Sealing of conservator cases raises concerns

6:42 AM, May 18, 2012   |    comments
Reese Witherspoon, her husband, Jim Toth, left, and her father, John D. Witherspoon, leave Davidson County Court on May 11, 2012. / Dipti Vaidya / The Tennessean
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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 recent cases.

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.

But completely 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 said.

"Sealed records or hearings are giant red flags," said Elaine Renoire, head of the National Association to Stop Guardian Abuse.

"Many 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 abuse."

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.

"There 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."

Cases differ

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.

The 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.

In 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.

"Our 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.

What's lost when that happens is the watchdog role the public - often through the media - has over the court system, Policinski said.

Judges 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.

"It 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.

She 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 conservator.

"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.

"In 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.

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