Secret “letters of caution” routinely given to S.C. judges

December 11, 2019

Investigative Reports

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By RICK BRUNDRETT

Over the last 17 fiscal years, state court officials tasked with policing judicial ethics issued more than 250 “letters of caution” – usually in secret – to judges statewide, the most common type of action taken on complaints that were not dismissed, a review by The Nerve found.

Under state court rules, caution letters are not considered official sanctions and involve no misconduct or minor misconduct that doesn’t warrant a formal sanction. But if a judge formally agrees to accept the written warning, he or she has to admit to “any or all of the allegations of misconduct,” according to the rules.

And because details of allegations against judges generally have to be kept secret under court rules if no formal misconduct charges are filed, the public usually has no way of knowing the seriousness of the case or whether it warranted stronger disciplinary action.

Ethical rules for judges, such as remaining impartial, are contained in the court system’s “Code of Judicial Conduct,” listed on the state Judicial Department’s website.

The Nerve’s review of online disciplinary reports by the state Commission on Judicial Conduct – a 26-member panel appointed by the S.C. Supreme Court and dominated by sitting judges and lawyers – found that from fiscal year 2003 through last fiscal year, which ended June 30, 265 caution letters were issued to judges, though none of the reports identified any judge or indicated what types of judges received the letters.

Asked for a recent breakdown of the number of caution letters issued by category of judges, Ginny Jones, Judicial Department spokeswoman, said Tuesday in an email response, “We do not track this information.”

Under court rules, caution letters can be issued, depending on the situation, by the Supreme Court, Commission on Judicial Conduct or Office of Disciplinary Counsel (ODC) – the Supreme Court’s investigative arm.

The Nerve’s review found that the total number of caution letters represented 60.5% of the total 438 actions taken during the 17-year period on complaints that were not dismissed or referred to other agencies. Last fiscal year’s report listed a total of eight actions – the lowest annual number over the period.

Sanctions included typically confidential “admonitions,” public reprimands, suspensions or removal from office. Private “admonitions” and public reprimands – considered lower-level sanctions – accounted for 15% and 13% of the total actions, respectively, during the 17-year period.

Seven judges were removed from office over the period – none since fiscal year 2011 – while 22 were suspended, records show. Under court rules, the Commission on Judicial Conduct can file formal misconduct charges and conduct hearings on the charges; the Supreme Court, led by chief justice Donald Beatty, has the final say on sanctions.

Most complaints against judges are dismissed by the ODC – around 60% over the past five fiscal years – though no specifics for the dismissals were given in the annual disciplinary reports over the 17-year period, The Nerve’s review found. The ODC is headed by John Nichols.

In recent years, only the lowest-level magistrate and municipal judges have received public sanctions, records show. A review by The Nerve in 2015, for example, of Supreme Court disciplinary orders over the prior five fiscal years found no public sanctions of any family, circuit, master-in-equity or appellate judges, though a total of 725 complaints were filed against judges in those categories over the period.

The Nerve’s latest review found that from fiscal 2015 through last fiscal year, a total of 639 complaints were filed against family, circuit, administrative law and appellate court judges – about 47% of the total 1,364 complaints received during the period. Yet not one public sanction was issued against any of those judges, online Supreme Court disciplinary orders show.

By category, most of the complaints – 416 – over the last five fiscal years were filed against magistrates, followed by circuit (374) and family (237) court judges. Given there are 49 circuit and 60 family court judges compared to more than 300 magistrates, there were proportionately more complaints against the higher-level judges.

The 170-member General Assembly elects the five members of the Supreme Court, as well as other appellate, circuit and family court judges. South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. In July, The Nerve revealed that in 12 of the state’s 46 counties, one senator controls the appointment of magistrates.

Under state law, a 10-member, legislatively controlled panel called the Judicial Merit Selection Commission (JMSC), nominates appellate, circuit and family court judges. The Nerve has previously reported about the secrecy surrounding the screening process, including a story last month.

Asked if caution letters are automatically referred to the JMSC before sitting judges are screened for new terms, Jones, the Judicial Department spokeswoman, in her written response Tuesday said given that the letters “do not constitute a finding of misconduct,” they are “not released to the JMSC under current procedures.”

Erin Crawford, the JMSC’s chief lawyer, did not respond to related written questions this week from The Nerve.

Under court rules, the Supreme Court appoints the 26-member Commission on Judicial Conduct, made up of 10 circuit, family or master-in-equity judges; four magistrate, municipal or probate judges; four lawyers in the state who have never held a judicial office; and eight public members. Given that makeup, sitting judges and lawyers – not the public – control the commission.

Circuit court judges Thomas Cooper and George McFaddin serve as the commission’s chairman and vice-chairman, respectively; former state lawmaker and current circuit judge J. Derham Cole also is a commission member. The full membership list is not found on the Judicial Department’s website, though it’s listed on the website of the South Carolina Bar, the state’s professional organization for lawyers.

Legal observers over the years have been critical of South Carolina’s judicial discipline system. In 2010, for example, The Nerve reported an American Bar Association review team recommended that a special outside court be created to handle any ethical complaints against S.C. Supreme Court justices, noting in a 2008 report that “allowing the Court to retain the authority to discipline one of its own members may create an appearance of impropriety.” The Supreme Court, however, rejected that proposal.

And state lawmakers generally haven’t pushed for serious reforms to the system, instead opting to maintain the status quo. A 2015 House ethics bill would have criminalized “groundless” judicial complaints filed by citizens, as The Nerve revealed then, though that provision was later dropped.

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.

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