Why I Appealed to the Supreme Court

Sean Bennett and lawyers supporting him (Robby Robbins, Rep. Chris Murphy) have politicized the recent legal  challenges to the candidacies of  Bennett and other June 2012 Dorchester Republican Primary winners by publishing/spinning  numerous distorted accusations and claims.  Their publications have confused the public and diverted attention from the facts and the merits of the issues.   In contrast, I have refrained, with one minor exception, from public comment about pending candidate legal proceedings, as I believed it appropriate to let the lawsuit be decided without political influence.

Because the candidate legal proceedings are over and many constituents have asked me why and how I participated in the lawsuit challenging candidacies, I am providing this explanation.  

I begin by pointing out that a Court issued unchallenged rulings backed by uncontroverted evidence that Roger Goodman and John Hull never were valid candidates in the June 2012 Republican Primary. 

That means that they and the candidates they challenged—incumbents Bill Hearn and Larry Hargett --   expended time, money and energy to run races for County Council that never should have been held.   Thus, the lawsuit over the legitimacy of candidacies was not much ado about nothing.  The lawsuit proved at least two candidates were allowed as candidates illegally. I suspect there were more.

The short answer to why I participated in the lawsuit challenging Bennett’s candidacy is that I became convinced, based on credible evidence, that he probably had not been a legitimate candidate, and that he and some of his supporters were engaging in extraordinary unlawful skullduggery to avoid accountability for that illegitimacy. 

I thought that a candidate should not be allowed to serve in an office won in an election in which he had not been a lawful candidate.  The SC Supreme Court supported that principle when it ruled in May and June 2012 decisions that over 200 individuals must be disqualified as candidates because they had not filed an ethics report as required by law.

My involvement in this matter began when I received an unexpected and unsolicited call from a high ranking Judge on June 13, the day after the Primary, suggesting that Bennett had not been qualified to be a candidate in the Primary and admonishing that I personally should ask to see the  Statement of Economic Interest (“SEI”) Bennett was required to file with the Dorchester Republican Party to  determine for myself if he had been a lawful candidate by filing his SEI as required. In response, I called Tony Piscatella, the Dorchester Republican Party official in charge of candidate filings and records, and asked him to let me see Bennett’s SEI on file with the Dorchester Republican Party. In response  Piscatella informed me later that day that he had located Bennett’s SEI and would give me a copy of it as I had requested.   As later would become clear, neither of these statements by Piscatella was true.

Two days later Piscatella and Matt Moore, Executive Director of the State Republican Party, informed me by e-mail that I would not be given a copy of Bennett’s SEI, and let me continue to believe that Piscatella had Bennett’s SEI in his possession asPiscatella had represented.  Since all SEIs are public documents (why require that a candidate file an SEI if the public cannot see it?) that Piscatella as the candidate filing official was required by law (Section 8-13-1356(C)) to have filed with state officials by April 5, 2012, it seemed wrong for these Dorchester and State Republican Party officials to refuse to let me or anyone  see Bennett’s SEI.  Their refusals indicated to me that they must be hiding something.  

Indeed, they WERE HIDING SOMETHING they should not have been hiding, as I would learn on July 5, over three weeks later. 

What they were withholding was their knowledge that the Dorchester County Republican Party had NO SEI ON FILE FOR BENNETT.  That absence indicated
that Bennett, like hundreds of others who had been disqualified as candidates by the SC Supreme Court,  had not been a valid candidate in the June 12 Primary because he had not properly filed his SEI with the DCRP.

On the same day that the Republican Party said it refused to let me see Bennett’s SEI which Piscatella claimed was in his possession, . 

That request also was refused. 

Again, I wondered:  why would the Republican Party refuse to provide anyone a copy of candidates’ SEIs, which are public documents, unless they were trying to hide something unlawful ?

Due to the above, I began investigating by asking questions of numerous people.  A recent former high ranking Dorchester Republican Party official told me repeatedly and unequivocally that he  knew that the SEIs of Bennett and other Republican candidates had not been filed with the DCRP as required by law.  He told me, “They did it wrong; trust me, they know they did it wrong.”  He insisted he  would tell the truth about this  wrongdoing if asked to do so under oath in a court proceeding.   I have reason to believe that Democrat officials heard the same claims from this Republican official that I heard.  None of us had any way of knowing that, despite his assurances, as a witness in court he would “have amnesia” by claiming he knew nothing. 

I doubt there would have been any lawsuit without this individual’s insistence that he knew  that DCRP officials improperly had certified candidates. 

On June 29 the Dorchester Democratic Party sued the Dorchester Republican Partychallenging the legitimacy of all of the Dorchester Republican Primary candidates.  On July 9 Bennett filed a motion to intervene in that lawsuit.  Three days later I filed a similar motion to intervene, figuring that if  Bennett was joining  as a party to the lawsuit to try to influence the Judge to try to avoid accountability I also should be a party to the lawsuit to protect my and my constituents’ interests by ensuring accountability and to observe how the lawsuit would proceed.

As a result of that lawsuit I learned about more wrongful conduct by certain Republican Party officials. Specifically, on June  21 Piscatella took  Bennett’s  official candidate documents from  Dorchester Republican Party headquarters to his home,  and refused to allow anyone, including DCRP Chairman Carroll Duncan, to see or have a copy of them, or to return them to the Dorchester County Republican Party when directed to do so.  In response, Chairman Duncan fired and replaced Mr. Piscatella as the candidate filing official and demanded that he return the documents he had wrongfully taken.  Piscatella refused, thereby ensuring that no one challenging candidacies got to see the official candidate documents until July 24, 2012, when the documents finally were made public by court order.

Piscatella took additional steps to protect Bennett from the consequences of his SEI being missing from the official DCRP files .  Specifically, on June 13 Piscatella printed a new SEI for Bennett and put it in Bennett’s official  file with a note to replace Bennett’s missing SEI.  In addition,  on June 21 Piscatella and Bennett acted , with the assistance of Murphy, to “supplement” or mix Bennett’s personal documents with Bennett’s official DCRP candidate file. 

When on July 24, 2012, the candidate filing documents that has been withheld by Piscatella finally became available to the public, it became clear that the SEI Bennett claimed he had filed with the DCRP was for the wrong year, i.e., for 2010 and not for 2011 as required by law.  Those documents also showed literally dozens of discrepancies and errors in the candidates’ filing paperwork.  For example,  an SEIappeared in the files of several candidates who testified that they had not given an SEI to the DCRP.  Those SEIs mysteriously had appeared in the DCRP files, making it appear that candidates had submitted them when in fact they had not done so.

To summarize,  during the week after the Primary Piscatella, Duncan and the State Republican Party refused to let me or anyone see Bennett’s and other candidates’SEIs, even though they were public documents, and led me to believe that the DCRPhad an SEI on file for Bennett when in fact that was not true.  I did not learn there was no SEI in Bennett’s official DCRP candidate file until July 5, when Chairman Duncan, to her credit, revealed that information through her attorney.  On July 11 Chairman Duncan, again to her credit, demanded that Piscatella provide the candidates’ SEIs to the public, and removed him  as records custodian when he  refused to do so. Piscatella twice altered the contents of Bennett’s official candidate file, both by adding on June 13 a newly printed SEI to replace the SEI not in Bennett’s file and by acting with Bennett and Murphy to add Bennett’s personal files to Bennett’s official DCRP file.  Piscatella took home the official DCRP files on June 21 and refused to let anyone,  even the DCRP Chairman, see or have a copy of those public documents, even after he officially had been  removed.  Bennett eventually claimed he did file theSEI properly, but given his repeated untruthfulness  during the Primary campaign, I had no confidence in word.  Press statements by Bennett and his lawyer supporters spinning  claim after claim diverting attention from the real issues cast more doubt on Bennett’s legitimacy as a candidate.  Totally false and seemingly desperate suggestions that I stole Bennett’s SEI or got someone else to do so, and that Piscatella had accidentally shredded Bennett’s SEI, cast more doubt on the legitimacy of Bennett’s candidacy.  What was I supposed to think?

I joined the lawsuit with Bennett, hoping to pin down exactly who did what when so that the truth would emerge.  Instead, the lawsuit raised more questions than it answered.  For one thing, there was no discovery performed before the court hearing on August 6.  Not one deposition was taken, and no interrogatories or requests for documents were answered.  No witness was allowed to be called except for cross examination of anyone who had signed an affidavit submitted to the court.  Thus, the only evidence presented to the court was by affidavit if a party happened to be lucky enough to find someone willing to sign an affidavit, and no affidavit was allowed unless the signer of the affidavit was available in court to be cross examined.  One  key witness was out of state on the day of the trial and, therefore, her two important affidavits were not considered by the court.  Further, Robbins and Murphy obviously colluded to limit discovery of facts and to spin their claims, while engaging in the most discourteous and hostile cross examinations I have witnessed  in my thirty years of law practice.  These procedures did not result in pinning down the truth. It resulted in obscuring critical facts. 

Additional facts revealed at the trial were shocking.  The DCRP candidate documents had not been securely maintained, as they had not been kept in a locked filing cabinet as required by a DCRP bylaw, and several  persons had unrestricted access to the offices in which the candidate paperwork had been kept.  Piscatella testified that even though he had exclusive control over the candidate documents, he had no idea how SEIs had mysteriously appeared in the official files of several candidates who testified that they had never  given an SEI to the DCRP.  The Judge publicly criticized Murphy for getting Piscatella to unlawfully abscond with the DCRP’s candidate documents, to the point that Murphy volunteered in court an acknowledgment that the Judge could sanction Murphy for that wrongdoing.

A Judge concluded that Goodman and Hull had not been lawful candidates, but that Bennett had.  I had doubts about the accuracy of the finding for Bennett, given that I thought the evidence showed that Bennett did not file an SEI when required and that if he did, it was invalid as it was for the wrong year.  I disagreed with the premise suggested by the Judge that a decision on whether a person had been  a valid candidate should be influenced by whether  that candidate had won the election that he might have unlawfully entered. Further, I  wondered if the Judge was influenced to rule for Bennett by the fact that the Judge or a member of the Judge’s family was so close to Bennett’s lawyer, Robbins, that he attended Robbins’ wedding.  I wondered why the Judge, while criticizing Murphy in his opinion for getting Piscatella to take the DCRP candidate files to Piscatella’s home, declined to sanction Murphy, even though sanctions were warranted.  Perhaps the Judge would have sanctioned Murphy, a legislator, if he had been in a state other than South Carolina, where  Judges are elected by the Legislature.

 and the facts that the Judge had ruled that I and others had standing as litigants;  that the Supreme Court had warned, in the Florence County case  in June 2011, that it would sanction Party officials who did not comply with the candidate filing requirements stated in its Anderson and Florence County decisions; and that the Supreme Court in 1975 had disqualified a candidate for Governor after he had won a Democratic Primary due to that candidate’s failure to comply with candidacy filing requirements.   Based on all of that, I thought the Supreme Court would enforce its prior decisions and hold wrongdoers accountable if I appealed.  I was wrong. 

The Supreme Court did not rule for Bennett on the merits of whether  he was a valid candidate.  Rather, it avoided a ruling on the merits by ruling that neither I nor any or the other parties to the lawsuit had standing to have brought the lawsuit, because we had not “exhausted our administrative remedies” by having protested the election  to the State Republican Executive Committee within five days of the Primary.  Of course, I did not protest the election within that five day period because critical facts had been withheld from me and I had been misled by Republican officials as stated above, and  I therefore could not know or have asserted the “precise” grounds for a protest as required by the protest statute.  Thus, Republican officials succeeded in avoiding being held accountable by a Court for their wrongful actions by avoiding a protest by withholding critical facts by withholding public documents  and by deceiving us about the fact that Bennett’s candidate file did not contain an SEI.  Republican officials succeeded in “running out the clock” to avoid accountability for their wrongdoing.