By Paul Gable
Former state Rep. Alan Clemmons will be screened by the Judicial Merit Selection Commission tomorrow to determine whether he merits recommendation from the commission for the Horry County Master in Equity judicial position.
The questions asked of Clemmons will be a litmus test of how serious the JMSC, composed of six state senators and six state representatives, is of recommending qualified candidates to become judges.
There are certainly questions surrounding the Clemmons’ candidacy that should be answered to the satisfaction of both commission members and the general public.
Last year, five weeks after winning the Republican Primary for nomination on the general election ballot for what would have been his tenth term as the representative for House District 107, Clemmons resigned his seat as a representative.
By waiting to resign until after winning the primary, Clemmons was required to submit a sworn affidavit to the S. C. Election Commission explaining he was resigning for “non-political reasons” in order for a new Republican candidate to be determined by a special primary election.
It is important to note here that Clemmons affirmed to the election commission, under penalty of perjury, that his dropping out as the nominated candidate was for “non-political reasons”.
Clemmons’ affidavit cited spending more time with his family and new clients for his law firm who would “require a large investment of my time and focus.”
But, was there another reason?
Horry County Master in Equity Cynthia Graham Howe announced around the time of the June 2020 primary that she would retire in July 2021 at the end of her current term in office. State law requires state lawmakers to be out of office for at least one year before they are eligible to be appointed to a judgeship.
According to state law, the burden of proof for justifying “non-political reasons” lies solely with the resigning candidate.
According to the SC Senate Journal of March 5, 2015, Gov. Nikki Haley transmitted to the Senate the reappointment of Cynthia Ward Howe to a new six-year term as Horry County Master in Equity “with the term to commence July 31, 2015, and to expire July 31, 2021.”
On June 22, 2020, the Judicial Merit Selection Commission (JMSC) issued a media release announcing the commission was accepting applications for the Judicial offices listed in the release. Included in that release was the following, “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.”
(Master in Equity judges are appointed to six-year terms. There was no explanation why a five-month gap existed between the end of Howe’s term and the apparent beginning of a new six-year term on December 31, 2021 to end December 31, 2027.)
Four days later, on June 26, 2020, 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.
The question is why were application requests for the Horry County Master in Equity position stopped four days after initially announced?
Was it because Clemmons decided he wanted to apply for the position, in direct contradiction of his affidavit to the election commission, and because Rankin was the current chairman of the JMSC?
State law requires legislators to be out of office for at least one year before they become eligible for appointment to a judgeship. Clemmons worked hard during the primary runoff campaign between Rankin and John Gallman to help Rankin get reelected. Coincidentally, the primary runoff campaign in which Clemmons worked so hard for Rankin ended June 22, 2020.
On June 21, 2021, the JMSC issued a media release advertising applications were being accepted in which the following was stated, “A vacancy will exist in the office currently held by the Honorable Cynthia Graham Howe, Master in Equity, Horry County. The successor will serve the remainder of the unexpired term, which will expire June 30, 2027.
To sum up:
Applications for an upcoming vacancy in the Horry County Master in Equity position were initially advertised on June 22, 2020. Four days later, that position was no longer accepting applications. One year later, on June 21, 2021, applications were again being accepted for a vacancy in the position.
However, Howe was appointed by Gov. Haley to a term ending July 31, 2021. The 6/22/20 advertisement said the appointment would be to a new term ending December 31, 2027 but the 6/21/2021 advertisement said it would be to serve out a current term ending June 30, 2027.
How did Howe get reappointed to a new term when applications for that new term were stopped four days after it was initially announced and there was apparently no normal public process before the reappointment? Even for judgeship appointments in South Carolina this looks very suspicious.
Having extended Howe in office with some apparent backroom completely out of the public eye manner, the JMSC now advertises an upcoming vacancy, which will be filled sometime in early 2022 once the screening, voting by local legislative delegation, recommendation to Gov. Henry McMaster and confirmation by the General Assembly takes place. The process allows Clemmons to be safely out of office for a period of time for which would not allow any challenge under state law, should he be appointed.
It’s not only the matter of Clemmons’ resignation from his House seat. There are 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.
South Carolina Code Section 40-57-136 goes into extensive detail about how escrow (trust) accounts are supposed to be managed including keeping accurate and complete account records. In addition, the section says disbursing escrow funds contrary to the terms of the contract or failing to disburse funds not in dispute is a demonstration of incompetence by the escrow agent.
How closely Clemmons will be questioned the JMSC on the timing of his resignation from the House, the reasons for that resignation and why were escrow funds mishandled by his law firm remains to be seen.
If Clemmons passes screening by the JMSC, will he get the votes necessary from the local legislative delegation to secure recommendation of his appointment to the governor? He appears to have a number of IOU’s due from the current delegation members.
Clemmons helped Rankin in a difficult reelection campaign against John Gallman.
Clemmons helped Sen. Stephen Goldfinch in a difficult election campaign against opponent Reese Boyd in 2016.
In both campaigns, Clemmons made false statements about Gallman and Boyd to help Rankin and Goldfinch. Are false statements what citizens expect of judicial candidates and judges?
Clemmons hired Heather Crawford to work on his behalf allegedly for constituent service for five years paying her approximately $150,000 out of his campaign account in that time.
Russell Fry is a partner with Crawford in Crescent Communications political consulting and a campaign rally for Rankin in which Gallman was vigorously attacked was held in the parking lot of Fry’s law firm.
Case Brittain is the beneficiary of Clemmons resignation and later endorsement from Clemmons to help Brittain succeed Clemmons as the SC House District 107 representative.
Anybody ever hear of ‘I scratch your back, you scratch mine’?