October 7, 2022

The Nerve

Where Government Gets Exposed

Lawmakers secretly nominate ex-legislator for judge’s seat

By RICK BRUNDRETT

As expected, the Horry County legislative delegation last week nominated former House member Alan Clemmons as the county’s master-in-equity judge.

But House and Senate members who make up the delegation didn’t  nominate Clemmons –  who had been a longtime delegation member – during a public meeting in Horry County as initially scheduled. Instead, they did it secretly while in session in Columbia, with most of them signing a circulated letter that was sent to Gov. Henry McMaster, who will decide whether to appoint Clemmons to the six-year, six-figure seat.

Clemmons’ predecessor made $188,873 annually.

Whether Clemmons’ nomination letter complied with state law is questionable. The S.C. Supreme Court in a 1996 ruling indicated that a county legislative delegation is a public body under the state’s Freedom of Information Act, which requires that votes on official business be done in open meetings. The state’s top court said then that voting by circulating a nomination letter among delegation members could be done only during an open meeting, with the public “able to glean the results and how each member voted.”

Besides that, according to a 2007 written opinion when McMaster was the state attorney general, the Attorney General’s Office in a different  delegation matter said the state law that applied in the case didn’t permit the “circulation of a letter or petition as a ‘vote’ (and) as a substitute for a physical meeting.”

A McMaster spokesman didn’t respond to The Nerve’s questions this week about whether the governor would appoint Clemmons to the MIE seat, given the attorney general opinion and Supreme Court ruling.

The Nerve in 2019 first revealed the practice by some delegations to make nominations only with a letter signed by delegation members. As The Nerve has pointed out, county legislative delegations exercise considerable control over local matters, including the selection of county master-in-equity (MIE) judges.

MIE judges typically hear foreclosure and other real estate cases. They have the same authority as circuit court judges in non-jury civil matters but are chosen through a different process compared to other types of judges.

Clemmons, a Myrtle Beach attorney, was one of three candidates found qualified for the Horry County MIE seat by the legislatively controlled state Judicial Merit Selection Commission (JMSC). Under state law, the JMSC first screens and decides which MIE candidates to qualify; county delegations recommend a qualified candidate from their county to the governor, who decides whether to appoint the candidate – typically approved after routine background checks.

The full Legislature usually confirms MIE candidates appointed by the governor. South Carolina and Virginia are the only states where their legislatures play primary roles in selecting judges.

Contacted this week by The Nerve, Sen. Greg Hembree, R-Horry, who is the Horry County delegation chairman, said he canceled the public delegation meeting to vote on the county MIE nomination, which was scheduled for last Friday morning at the county courthouse. He said he did so after learning Clemmons had secured at least 51% of the total weighted vote of the delegation, and that the other two qualified candidates – Charles Jordan Jr. and Douglas Zayicek – notified him they were dropping out of the race.

“Do I need to make all these people come to the Horry County courthouse on a busy Friday morning when we’re not going to have anything to do because the election is over?” Hembree said, adding Clemmons had “all the votes he needed” before the meeting was canceled.

To comply with a 1999 U.S. Fourth Circuit Court of Appeals ruling, votes by county legislative delegation members on delegation matters are weighted, based on the percentage of the county’s population that the lawmaker represents, to fulfill the “one person, one vote” requirement.

But in Clemmons’ case, was the public best served by allowing the delegation to vote privately by letter to nominate him, given his legislative ties and that he is seeking a well-paid public position?

In answering that question, Hembree, a former solicitor who served on the JMSC, replied: “We did it like we do every other judicial appointment, so we didn’t show him any favoritism. … We treated it like we treat every other non-contested appointment.”

Still, Hembree, who is the Senate Education Committee chairman, acknowledged that voting by letter is “sort of just a matter of convenience.”

Insider edge

State law allows qualified judicial candidates to seek commitments from lawmakers in advance of an election after the final JMSC screening report is released to the Legislature. As The Nerve has reported, incumbent judges usually face no challengers when seeking re-election; and even if there are several qualified candidates for an open seat, typically only one is left for a final vote because the others drop out after doing preliminary vote counts.

Clemmons, a Republican who was first elected to the House in 2002 and served until his unexpected resignation in July 2020, was among more than 50 judicial candidates statewide found qualified by the six-legislator, 10-member JMSC following screening hearings in November and December.

Clemmons, who served on the JMSC, including a stint as its chairman, did not reply this week to written messages from The Nerve seeking comment.

At The Nerve’s request, Hembree released Clemmons’ Feb. 2 nomination letter to McMaster, which included a breakdown of the votes by the 15-member delegation. The dozen members who cast votes for Clemmons – two by proxy –included Republican Sen. Luke Rankin, who has the highest percentage of the weighted vote (19.44%).

Rankin, an attorney who is the Senate Judiciary Committee chairman and vice chairman of the JMSC, did not return a written message this week from The Nerve seeking comment. Two other lawmakers who serve in the Horry County delegation and on the JMSC – Democratic Sen. Ronnie Sabb and Republican Rep. Jeff Johnson, both of whom are lawyers – also voted for Clemmons, according to the nomination letter.

Clemmons received 68.33% of the total weighted vote. Other delegation members who voted for him included Republican Sen. Stephen Goldfinch and Democratic Sen. Kent Williams; GOP Reps. Case Brittain, Heather Crawford, Russell Fry and Tim McGinnis; and Democratic Reps. Carl Anderson, Lucas Atkinson and Jackie Hayes, according to the nomination letter.

Hembree, who has the second-highest percentage (17.83%) of the weighted vote among delegation members, did not sign the letter. Asked whether he supported Clemmons, he replied: “The fact that I didn’t sign this letter answers that question. The answer is ‘no.’”

Hembree didn’t respond to a follow-up question about his reasons for not supporting Clemmons.

The Nerve in July detailed Clemmons’ decision to resign his longtime House seat slightly more than a year before formally becoming a candidate for the MIE position. He had won the Republican primary election for his House seat just several weeks before his July 2020 resignation, though he said in an affidavit to the State Election Commission that he was withdrawing from the general election because he was representing new legal clients who would “require a large involvement of my time and focus.”

State law requires that former lawmakers wait at least a year before being elected by the Legislature to judgeships.

If Clemmons if appointed by McMaster and confirmed by the full Legislature, he would become the second ex-House member in recent years to become a judge after resigning his legislative seat. In 2019, former Rep. Mike Pitts was quietly confirmed by the Senate as a Laurens County magistrate – an appointment pushed by Sen. Danny Verdin, R-Laurens, as The Nerve reported.

The Nerve also revealed then that in 12 counties, one senator controls the appointments of that county’s magistrates.

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

 

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