Another Election on Tap for Chief Justice’s Seat

January 14, 2015

Investigative Reports

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Supreme CourtFor the second time in a little more than a year, the General Assembly this spring will decide who will be South Carolina’s top judge.

And there could be a three-peat of the process in 2016.

Supreme Court Chief Justice Jean Toal, who took over in 2000 as head of the state’s court system, kept her seat last year in a controversial election in the 170-member Legislature, which selects appellate, circuit, master-in-equity and family court judges in the state. South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.

But despite winning what normally would be a 10-year term, Toal faces mandatory retirement at age 72, which will occur in August, though she is allowed to serve for the remainder of this year.

The 10-member, legislator-dominated Judicial Merit Selection Commission (JMSC) is scheduled to screen candidates for Toal’s seat on April 24 and 27, Jane Shuler, the commission’s chief lawyer, toldThe Nerve when contacted this week. An election in the General Assembly is tentatively set for May 27, she said; lawmakers will fill 22 other full-time, lower court seats in an election tentatively scheduled for Feb. 4.

Toal, of Columbia, submitted a letter, dated last June 25, to the JMSC indicating she planned to retire as of Dec. 31 this year, Shuler said. Toal joined the Supreme Court in 1988 after serving 13 years as a Democratic House member, though she never was a lower court judge.

Contacted Monday by The Nerve, Supreme Court  Associate Justice Costa Pleicones of Columbia, who lost to Toal last Feb. 5 by a vote of 95-74, said he plans on running for the chief justice seat again this year.

“I’ll run, and I’m certainly hopeful I’ll run unopposed,” he said.

The Nerve reported last year that then-House Speaker Bobby Harrell, R-Charleston, actively campaigned for Toal’s re-election, citing sources who said some lawmakers leaning toward voting for Pleicones at the time switched and committed to Toal after meeting privately with Harrell. The House speaker since 2005, Harrell resigned from office in October after pleading guilty to six counts of misspending campaign funds for personal expenses related to the use of his private airplane.

Traditionally, the next-senior justice on the five-member Supreme Court has been considered the front runner for the chief justice job. But if Pleicones, who was elected to the high court in 2000 and currently has the most seniority next to Toal, is elected chief justice this year, he could serve in the position only one year through the end of 2016, given that he would face mandatory retirement when he turns 72 in February next year.

If that happens, the General Assembly next year would again have to elect a chief justice – the third time in three years. And the JMSC in the fall of this year would have to screen candidates for Pleicones’ vacant associate-justice seat, with an election in the Legislature for that seat to be held early next year.

Toal currently makes a base salary of $148,350 yearly as chief justice; the other four justices receive a base $141,286 annually. Last year, upon The Nerve’s request, Toal and Pleicones voluntarily released detailed financial records, which revealed, among other things, that both are receiving six-figure state retirement benefits in addition to their base salaries.The Nerve reported then that what judges are required to disclose regarding their private sources of income is largely hidden from the public.

Associate Justice Kaye Hearn of Conway, who joined the high court in 2009, told The Nerve when contacted Monday she wasn’t running this year for Toal’s seat, while Associate Justice John Kittredge of Greenville, who was elected to the court in 2008, declined comment. Associate Justice Donald Beatty of Spartanburg, who joined the court in 2007, didn’t respond to a phone message this week from The Nerveseeking comment.

John Few of Greenville, chief judge of the nine-member S.C. Court of Appeals – the state’s second-highest court – declined comment Tuesday when contacted by The Nerve about whether he planned to run this year for Toal’s seat. He made unsuccessful runs for the Supreme Court in 2007, 2008 and 2009.

The application period this year for Toal’s seat will run from Feb. 5 to noon on March 9, Shuler said.

Under state law, the JMSC can nominate no more than three candidates for any judicial seat, and the Legislature can consider only candidates nominated by the commission.

Six of the 10 JMSC members must be legislators. The House speaker appoints five members; the Senate Judiciary Committee chairman, three members; and the Senate president pro tempore, two members.

The six current legislative members are Senate Judiciary Committee Chairman Larry Martin, R-Pickens and the JMSC chairman for this year; Sen. Chip Campsen, R-Charleston; Sen. Gerald Malloy, D-Darlington; House Majority Leader Bruce Bannister, R-Greenville; Rep. Alan Clemmons, R-Horry; and Rep. David Mack, D-Charleston.

When he was House speaker, Harrell appointed his brother, John Harrell, a Charleston attorney, to the JMSC. In a public-corruption complaint filed against Bobby Harrell in 2013 with S.C. Attorney General Alan Wilson, the South Carolina Policy Council – The Nerve’s parent organization – alleged, among other things, that the appointment of his brother violated state law.

A review by The Nerve in 2012 found that South Carolina and Tennessee were the only two states at the time in which its legislative leaders controlled the makeup of its judicial nominating panel, based on information compiled by the then-American Judicature Society (AJS), a longtime nonprofit judicial research organization that dissolved last year.

The AJS and another national legal organization, the American Bar Association, previously said South Carolina’s JMSC didn’t meet their standards because the Legislature controls the appointments to and dominates the makeup of the commission.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.