Ties to lawmakers present in judicial screening hearings; records kept secret

November 15, 2019

Investigative Reports

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By RICK BRUNDRETT

As a sitting S.C. Supreme Court justice, George James is first up Monday in a series of screening hearings by a legislatively controlled panel that will determine whether he and other lower-court judges will be nominated for election in the General Assembly.

James, who is seeking his first full 10-year term on the state’s highest court, was a partner at a Sumter-based law firm where state Rep. Murrell Smith, the chairman of the judicial screening panel known as the Judicial Merit Selection Commission (JMSC), also was a partner, according to online biographies. Besides heading the screening panel, Smith, R-Sumter, is chairman of both the House Ethics and budget-writing Ways and Means committees.

James isn’t the only judicial candidate in the latest round of screening hearings, scheduled for next week and the first week of December, with ties to lawmakers. For example, Court of Appeals Judge Stephanie Pendarvis McDonald, who is seeking another six-year term, was a longtime attorney at a Charleston law firm where Sen. Sandy Senn, R-Charleston, is a senior partner, according to online biographies.

Administrative Law Court judge Bill Funderburk, who is seeking another five-year term, is the husband of Rep. Laurie Funderburk, D-Kershaw. Former House member Jenny Horne of Summerville, who served from 2008-2016, was a candidate for an at-large Family Court seat, according to a July JMSC release, though she later withdrew from that race.

Forty-eight candidates are scheduled to be screened for 20 court seats statewide. By law, the 10-member JMSC can nominate no more than three candidates for an open seat. Most of the seats will be filled during a joint session of the Legislature in an election tentatively set for Feb. 5.

Of the 19 seats that could attract multiple candidates, 11 are held by unopposed incumbents. Typically in judicial races, nominated candidates who believe they don’t have enough votes in the Legislature drop out before the election is held.

South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. The S.C. Legislature has a long history of electing former colleagues or relatives to judgeships, as The Nerve has previously pointed out.

Senators in June, for example, confirmed former Rep. Mike Pitts, R-Laurens, as a Laurens County magistrate, while the Legislature in May elected Courtney Clyburn Pope, daughter of Rep. Bill Clyburn, D-Aiken, as a circuit court judge.

Under state law, six of the JMSC’s 10 members must be lawmakers. Five members are appointed by House Speaker Jay Lucas, R-Darlington; three by Senate Judiciary Committee chairman Luke Rankin, R-Horry; and two by Senate president Harvey Peeler, R-Cherokee.

Besides Smith, the other lawmakers on the screening panel include Reps. Todd Rutherford, D-Richland, and Chris Murphy, R-Dorchester; and Sens. Rankin, who is the commission’s vice-chairman; Ronnie Sabb, D-Williamsburg; and Tom Young, R-Aiken.

Smith and ex-Rep. Horne did not return phone messages Thursday from The Nerve seeking comment for this story.

All six legislative JMSC members are lawyers, as are three of the four other panel members. There are at least 50 attorneys in the 170-member Legislature.

The screening panel by law has to consider nine criteria in deciding whether to qualify and nominate candidates: constitutional qualifications, ethical fitness, professional and academic ability, character, reputation, physical health, mental stability, experience and judicial temperament.

But the criteria aren’t weighted, and the JMSC under the law can consider other factors. According to the JMSC’s website, the panel determines candidate qualifications through a variety of sources, including lawyer and judicial questionnaires, reports by local citizen screening committees, written responses by the candidates on “personal data” questionnaires, interviews by JMSC staff, financial and credit checks, and a criminal background check.

Under written JMSC policy, citizens can file complaints against judicial candidates, but they must submit a sworn statement to the commission using a provided affidavit form no later than two weeks before the date of the candidate’s screening hearing. The sworn complaint must be mailed or hand delivered to the JMSC, along with any supporting documents.

By policy, if commission staff members determine that the complaint, “on its face, does not state allegations relating to the candidate’s character, competency, or ethics,” it “will be dismissed and it will not be considered at the public hearing.” The JMSC also can issue subpoenas “at any time in order to provide for necessary investigations.”

Citizen complaints are considered confidential under state law unless addressed during the public hearings. Typically, those who file complaints that are not dismissed have been required to testify at the hearings.

State law requires that “all records, information, and other material” used by the JMSC to “make its findings of fact” must be “kept strictly confidential,” except for those records “presented under oath at the public hearing.” The “confidential” information also is exempt from disclosure under the state Freedom of Information Act.

Although nomination votes are supposed to be done publicly, the JMSC meets behind closed doors after taking testimony to “make findings regarding the qualifications of the candidate,” under the commission’s policies.

And the lack of transparency continues after the JMSC makes it final decisions. For example, although the commission issues a public written report on its findings, candidates who are not nominated can “withdraw, which will preclude his or her qualifications from being included in the commission’s findings,” according to the commission’s policies.

On top of that, after the JMSC makes its findings, any candidate records “kept confidential must be destroyed,” under state law.

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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