Secrecy Surrounds Dismissed Complaint against Judge

April 6, 2015

Investigative Reports

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Judicial EthicsIn February, the S.C. Supreme Court was blunt in quickly rejecting a complaint filed by Brenda Bryant against the state’s judicial screening committee, which re-nominated a circuit judge who had issued a bench warrant for her arrest.

“Petitioner is a disgruntled litigant who is subject to a bench warrant for her arrest for contempt based upon her refusal to pay sanctions ordered by Judge (Edward ‘Ned’) Miller as a result of petitioner’s filing of a frivolous complaint,” the five justices collectively wrote in their Feb. 2 order, as reported then by The Nerve.

Yet at the same time, the state Office of Disciplinary Counsel (ODC) – an arm of the Supreme Court that investigates ethics complaints against judges and lawyers – was actively investigating a related ethics complaint filed by Bryant against the Greenville County judge, Bryant told The Nerve.

The ODC’s own statistics show it typically dismisses most ethics complaints against judges at the outset, as The Nerve previously has reported, so an approximately three-month investigation into Bryant’s complaint against Miller would be unusual for the office.

In the end, though, an investigative panel of the state Commission on Judicial Conduct – a 26-member, judge-dominated body that includes Miller and is appointed by the Supreme Court  – dismissed Bryant’s complaint, according to a copy of a March 23 commission letter that Bryant provided to The Nerve. The letter noted the panel’s vote on March 20 “constitutes a final disposition” of the complaint.

“Do you think I’m naive to believe that judges are going to go against their own?” said Bryant, of Lexington County, whose legal battle connected to the guardianship of her adult disabled daughter has been chronicled by The Nerve since October, when contacted last week by The Nerve.

A court rule bans judges who sit on the commission from being involved with their own ethics cases. But Bryant, who contends that Miller unjustly issued a 2012 bench warrant for her arrest, forcing her to live out of state, said court rules covering dismissed cases prevent her and others who file complaints against judges from:

  • Knowing the identities of members of commission panels that decide their cases, and how they voted;
  • Speaking at panel hearings;
  • Obtaining the judges’ responses to their complaints; and
  • Receiving any details about the results of ODC investigations of judges.

“Let’s say a judge sexually assaults me,” Bryant said. “Are they (Commission on Judicial Conduct) going to say you have no rights?”

Bryant said she has shared her concerns about secrecy in the judicial disciplinary process with state Rep. Jonathon Hill, R-Anderson. Hill said he is looking into the matter when contacted Friday by The Nerve.

“If they (Commission on Judicial Conduct) won’t tell us who participates (in commission hearings), there’s no way to verify,” he said. “The nature of the job itself demands more transparency. If there is an appearance of a possibility of wrongdoing, we can’t afford to take their word on it.”

Contacted Friday, state Supreme Court Associate Justice Costa Pleicones, who likely will be elected by the General Assembly this legislative session as the next chief justice, told The Nerve he doesn’t know whether court rules need to be changed to improve transparency.

“This is the first time anybody has brought this up to me,” he said. “If it’s something that needs to be addressed, we’ll address it.”

Pleicones said he couldn’t comment on Bryant’s dismissed complaint against Miller or any other specific judicial complaints. The Supreme Court has final say on all disciplinary cases submitted to it under court rules.

Miller, who has been on the bench since 2002, didn’t respond Friday to written questions from The Nerve. The General Assembly on Feb. 4 re-elected him to another six-year term; South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.

‘Usually Something There’

The Nerve in February reported, based on its review of annual statistical reports, that of 1,653 received and pending complaints against over the past five fiscal years, 1,365, or nearly 83 percent, were dismissed – mainly by the ODC after initial review.

The Nerve’s review of online Supreme Court disciplinary orders over the period found no public sanctions of any family, circuit, master-in-equity or appellate judges, though a total of 725 complaints were filed against judges in those categories.

Contacted last week by The Nerve, Lee Coggiola, who heads the ODC, said under court rules, she can’t comment on specifics on any dismissed case, including Bryant’s. But she said if the two screening attorneys in her office believe a complaint warrants further investigation, it is assigned to a “prosecuting” attorney in the office.

Bryant’s case was referred to Assistant Disciplinary Counsel Joseph Turner, who informed Bryant in a December 10 letter that her complaint would be investigated, as The Nerve reported then.

“Generally, if it gets to a prosecuting attorney, there’s usually something there,” Coggiola said.

She also said when cases are referred by a prosecuting attorney to an investigative panel of the Commission on Judicial Conduct, the judges under investigation typically either “don’t think it was a violation of the (judicial ethics) canons, and we do and we think we can prove it”; or they “agree there was a violation of the canons but don’t agreed with the recommended range of sanctions,” adding that the latter situation is more common. The investigative panels are not made aware of details of any prior negotiations between the judges and the ODC, she said.

The investigative panels – each usually made up of six commission members, including two non-lawyers – meet in secret, Coggiola said, adding although her staff provides investigative files and case summaries to the panels, her staff is not allowed to attend hearings of those panels.

Asked if legitimate complaints have been dismissed by her office, Coggiola replied: “What can I say to that? I can tell you that they have not.”

Secrecy the Norm

Under court rules, if an investigative panel authorizes formal ethics charges, all records in the case and subsequent proceedings before a separate commission hearing panel generally are open to the public, though not so if the case is dismissed, which covers most complaints filed with the ODC, or if a private sanction is issued without the filing of formal charges.

The Nerve’s review in February found the vast majority of complaints that were not dismissed over the last five fiscal years were handled with private sanctions or other private actions – 120, or nearly 88 percent, out of 137 complaints.

The release of confidential information by court staff or the commission may be “punished as a contempt of the Supreme Court” under court rules. A House proposal earlier this year would have exposed citizens to possible criminal charges for “wilfully” filing “groundless” ethics complaints against judges, though the House dropped it from an omnibus ethics bill (H. 3722) after The Nerve reported about that plan.

Coggiola said the confidentiality provisions in court rules are “very typical of most of the states.” In a written response last week to The Nerve, Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts in Arlington, Va., said, “The South Carolina procedures are consistent with the majority of the other judicial conduct commissions in the respects you outline.”

“At some point, there’s got to be a level of trust about what happens over here,” Coggiola said.

Coggiola said unlike a lawsuit in which a plaintiff has a right to see documents filed by the other side and to attend court hearings, a person filing an ethics complaint against a judge is more like a “reporter to us – someone who is reporting information to us.” Her position was echoed by Russell Carparelli,  former director of the American Judicature Society, a nonprofit judicial research organization that dissolved last year.

“It is not an individual right to due process,” Carparelli, a retired Colorado appellate judge, told The Nerve when contacted last week.

Bryant doesn’t see it that way, however.

“I’m the person who was victimized,” she said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook or Twitter @thenervesc.