Easy Road from the State House to the Court House

July 3, 2013

Investigative Reports

Print Friendly, PDF & Email

JudgesIf you want to put on the black robe in South Carolina, it pays to have connections in the General Assembly.

Your chances are even better if you were once part of the legislative club.

After state lawmakers last year created nine new judicial seats, 50 attorneys went through the formal screening process for the positions, including two former S.C. House members, the spouse of a current state representative, and a law partner of a former House member.

When the dust settled after January’s judicial elections in the General Assembly, the two ex-lawmakers – Keith Kelly of Spartanburg County and James McGee of Florence County – along with Maite Murphy, wife of Rep. Chris Murphy, R-Dorchester, and Randall McGee of Calhoun County, then a law partner of former Rep. John Felder Sr., were among the winners of the nine new seats.

That represents 44 percent of the new seats. And it’s not a new phenomenon in the history of the Palmetto State’s court system.

The nine new judges officially started their first six-year terms on Monday. Kelly and Murphy won two of the three newly created at-large circuit court seats, while James McGee, who ran unopposed, and Randall McGee (no relation to James McGee) were elected to two of the six new at-large family court seats.

None of the four new judges responded to phone messages this week from The Nerve.

In an interview Monday with The Nerve, Rep. David Mack, D-Charleston and a member of the S.C. Judicial Merit Selection Commission, which nominates judicial candidates for election in the General Assembly, acknowledged that ex-lawmakers “tend to have the heads up” in judicial elections.

“We have not figured out a way to remedy that,” he said. “We’re trying to have a level playing field for everyone.”

But Mack said although he voted for the new judges in the January elections, their legislative connections were not the determining factor for him, noting, “There are some members of the House who are so opposed to my value system that if they ran for anything, I would not see myself voting for them.”

Rep. Murphy abstained from voting in his wife’s Jan. 30 election, House Journal records show. He did not respond to a phone message this week from The Nerve.

The Legislature last year created six new family court seats, bringing the total statewide to 58. The addition of three circuit court seats brought that total to 49.

South Carolina and Virginia are the only two states in which their legislatures play a primary role in electing judges. In the Palmetto State, Supreme Court, Court of Appeals, Administrative Law Court, circuit and family court judges are elected during joint sessions – usually two every year – of the General Assembly.

The South Carolina Policy Council – The Nerve’s parent organization – has called for judges to be appointed by the governor with consent of the Senate as part of its eight-point reform agenda.

Under state law, the 10-member Judicial Merit Selection Commission – six of whom are lawmakers – can nominate no more than three candidates for each judicial seat. If there is more than one candidate, the challengers typically drop out before an election if they believe they don’t have enough votes, leaving lawmakers to vote on the sole remaining candidate.

Assuming all 170 members of the Legislature are present for judicial elections, it would take 86 votes for a candidate to win a judicial seat. The 46-member Senate has long complained that because the 124-member House outnumbers it by more than 2 to 1, the House effectively controls who gets elected to the bench.

What is clear is that there has been a longstanding open door between the General Assembly and the state court system, The Nerve found in a review of court and legislative records.

Take South Carolina’s two top courts – the Supreme Court and Court of Appeals. Two of the five Supreme Court justices (40 percent) – Chief Justice Jean Toal and Justice Donald Beatty – are former S.C. House members.

Toal joined the Supreme Court in 1988 – bypassing all lower courts – after serving  13 years as a House member from Richland County, while Beatty served as a House member from Spartanburg County from 1991 to 1995 before joining the circuit court in 1995 and later winning elections in the Legislature to the Court of Appeals and Supreme Court.

At the nine-member Court of Appeals, four judges, or 44 percent, are ex-House members: Thomas Huff (1979-96) James Lockemy (1983-89), Paul Short (1983-91) and Paula Thomas (1993-96).

Former lawmakers also are well-represented at the circuit court level: Of the 49 full-time judges, 10, or 20 percent, are ex-legislators. Besides Kelly, who served from 2007-10 in the House, they include Michael Baxley (House, 1987-98), Paul Burch (House, 1988-91), Derham Cole Sr. (House, 1987-92 ), John Hayes (House, 1981-84; Senate, 1985-91), William Keesley (House, 1989-91), Alexander Macaulay (Senate, 1981-94),Cordell Maddox (House, 1997-2000), Jeffrey Young (House, 1995-1998), and Roger Young (House, 1991-94).

James McGee, who was elected in January as a family court judge, served as a House member from 1997-2006. Of the 58 family court judges, two others are ex-lawmakers: John Rucker (House, 1977-80) and Phillip Sinclair (House, 2001-06).

Contacted Tuesday, former state Rep. Felder, who was a law partner of Randall McGee at their St. Matthews firm, Felder & McGee, told The Nerve that he didn’t believe that his longtime service as a House member (1975-1982, 1985-1998) was a main factor in McGee’s election to the bench in January.

“You have the screening process you have to go through now,” Felder said.

In earlier years, lawyer-lawmakers could retire from office and go straight to the bench. Current law requires that legislators wait at least one year after leaving the General Assembly before being elected as a judge.

A bill (S. 84) this year by Sen. Lee Bright, R-Spartanburg, would have extended the waiting period to 20 years.

“It has the appearance of not being a fair process because there are former lawmakers who have relationships with current lawmakers,” Bright said about the current law when contacted Monday by The Nerve.

Bright also introduced another bill (S. 197) that would have required family court and Administrative Law Court judges to be appointed by the governor with consent of the Senate. Both of his bills never made it out of the Senate Judiciary Committee chaired by Sen. Larry Martin, R-Pickens. Martin also is this year’s chairman of the Judicial Merit Selection Commission.

“Frankly, with everything else going on, I really didn’t see the point of discussing it,” Martin said in an interview Tuesday with The Nerve.

Martin said S. 197 would require a state constitutional amendment. As for the proposed 20-year waiting period in Bright’s other bill, Martin said extending the period beyond two years could run contrary to a federal court case, adding, “Once the break is made (from the General Assembly), they’re a free agent.”

Martin, who served in the House from 1979 to 1992 before joining the Senate in 1993, estimated that before the late 1990s, “70 to 80 percent” of all judicial seats subject to elections in the General Assembly were filled by sitting or former lawmakers. That isn’t the case now, he said, despite the prominence of legislative ties in January’s elections for the nine new judicial seats.

“There are a great deal less connections with the Legislature than there used to be,” Martin said. “What we’re doing today is a whole lot different.”

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