Since the death of music legend James Brown on Christmas Day 2006, the legal maneuvering over his estate has involved over 75 attorneys in four courts — and not one student has received any scholarship proceeds, as Brown’s estate plan clearly intended.

In his 2009 settlement deal, former Attorney General Henry McMaster gave away over half of the assets Brown intended for his education charity, the “I Feel Good” Trust, to those who had contested the estate plan. The resultant filings — including an appeal to the S.C. Supreme Court by former trustees, Adele Pope of Newberry and Robert Buchanan of Aiken — have questioned whether the McMaster deal should have been made.

Of particular concern have been the broader public policy issues the deal raises.

James Brown’s estate plan spelled out what he wanted to happen with his music empire: he wanted a privately-managed charity to provide scholarships for needy students in South Carolina and Georgia. Under the McMaster settlement, Brown’s assets were taken over by the State, given to several people Brown had excluded from inheriting his music empire, and placed in a for-profit “settlement entity.”

The sole trustee, appointed by the AG, controls the assets, which means the AG has become the “controlling partner” in a private, for-profit entity.

Jeff Smith and Adele Pope, both of Newberry, have written an article that explains how the State takeover of the Brown estate could have an effect on private philanthropy in South Carolina. Wealthy people who want their resources distributed in a certain way might decide to take their charitable foundations to another state where their wishes can be enforced as written in their estate plans.

The Attorney General now asserts that the trust documents and details of its management are not subject to review by the public under the FOIA.

The sole trustee of the Brown estate is, under the McMaster deal, appointed by and serves at the pleasure of the Attorney General of South Carolina. When documents have been requested under the FOIA, however, the Attorney General’s office has responded that these documents are “private,” are attorney work product, do not exist or are not in the AG’s office.

The Attorney General has also argued, in failing to release documents, that: FOIA lawsuits should be filed in Columbia; when someone is sued by the State, someone cannot request documents under FOIA but must follow rules of discovery; a FOIA suit should be consolidated with a private tort action if the requested document is related to that suit.

Current Attorney General Alan Wilson has refused to release several documents: the James Brown Legacy Trust, written by McMaster as part of the settlement; the signed contract under which the Attorney General’s office and others are suing the two attorneys who appealed the McMaster deal; the diary of Brown’s companion, which may offer evidence she was not his wife and is not entitled to receive one-quarter of Brown’s estate, as she claims.

The Attorney General has not said whether the documents that are “not in the office” are in the custody of current trustee Russell Bauknight, who serves at his pleasure. The public policy question in this case would be: can a public official place documents in the hands of his appointee and then claim the documents are not available for release under FOIA?

In 2007, Judge Doyet Early of Aiken issued a series of three gag orders related to the diary of Brown’s companion. No hearing was held before the orders were issued.

The Attorney General’s office did not reveal the diary or its contents to the S.C. Supreme Court during arguments related to the appeal, heard Nov. 1, 2011 — nor could anyone else.

The McMaster deal resulted in the first-ever lawsuit brought on behalf of the Attorney General, using only a private attorney who also represents a number of private plaintiffs, many of whom are non-residents of South Carolina.

To date, circuit court Judge Casey Manning has allowed Columbia attorney Kenneth Wingate to remain as counsel for both the State and private parties, even though many problems have arisen in connection with the Wingate suit:

Wingate issued a subpoena in the name of the Attorney General and others, asking for sources to be revealed. The subpoena was later withdrawn at Wilson’s request.

The Brown case raising a number of public policy issues. Why is Brown’s case so different from other large estates? Brown’s grandson William Brown thinks he has the answer, “Would this have happened if my grandfather’s last name was Thurmond? I don’t think so.”

The McMaster settlement deal was appealed in 2009 to the S.C. Supreme Court, and arguments were heard Nov. 1, 2011. After almost 15 months, the Court has yet to issue its opinion.

The diary gag order has been appealed, the lawsuit against former trustees is pending in Richland County, and a federal suit involving Brown’s grandson is on hold until the Supreme Court decision. Matters in Aiken County are also on hold, pending the decision.