Stacked Deck: Citizen Who Files Complaint against Judge Faces Uphill Battle

January 5, 2015

Investigative Reports

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Deck of CardsDuring a Nov. 5 judicial screening hearing, Greenville County Circuit Judge Edward “Ned” Miller testified that state Rep. Bruce Bannister, R-Greenville, is a “lawyer that appears before me on a regular basis,” according to a just-released transcript of the hearing.

But that didn’t stop Bannister, the House majority leader, from voting with the nine other state Judicial Merit Selection Commission (JMSC) members to qualify and nominate Miller, who is unopposed, for re-election to another six-year term for the $134,221-a-year seat.

Contacted last week by The Nerve, Jane Shuler, the JMSC’s chief attorney, confirmed that Bannister didn’t abstain from the vote. He also participated in the questioning of Miller during the hearing, the transcript shows.

Under state law, the General Assembly elects judges from among candidates qualified and nominated by the JMSC. South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. The next judicial election in the Palmetto State’s Legislature is tentatively set for Feb. 4.

Two national legal organizations – the American Bar Association and American Judicature Society – have said South Carolina’s judicial screening committee doesn’t meet their standards because lawmakers dominate the selection and makeup of the 10-member panel, as The Nerve previously reported.

Bannister’s vote wasn’t the only thing working in favor of Miller during his November screening hearing, a review by The Nerve found.

Brenda Bryant of Lexington County earlier filed a written complaint against Miller with the JMSC, but Rep. Alan Clemmons, R-Horry and then-chairman of the JMSC, announced during the screening hearing that the commission would be “unable to hear Ms. Bryant’s complaint, and it will not be included in the formal questioning by commission staff, nor will it be a part of the record as it relates to Judge Miller,” noting that Bryant has “chosen of her own volition not to appear at the hearing today.”

What Clemmons, an attorney and the House Rules Committee chairman, didn’t say during the hearing was that Bryant had offered to testify at the hearing via Skype video, but that Shuler had advised Bryant in writing, after consulting with Clemmons and Sen. Larry Martin, R-Pickens and the JMSC’s then-vice chairman, that she had to appear in person. Bryant last week provided The Nerve with a copy of an Oct. 8 email from Shuler advising her that she would not be allowed to testify via Skype.

As The Nerve initially reported on Oct. 1, Bryant says she has been forced to live as an out-of-state fugitive since Miller in April 2012 issued a bench warrant for her arrest in connection with her legal battle for guardianship over her adult intellectually-disabled daughter. The Nerve last month reported that the state Office of Disciplinary Counsel (ODC), a branch of the state Supreme Court that investigates ethics complaints against lawyers and judges, said it would investigate a complaint filed by Bryant against Miller.

In her complaint to the JMSC, Bryant listed two attorneys as witnesses – Alice Perkins, then of West Columbia, and Columbia lawyer Allan Fulmer Jr. Shuler confirmed to The Nerve that House attorney Emma Dean had interviewed both Perkins and Fulmer in preparation for Miller’s screening hearing.

But neither attorney testified at the hearing, and there was no mention by any JMSC member during the hearing that either lawyer had been interviewed or even listed as witnesses for Bryant.

It is rare for attorneys to testify against incumbent judges in JMSC hearings.

Perkins, a veteran attorney who represented Bryant in a 2010 lawsuit that Miller ruled on, told The Nervelast week that she informed Dean she was willing to testify on Bryant’s behalf concerning a court hearing conducted by Miller, but was informed by Dean, “No, we have all we need.”

Perkins, whose law license is currently suspended for failure to pay an annual license fee and take continuing education classes, also said the Office of Disciplinary Counsel informed her by letter, dated two days before Miller’s screening hearing, that it had “received information regarding possible professional misconduct” on her part, and that Bryant was the complainant. But Bryant told The Nervethat she filed a complaint with the ODC only against Miller, even though she said she received an ODC letter incorrectly stating she had filed a complaint against Perkins.

Miller, who has been on the bench since 2002, testified at his screening hearing that he also serves on the state Commission on Judicial Conduct, a 26-member, judge-dominated panel appointed by the Supreme Court that investigates – relying on the ODC – and recommends sanctions to the high court against judges who commit ethical violations under court rules.

Selection Process ‘Totally Illegal’

“I think this shows the process by which our judges are elected is totally illegal,” said Bryant, 60, when contacted by The Nerve last week. “These lawyers who are practicing before judges are deciding to put those judges on the bench.”

Bryant, who was jailed in 2011 and 2012 after being found in contempt of court by Greenville County Associate Probate Judge Edward Sauvain and Miller, respectively, says she can’t return to South Carolina now because she fears being arrested on the active bench warrant issued by Miller. But she said she provided the JMSC with court documents supporting her case, including Miller’s order issuing the bench warrant.

Her husband of 39 years, Rickey Bryant, 64, testified at Miller’s screening hearing on behalf of his wife, noting, “We have been separated for almost two-and-a-half years continuously. I have a serious heart condition and several other medical situations. My wife broke her hand out of state.”

JMSC members appeared to have little sympathy for Rickey Bryant during the hearing, according to the transcript. Clemmons, for example, pointed out more than once that Mr. Bryant, who testified about his wife’s legal case, had not been directly involved with the case.

And Sen. Gerald Malloy, D-Darlington and an attorney, said to Bryant, “I mean, I won’t ask you for a response, but I would blame my wife if she was gone.”

“I think they (the JMSC) had already made up their mind,” Rickey Bryant told The Nerve when contacted last week.

“No practicing lawyers should be in the position (on the JMSC) because they’re always going to be in favor of judges so they won’t be discriminated against in later hearings,” said Perkins.

Eight of the 10 JMSC members are attorneys, including four of the six lawmakers – Bannister, Clemmons, Malloy and Sen. Chip Campsen, R-Charleston. The other lawyers are Kristian Bell of the Columbia-based Collins and Lacy law firm; Columbia attorney Pete Strom, a former U.S. attorney for South Carolina; Susan Wall of the McNair Law Firm’s Charleston office; and Robert Wilcox, dean of the University of South Carolina School of Law.

Neither Clemmons nor Bannister responded to The Nerve’s written questions last week about Miller’s screening hearing or to phone messages seeking comment. The Nerve last week reported that Clemmons has spent more than $29,000 since 2008 in campaign funds to purchase men’s neck ties and women’s scarves from a Taiwan company for House members, staff and others.

As for Bannister, The Nerve in 2013 reported that he was a co-sponsor of a secretly crafted bill that would have, among other things, decriminalized many ethics violations against public officials, including state lawmakers. That provision was dropped after swift public outcry, and the bill later died as well.

In October last year, Bannister, Clemmons and then-Rep. Kris Crawford, R-Florence, proposed a House rule that would have required anyone testifying before a House committee to be first sworn in – and face possible felony charges depending on the testimony given. The proposal was dropped early last month after The Nerve questioned the legality of it, and Crawford resigned from office suddenly amid a Nerve investigation into his spending of campaign funds and other matters.

No ‘Quid Pro Quo’

Contacted initially Friday, Sen. Martin, who will serve this year as the JMSC chairman and has the authority as the Senate Judiciary Committee chairman to appoint three members, including himself, to the commission, said he couldn’t “recall any statement from any attorney being presented” against Miller during the screening process. He also said if the commission wasn’t made aware of the interviews with Perkins and Fulmer, “I would be highly upset and offended as a member of the commission.”

Later, however, Martin contacted The Nerve and said that after discussing the matter with Shuler, “Mr. Fulmer told Emma (Dean) that he did not want to testify and that he did not believe Judge Miller did anything inappropriate.” Martin said Perkins told Dean that she “did not want to come” to the hearing, citing a scheduling conflict with work.

“Whatever she (Dean) told the commission (about Perkins) did not move the 10 of us any farther,” Martin said.

Efforts by The Nerve last week to reach Fulmer, who Bryant and Perkins said was present with them at a court hearing conducted by Miller, were unsuccessful. Bryant told The Nerve that Fulmer had informed her that “he’d be there” at Miller’s screening hearing; Perkins said while she did tell Dean she had a potential scheduling conflict, she also informed her she was willing to take off work if needed to testify.

As for Bannister’s vote to qualify and nominate Miller, Martin said he didn’t believe that was a conflict of interest, noting there are no rules requiring JMSC members who are attorneys to abstain from voting on judicial candidates “simply because they appear before them (in court).”

“There’s not a quid pro quo between the judges in this state and members of the General Assembly,” he said, adding that in contrast, in the 1970s and 1980s, attorney-lawmakers “just signed up to run for judge.”

Martin was blunt when asked about why Brenda Bryant wasn’t allowed to testify at Miller’s screening hearing.

“Let me tell you about Brenda Bryant; I don’t believe a word she says,” he said, noting he had spoken to Bryant previously on a number of occasions about her case. “She’s a fugitive. I have no patience for that whatsoever.”

Quitting the Law

Miller on April 2, 2012, ruled he was issuing a bench warrant for Bryant’s “immediate arrest” after finding her in contempt of court for ignoring previous court orders to pay sanctions in connection with the case, and ordered Bryant to pay a total of $9,639, which included attorney fees and interest, to Rodney Pillsbury, an attorney for Tracy Parsons, who was a court-appointed guardian for Bryant’s intellectually disabled daughter. Bryant contended Parsons, a licensed professional counselor, didn’t do enough to protect her daughter, now 40, from being sexually and physically abused during her stay in a Greenville County home.

Bryant in 2006 won a major legal victory in the S.C. Supreme Court, which ruled that the S.C. Department of Disabilities and Special Needs (DDSN) and the Babcock Center, a private, nonprofit service provider in Richland County, owed a duty of care to Bryant’s daughter, who Bryant alleged was raped by several men while in the care of Babcock during the 1990s.

Bryant in 2010 sued Parsons, DDSN, the Greenville County Disabilities and Special Needs Board, and others. In issuing the bench warrant for Bryant’s arrest, Miller described her lawsuit as “patently frivolous … to the extent that it included Defendant Tracy Parsons,” ruling that by including Parsons as a defendant in the suit, Bryant violated an earlier court-approved agreement that re-established Bryant as her daughter’s guardian. Sauvain in 2013 appointed a temporary guardian for her daughter, citing Bryant’s absence from the state.

Despite issuing the bench warrant for Bryant’s arrest, Miller at his November screening hearing testified: “You know, I’m not looking to punish someone for this kind of conduct. Just would like her to comply with the orders of the court. She, on the record, said she would not do that. And I still gave her more time to think about it.”

Miller, the chief administrative general-sessions judge for Greenville and Pickens counties, also claimed in his testimony that Bryant “grandstanded” in filing the 2010 lawsuit, noting, “I don’t mean to cast stones, but she called the television station and met them at the courthouse and talked about the lawsuit.”

Bryant disputes Miller’s ruling, contending, among things, that he had no legal jurisdiction to issue the bench warrant for her arrest because she had filed an appeal with the S.C. Court of Appeals. Miller in court documents and in his testimony said Bryant missed a legal deadline in filing the appeal.

Perkins told The Nerve that she was traumatized by Miller’s behavior during a court hearing after the 2010 lawsuit was filed.

“He had a terrible bias – calling the opposing attorney by his first name throughout the hearing and speaking to me in a tone of disdain the entire time,” Perkins recalled about the hearing, adding Miller started the proceeding without calling Bryant or her into the courtroom. “Obviously, before we even got there, it was home cooking.”

Miller in his April 2012 ruling found Perkins in “willful contempt of court” for failing to appear at “numerous court hearings” in connection with Bryant’s case but issued no sanctions against her. Perkins told The Nerve that she agreed to accept a private letter of caution last year from the Office of Disciplinary Counsel in connection with Bryant’s case, adding she doesn’t understand why she is again apparently under investigation for the same issues.

Perkins, who earned her law degree in 1994 from the University of South Carolina, told The Nerve that the only other previous discipline she received as a lawyer was a public reprimand from the Supreme Court, to which she consented, when she was a young attorney. The 1999 ruling said Perkins failed to adequately represent clients in several probate and family court matters; it also said Perkins contended she was suffering from depression at the time, which she noted started during the final trimester of her pregnancy; and was the main caregiver then for her infant.

Perkins said her treatment by Miller in Bryant’s case largely killed her desire to continue practicing law. She said she hasn’t paid her annual license fee or taken required continuing-education classes, which led the Supreme Court earlier last year to suspend her license. She said she now works the night shift at the Amazon distribution center near Cayce.

“That’s how disgusted I am with being a lawyer,” she said. “I’m now doing manual labor … because I don’t want to practice law.”

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