STATE OF SOUTH CAROLINA COUNTY OF JASPER

) ) )

IN THE COURT OF COMMON PLEAS Appeal No.: 2012-CP-27-

SCOTT READY,

) ) Appellant, ) ) -vs) ) ) THE TOWN OF HARDEEVILLE ) MUNICIPAL ELECTION ) COMMISSION, Joyce Meeks, ) May Montgomery, and Lyndia ) Daniels, In Their Official Capacity ) as Election Commissioners, ) ) Respondents. ) )

NOTICE OF APPEAL AND APPEAL FROM THE TOWN OF HARDEEVILLE MUNICIPAL ELECTION COMMISSION

Scott Ready, by and through undersigned counsel, hereby gives his Notice of Appeal and Appeals the decision of the Municipal Election Commission of the Town of Hardeeville rendered March 26th 2012. The grounds for such appeal are set forth herein below:

I.

JURISDICTION: Section 5-15-140 of the South Carolina Code of Laws, as amended, provides that an appeal

from a municipal election commission by an aggrieved party, jurisdiction over the matter shall be vested in the Court of Common Pleas. See also, In re November 4th 2008 Bluffton Town Council Election, 385 S.C. 632, 686 S.E.2d 683 (2009). The Town of Hardeeville is located in the County of Jasper.

II.

FACTS: This appeal concerns the upcoming May 8th 2012 election for mayor and two town council

seats for the Town of Hardeeville. The Appellant timely filed all the required notices for a town council seat and state ethics disclosures prior to the Thursday March 8th 12:00 noon closing period. Lori Pomarico, Hardeeville City Clerk, noted that usually one town election commissioner would come in to sign as a witness to the closing of the filing period. Ms. Pomarico noted in an e-mail (Exhibit 1) that all three municipal election commissioners appeared at city hall at 1:00pm and witnessed the closing of the filing period. At this impromptu meeting of the three municipal election commissioners, Chairperson Joyce Meeks (Mother-in-Law of opposing candidate Roy Powell) suggested that Scott Ready would not be eligible to be on the ballot because he checked elected rather than candidate on the State Ethics Commission Statement of Economic Interest (SEI) form. The City Clerk explained to the commissioners that state law provides a ten (10) period to amend or correct the candidates SEI form. (See, Exhibit 1). On Friday March 9th 2012, at 12:47pm Lori Pomarico provided the State Ethics Commission a Candidates Roster. (Exhibit 2). This roster notifies the Ethics Commission of the candidates who will appear on the May 8th 2012 ballot. The Candidates Roster included the name of the Appellant, Scott Ready. At 3:25pm on Friday March 9th 2012, Karen Wiggins of the State Ethics Commission transmitted an e-mail to the Town Clerk certifying that the candidates, including Scott Ready, were in compliance with the reporting requirements of Section 8-13-1356 (Statement of Economic Interests), and may properly have their names appear on the election ballot. (Exhibit 3 Wiggins E-Mail). The Wiggins e-mail noted that Mayor Bostic needed to, register a new campaign

account: there is no e-mail address to contact candidate. The Wiggins e-mail also noted that candidate Roy Powell, needs to put in account a valid e-mail address. At the behest of Chairperson Meeks, the city clerk scheduled a special meeting of the Municipal Elections Commission (MEC) for Thursday March 14th 2012. The purpose of the special meeting was to decertify the Appellant as a candidate on the May 8th 2012 ballot. (See, Exhibit 1). The MEC voted to remove Scott Readys name from the ballot. Although the State Ethics Commission certified that Ready was in compliance with Section 8-13-1356, the Hardeeville MEC based its decision removing Ready from the ballot on the fact that he had checked an incorrect box, to wit: elected rather that candidate on the SEI form. The Appellant had corrected the SEI with the State Elections Commission, but the MEC found that it was after the closing of filing for the office. The MEC did not address the incorrect or invalid e-mail address on the SEI for candidate Powell, the Chairpersons Son-in-Law.

III.

ISSUES ON APPEAL: 1. Whether the MEC erred as a matter of law in its application of Section 8-13-1356 and Section 8-13-1120? 2. 3. 4. Whether the MEC violated Appellants right to due process? Whether the MEC member Joyce Meeks had a conflict of interest? Whether the MEC denied equal protection of law to the Appellant?

IV.

STANDARD OF REVIEW: The circuit court reviews the decisions of municipal election commissions to correct errors

of law. Further this review is limited to findings of fact when those findings are unsupported by the evidence. George v. Mun, Election Commn of the City of Charleston, 335 S.C. 182, 516 S.E.2d (1999); Cole v. Town of Atlantic Beach Election Comn, 393 S.C. 264, 712 S.E.2d 440 (2011).

V.

ARGUMENT: 1. The MEC erred as a matter of law in its application of Section 8-13-1356 and Section 8-13-1120. The reasoning of the MEC to removed the Appellant from the May 8th 2012 ballot for a

technical error, which was corrected prior to the March 15th 2012 special meeting was based solely on an error of law. The MEC determined that since the Appellant checked elected instead of candidate on his SEI application prior to the close of filing, that he was therefore ineligible to have his name appear on the May 8th 2012 ballot. This reasoning is inapposite to the election laws of South Carolina in several respects. First, there is no requirement in Section 8-13-1120 state whether one is an already elected official or a candidate. The only requirement under 8-13-1120 is to correctly and completely disclose the enumerated economic interests on the SEI form provided by the State. Second, the City clerk, as directed by the MEC, forwarded a list of candidates for the May 8th ballot to the State Ethics Commission which included the Appellant and his filing fee. Third, the State Ethics Commission certified that the Appellant was in compliance with state regulations and no corrections were needed by the state. Fourth, there is no requirement that a candidates SEI by completed prior to the close of the filing period. To the contrary, 8-13-1356(C) provides that the official with whom the candidate files has five (5) business days after the close of filing to file the

SEI with the appropriate supervisory agency. Fifth, The State Ethics Commission allows ten (10) days to correct any information provided. (See, Exhibit 2). The State certified on May 9th 2012 that the Appellants SEI information was correct. Even if there was minor or technical information (checking of a box), the Appellant corrected the same within two hours of being notified of the problem and prior to the March 15th special meeting of the MEC.

2.

The MEC violated Appellants right to due process:

It is clear from the city clerks e-mail (Exhibit 1) that the MEC, in toto, was aware of the minor non-statutory error in the Appellants SEI filing prior to the certification of the close of filing. As the city clerk pointed out in Exhibit 1, it was unusual for all three commissioners to certify the close of filing. The issue of the supposed irregularity in the Appellants SEI was raised at the time of the closing, without notice to the Appellant. This de facto meeting of the MEC violated the public notice requirements of the Sunshine laws and in particular the Appellants right to be heard and/or opportunity to correct an alleged non-statutory error in the SEI. By its own actions, the MEC foreclosed any chance to correct a ministerial check box on a state form. The State Ethics commission allows up to ten (10) days to correct a candidates SEI. Therefore, the Appellant, according to state law and practice would have had until March 20th 2012 to make a correction. The MEC clearly violated the Appellants due process rights by finding that since the correction was not made prior to the close of filing, he could not appear on the ballot even though the State sent the certification that the Appellants SEI was complete and correct. The core elements of due process are notice and opportunity to be heard. The MEC held a mock special meeting for the purpose to remove the Appellants name from the ballot not to give the Appellant

a full and fair opportunity to be heard. It is clear from Exhibit 1 that the MEC already met and formulated a plan to remove the Appellants name from the ballot. See, Exhibit 3 (E-mails back and forth from the State Ethics Commission, city clerk and the Chair of the MEC).

3.

MEC member Joyce Meeks had a conflict of interest:

It is clear from the Exhibits that Joyce Meeks led the charge to remove the Appellant from the May 8th 2012 ballot. It is likewise clear that Chairperson Meeks had an agenda other that of insuring a fair and democratically held election. As the Mother-in-Law of Roy Powell, a rival of the Appellant for the town council seat, she had a clear duty to recuse herself. The decision of the MEC removing the Appellants name from the ballot should be nullified. Chairperson Meeks

failed to recuse herself from the voting and seconding the motion to remove the Appellant from the ballot. This appears to be in direct violation of 8-13-700. Section 8-13-700 prohibits a public official from voting or deciding matters in which she or a family member (son-in-law) has an economic interest in. This section clearly states that Chairperson Meeks had a duty to disclose this interest, made sure the disclosure is contained in the public minutes of any meeting and prohibits that public official from voting on any matter in which there is a conflict of interest. See, 8-13-700(B)(4). Therefore, the action of the MEC removing the Appellant from the May 8th 2012 ballot must be reversed for this reason alone.

4.

The MEC denied equal protection of law to the Appellant:

Government officials ought not be arbitrary and capricious in their consideration of persons similarly situated. The State Ethics Commission certified the Appellant without qualification. Two

other candidates had incorrect and/or incomplete information on their SEI filings, yet not action was taken against them. Mayor Bronco Bostics name should be removed from the ballot under the reasoning of the MEC. He failed to include a bank account number and an e-mail address on his SEI form. Likewise rival and son-in-law Roy Powell failed to provide a valid e-mail address. These are non-statutory disclosures, but required by the State Ethics Commission. These deficiencies were in place after the close of filing. See (Exhibit 2), yet the MEC only focused on the chairpersons sonin-laws rival. Not only did the MEC make an error of law by removing the Appellants name from the ballot, it applied an impossible standard to the Appellant and excused this impossible standard from his opponent. One can only surmise that the MEC did not equally protect the Appellant in his filings. This case presents the type of stunning contortions that thwart fair and open elections and suppress choices for the electorate. In Cole v. Town of Atlantic Beach Election Comn, 393 S.C. 264, 712 S.E.2d 440 (2011), the South Carolina Supreme Court saw through the Atlantic Beach MECs shenanigans decertifying an election because the wrong candidates won. The Supreme Court stated: Courts justly consider the main purpose of [election] law, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end, and, in order not to defeat the general design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud, and have not interfered with a full and fair expression of the voters choice.

The MEC previously certified the roster of candidates, sent that list, which included the Appellant, and the roster was approved by the State Ethics Commission. The special meeting based its reasoning upon no law nor principle, save and except removing a competitor candidate from the

ballot. The voters of Hardeeville deserve qualified candidates such as the Appellate to have a full and fair election and vetting of issues. The MEC cannot be allowed to unilaterally thwart that opportunity for its citizens, nor should this Honorable Court. WHEREFORE, the Appellant prays that this Honorable Court reverse the March 14th 2012 MEC action removing him from the May 8th ballot.1 Further, the Appellant prays that this Court Order that the name of Scott Ready be placed on the May 8th ballot as he has complied with all filing laws Respectfully Submitted,

Port Royal, South Carolina March 28th 2012

Jared Sullivan Newman Post Office Box 515 Port Royal, South Carolina 29935 (843) 525-0707 Fx: (843) 522-1313 E/M: jnewman@jnewmanlaw.com SC BAR ID: 12930 Attorney for Appellant

Appellant received written notice of the MEC on March 27th 2012 from the city attorneys office. 8