May 20, 2022

The Nerve

Where Government Gets Exposed

Secrecy still part of judicial screening process

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By RICK BRUNDRETT

A legislatively controlled committee that screens judges ruled last week that a longtime circuit court judge was no longer qualified to serve, though the general public wasn’t informed afterward about its decision.

When it comes to secrecy surrounding how judges are nominated in South Carolina, it’s business as usual for the six-legislator, 10-member Judicial Merit Selection Commission (JMSC).

The JMSC on Dec. 1 voted not to qualify Horry County circuit judge Steven John, who has been on the bench since 2001, Erin Crawford, the JMSC’s chief attorney, confirmed Monday when contacted by The Nerve. In an email response, she said the commission in “open session” voted 9-0 to find John unqualified – an unusual action involving a veteran, sitting judge.

Although asked, Crawford wouldn’t say why John was found unqualified, noting that a formal qualifications report, which is tentatively scheduled to be released next month, will “state forth the findings of the Commission on each of the 9 evaluative criteria and will set forth any areas of concern as well as commission comments.”

The JMSC on Nov. 23 and Dec. 2 issued media releases identifying the judges it found qualified, though the releases listed no unqualified candidates. John was screened by the JMSC on Nov. 15, according to the screening schedule, though the commission waited until Dec. 1 to find him unqualified.

John’s six-year term expires next June 30. As of November 2020, circuit court judges were making a base salary of $191,954, according to state Judicial Department records released then to The Nerve, though the department has ignored The Nerve’s recent request for an updated staff salary list.

Two sources with knowledge of John’s screening hearing but who did not want to be identified told The Nerve that the JMSC had concerns about his temperament as a judge. In nominating him for his present term, though, the JMSC in its official 2016 qualifications report said it “believes that Judge John’s temperament is excellent.”

The 2016 report also noted, however, that according to a separate citizens committee, “feedback from multiple sources indicates Judge John is an excellent and fair judge who could be more patient as well as more kind in his comments.”

Ethical rules for state judges require that they be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.”

In contrast to John’s case, JMSC records show that the commission qualified former state Rep. Alan Clemmons, R-Horry, who according to a story last week in The State newspaper, was accused during his judicial screening hearing of being sexist and vindictive against political enemies – allegations that he denied.

The Nerve in July detailed Clemmons’ decision to resign his House seat slightly more than a year before formally becoming a candidate for the Horry County master-in-equity judge’s seat.

By law, the JMSC has to consider nine criteria in deciding whether to qualify and nominate candidates: constitutional qualifications, ethical fitness, professional and academic ability, character, reputation, physical health, mental stability, experience and judicial temperament. No more than three candidates can be nominated for a seat.

The latest official qualifications report is tentatively set to be released on Jan. 13, according to the screening schedule; nominated candidates can seek lawmakers’ votes only after the report has been formally issued to the Legislature. Lawmakers in early 2022 are expected to fill more than 40 full-time judicial seats, though Crawford told The Nerve that a new screening hearing for John’s seat wouldn’t be held until next fall.

John did not return written and phone messages this week seeking comment. Rep. Murrell Smith, R-Sumter, who is the JMSC chairman, and Sen. Luke Rankin, R-Horry, who is the panel’s vice chairman, didn’t reply to written messages. The other four JMSC legislative members, who, like Smith and Rankin, are lawyers – Reps. Jeff Johnson, R-Horry; and Todd Rutherford, D-Richland; and Sens. Ronnie Sabb, D-Williamsburg, and Scott Talley, R-Spartanburg – also didn’t return written or phone messages.

JMSC member Pete Strom, a longtime Columbia lawyer and former U.S. attorney for South Carolina, declined comment when contacted Monday.

Under state law, the House speaker – currently Rep. Jay Lucas, R-Darlington – appoints five of the JMSC’s 10 members. The Senate Judiciary Committee chairman – currently Rankin – selects three members, while the Senate president appoints two. Until Monday, Sen. Harvey Peeler, R-Cherokee, was the Senate president; he was succeeded by Sen. Thomas Alexander, R-Oconee.

South Carolina and Virginia are the only two states where their legislatures play primary roles in electing judges.

Closed meetings, destroyed records

As The Nerve has previously revealed, much of the judicial screening process under state law and JMSC rules is characterized by secrecy and procedures that make it difficult for citizens to participate.

For example, although screening hearings are publicized in advance, they are held during regular weekday business hours on the State House grounds, making it difficult for many citizens to attend in person. And although the JMSC later provides written transcripts of the hearings, the proceeding are not livestreamed, or video recorded and archived on the Legislature’s website.

Citizens face other obstacles to easily participate in the process. Although they can file complaints against judicial candidates, they must submit a sworn statement to the commission using a provided affidavit form no later than two weeks before the date of the candidate’s screening hearing. The complaint must be notarized and mailed or hand delivered to the JMSC, along with any supporting documents.

Under commission rules, if commission staff members determine that a complaint, “on its face, does not state allegations relating to the candidate’s character, competency, or ethics,” it will be dismissed and not be considered at a public hearing. The JMSC also can issue subpoenas “at any time in order to provide for necessary investigations.”

Citizen complaints are considered confidential under state law unless addressed during public hearings. The JMSC by law determines who can testify, and all testimony must be done under oath, subject to penalties for perjury.

State law also requires that “all records, information and other material” used by the JMSC to make its findings be kept “strictly confidential,” except for information presented under oath at public hearings. The confidential information is exempt from disclosure under the S.C. Freedom of Information Act.

Although qualification and nomination votes are supposed to be done publicly, the JMSC meets behind closed doors after taking testimony to “make findings regarding the qualifications of the candidate,” under commission rules.

By law, if a candidate withdraws at any stage of the screening process, the JMSC must destroy all of the candidate’s records in its possession “as soon as possible” after receiving the candidate’s written notice to withdraw. State law also requires that after the JMSC reports its candidate findings, any records “kept confidential must be destroyed.”

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-254-4411 or rick@thenerve.org. Follow him on Twitter @RickBrundrett. Follow The Nerve on Facebook and Twitter @thenervesc.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

 

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