By Paul Gable
The American Conservative Voices group hosted 1st Judicial Circuit Solicitor David Pascoe, 16th Judicial Circuit Solicitor Kevin Brackett and York County Sheriff Kevin Tolson Tuesday night to hear recommendations on judicial reform in South Carolina.
South Carolina is one of only two states in the Union (Virginia being the other) where judicial appointments are controlled by the legislature. In the remaining 48 states, judges are popularly elected by the people.
Consequently, the judicial branch in South Carolina is in reality not a separate and equal branch of government, but one, at least indirectly, controlled by the General Assembly. Judges’ rulings can, and often are, second guessed by legislators, which can directly affect whether a judge will remain on the bench.
Pascoe gave examples of two different judges who were up for reappointment with no other candidates for their position, but, because each had made a ruling against a legislator-lawyer before them in a case, failed to get through the Judicial Merit Selection Commission (JMSC) part of the judicial appointment process. These were sitting judges, up for reappointment, who failed to be reappointed just because they had made a legislator-lawyer mad at them. That is not an independent judiciary.
The JMSC is composed of 10 members, three members of the House and three members of the Senate along with four non-legislators. The three House members and two of the non-legislators are appointed by the Speaker of the House and the three Senate members and two of the non-legislators are appointed by the Senate Judiciary Committee Chairman. This makeup of the commission makes it easy to see how making just one House member or Senator mad at you can tank a candidate’s appointment or reappointment to the bench.
The process can also work to guarantee appointment to a judgeship for a ‘buddy’ candidate. Below is an extract that appeared in GSD earlier this year tracking the timeline of events that led to the appointment of Alan Clemmons to the position of Master-in-Equity for Horry County over two more qualified candidates.
Clemmons won the state primary for nomination to his 10th term in office as a state representative for SC House District 107 on June 9, 2020.
On June 20, 2020, the SC Judicial Merit Selection Commission issued a media release announcing it was accepting applications for judicial offices named in the release. Included in that release was the statement, “A vacancy will exist in the office currently held by the Honorable Cynthia Graham Howe, Master in Equity, Horry County. The successor will serve a new term of that office, which will expire December 31, 2027.”
Four days later the JMSC issued a “Media Release Amended” in which the only change was removal of the advertisement for applications for the Horry County Master in Equity position. The chairman of the JMSC for 2020 was Horry County Sen. Luke Rankin.
An inquiry to the JMSC about the elimination of the Horry County position elicited the following email response, “JMSC issued a media release on June 20, 2020 announcing screening for Horry County Master in Equity (Judge Howe’s seat) and the successor to serve a new term to expire December 31, 2027. Since the new term would not begin until January 1, 2022, a subsequent media release was issued, deleting the seat from the 2020 screening.”
There were two problems with this response. First, according to SC Senate Journal records, Gov. Nikki Haley appointed then incumbent Horry County Master-in-Equity Cynthis Ward Howe to a six-year term ending July 31. 2021. Second, the Greenville Master-in-Equity position was advertised in both the original media release and amended media release. The term of incumbent Greenville Master-in-Equity was to end on December 31, 2021, according to both media releases, with the new term to expire on December 31, 2027, the exact same dates that the JMSC said caused the Horry County position to be deleted.
Horry County state Sen. Luke Rankin was the Chairman of the JMSC in 2020, according to state records.
State law requires members of the General Assembly to be out of office for one year before they can begin the application process for a judicial appointment.
Clemmons resigned from his SC House seat on July 17, 2020. Because Clemmons had already won the regular primary for nomination for the November 2020 general election ballot, he had to send a sworn affidavit to the SC Election Commission stating his resignation was for “non-political reasons” in order for the Republican Party to hold a special primary election to name a new nominee.
Clemmons’ stated reasons, in the sworn affidavit, for resigning from his House seat were to spend more time with his family and to attend to the needs of new, large clients of his law firm, which would require substantial time.
Immediately after Clemmons’ resignation, this reporter questioned whether Clemmons’ resignation was due to his desire to seek the Horry County Master-in-Equity position.
According to the above referenced JMSC email response, the JMSC discovered the error in the end date of the Howe term in Spring 2021.
A JMSC media release of June 21, 2021 again advertised the position of Horry County Master-in-Equity as open for application. However, in this release, it was stated the new Master-in-Equity appointee would serve out the remainder of the current term of Judge Howe, which was now listed to expire on July 31, 2027.
There are no state records indicating how the expiration of Judge Howe’s term was changed from July 31, 2021 to July 31, 2027. In fact, this would have required Judge Howe to be appointed to a new six-year term with the attendant advertisement and application process, which never happened.
Clemmons and two other candidates appeared before the JMSC for the Master-in-Equity appointment. Clemmons was determined “qualified” by the JMSC while the other two candidates were deemed “well qualified.” The question of the advertisement for the job being pulled back for a year, the date changes of the Howe appointment and the possible problems with the reasons for Clemmons resignation from his nomination for the House were never addressed.
Clemmons was chosen by the Horry County Legislative Delegation, a group of which he was part for 18 years, to be appointed by Gov. Henry McMaster for the Master-in-Equity position. The appointment was approved overwhelmingly by the General Assembly.
It was not only the matter of Clemmons’ resignation from his House seat. There were questions about how his practice as a real estate attorney was handled.
Grand Strand Daily acquired documents related to a proposed purchase of a home with a purchase price of $545,000. According to the real estate contract for the proposed purchase, the Clemmons Law firm acted as attorney for the proposed buyer and as escrow agent for a proposed Earnest Money deposit of $5,000 by check, which was supposed to be paid within two business days after the effective date of the contract. The earnest money would be credited to the buyer when the property closed. The contract was executed on November 23, 2019 with a closing date one month later. An attorney for the Clemmons firm acknowledged receipt of the earnest money deposit on the contract documents.
The closing date was extended twice. The first addendum to the contract extended the closing date to January 24, 2020. The second addendum extended the closing date to March 2, 2020 and included the statement, “Buyers $5,000 earnest money is non-refundable. If the buyer does not close by end of business on 03/02/2020 escrow agent is to pay the $5,000 earnest money directly to the seller.” Both the buyer and seller signed the two addendums.
Despite the two extensions, assurances that the sale would be completed were received by the seller’s real estate agent until one business day before the end of the second extension.
On February 27, 2020, the seller’s agent sent an email to the seller which read in part, “I have been notified by (name deleted) at (seller’s attorney) that she received an email from the buyers attorney this morning stating they are not in receipt of the $5000 non refundable earnest money. Upon hearing this information, I reached out to the Clemmons Law Firm directly regarding the situation. I wanted to find out why they provided me with the signed escrow acknowledgment confirming they had received the earnest money when in fact they did not. I was informed that they did receive the buyer’s earnest money check. However, it did not clear the bank. I asked why I had not been notified directly or why it had not been mentioned on any of the over 10 times I directly contacted their office requesting an update on the title work. Their reply was that their closing attorney spoke to one of the attorneys at (seller’s attorney firm) about the situation. This issue would normally be something you would put in written form as they did this morning. (Name deleted) checked with both of her closing attorneys (at seller’s attorney firm). Neither of whom remember having a conversation with the buyers closing attorney. I also asked why it wasn’t brought to our or (seller’s attorney) attention when the addendum was provided extending the contract in exchange for making the earnest money non-refundable. I did not receive a response.”
On March 3, 2020, one day after the final closing day, the seller’s agent sent an email to the buyer’s agent, broker in charge of that firm and an attorney at the Clemmons Law Firm, “The seller’s attorney has informed me that the Clemmons Law Firm is offering to pay our seller $2,500 of the $5,000 earnest money now and the remaining $2,500 after they file and settle litigation against the buyer. Our client’s property has been tied up for 3 months during the fiasco. The seller acted in good faith throughout this process and should not be penalized by having to endure a litigation settlement before he receives full compensation for which he is entitled…This situation needs to be resolved and our seller be in receipt of the $5,000 before end of business Friday March 6, 2020. If this does not occur, we will have no other option but to proceed with filing an ethics complaint with the LLR (SC Department of Labor, Licensing and Regulation).”
The Clemmons Law Firm paid the full $5,000 by check on March 6, 2020 to end the dispute. A search of 15th Circuit Court records found no indication that a lawsuit was ever brought by the Clemmons firm against the proposed buyer to recover the $5,000.
There are many questions about how these various hurdles were overcome for Clemmons to be appointed to his current judgeship. Obviously, this was not an open, transparent process. Election by the voters would be a much more efficient process because the ‘buddy’ system would be eliminated. Voters would demand answers to the questions about timing of the resignation and all the other unexplained occurrences that delayed the process until Clemmons was eligible to apply under state law. A firm election date would have eliminated any questions about the one year out of office requirement.