Legislative Role in Judicial Screening Questioned

February 18, 2010

Investigative Reports

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The NerveAfter nearly 13 years in existence, South Carolina’s judicial screening process is perhaps facing its most serious legal challenge yet.

For years, national legal organizations have been saying that the way The Palmetto State screens its judges is far from ideal.

The S.C. Supreme Court is considering a lawsuit brought by Charleston Family Court Judge F.P. “Charlie” Segars-Andrews, a 16-year judge who was found unqualified in December by the S.C. Judicial Merit Selection Commission.

Her lawsuit contends in part that the 10-member commission, which is made up of six sitting state lawmakers, violates the S.C. Constitution because voters never intended the Legislature to control the commission. She also claims the commission’s decision to find her unqualified violates the constitution’s separation-of-powers requirement.

One of the lawmakers on the commission is Senate President Pro Tempore Glenn McConnell, R-Charleston, who has the power to appoint five of the members – including himself. Another member is the brother of House Speaker Bobby Harrell, R-Charleston, who appoints the other five members.

“The composition of the Commission thus frustrates the very reason for its creation,” Segars-Andrews said in court papers dated Feb. 1. All but one of the six lawmakers found her unqualified in their final December vote.

In their written response to the lawsuit, House and Senate attorneys representing the commission and other state officials named in the suit rely heavily on a 2006 S.C. Supreme Court ruling in another judicial election.

In that case, the justices unanimously said the S.C. Constitution, “in unequivocal terms, vests the power to determine the qualifications for judicial candidates in the General Assembly.”

“The JMSC, as part of the legislative branch, is legally required, by this Court’s decisions, to have a majority of its membership be comprised of legislators,” the attorneys wrote.

South Carolina and Virginia are the only states in which the legislature elects judges. But unlike the Palmetto State, Virginia does not have a commission that nominates candidates.

The five-member S.C. Supreme Court could hold a hearing on the Segars-Andrews suit or decide the case based on the legal briefs alone. Final briefs are due this month; the court is under no deadline to rule, though it established a shortened timetable for filings.

Segars-Andrews is supported by the state chapter of the American Academy of Matrimonial Lawyers and the League of Women Voters of South Carolina, both of which submitted friend-of-the-court briefs in her case.

“By placing legislators on an independent body designed by the (S.C.) Constitution to be a check on the Legislature, the statute violates the Constitution,” the League said in its brief.

S.C.’s Odd System

Malia Reddick, director of research and programs for the American Judicature Society, a nonprofit judicial research organization in Des Moines, Iowa, told The Nerve that to her knowledge, South Carolina is the only state in which legislators dominate a screening committee and appoint fellow members to the committee.

Given that, she said her organization does not classify South Carolina as having a true merit selection system. Neither does the American Bar Association, the nation’s largest professional organization for attorneys, according to its literature.

“You don’t have that independence between the nomination commission and appointing authority,” Reddick said. “As I understand it, the (S.C. screening  system) was proposed in the first place because so many legislators were winding up on the courts.”

S.C. Supreme Court Chief Justice Jean Toal, for example, was a longtime state representative before joining the high court – the first court she ever served on – in 1988. The immediate past chief justice, Ernest Finney Jr., also was a former lawmaker.

Current Justice Donald Beatty was a lawmaker, as was recently retired Justice John Waller. Of the remaining three sitting justices – Costa Pleicones, John Kittridge and Kaye Hearn – none was a lawmaker, though Hearn’s husband, George Hearn, is a state representative.

Given the court’s ties to the Legislature, declaring the screening system unconstitutional could be an uphill battle. Toal was the author of the 2006 ruling that rejected a legal challenge to the screening commission’s decision in a residency matter involving a Lowcountry circuit judge candidate.

Besides Supreme Court justices, family, circuit, master-in-equity, Administrative Law Court and S.C. Court of Appeals judges must be nominated by the commission. Judicial elections typically are held twice during a legislative session. Lawmakers can vote only on candidates nominated by the commission; the nominee cap is three per seat.

Reddick said she has contacted the Judicial Merit Selection Commission to offer her organization’s assistance if South Carolina’s screening committee is struck down by the state Supreme Court. She testified in 2007 before an S.C. Senate Judiciary subcommittee that studied judicial selection methods.

Jane Shuler, the commission’s chief lawyer, told The Nerve she has forwarded Reddick’s offer to the commission’s chairman, Rep. Greg Delleney, R-Chester, and its vice-chairman, McConnnell. But she declined further comment.

Under a model selection system proposed by the American Judicature Society, judicial candidates would be nominated by a commission made up of four attorneys and three lay persons, none of whom could hold a compensated government office.

Under the AJS model, the governor would appoint a judge from a group of two to five candidates nominated by the commission. Judges who want another term would have to be selected in a “retention” election, or an election in which the general public would decide only whether to keep the judge, rather than choose from among competing candidates.

In practice, no two states use exactly the same selection methods. Some use commission-based appointments; others use gubernatorial appointments without a nominating commission, while another group relies on partisan or non-partisan elections.

South Carolina uses several different methods. County magistrates, for example, are nominated by the candidate’s county senatorial delegation, appointed by the governor, and confirmed by the Senate. Municipal judges are elected by their respective town or city councils, while probate judges are elected by popular vote in county elections.

Legislative Cronyism

Fed up with legislative cronyism in selecting judges and competency issues involving some judges, S.C. voters in 1996 approved amending the constitution to create the Judicial Merit Selection Commission to screen the higher-level trial and appellate judges.

Under the constitution, lawmakers can vote on only those judicial candidates nominated by the commission; previously, recommendations by the commission’s predecessor were only advisory.

In passing enabling legislation, lawmakers required that six of the 10 members be sitting lawmakers. The House speaker appoints five members; the Senate president pro tempore and Senate Judiciary Committee chairman appoint the other five.

On the Senate side, the nominating authority is held by the same person – McConnell – a key player in the development of the current screening system who has appointed himself to the commission over the years. As the current commission vice-chairman, McConnell alternates every other year as chairman.

Besides McConnell and Delleney, the other eight current members of the commission are Reps. Alan Clemmons, R-Horry, and David Mack, D-Charleston; Sens. Jake Knotts, R-Lexington, and Floyd Nicholson, D-Greenwood; Charleston attorney John Davis Harrell – Bobby Harrell’s brother; Greenville lawyer Don Sellers; retired USC law professor John Freeman; and Amy McLester of Camden.

Freeman, McLester and Mack voted in December to qualify Segars-Andrews; the remainder of the commission, including five of the six lawmakers, voted against her.

‘Justice Is Blind’

In a written report, the majority of commissioners said Segars-Andrews violated judicial ethics by failing to recuse herself in a 2006 Clarendon County divorce case in which one of the attorneys had split a six-figure fee with a law partner of Segars-Andrews’ attorney husband in an earlier related divorce case.

“The entire basis of our judicial system is the oft-repeated maxim ‘justice is blind,’” McConnell wrote. “Nowhere is that maxim more relevant than in the family court system where the buffer of a jury of one’s peers is absent. In family court, the integrity and impartiality of a judge are paramount.”

In his written dissent, Freeman wrote: “I believe also that the case was decided by a fair judge, albeit not a judge who in my eyes ruled perfectly. I note that in determining whether a judicial candidate is qualified, it has never been necessary for a judge to establish that he or she is perfect 24/7 in every single respect.”

Segars-Andrews was cleared of her non-recusal before the S.C. Court of Appeals and the state Office of Disciplinary Counsel, records show.

Judicial candidates are supposed to be evaluated on nine criteria, though state law doesn’t require lawmakers to weight criteria or consider them collectively. Segars-Andrews was found qualified in eight of the nine criteria; she failed the “ethical fitness” requirement based solely on her handling of the Clarendon County divorce case, commission records show.

Having been found unqualified, Segars-Andrews could not run for re-election in the judicial elections held earlier this month. She filed a lawsuit against the commission, the state of South Carolina, Lt. Gov. Andre Bauer in his capacity as the S.C. Senate president, McConnell and House Speaker Harrell.

McConnell announced last month that future judicial screening would be put on hold indefinitely pending the Supreme Court’s ruling in Segars-Andrews’ case.

McConnell, an attorney, has heavily interjected himself in past judicial elections.

In 2002, for example, he publicly opposed the re-election of Conway Family Court Judge Haskell Abbott, contending Abbott mishandled a Dillon County child custody case. Abbott lost his seat but regained it several months later in another election. He has since retired.

And last year, McConnell voice strong opposition to the re-election of Winnsboro Circuit Judge Kenneth Goode over the judge’s issuance of a light sentence in a child abuse case. Goode decided not to run for re-election.

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