By RICK BRUNDRETT
Judicial elections that were expected to occur today in the S.C. Legislature have been postponed indefinitely, the apparent outcome of a threatened filibuster last year by a state senator pushing for judicial reform.
But whenever the next elections are held, lawmakers could put a former longtime legislator on the bench – in keeping with their longstanding practice of favoring ex-lawmakers and others with legislative ties for court seats.
Ex-House member and attorney James Smith of Columbia, who was the unsuccessful Democratic nominee in the 2018 governor’s election, is the sole candidate for a 5th Circuit Court seat after the only other nominated candidate dropped out – a common move before elections by nominees after tallying expected legislative votes.
A majority of the total votes cast in a joint session of the House and Senate is required to win a judicial election. As The Nerve has pointed out over the years, South Carolina and Virginia are the only states where their legislatures play primary roles in selecting judges.
By law, six of the 10 members of the S.C. Judicial Merit Selection Commission (JMSC), which nominates candidates for election in the Legislature, must be lawmakers. Currently, all six legislators on the JMSC are attorneys, including its chairman and vice chairman.
Normally, the scheduling of annual judicial elections isn’t controversial. But lawmakers couldn’t agree to formally schedule judicial elections that were expected to be held today after Sen. Wes Climer, R-York, threatened last October to filibuster the elections unless there were judicial reforms.
“My position is we can’t have elections until we have reform,” Climer told The Nerve when contacted Tuesday morning before the start of that day’s legislative session in Columbia. “And reform is underway in the House and Senate, so we’ll have to see.”
Climer said he and Sens. Josh Kimbrell, R-Spartanburg, and Rex Rice, R-Pickens, objected to consideration of a House-passed resolution scheduling elections for today for all currently open seats; and that he was the main sponsor of another resolution, which was co-sponsored by 23 other senators, to have an election today only for the next chief justice of the S.C. Supreme Court.
Neither concurrent resolution passed by Tuesday, and no new election date has been proposed.
Meanwhile, a House special committee appointed by House Speaker Murrell Smith, R-Sumter, released 16 judicial-reform recommendations last week. And a Senate Judiciary Committee panel on Tuesday met to consider 16 Senate judicial-reform bills.
Climer told The Nerve he doesn’t believe that ex-lawmakers, including former Rep. Smith, who served as an infantry officer in 2007 in Operation Enduring Freedom in Afghanistan, should get preferential treatment for judicial seats.
“James Smith is a fine man who has served our country and state nobly,” Climer said. “But he has absolutely no business serving on the judiciary in the state of South Carolina.”
Currently, 53, or 31.3%, of 169 seats in the Legislature (one House seat is open) are held by lawyers. In comparison, attorneys in South Carolina as of May 2022 represented 3.7 jobs per 1,000 jobs among all occupations in the state, according to the U.S. Bureau of Labor Statistics, which listed a total of 7,940 lawyers, not including judges, statewide at the time.
Historically, it’s been a relatively easy pathway from the 170-member Legislature to the bench. For example, former Supreme Court Chief Justice Jean Toal, who, acting as a special circuit court judge, last week denied a new trial motion by convicted murderer and disgraced attorney Alex Murdaugh, is an ex-House member who went straight from the Legislature to the Supreme Court in 1988. Toal, who was elected chief justice in 1999, retired from the Supreme Court in 2015 after reaching the mandatory retirement age of 72.
Former Rep. Smith, who served in the House from 1996 to 2018 and afterward as an assistant to then-USC President Bob Caslen, was among 58 nominated candidates for 34 judicial seats in the latest round of judicial elections, though as of Monday, 13 nominees had dropped out, according to a candidate list provided to The Nerve by the JMSC.
A total of 26 family, circuit, Administrative Law Court, Court of Appeals and Supreme Court seats were uncontested as of Monday, with races involving two or three candidates for eight seats. Besides former Rep. Smith, unopposed candidates included Supreme Court Justice John Kittredge of Greenville, who is expected to be selected as the next chief justice to replace Donald Beatty, who faces the mandatory retirement age this year. Kittredge was the sole nominee for Beatty's seat.
As of last fiscal year, which ended on June 30, 2023, judicial salaries were as follows, according to a salary list provided then to The Nerve by the S.C. Court Administration office: family court judges ($197,321), circuit court judges ($202,654), Court of Appeals judges ($207,987), Court of Appeals chief judge ($211,187), Supreme Court justices ($213,321), and Supreme Court chief justice ($223,987).
Judicial salaries are exempt from the online state salary database maintained by the S.C. Department of Administration. The Nerve recently asked for an updated judicial salary list from the state Court Administration office but was instructed by a court spokeswoman to mail a written request to the office. The Nerve has submitted a formal request under the S.C. Freedom of Information Act, which is pending.
As for judicial elections, the S.C. Constitution requires that the Legislature elect only those candidates nominated by the Judicial Merit Selection Commission. Under state law, House Speaker Smith, who is an attorney and a former JMSC chairman, controls the appointments of five members – three of whom must be current lawmakers – to the 10-member JMSC, while Senate Judiciary Committee Chairman Luke Rankin, R-Horry, who is a lawyer, has the authority to make three appointments – all of whom must be sitting senators – and currently serves as the JMSC vice chairman. Senate President Thomas Alexander, R-Oconee, controls the other two JMSC appointments by law.
The South Carolina Policy Council – the parent organization of The Nerve – last year proposed a number of judicial reforms, including overhauling the JMSC.
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Besides Rankin, the other lawyer-lawmakers on the JMSC include Rep. Micah Caskey, R-Lexington, who serves as its chairman; Sens. Ronnie Sabb, D-Williamsburg, and Scott Talley, R-Spartanburg; and Reps. Todd Rutherford, D-Richland, and Jay Jordan, R-Florence.
In a letter last October to Rankin and House Speaker Smith, nine of the state’s 16 chief solicitors urged the two powerful lawmakers to immediately replace all six lawyer-lawmakers on the commission with six non-attorneys.
“The public is weary of JMSC members having their family and friends elected to the bench,” the solicitors wrote.
In his interview Tuesday with The Nerve, Climer said he believes lawyer-lawmakers should not vote for judges in elections in the Legislature if they practiced law before them within the last year, and that they should be banned from appearing before judges for at least a year if they voted for them.
“There’s a reason we don’t let Shane Beamer or Dabo Swinney pick the refs for the Clemson-Carolina game, and there’s a reason lawyer-legislators should not be picking judges,” Climer added.
Among its 16 recommendations released last week, the special judicial-reform committee created in October by House Speaker Smith, formally called the “Ad Hoc Committee to Examine the Judicial Selection and Retention Process in South Carolina,” proposed reducing legislative appointments to the JMSC and adding appointments by the governor. But it didn’t recommend banning lawyer-legislators from serving on the commission.
The Nerve in 2019 reported that Smith – before he became the House speaker – was the JMSC chairman when Supreme Court Justice George James, who was a partner in a Sumter-based law firm where Smith also was a partner, was being screened for his first full 10-year term on the state’s top court.
There are other examples of relatives or legal colleagues of current or ex-lawmakers who were elected to the bench, including, as The Nerve has pointed out in recent years:
- Spartanburg County Master-in-Equity Judge Shannon Phillips, who worked in the law office of Sen. Talley and was quietly nominated by the county’s legislative delegation, of which Talley is a member, as The Nerve revealed in 2021, noting his appointment to the JMSC two months before the panel qualified Phillips for the seat. Talley is the chairman of the Senate Judiciary subcommittee that met Tuesday to consider Senate judicial-reform bills.
- Circuit Court Judge Maite Murphy, wife of Rep. Chris Murphy, R-Dorchester, an attorney and former JMSC member.
- Recently retired Supreme Court Justice Kaye Hearn, wife of former Republican Rep. George Hearn of Horry County, who is an attorney.
- Court of Appeals Judge Stephanie Pendarvis McDonald, who was a longtime attorney at a Charleston law firm where current Sen. Sandy Senn, R-Charleston, is a senior partner.
- Circuit Court Judge Diane Goodstein, wife of former House member and ex-senator Arnold Goodstein, who represented Charleston County as a Democrat and was the longtime attorney for the Charleston County Aviation Authority.
- Circuit Court Judge Jennifer McCoy, wife of former Rep. Peter McCoy, R-Charleston, who later became the U.S. attorney for South Carolina.
- Circuit Court Judge Walt McLeod IV, son of former Democratic House member and lawyer Walt McLeod of Newberry County.
- Circuit Court Judge Courtney Clyburn Pope, daughter of Rep. Bill Clyburn, D-Aiken.
- Administrative Law Court Judge Milton Kimpson of Columbia, brother of ex-Sen. Marlon Kimpson, D-Charleston, who is an attorney. Judge Kimpson was one of two remaining nominees in an election that was expected to be held today for an at-large circuit court seat, according to the JMSC candidate list as of Monday.
The Nerve in recent years also has reported about the following current judges who are ex-lawmakers, all having served in the House:
- Supreme Court Chief Justice Donald Beatty;
- Court of Appeals Judge Paula Thomas;
- Circuit Court judges Paul Burch, J. Derham Cole, William Keesley, R. Keith Kelly, J. Cordell Maddox and Roger Young;
- Family Court Judge James McGee;
- Horry County Master-in-Equity Judge Alan Clemmons; and
- Laurens County Magistrate Mike Pitts.
The Nerve in 2022 revealed that the Horry County legislative delegation secretly nominated the Republican Clemmons, an attorney and former JMSC chairman who served in the House for 18 years before his sudden resignation in 2020, as the county’s master-in-equity judge.
Master-in-equity judges have the same authority as circuit court judges in non-jury civil cases, typically handling foreclosures and other real estate cases, but are selected through a different process compared to other judges. They are appointed by the governor and confirmed by the Legislature, but their selection is largely controlled by county legislative delegations, made up of senators and House members representing their respective counties, after the JMSC qualifies candidates.
A select group of lawmakers also controls the nominations of county magistrates, who handle traffic offenses and other minor criminal and civil cases. In 2019, for example, The Nerve revealed that in 12 counties, one senator controls the nominations of magistrates.
That elite legislative club includes Sen. Danny Verdin, R-Laurens, who quietly nominated Pitts to a Laurens County magistrate seat in 2019 after the Republican Pitts resigned his House seat earlier that year. As with master-in-equity judges, the governor typically rubber stamps magistrate candidates nominated by lawmakers.
Last year, The Nerve revealed that longtime senator-lawyer Sen. Brad Hutto, an Orangeburg Democrat, represented dozens of clients for more than a year before Orangeburg County magistrates whom he played a prominent role in nominating. Less than three weeks after that story and a companion investigative piece were published, Republican Gov. Henry McMaster called for reforms in the magistrate selection process.
None of McMaster’s proposals, however, would ban Senate delegations from nominating magistrate candidates or ex-lawmakers from becoming magistrates.
Various judicial reform bills have been introduced during the 2023-24 legislative session, including:
- S. 879, sponsored by Sens. Dick Harpootlian, D-Richland; Mia McLeod, I-Richland; and Climer, which would reduce the total number of lawmakers serving on the Judicial Merit Selection Commission from six to four and ban lawyer-legislators from serving on the commission. The bill was referred to the Senate Judiciary subcommittee chaired by Talley, a JMSC member.
- S. 871, sponsored by McLeod, which would ban lawyer-legislators from voting in judicial elections. The bill was referred to Talley’s subcommittee.
- H. 4183, sponsored by Rep. Joe White, R-Newberry, and co-sponsored by 33 other House members, which would ban lawyer-lawmakers from serving on the JMSC and would give the governor six of the 10 appointments to the commission. The bill has been stuck since last year in the House Judiciary Committee, chaired by Rep. Wes Newton, R-Beaufort, who is an attorney.
- H. 4585, sponsored by Reps. Ashley Trantham, R-Greenville, and John McCravy, R-Greenwood, which would increase the waiting period from one year to two years for ex-lawmakers who want to run for judicial seats and require that they had served their full last-elected terms. The bill was referred to the House Judiciary Committee.
Meanwhile, the South Carolina Policy Council has proposed a number of judicial reforms, such as:
- Banning lawyer-lawmakers from serving on the JMSC and giving the governor the power to appoint the majority, if not all, of the commission members.
- Requiring a majority of each legislative chamber to elect judges, replacing the current process of a joint-session majority vote, which gives the far-larger House more voting power compared to the Senate.
- Reforming the magistrate selection process by removing county Senate delegations from the selection process.
The Policy Council has said it supports S. 178, sponsored by Climer and Kimbrell, contending it’s the most representative of reform among the bills in Talley’s subcommittee, though stressing that comprehensive changes likely won’t occur through a single bill. Among other things, S. 178 would:
- Reduce the size of the JMSC from 10 to seven commissioners and allow the governor to appoint its members.
- Prevent sitting legislators, their immediate family members or their business associates from serving on the JMSC.
- Repeal the cap preventing more than three candidates from being nominated per open seat.
Whether lawmakers will pass any significant judicial-reform legislation this year remains to be seen. Climer told The Nerve on Tuesday that the next round of judicial elections likely won’t be held until “later in the year.”
“But,” he added, “we have to see where judicial reform plays out legislatively.”
SCPC policy analyst Sam Aaron contributed to this story. 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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