Capped out: State law hurts qualified judicial candidates' election chances

Capped out: State law hurts qualified judicial candidates' election chances

By RICK BRUNDRETT

Update: 5/9/24 - The Judicial Merit Selection Commission voted to nominate the following candidates for the June 5 election in the Legislature for a Supreme Court seat, according to a JMSC release: Court of Appeals judges Blake Hewitt of Conway and Letitia Verdin of Greenville, and Circuit Court Judge Jocelyn Newman of Columbia. Three other candidates - Administrative Law Court Chief Judge Ralph King "Tripp" Anderson of Columbia, and circuit judges Deadra Jefferson of Charleston and R. Keith Kelly of Spartanburg, who is an ex-House member, were found qualified but not nominated, according to Erin Crawford, the commission's chief attorney, in a written response to The Nerve. Under state law, a maximum of three candidates can be nominated for a judicial seat filled by the Legislature. The Supreme Court seat to be filled in the June 5 election currently is held by John Kittredge, who was elected in March as the top court’s next chief justice.

Update: 4/17/24 – A day after this story was published, S.C. lawmakers rejected a bid by James Smith, a former state House member and Democratic nominee for governor, to become a 5th Circuit Court judge, voting 94-57 to restart the screening process for the seat.

Since 2016, Ralph King “Tripp” Anderson unsuccessfully has tried three times to get a seat on the S.C. Supreme Court – the state’s top court.

Each time, the legislatively controlled Judicial Merit Selection Commission (JMSC) found Anderson, the state Administrative Law Court's chief judge, qualified and nominated him twice for election by the S.C. Legislature, though the commission later rescinded his second nomination, records show. In Anderson’s third try last year for a Supreme Court seat, he was the only one of four qualified candidates who wasn’t nominated.

Anderson, of Columbia, has been on the six-member Administrative Law Court (ALC), which among its duties hears administrative appeals from certain state agencies, since 1994 and has been its chief judge since 2009.

This year, he is making his fourth run for the Supreme Court.

Anderson is vying against five other sitting judges – whose candidacies were announced last week by the JMSC – for the soon-to-be vacant seat of John Kittredge, who was elected by lawmakers last month to become the next chief justice. Kittredge on Aug. 1 will take the seat of Donald Beatty, who is retiring  because of the mandatory retirement age of 72 for full-time judges. The election for Kittredge’s seat is tentatively set for June 5.

South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.

Although Anderson is expected to be re-elected to the ALC in an election scheduled for Wednesday in the Legislature, as he is the only candidate for that seat, he likely will face long odds again to win a Supreme Court seat in a subsequent election. That’s in large part because under a nearly 30-year-old state law, the JMSC can nominate only three qualified candidates for any judicial seat under its jurisdiction.

And Anderson isn’t alone among qualified candidates who didn’t get nominated in recent years.

The Nerve’s review of JMSC qualification reports published from January 2018 through January this year found that a total of 58 candidates, including Anderson, were qualified but not nominated by the commission in elections for 25 family, circuit, Administrative Law Court, Court of Appeals and Supreme Court seats.

For this year’s judicial elections, the commission qualified but didn’t nominate 10 circuit court and two Court of Appeals candidates. Of the 58 total qualified  but unnominated candidates in The Nerve’s review, 46, or nearly 80%, sought circuit court seats. Those judges typically hear criminal cases with possible sentences of more than 30 days in jail and civil cases involving more than $7,500.

The Nerve’s review found that of the total 336 candidates qualified by the commission since 2018, the unnominated candidates represented more than 17% of the group.

The Nerve in recent weeks sent written inquiries to more than a dozen unnominated candidates in recent years about their views on the nominee cap. Most didn’t respond, and the remainder declined comment.

As The Nerve has reported over the years, JMSC deliberations typically are done behind closed doors, and state law and court rules generally protect the secrecy of candidate records used in screening hearings. The law and commission rules also make it difficult for citizens to testify at or even attend hearings, which are held on the State House grounds in downtown Columbia during regular business hours and aren’t livestreamed.

And while official JMSC qualification reports provide background information on the candidates and indicate how they met nine criteria under state law, such as experience and judicial temperament, the records give no explanations why the commission nominated certain candidates over others.

‘Internally rigged system’

Lawmakers critical of the three-nominee cap contend many qualified candidates never make it to an election in the Legislature, and that state law gives too much power to the 10-member Judicial Merit Selection Commission – six of whom must be lawmakers. Currently, all six legislators on the commission are lawyers.

Sen. Josh Kimbrell, R-Spartanburg, co-sponsored a bill that, among other things, would have repealed the nominee cap, though it has remained stuck this year in a Senate Judiciary subcommittee chaired by Sen. Scott Talley, R-Spartanburg, an attorney who is a JMSC member. The full Judiciary committee is chaired by Sen. Luke Rankin, R-Horry, an attorney who currently is the JMSC’s vice chairman.

Under state law, the House speaker appoints five members of the JMSC, with the Senate Judiciary Committee chairman and Senate president having three and two appointments, respectively. Voters in 1996 approved a constitutional amendment that requires the Legislature to elect judges from among candidates qualified and nominated by the commission.

A related 1996 law, which took effect in 1997, set the current nominee cap of three per judicial seat.

“Repealing the cap is a good thing,” Kimbrell told The Nerve last week. “Historically, what’s happened is that it’s kind of about races that have been set up: You have two liberal candidates and one conservative candidate. (By repealing the cap), you would have a broader scope, more candidates, more choices; and the whole body (of the Legislature) needs to vote on that.”

Contacted last week by The Nerve, Rep. Joe White, R-Newberry, who was the lead sponsor of another judicial reform bill, which was co-sponsored by 33  mostly Republican House members but hasn't made it out of the House Judiciary Committee, contended that attorney-lawmakers on the JMSC who practice criminal defense law “obviously are not excited about putting a constitutionally conservative attorney on the bench.”

“It is almost impossible to get a successful, constitutionally conservative lawyer to file to become a judge because they realize the JMSC is stacked against them,” White said.

House minority leader Todd Rutherford, D-Richland, a criminal defense lawyer who serves on the commission, was the subject of controversy last year as the attorney for a convicted murderer who was released from prison 16 years before his sentence was set to end after now-retired Circuit Court Judge Casey Manning issued a secret order for his release, which the Supreme Court later voided.

Those events spurred nine of the state’s 16 solicitors in an October letter to Sen. Rankin and House Speaker Murrell Smith, R-Sumter, to call for the immediate removal of lawyer-lawmakers from the JMSC – which didn’t happen.

White said even if the commission nominates three candidates for a judicial seat, lawmakers often pressure the less-favored candidates to withdraw before an election, telling them, “If you ever want to be a judge in the future, you need to drop out now.”

“So it’s an internally rigged game,” White said.

That includes the upcoming election to fill Kittredge’s Supreme Court seat, White contended. Kittredge’s successor will serve the remainder of his 10-year term, which will expire on July 31, 2028, according to the JMSC.

White said one of the six announced candidates for the Supreme Court seat, whom he declined to identify, was told when he applied that “he could file, but this is going to be a woman’s seat this time.”

Last year, South Carolina made national news when the five-member Supreme Court became the only all-male top state court with the election of Gary Hill to replace Kaye Hearn, who retired because of the mandatory retirement age.

Besides Anderson, the other five announced Supreme Court candidates are Court of Appeals judges Blake Hewitt of Conway and Letitia Verdin of Greenville, and circuit court judges Deadra Jefferson of Charleston, R. Keith Kelly of Spartanburg and Jocelyn Newman of Columbia, according to a JMSC press release. Screening hearings for the candidates are scheduled for May 9.

Insider edge

Ex-lawmakers or relatives of sitting or former lawmakers, or those who have professional or personal ties to legislators, typically have a good chance of becoming judges, as The Nerve repeatedly has pointed out in recent years.

This year, for example, Kelly, who is one of the six announced Supreme Court candidates in the election tentatively set for June 5, is a former House member. So is James Smith, who is the lone candidate for a 5th Circuit Court seat to be filled in Wednesday’s scheduled election after the only other nominated candidate withdrew in January, according to Judicial Merit Selection Commission records.

White told The Nerve that it “wouldn’t surprise” him if Smith, who was the unsuccessful Democratic nominee for governor in 2018, doesn’t receive a majority vote during a joint session of the Republican-controlled Legislature, contending that Smith’s supporters are pushing him because he’s “an intelligent, left-leaning attorney.”

Lawmakers on Wednesday are expected to vote on 33 family, circuit, Administrative Law Court and Court of Appeals seats. As of last Wednesday, there were a total of 42 candidates, though 15 other nominees had withdrawn in 11 races, JMSC records show.

Judges in the state's “unified” court system who are elected in a joint session of the Legislature receive annual salaries of at least $200,000. Current judicial salaries are as follows, according to records released last month by the S.C. Court Administration Office after The Nerve submitted a request under the state open-records law: Supreme Court chief justice ($235,186), other Supreme Court justices ($223,987), Court of Appeals chief judge ($221,747), other Court of Appeals judges ($218,387), circuit court judges ($212,787), and family court judges ($207,187).

S.C. Judicial Department salaries for judges and court staff making at least $50,000 are exempt from the online state salary database, as The Nerve has pointed out. Supreme Court justices serve 10-year terms; the terms for the above lower-court judges are for six years.

The six members of the Administrative Law Court – an executive branch agency that is not part of the “unified” court system – serve five-year terms. Last year, Chief Judge Anderson’s salary was $164,816, according to his annual income-disclosure statement submitted to the State Ethics Commission.

Public ‘deceived’

The South Carolina Policy Council – the parent organization of The Nerve – last April proposed a number of judicial reforms, including removing lawyer-lawmakers from the Judicial Merit Selection Commission, and repealing or raising the nominee cap. It recently created a “Judicial Reform Action Page” to encourage citizen involvement.

Although various judicial reform bills were introduced this year in the Legislature, only one – S. 1046 – likely has any chance of becoming law given an April 10 deadline for one chamber to get its bills over to the other chamber, White told The Nerve.

As for the three-nominee cap, the original version of S. 1046, which was sponsored by Sen. Greg Hembree, R-Horry, and co-sponsored by 21 mostly Republican senators, would have repealed the cap entirely, though under the version passed by the full Senate last month, the cap would be raised to six nominees. The bill is now in the House Judiciary Committee, chaired by Rep. Wes Newton, R-Beaufort, who is an attorney.

A special House committee studying judicial reform recommended in February, among other things, that the nominee cap be removed. But a subsequent House bill, which would repeal the cap, hasn’t moved out of the House Judiciary Committee.

White said he expects some version of the Senate bill that’s now in the House Judiciary Committee to pass this year, though he contended the current version is  “so watered down it’s not a very good bill.” He said he plans to offer an amendment at the subcommittee or committee levels, or on the House floor if necessary, to repeal the nominee cap.

Lawmakers this year “want to go home and say, ‘We passed judicial reform,’” White said, noting that 91% of voters in the Republican presidential primary election in February indicated on an advisory ballot question that they supported increasing the “independence and accountability” of the state’s judiciary by “improving transparency and reducing conflicts of interest” in screening and electing judges.

Still, White said he’s not optimistic that many significant changes will be made this year even with the possible passage of the Senate bill.

“The public will once again be deceived into believing we have reformed the judicial system,” he said.

Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or [email protected]. Follow The Nerve on Facebook and X (formerlyTwitter) @thenervesc.

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