October 7, 2022

The Nerve

Where Government Gets Exposed

Judicial panel hiding behind secrecy law

By RICK BRUNDRETT

A legislatively controlled committee isn’t saying publicly why it found a longtime circuit court judge unqualified – and state law requires the secrecy.

The six-legislator, 10-member Judicial Merit Selection Commission (JMSC) on Dec. 1 voted 9-0 not to qualify Horry County circuit judge Steven John, who has been on the bench since 2001, for another six-year term – a rare action involving a sitting, veteran judge.

In a December Nerve story, Erin Crawford, the JMSC’s chief lawyer, wouldn’t say why John was found unqualified for the 15th Circuit Court seat, though she said a formal screening report to be released by the commission would “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.”

But that report, which was issued on Jan. 13, contained no mention of John’s screening, nor was there any public transcript of his screening hearing scheduled for last November. The Nerve in the December story cited two sources with knowledge of the situation but who did not want to be identified as saying that the JMSC had concerns about John’s temperament as a judge.

In subsequent email responses to The Nerve, Crawford confirmed that John withdrew his candidacy after he was found unqualified, noting that under state law, if a candidate withdraws, “then that candidate is not included in the (screening) report or transcripts.”

“It is my understanding that once a candidate has withdrawn, I cannot discuss any reasons or findings concerning that candidate,” she added.

Under the state law that Crawford cited, if a candidate withdraws “at any stage of the proceedings,” the screening report, transcript, application and “other information gathered during the commission’s investigation” must be kept “confidential and destroyed as soon as possible after the candidate’s written notification of his withdrawal.”

The Nerve repeatedly over the years has pointed out the secrecy in the judicial screening process. South Carolina and Virginia are the only states where their legislatures play primary roles in selecting judges.

S.C. lawmakers have scheduled a joint session for next Wednesday to fill 37 full-time judicial seats.

John isn’t the only candidate who withdrew from the latest round of judicial elections. For example, former state Rep. Jenny Horne of Summerville, a Republican who served in the House from 2008-2016, was among three candidates who initially applied for a family court seat in the 1st Circuit, as The Nerve reported in July.

But Horne and the other two candidates – Deanne Gray and Margie Pizarro, both of Summerville – withdrew from their race, Crawford confirmed this week, noting they dropped out at “different times” and adding that “as I read the statute, I am unable to comment on their candidacy.”

None of the three candidates was included in the JMSC’s screening report or hearing transcripts. Neither Horne, who was a candidate for another family court seat in 2019 but later withdrew from that race, as The Nerve reported then, nor Pizarro responded for comment by publication of this story.

In an email response today to The Nerve, Gray said, “All I can say at this time is that for personal reasons I felt it was in my interest to withdraw from the race.”

Judge John, whose term expires June 30, didn’t respond to a written request for comment for this story. Rep. Murrell Smith, R-Sumter, and Sen. Luke Rankin, R-Horry, who are the JMSC’s chairman and vice chairman, respectively, also didn’t reply to The Nerve’s written questions.

New screening hearings for John’s circuit court seat and the family court seat sought by Horne likely will be held in the fall, with elections in the Legislature to occur early next year, according to Crawford.

Circuit and family court judges statewide were making base salaries of $191,954 and $186,902, respectively, as of November 2020, according to state Judicial Department records released then to The Nerve, though court officials have ignored The Nerve’s recent request for an updated staff salary list.

For family, circuit, Administrative Law Court, Court of Appeals and Supreme Court judges, only candidates qualified and nominated by the JMSC can be elected by the Legislature, under state law. The total number of nominees per judicial seat is capped at three.

The House speaker – currently Rep. Jay Lucas, R-Darlington – appoints five members of the 10-member JMSC, while the Senate Judiciary Committee chairman – currently Rankin – and the Senate president – currently Sen. Thomas Alexander, R-Oconee, have three and two appointments, respectively. By law, six members must by legislators.

As The Nerve has pointed out over the years, incumbent judges usually face no challengers when seeking re-election. And even with open judicial seats, if there are several nominated candidates for a seat, typically only one is left for election by the Legislature because the others dropped out after doing preliminary vote counts among lawmakers.

Inside track

Given the Legislature’s control over judicial elections, it’s not surprising that candidates with ties to current or former lawmakers – or ex-legislators themselves – get selected to the bench. For example, unopposed incumbents scheduled for re-election in the General Assembly next Wednesday include, according to JMSC records:

  • Supreme Court Justice Kaye Hearn of Conway, wife of former Rep. George Hearn;
  • 1st Circuit Court judge Diane Goodstein of Summerville, wife of former House member and senator Arnold Goodstein;
  • 2nd Circuit Court judge Courtney Pope of Aiken, daughter of current Rep. Bill Clyburn, D-Aiken; and
  • Administrative Law Court judge Milton Kimpson of Columbia, brother of current Sen. Marlon Kimpson, D-Charleston.

In 2020, The Nerve revealed that Sen. Scott Talley, R-Spartanburg, was appointed to the JMSC just two months before the commission qualified Shannon Phillips, who worked in Talley’s law firm, for the Spartanburg County master-in-equity (MIE) judge’s seat. The Legislature last May confirmed Phillips for the seat.

In addition, as The Nerve examined in-depth last week, former Rep. Alan Clemmons, a Myrtle Beach Republican who unexpectedly resigned from the Legislature in 2020 and also served on the JMSC, is one of three qualified candidates for the Horry County MIE seat.

Under state law, the process of selecting MIE judges is different compared to other types of judges. The county legislative delegation, made up of House and Senate members representing that county, nominates a candidate qualified by the JMSC to the governor for appointment – typically approved after routine background checks. The Legislature usually confirms the governor’s appointments.

In Clemmons’ case, the 15-member Horry County delegation is scheduled to meet Feb. 4 to recommend one of the three qualified candidates to Gov. Henry McMaster for appointment.

If Clemmons, an attorney, is eventually confirmed, he would be the second ex-House member in recent years to become a judge after resigning his legislative seat. Former Rep. Mike Pitts, R-Laurens, who is not a lawyer, was quietly confirmed by the Senate in 2019 as a Laurens County magistrate – an appointment pushed by Sen. Danny Verdin, R-Laurens, as The Nerve reported then.

The Nerve in 2019 also revealed that one senator in 12 counties controls the appointments of that county’s magistrates.

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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