Judicial Candidates Nominated Despite Complaints

December 3, 2012

Investigative Reports

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By RICK BRUNDRETT

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When it comes to who’s a judge, what the legislature says, goes.

Bill Simpson Jr. and his father don’t believe Gordon Jenkinson deserves to be on the bench.

The Manning residents filed sworn, written complaints against Jenkinson, a Williamsburg County Family Court judge based in Kingstree; and testified last week against his re-election to the 3rd Circuit seat.

But their complaints didn’t sway the Judicial Merit Selection Commission, a legislatively appointed and dominated screening committee that nominates judicial candidates for elections decided by the 170-member General Assembly. By law, three lawmakers – the Senate president pro tempore, the Senate Judiciary Committee chairman and the House speaker –  appoint the commission’s 10 members, six of whom must be lawmakers.

Following screening hearings over the past two weeks, the commission nominated eight of 10 judicial candidates, including Jenkinson, who had sworn affidavits filed against them opposing their nomination, according to Jane Shuler, the commission’s chief attorney.

The Nerve last week reported that the commission nominated the state’s top court administrator, Rosalyn Frierson, and two other attorneys for family court seats, despite a report by the South Carolina Bar, the state’s professional organization for attorneys, contending that the candidates are unqualified for the seats.

The commission dismissed more than half of the sworn complaints against the other 10 candidates, Shuler said, though she declined to release them to The Nerve, citing a state law that says unless presented under oath at a screening hearing, all records presented to the commission must be “kept strictly confidential.”

The law also says such records are exempt from disclosure under the S.C. Freedom of Information Act.

As for the candidate complaints that were not dismissed, Shuler said she couldn’t publicly release them until an official screening report is issued next month, adding, “Because we could reopen the hearings, I really can’t release anything until the report becomes official.”

Simpson Jr. and his father provided The Nerve last week with copies of their affidavits against Jenkinson, who is running unopposed for his seat.

“They (certain judges) just do whatever they want to do, and we just want to make sure that doesn’t happen,” Simpson Jr. told The Nerve.

Efforts to reach Jenkinson, who has been on the bench since 2007, were unsuccessful.

Contacted last week, Rep. Greg Delleney, R-Chester and the Judicial Merit Selection Commission chairman, told The Nerve that if complaints against candidates are “meritorious, we give them weight,” adding, “They (complaints) have ended the careers of sitting judges.”

The commission requires sworn written complaints to be filed with the commission at least five days before the complainants testify during screening hearings, though Delleney said affidavits can be accepted without testimony.

Most dismissed complaints typically involve litigants who are “complaining about the judge’s decision” in their case and are “trying to re-open their case,” Delleney said, though he pointed out that when candidates “admit mistakes and are very sorry … that goes a long way.”

Candidates in “trouble (in the screening process) for whatever reason” are given the opportunity to withdraw before the commission votes on their candidacy, Delleney said. Those who withdraw are not included in the final screening report, and all related records used in their screening proceedings are destroyed, he said.

“We don’t want to … hurt them just because they applied to be judges,” Delleney said.

Distracted, Hard of Hearing Judge?

The Simpsons contended in separate sworn affidavits they provided last week to The Nerve that the 64-year-old Jenkinson mishandled their divorces. In addition to his own divorce case, Simpson Jr. was a defendant in his father’s divorce case, records show.

Among other things, the 43-year-old  Simpson Jr. in his affidavit  said Jenkinson improperly reversed his earlier contempt-of-court order against Simpson Jr.’s wife for her failure to meet a deadline to pay court-ordered child support. In his affidavit, Simpson Sr., 62, said Jenkinson disregarded a higher S.C. Court of Appeals order by reopening property-division issues that were part of the elder Simpson’s divorce case.

The father and son also claimed that Jenkinson’s “physical ability is impaired with respect to his hearing,” noting that he appeared to have trouble hearing during their court proceedings, and that he was “reading our lips as we spoke.”

In addition, the Simpsons in their affidavits claimed that Jenkinson, an author, wasn’t always paying attention during their proceedings in part because he apparently was preoccupied with writing a novel published last year. The younger Simpson noted that “one has to wonder how a trial judge with case overload has the time to write a 300 page fiction novel without sacrificing his day job.”

Although she declined to discuss specifics of the affidavits, Shuler, the screening commission’s chief lawyer, said they were not dismissed by the commission. Still, the panel qualified and nominated Jenkinson.

Three years ago, Simpson Jr.’s complaint against longtime Charleston County Family Court Judge Frances P. “Charlie” Segars-Andrews  persuaded the commission to take the rare step of voting not to renominate her.

In that case, Simpson Jr. contended that Segars-Andrews acted unethically by not recusing herself from his divorce case even though her attorney-husband had shared large legal fees in an unrelated case with the divorce attorney for his wife. Segars-Andrews sued the commission and others but lost her case in the S.C. Supreme Court.

Simpson Jr. told The Nerve that in both Segars-Andrews’ and Jenkinson’s cases, he filed complaints with the Judicial Merit Selection Commission after similar complaints were dismissed by the state Office of Disciplinary Counsel, a Supreme Court division that investigates alleged ethical violations by lawyers and judges.

Other Complaints

Besides Jenkinson, complaints were filed with the screening commission against the following nominated judicial candidates, according to Shuler:

  • 5th Circuit Court Judge DeAndrea Gist Benjamin of Columbia, the wife of Columbia Mayor Steve Benjamin and who is running unopposed for her seat;
  • 9th Circuit Family Court Judge Paul Garfinkel of Charleston, who is running unopposed for his seat;
  • Michelle Manigault Hurley, a Columbia municipal judge who faces two other candidates for a 5th Circuit Family Court seat;
  • Former 5th Circuit Court Judge Ernest Kinard of Camden, who is seeking re-election as a “retired”-status judge;
  • 12th Circuit Family Court Judge Timothy Pogue of Marion, who is running unopposed for his seat;
  • Administrative Law Court Judge Shirley Robinson of Columbia, who is running unopposed for her seat; and
  • Clifford Scott of Columbia, who faces two other candidates for an at-large circuit court seat.

Shuler said complaints also were filed against two candidates who were not nominated by the commission: Eric Englebardt of Greenville and April Sampson of Irmo, both of whom ran for at-large circuit court seats.

The commission dismissed complaints against Benjamin, Hurley, Kinard, Robinson, Sampson, and Scott, Shuler said. Delleney said most of the dismissed complaints were filed by one person, whom he described as a “perennial” complainer.

Contacted last week by The Nerve, Marie Faltas of Columbia said she filed affidavits against Benjamin, Hurley and Kinard. In a written response, Faltas said she could not release her complaints to The Nerve, based on instructions she said she received from Shuler.

Public screening hearings were scheduled last month for 108 candidates seeking 50 judicial seats, including six new family court seats and three additional circuit court seats created earlier this year by the Legislature to relieve growing caseloads cited by court officials.

Former state Rep. Keith Kelly, a Spartanburg County Republican, is running for an at-large circuit court seat also sought by Clifford Scott of Columbia and Rene Josey of Florence, a former U.S. attorney for South Carolina. Another former GOP state representative, James McGee of Florence, is running unopposed for an at-large family court seat.

A total of 72 candidates, including Kelly and McGee, were nominated by the commission; most of the seats list unopposed candidates, according to commission records. Under state law, the commission can nominate no more than three candidates for any judicial seat; and if there are three or fewer candidates, all qualified candidates must be nominated.

The next round judicial elections in the General Assembly likely will be held in February. South Carolina and Virginia are the only states where their legislatures play a primary role in electing judges.

Nerve reporter intern Derek Legette contributed to this story. Reach Brundrett at (803) 254-4411 or rick@thenerve.org.