Supreme Court Petition: Judicial Screening Panel Unconstitutional

January 21, 2015

Investigative Reports

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SC Supreme CourtA Lexington County woman wants the S.C. Supreme Court to declare the state’s judicial screening committee unconstitutional and put an upcoming judicial election in the General Assembly on hold.

Brenda Bryant, whose case has been chronicled by The Nerve since October, contends in a 13-page petition and complaint filed Tuesday afternoon in the high court that the Judicial Merit Selection Commission (JMSC), which is appointed by three legislative leaders, violates the S.C. Constitution because it is dominated by lawmakers, who make up six of the 10 members under state law.

The Nerve previously reported that two legal organizations, including the American Bar Association, have said the JMSC doesn’t meet their standards because the panel is legislatively controlled.

Bryant also contends the JMSC violated her due process rights by not allowing her to testify at a November screening hearing against Greenville County Circuit Judge Edward “Ned” Miller, who is seeking re-election to a six-year term; not allowing evidence against Miller to be placed in the public record during the hearing; and dissuading two attorney-witnesses from testifying.

Bryant, a non-lawyer who filed the petition on her own, asks the five-member Supreme Court to issue an injunction halting the election of Miller – scheduled for Feb. 4 in the General Assembly – until the court issues a final ruling. South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.

Her petition is known as an “original jurisdiction” petition, which asks the high court to take a first look at the legal issues in question. Under court rules, the justices decide whether to grant a petition after the parties have filed official responses, which are due 20 days from the date of service of the petition. If the petition is granted, the court typically establishes a schedule to submit legal briefs in the case and decides whether to hold oral arguments. A final ruling is issued later, though the court announces no set deadline in advance.

Besides the JMSC, Bryant named Yancey McGill, the immediate past lieutenant governor and Senate president; Senate President Pro Tempore Hugh Leatherman, R-Florence; and House Speaker Jay Lucas, R-Darlington, as parties in her petition.

Jane Shuler, the JMSC’s chief attorney, said late Tuesday afternoon she had not yet received a copy of the petition. Lucas and Leatherman did not respond to written messages from The Nerve seeking comment.

Miller, who has been on the bench since 2002, did not respond Tuesday afternoon to a written message from The Nerve. Last month, The Nerve reported that the state Office of Disciplinary Counsel (ODC), a branch of the Supreme Court that investigates ethics complaints against judges on behalf of the Commission on Judicial Conduct, said it would investigate a complaint filed by Bryant against Miller.

In her petition to the Supreme Court, Bryant noted the JMSC “not only received the same allegations that had been made before the Commission on Judicial Conduct, but chose to adopt its own interpretation of the (Judicial) Canons and commentary contained in the Code of Judicial Conduct.”

Due Process Rights ‘Violated’

Bryant earlier told The Nerve she has been forced to live as an out-of-state fugitive since Miller in 2012 issued a bench warrant for her arrest in connection with her legal battle for guardianship over her adult intellectually-disabled daughter, identified in the Supreme Court petition by the fictitious name of “Madison.” Bryant was jailed in 2011 and 2012 after being found in contempt of court by Greenville County Associate Probate Judge Edward Sauvain and Miller, respectively.

Bryant won a major legal victory in the Supreme Court in 2006 when the justices 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.

In 2010, Bryant sued DDSN; the Greenville County Disabilities and Special Needs Board; Tracy Parsons, a court-appointed guardian for Bryant’s daughter; and others, alleging her daughter was sexually and physically abused during her stay in a Greenville County home.

Miller in 2012 ruled that Bryant’s lawsuit was “patently frivolous … to the extent that it included Defendant Tracy Parsons,” noting that by including Parsons as a defendant, Bryant violated an earlier court-approved agreement that re-established her as her daughter’s guardian. Bryant contends she legally could include Parsons in her suit; Sauvain in 2013 appointed a temporary guardian for her daughter, citing her absence from the state.

In his April 2, 2012, ruling, Miller said he was issuing a bench warrant for Bryant’s “immediate arrest” after finding her in contempt for ignoring previous court orders to pay sanctions in connection with the case, and ordered her to pay $9,639, which included attorney fees and interest, to an attorney for Parsons. In her petition filed Tuesday with the Supreme Court, Bryant requests that the warrant “be vacated.”

“The due process rights of the petitioner have been violated by Judge Edward Miller by sanctioning the petitioner with legal fees, dismissing a complaint without a fair hearing, issuing a criminal bench warrant with no bond, nor holding a bond hearing,” Bryant wrote.

The Nerve earlier this month reported that Bryant, citing the active warrant against her, offered to testify at Miller’s JMSC screening hearing on Nov. 5 via Skype video, but was informed that she had to appear in person. Rep. Alan Clemmons, R-Horry and then-chairman of the JMSC, announced at the hearing that given Bryant’s absence, her complaint against Miller would not be part of the formal questioning of Miller. Bryant’s husband, Rickey Bryant, was allowed to testify, though Clemmons pointed out several times that he was not directly involved in his wife’s legal case, according to The Nerve’s review of a transcript of the hearing.

Brenda Bryant in her complaint to the JMSC listed two attorneys – Alice Perkins and Allan Fulmer Jr. – as witnesses. But neither attorney testified at the hearing, though both were interviewed earlier by a House attorney acting on behalf of the JMSC, Shuler confirmed to The Nerve. Lawyers rarely testify against incumbent judges in screening hearings.

In its story earlier this month, The Nerve also reported that commission member Rep. Bruce Bannister, R-Greenville and an attorney, didn’t abstain from questioning Miller or later voting to nominate him despite Miller’s testimony during the hearing that he “appears before me on a regular basis.”

“This is a conflict of interest and Representative Bannister should have recused himself from the vote,” Bryant said in her petition Tuesday.

She alleges in the petition that the JMSC, which qualified and nominated Miller, “condoned Judge Miller’s abuse of power and violation of the Judicial Canons”; is a “threat to justice in the interests of the public and complainants”; and “threatens the judicial selection process for judicial candidates by electing judges that are not qualified.”

Legislative Bait and Switch?

The petition contends that when S.C. voters in 1996 approved an amendment to the state constitution establishing the JMSC, the “evident purpose of the people” was to “create a requirement beyond the power of the General Assembly, in the form of an independent body which could act as a check and balance on the legislature.” The constitution requires that the Legislature vote only on judicial candidates nominated by the commission.

But in passing the enabling state law, the Legislature required that six of the 10 JMSC members be lawmakers, which violates the constitution, Bryant contends. Under the law, five of the members are appointed by the House speaker, three by the Senate Judiciary Committee chairman, and two by the Senate president pro tempore.

Then-House Speaker Bobby Harrell, R-Charleston, appointed his brother, John Harrell, a Charleston attorney, to the JMSC, which the South Carolina Policy Council –The Nerve’s parent organization – alleged, in a 2013 public-corruption complaint filed against the speaker with S.C. Attorney General Alan Wilson, violated state law. Bobby Harrell resigned from office in October after pleading guilty to misspending campaign funds on personal expenses.

Bryant’s petition also contends that lawmakers’ membership on the JMSC violates dual office-holding provisions of the constitution, though the state Supreme Court rejected a similar position in a 2010 ruling. In citing that ruling in her petition, Bryant noted the Supreme Court upheld the JMSC’s finding that then-longtime Charleston County Family Court Judge Frances “Charlie” Segars-Andrews was no longer qualified to serve “based on a complaint filed by one individual, who had been shattered and lost faith in our judicial system based on Judge Andrews’ violations of the (Judicial) Canons.”

“Because the Commission is not merely advisory but has the absolute power to decide who is eligible for a judgeship, it meets the definition of exercising a portion – a significant portion – of the state’s sovereignty,” Bryant wrote.

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