Questions for Clemmons Judicial Screening – The Public Has a Right to Know

By Paul Gable

If we have learned anything about the political arena since 2016, it is that American voters are sick and tired of the back room, secret deals that serve the self-interests of politicians, often at the expense of the public, and the accompanying political spin used to justify them.

Next month, Alan Clemmons will appear before the Judicial Merit Selection Commission (JMSC) to begin the official process in his hope for appointment as the new Master in Equity Judge for Horry County.

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. The cost of the special primary election was approximately 40,000 taxpayer dollars.

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? According to state law, the burden of proof for justifying “non-political reasons” lies solely with the resigning candidate.

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.

If Clemmons is certified as being qualified for the Master in Equity job by the JMSC, the next step in the process is for the Horry County legislative delegation to vote to recommend a candidate for the job to Gov. Henry McMaster.

After a background check, the governor then decides whether or not to submit nomination of the candidate to the full General Assembly for approval. The entire judicial selection process has been criticized by various organizations in the state as giving an unfair advantage to former state legislators.

According to sources, each legislative delegation member has a weighted percentage vote based on voters in the county represented and time in office. A candidate needs to secure over 50% of those percentage votes to be recommended. The highest individual weighted percentage sits with Sen. Luke Rankin.

In the five weeks between the June primary and his July resignation, was Clemmons seeking support for a candidacy for the Master in Equity recommendation from local legislative delegation members?

In the two weeks between the regular primary election and a primary runoff between Rankin and challenger John Gallman for the Republican nomination for Senate District 33, Clemmons literally ‘went to the wall’ to help Rankin get reelected.

In one Facebook video of a Rankin campaign press conference just before the runoff voting, Clemmons told the crowd that Gallman’s campaign was running ads accusing Rankin of voting against a new Voter ID law. Clemmons claimed Gallman “lied” about Rankin’s voting record on Voter ID laws going on to say, “In my world, those that tell lies can’t be trusted”.

However, Clemmons’ statement was a lie. The ads he referred to were, in fact, paid for and run by an independent Third Party Political Action Committee with no ties to the Gallman campaign. Maybe Clemmons was confused, but before you accuse someone of lying, you should have your facts straight.

I submit, the JMSC should investigate the question of whether Clemmons was truthful in his affidavit to the election commission about resigning for personal reasons or was the judgeship already in his sights when he submitted it? To paraphrase Clemmons, ‘In my world, if it walks like a duck, quacks like a duck and looks like a duck, it’s probably a duck.’

I submit there are other questions that should be asked of Clemmons by the JMSC before he is certified as qualified to be a judge.

According to Clemmons’ campaign filings with the S. C. Ethics Commission, he spent approximately $480,000 from his campaign funds during the six election cycles from 2008-2018 inclusive but never had an opponent in either the primary or general elections in those years. Included in the $480,000 of expenditures were payments totaling approximately $150,000 to Heather Ammons Crawford noted as “campaign services” or “contract services” before she was elected to the House.

Are all of those legitimate expenses under the state’s campaign finance laws?

Clemmons, Crawford and then Sen. Ray Cleary all visited Israel together on a trip that each paid for, at least partially, from their campaign funds. Cleary was fined by the Senate Ethics Committee and forced to pay back the funds to his campaign account in addition to paying fines for using them in the first place while Clemmons and Crawford skated by with the House Ethics Committee. How is it determined to be an illegal use of campaign funds by the Senate Ethics Committee and legal use by the House Ethics Committee when the same ethics laws apply to members of both Houses of the legislature?

“The Master-in-Equity decides cases generally involving foreclosures, partitions, and other equity matters, such as accountings, supplemental proceedings, and any other matters involving non-jury matters in which the parties have agreed that the Master shall hear the case,” is the description of the job Clemmons seeks, according to the Horry County Government website.

Clemmons has principally practiced real estate law in Horry County.

Grand Strand Daily has 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.

An escrow agent is supposed to act equally for the interests of both the buyer and seller.

Why did it take three months for the escrow agent, Clemmons Law Firm, to notify the seller’s agent and attorneys that the $5,000 escrow deposit was never received? Why wasn’t that fact communicated immediately when the check bounced and certainly prior to the signing of any addendums to extend the closing date? Why allow a statement about the earnest money being non refundable to be included on the second addendum when there was no escrow deposit of the required earnest money? Should the escrow agent, Clemmons Law firm, have immediately notified the seller that the contract was null and void because the earnest money was not received within two days of the execution of the contract?

Clemmons campaign signs have the slogan “The character to do what’s right” at the top of them. Are the above actions or inactions as may be the case of a type that demonstrate ‘right’ character? Are they of a type we should accept from someone who wants to sit on the judicial bench?

The Freedom Action Network has called for hearings by the JMSC to be held in public and on camera. That probably will not happen.

Nevertheless, it would seem proper for the JMSC to ask comprehensive questions about Clemmons’ resignation from the House, his use of his campaign account for what certainly appear to be other than campaign expenses and decisions made in his law firm of which he is sole manager, according to Clemmons’ affidavit when considering whether he can be certified as a candidate for a judgeship.

Those elected representatives of the public certainly have an obligation to ask those questions and the voting public has a right to know the answers!

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