Beaufort attorney fights contempt charge in Lanese beating suit

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Beaufort attorney fights contempt charge in Lanese beating suit

By KYLE PETERSON
kpeterson@beaufortgazette.com
Published Wednesday, November 16, 2011   |  929 Words  |  

Beaufort attorney Joel Bailey is vigorously defending himself against a ruling by 14th Circuit Judge Carmen Mullen holding him in contempt of court.

Bailey is asking the judge to reconsider, and writes in court documents that the ruling is "based upon erroneous, misleading and inaccurate findings of fact outside the evidence," and a result of "errors and misapplications of existing law."

Further, Bailey accuses Mullen of communicating with opposing counsel without including him, which is frowned on by rules governing judges.

Mullen denied any impropriety in a September court hearing and said she has a policy to always include both sides.

"While this policy is admirable and would comply with existing law in this state, an examination of the records in this case indicates that the policy was not followed ... ," Bailey writes.

Bailey represents Brian and Tracy Lanese of Bluffton, who claim in a lawsuit against Beaufort County that two paramedics treated Brian Lanese negligently after he was attacked and beaten in 2008.

In preparing for trial, Bailey obtained personnel records showing the paramedics allegedly had been disciplined multiple times previously, and he described those instances in pleadings filed with the court.

Robert Achurch, one of the attorneys representing the county, argued that by doing so, Bailey violated a protective order signed by Mullen that shields personal information in the case from public disclosure.

Both sides argued their cases at a hearing in September.

On Oct. 19, Mullen cleared the Laneses of contempt charges, but ruled that Bailey had violated the order.

Mullen will not rule on possible sanctions against Bailey until the trial is complete, according to records.

State law indicates circuit judges may punish those found in contempt with fines or imprisonment.

NEWSPAPER LAWSUIT

Bailey filed a motion Nov. 3 asking Mullen to reconsider the contempt citation against him -- and that's where his case dovetailed with one involving The Island Packet and The Beaufort Gazette.

In the weeks after Lanese was attacked, reporters asked the county for records on previous disciplinary action against the paramedics, but a county attorney responded that none existed.

Bailey's lawsuit, filed May 11, showed otherwise.

For example, the lawsuit alleges that one of the EMTs took pictures of a naked female patient and downloaded them to his home computer.

On June 23, reporters again filed a Freedom of Information Act request for the personnel records.

This time, county attorneys acknowledged the documents existed, but said they could not release them because the protective order in the Lanese case barred them from doing so.

Mary Lohr, one of the attorneys representing the county, wrote that she did "appreciate these documents are public records," but she argued that only a judge could resolve "the inherent conflict between the Freedom of Information Act and the court's protective order."

The county filed a pleading in July, asking a judge to decide whether the documents could be released, but that case remains unresolved.

Jay Bender, an attorney for the newspapers, filed a motion Nov. 9 arguing that the protective order itself violates state law because it places public records outside citizens' reach.

BAILEY'S DEFENSE

Bailey cites the newspapers' records request -- and the subsequent litigation-- in court documents asking Mullen to reconsider the contempt citation against him.

He says that two county lawyers, through word and deed, have acknowledged the disciplinary records are public documents, which makes it difficult to understand how he can be held in contempt.

Bailey also objects that the county's attorney presented information to Mullen when he was not present on at least four occasions:

  • In one instance, it appears that a scheduling motion and Mullen's ruling on the motion were submitted to the clerk's office together because their timestamps are identical down to the minute.
  • Bailey says he had no prior knowledge of an order Mullen signed that released to Achurch, the county attorney, a transcript of a criminal case involving the Lanese beating.
  • Achurch wrote in a letter to Bailey that Mullen denied a motion to block publication of an Island Packet/Beaufort Gazette story about the case. Mullen has said she did not, in fact, rule on that motion.
  • The request to hold Bailey in contempt was also made without including him, he wrote.
  • Because he was not involved, Bailey says he has no idea what happened in those instances.

    "I only know that I was not included in the process," he wrote.

    Such "ex parte" communications, in which one attorney speaks to a judge without the opposing lawyer being present, are inconsistent with prescribed court procedure except in certain circumstances

    .Follow reporter Kyle Peterson at twitter.com/EyeOnBeaufortCo.

    Related content:


    Judge hears Lanese motions, sets trial date, Sept. 14, 2011

    EMS allegations fuel debate over open records, June 11, 2011

    County attorney defends Freedom of Information decision, May 28, 2011

    Lawsuit alleges county concealed paramedics' misconduct, May 21, 2011