June 5, 2023

The Nerve

Where Government Gets Exposed

S.C. Supreme Court: Lack of Accountability

The NerveThe state’s top judicial foxes won’t give up guarding their own hen house.

In a 2008 report, an American Bar Association review team recommended that a special, outside court be created to handle any ethical complaints against S.C. Supreme Court justices.

The review team said having a special court was needed because “allowing the Court to retain the authority to discipline one of its own members may create an appearance of impropriety.”

The state’s judicial canons – the ethical rules all judges, including Supreme Court justices, are supposed to follow – require that a judge “avoid impropriety and the appearance of impropriety in all of the judge’s activities.”

But Supreme Court Chief Justice Jean Toal and her four fellow justices decided to leave themselves in charge of disciplining each other. In a quietly released written response last October to the ABA report, the court said it “declines to adopt a rule that would disqualify all members of the Court when a complaint is filed against a member of the Court.”

The justices did agree to modify court rules to require a lawyer who doesn’t work in the state Judicial Department – which Toal oversees – to investigate any alleged ethical violations against them.

The debate about the need for a special court is more than a hypothetical law school class discussion. Toal, the chief justice since 2000 and a member of the high court since 1988, was involved in high-profile, hit-and-run property damage incidents in 2001 and 2007.

The state Commission on Judicial Conduct – an arm of the Supreme Court – cleared her of any ethical wrongdoing in the 2001 incident. It’s unknown whether a formal ethics investigation was done in the latter case.

Private letters of caution can be issued by the commission, the Office of Disciplinary Counsel or the Supreme Court, though the public isn’t given any details in those cases.

No Supreme Court justice in recent memory has faced public sanctions, which range from reprimands to removal from the bench, though they’ve gotten into ethical hot water. Retired Justice E.C. Burnett, for example, in 1999 apologized to the Legislative Black Caucus for forwarding a racially-tinged joke on his state-furnished e-mail account.

Toal did not respond to a written request by The Nerve concerning her reaction to the ABA recommendation in light of her prior traffic incidents.

A national nonprofit legal reform group believes the Supreme Court should not discipline itself.

“We would be promoting anything that would be an independent review,” Theresa Rudy, program director of the Washington, D.C.-based Center for Legal Empowerment Accountability and Reform (CLEAR), told The Nerve. “That’s definitely the side we would come down on.”

In North Carolina, for example, any recommendation by a hearing panel of that state’s Judicial Standards Commission to discipline a Supreme Court justice must be heard by a special, seven-member panel of the N.C. Court of Appeals, the state’s second-highest court.

In a 2008 report card on judicial accountability nationwide, CLEAR, formerly known as HALT, gave South Carolina an overall C-minus grade, ranking it 31st among all states and the District of Columbia.

The ABA’s recommendation for a special disciplinary court for the S.C. Supreme Court was among 24 suggestions made last year by a six-member review team, sponsored by the ABA’s Standing Committee on Professional Discipline, to improve the state’s judicial and lawyer disciplinary systems.

The review team did not cite Toal’s traffic incidents or any other specific incident in making their recommendation for a special disciplinary court.

The Supreme Court initiated the review and accepted public comments after the September 2008 release of the report. The court-approved rule changes, announced last Oct. 16, went into effect Jan. 1.

The state Office of Disciplinary Counsel, a branch of the Supreme Court, investigates ethical complaints against lawyers and judges. The Commission on Lawyer Conduct issues formal charges against lawyers and recommends sanctions to the Supreme Court, which has the final say in all cases; the Commission on Judicial Conduct has the same authority for judges.

Although the Supreme Court rejected the ABA proposal to prevent it from disciplining its own members, it did accept a number of other ABA recommendations, including:

  • Increasing the number of non-lawyers on the judicial and lawyer conduct commissions. The ABA said that’s important to help prevent an appearance of favoritism. Previously, the 24-member Commission on Judicial Conduct and the 44-member Commission on Lawyer Conduct each had two non-lawyers. The court increased the lay membership to eight on the judicial commission and 16 on the lawyer commission;
  • Allowing non-lawyers to serve on commission hearing panels, which determine whether ethics rules were violated and recommend sanctions if violations occurred. Currently, non-lawyers can serve only on investigative panels, which authorize charges; and
  • Allowing people who file complaints to have a limited review of initial dismissals of their cases, which isn’t allowed now.

Reach Brundrett at (803) 779-5022, ext. 106, or rick@scpolicycouncil.com

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The Nerve