Top court rarely disciplines judges despite numerous complaints

October 22, 2021

Investigative Reports

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By RICK BRUNDRETT

Last week, the S.C. Supreme Court suspended Oconee County probate judge Kenneth Johns for 18 months after he formally admitted – for the second time in five years – violating ethics rules for judges.

It’s not often that the state’s top court, headed by Chief Justice Donald Beatty, publicly disciplines a judge, though the court system’s recent annual disciplinary reports show that more than 200 complaints on average are filed annually against judges statewide.

According to the latest report for fiscal 2020-21, which ended June 30, out of 213 complaints received during the year and 36 complaints that were pending when the fiscal year started, just 15, or 6%, were not dismissed.

Of the total 249 complaints, 197, or 79%, were dismissed mainly by the state Office of Disciplinary Counsel (ODC) – the Supreme Court’s investigative arm. The ODC dropped most of the cases after an “initial review” finding of “no jurisdiction,” though the report didn’t give specifics on those cases.

The Nerve revealed in March that from fiscal 2011 through fiscal 2020, nearly 85% of the total 3,016 received and pending complaints during the period were dismissed – the vast majority by the ODC, which currently is headed by attorney John Nichols.

Court officials have contended over the years that most dismissed complaints were filed by litigants who raised issues that had nothing to do with potential ethics violations but instead were legal matters that could have been decided by an appellate court.

But the public typically has no way of knowing the seriousness of the allegations because the Judicial Department keeps secret the details of dismissed complaints under court rules adopted by the Supreme Court. Under those rules, court officials are banned from even revealing the existence of a complaint “while the matter remains confidential.”

Ethical rules for judges, such as remaining impartial and being courteous to litigants, are contained in the “Code of Judicial Conduct.”

In suspending probate judge Johns for 18 months, the Supreme Court in its ruling last week said, among other things, that he had submitted a written character-witness statement in a New Jersey court case on behalf of a South Carolina resident, which violated a court rule banning a judge from “testifying voluntarily as a character witness.”

The justices also said Johns posted an appeal on his personal Facebook page – which identified himself as a probate judge – for donations to the American Red Cross, which violated a court rule prohibiting a judge from “personally participating in the solicitation of funds or other fundraising activities.”

Johns, who is not a lawyer, admitted to the misconduct and consented up to the 18-month suspension under an “Agreement for Discipline by Consent” with the ODC, an agreement that commonly is made when public sanctions are issued by the Supreme Court. The justices in 2016 suspended Johns for six months for making other Facebook posts in violation of court rules.

Although probate judges don’t have to be lawyers, they have to comply with court rules as members of the state court system.

In South Carolina, probate judges are popularly elected, while the Legislature elects Supreme Court, Court of Appeals, Administrative Law Court, circuit and family court judges. The Legislature also confirms the governor’s appointments of county master-in-equity judges, while the Senate confirms the governor’s appointments of county magistrates. City or town councils select municipal judges for their municipalities.

The Nerve repeatedly has pointed out lawmakers’ control over the selection of master-in-equity and magistrate judges despite the governor’s appointment powers. South Carolina and Virginia are the only states where their legislatures play primary roles in selecting judges.

Discipline of judges in South Carolina ultimately rests with the state Supreme Court. However, court rules adopted by the top court largely ensure secrecy in the process.

Under court rules, for example, misconduct proceedings against judges and related records become public if formal charges are authorized by a seven-member investigative panel of the 26-member Commission on Judicial Conduct, which is appointed by the Supreme Court.

But no formal charges were issued last fiscal year by investigative panels, according to the latest annual disciplinary report, and, as The Nerve revealed in March, no charges were filed over the previous 10 fiscal years.

The Commission on Judicial Conduct is made up of 10 circuit, family or master-in-equity court 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, judges and lawyers – not the general public – control the commission, which is headed by semi-retired circuit judge Thomas W. Cooper.

The latest annual disciplinary report shows there was only one public sanction last fiscal year – a reprimand, which is considered the least-serious public sanction. Over the previous 10 fiscal years, reprimands were the most commonly issued public sanction, as The Nerve revealed in March.

Ten of the 15 total cases that were not dismissed last fiscal year resulted in private “letters of caution,” which are not considered official sanctions under court rules, while four complaints generated a private “admonition.”

The Nerve’s March review found that as many as 97 caution letters were issued over the previous 10 fiscal years. No judges who received caution letters, or even the types of courts in which they served, were identified in the annual disciplinary reports.

Under court rules, a disciplinary agreement between a judge and the ODC that results in a caution letter issued by an investigative panel of the Commission on Judicial Conduct “shall not be available to the public at any time.”

Asked why the Judicial Department can’t provide statistics on the types of judges who received caution letters or other forms of private discipline, department spokeswoman Ginny Jones in an email response Tuesday declined to comment beyond her statement in the March story that the agency doesn’t “track that information.”

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.

Nerve stories are free to reprint and repost with permission by and credit to The Nerve.

 

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