them."
Reese Witherspoon went to court last week with her brother for an
emergency hearing on whether her father, Dr. John D. Witherspoon, should
be placed in a conservatorship.
The family contacted Kennedy's
assistant directly about having the case addressed before filing any
paperwork with the court. The hearing took place at 3 p.m. May 11 in a
nearly empty courthouse and not on the judge's regular 10 a.m. docket.
outcome remains unknown because even the judge's order is sealed.
Kennedy decided to seal the entire case, rather than redact only the
most sensitive private information.
The hearing came the same week Betty Witherspoon filed a lawsuit saying that her husband had married another woman even though Betty Witherspoon says she is still married to John Witherspoon.
the lawsuit, Betty Witherspoon said her husband has early-onset
dementia and has problems with alcohol, hoarding and overspending. She
seeks to have that new marriage annulled.
John Witherspoon, an
ear, nose and throat specialist, remains licensed to practice medicine,
according to the state Board of Medical Examiners.
Kennedy also has sealed the files in the case of Lisa Arnold, 20, a woman with Down syndrome who was placed in a conservatorship over the objections of her mother, Renate Arnold.
His actions in that case have been challenged in a pending federal court suit.
In contrast to those two cases, the records in the case of Jewell Tinnon
have remained open. Tinnon, 82, was placed in a conservatorship by
Kennedy and saw her house and all her belongings auctioned off,
primarily to pay the costs of lawyer fees.
Tinnon ultimately got
out of the conservatorship after new lawyers presented medical evidence
challenging the conclusion that she was incapable of caring for herself.
Tinnon has now filed suit against the court-appointed conservators and one of the attorneys named by the court to represent her.
A time for access, a time for privacy
Rep. Gary Odom, D-Nashville, said a study commission authorized by
the General Assembly will consider all aspects of the state
conservatorship laws, including the sealing of records. The panel is
expected to convene in July.
Odom filed a bill
in the recently concluded session in reaction to the Tinnon case. The
bill, passed by the legislature and signed into law May 10 by Gov. Bill
Haslam, places new disclosure requirements on those petitioning to place
someone in a conservatorship.
Renoire said cases like Tinnon's show the need for public access to conservator cases, and sealing records enables exploitation.
vulnerable elderly or disabled who are under conservatorship need every
ounce of protection possible because their civil rights and liberties
have been legally stripped from them by the proceedings, leaving them
vulnerable to abuse and exploitation by the very persons court-appointed
to 'protect' them," she said by email.
"Confessed and convicted serial killers have more rights and civil liberties than conservatorship wards."
Gene Policinski, executive director of the Nashville-based First Amendment Center, said the courts are given more leeway to close proceedings in conservatorship and juvenile cases.
lost when that happens is the watchdog role the public - often through
the media - has over the court system, Policinski said.
should not make blanket decisions on closing conservatorship hearings to
the public and they should be handled on a case-by-case basis, he said.
Judges must balance the rights of the individual with the public's
watchdog role, he said.
Too often, Policinski said, there is a
view that access would be harmful to those involved. "The idea of open
courts is not harmful," he said.
But others say there are times when the case should be closed or at least portions of the court records kept from public view.
is not unusual for guardianship proceedings to be closed to the public
upon proper request by a party," said Terry Hammond, an El Paso,
Texas-based conservatorship guardian attorney.
Sally Hurme, a project adviser with AARP, said just about every court has a way to handle sensitive information.
said it can be appropriate under some circumstances to keep information
from the public because intimate details are often needed for the court
to make a determination on whether to appoint a guardian or
"In appropriate circumstances it can be important to
the individual's well-being that some or all of the proceedings be kept
out of the public's eye because of the nature of the personal
information that is necessary for the court to know to make a
determination about the need for a guardian or a conservator.
some courts, by standing court rule, certain medical, mental health or
financial information is automatically sealed to protect the privacy and
personal information of the respondent," Hurme said.