Senator Proposes Scrapping Judicial Election System

January 14, 2013

Investigative Reports

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JudgesA state senator is proposing a major overhaul of the way judges are selected in the Palmetto State, though he acknowledges his legislation faces an uphill battle in both chambers of the General Assembly.

Sen. Lee Bright, R-Spartanburg, introduced a joint resolution (S. 200) last week calling for a constitutional amendment that would require that judges on the state Supreme Court, Court of Appeals and circuit court be appointed by the governor with advice and consent of the state Senate.

The proposed amendment, which would have to be approved by a two-thirds vote of each chamber and a majority of votes in a statewide election, also would eliminate a judicial screening committee controlled by lawmakers and unlike most nominating panels in the country.

Bright also has introduced a separate bill (S. 197) that would impose the gubernatorial-appointment system for family court and Administrative Law Court judges.The state constitution doesn’t address the selection of those judges.

“It kind of drives me crazy the way we do it now,” Bright told The Nerve on Friday. “Unfortunately, these people (judicial candidates) have to parade around here (the State House) like cattle at auctions.”

Allowing the governor to appoint judges with advice and consent of the Senate is part of an eight-point reform agenda of the South Carolina Policy Council, the parent organization of The Nerve.

South Carolina and Virginia are the only two states where their legislatures primarily control the selection of judges. In the Palmetto State, the General Assembly in a joint session votes on candidates for the Supreme Court, Court of Appeals, Administrative Law Court, circuit and family courts.

The next election is tentatively scheduled for Jan. 30. Lawmakers will be filling more seats than usual with the creation of six new family court seats and three circuit court seats last year.

The 10-member state Judicial Merit Selection Commission, made up of six lawmakers, nominated 72 candidates for 50 judicial seats after screening hearings in November. There were a total of 108 candidates for all available seats.

Under state law, the General Assembly can elect only those candidates nominated by the commission, whose members are appointed by the Senate president pro tempore, Senate Judiciary Committee chairman and House speaker.

Bright, who is not a lawyer, said he campaigned on the gubernatorial-appointment system when he was first elected to the Senate in 2008, though quickly realized after the election “how happy the House was” with the state’s current judicial-election system.

Because there are nearly three times as many House members (124) as there are senators (46) and judicial elections are determined by majority votes, the House typically has controlled the outcome of elections – something which senators have long complained about.

Asked how he intended to help convince the House to give up its election power, Bright said he plans to introduce a bill Tuesday that would strip the Senate of its long-held authority to nominate and confirm county magistrates, who are appointed by the governor. There are more than 300 magistrates in the state; Bright said under his bill, magistrates would be selected by circuit court judges.

That, along with the gubernatorial appointment of higher-level judges, would more closely mirror the federal judicial-selection system, Bright said.

“There are very few things that work well in the federal system, but I think this is one,” he said.

Four states – Maine, New Jersey, Pennsylvania and Texas – provide for legislative confirmation of a governor’s judicial appointments with no nominating commission or merit-selection process, according to information from the American Judicature Society (AJS), a nonprofit research organization based at Drake University in Des Moines, Iowa.

Nine other states – Connecticut, Delaware, Hawaii, Maryland, Montana, New York, Rhode Island, Utah and Vermont – use a nominating commission or merit-selection process with a gubernatorial-appointment system, AJS research shows.

‘Envy of Others’

Bright’s bills have been assigned to the Senate Judiciary Committee, chaired by Sen. Larry Martin, R-Pickens, who appointed himself to the Judicial Merit Selection Commission last year.

Contacted Friday, Martin said he doesn’t think Bright’s proposals will gain much traction.

“I have not discussed it with the governor, but she has never indicated to me it’s an issue that she’s had an interest in,” he said.

Martin also said he doesn’t believe the Legislature will have time this session, which started last week, to give much attention to Bright’s bills given other priorities. That includes a proposal to transfer many of the functions currently under the S.C. Budget and Control Board to a new Department of Administration under the governor’s control, he said.

“You can only fight on so many fronts,” he said. “My counsel would be to devote our energy to one fight at a time.”

As for the state’s judicial-election system, Martin said reforms have been made to it over the years, noting, as an example, the requirement for attorney-lawmakers to wait at least a year after leaving office to run for judgeships.

(Bright has introduced a bill, S. 84, that would require lawyer-lawmakers to wait at least 20 years after leaving the Legislature before they can be elected to a judicial office. Meanwhile, a bill (H. 3304) by S.C. Rep. Leon Stavrinakis, D-Charleston and an attorney, would allow attorney-lawmakers to run for seats on the Administrative Law Court after being out of office for one year instead of four years. The Nerve reported last month that Keith Kelly, a former Republican House member from Spartanburg County, was nominated with two other candidates for a circuit court seat; another former GOP state representative, James McGee of Florence, is unopposed for a family court seat.)

“I don’t view it as a broken system,” said Martin, who is not an attorney. “It’s probably the best-quality system I’ve seen in a long time.”

Sen. Gerald Malloy, D-Darlington and a lawyer, shares Martin’s sentiment.

“We have a selection of judges that is the envy of others throughout the country,” he told The Nerve when contacted Friday. “I think the idea of having the governor select judges probably, at this point, is just an idea.”

Malloy said he believes there is an “overall sentiment” in the Legislature to give lawmakers control, instead of the governor, of making appointments to certain “adjudicatory bodies,” such as the state Workers’ Compensation Commission. (The seven commissioners, who are judges, are appointed by the governor with consent of the Senate.)

In 2011, nearly 30 attorney-legislators or law firms they worked for collectively earned more than $5.3 million in legal fees from state and local government agencies, including the Workers’ Compensation Commission, The Nerve reported last year. Malloy reported more than $167,000 in workers’ compensation fees that year, according to his income-disclosure form filed with the State Ethics Commission.

Older Judges, More Court Money?

Like Bright, Malloy has introduced several proposals dealing with the state judicial system. A joint resolution (S. 72) prefiled last month calls for a constitutional amendment that would guarantee the state Judicial Department 1 percent of the state’s general fund revenues from the previous fiscal year.

“We could have some consistent funding so we wouldn’t have our chief justice coming over there (the State House) every year asking for more money,” he said.

The state collected more than $5.85 billion in general fund revenues for the fiscal year that ended June 30, state Comptroller General’s Office records show. Based on that amount, the Judicial Department would receive at least $58.5 million in general funds annually, about $15 million, or 34 percent, more than the appropriated general funds for the department for this fiscal year.

Malloy also prefiled a bill (S. 71) last month that would remove the mandatory retirement age of 72 for judges, solicitors and public defenders. Supreme Court Chief Justice Jean Toal, for example, turns 72 in 2015.

Malloy told The Nerve that he has not spoken with Toal about eliminating the mandatory retirement age.

“It’s an equal-protection issue,” Malloy said. “The Legislature is not personal. It doesn’t apply to one; it applies to all.”

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.

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