Of the 22 judicial seats that the Legislature is scheduled to fill Wednesday, nine of them – including a seat on the state’s second-highest court – are for unopposed incumbent judges nominated by a legislatively controlled screening committee without any public hearings, records show.
And the 10-member Judicial Merit Selection Commission (JMSC) also waived public hearings last November for eight of 11 additional judicial seats. That means for 17 of the total 33 screened seats, the commission chose not to publicly question the candidates they qualified, The Nerve found in a review of the transcripts of the November proceedings.
Given that the affected judges would serve new terms ranging from four to six years, citizens would have to wait a long time before the next round of screening hearings to hear any sworn, public testimony if those judges decided to run for new terms.
But it’s all perfectly legal.
The single-sentence law (Section 2-19-40 of the S.C. Code of Laws) reads: “Notwithstanding the provisions of this chapter, when there is no known opposition to a candidate, and there appears to be no substantial reason for having a public hearing, whether or not a candidate is an incumbent, and no request is made by at least six members of the Judicial Merit Selection Commission for a public hearing, the commission chairman upon recommendation of the commission may determine that the public hearing is unnecessary and it may not be held.”
Because “no substantial reason for having a public hearing” is not defined, it’s essentially left up to the discretion of the commission, six of whose members by law are legislators appointed by the House speaker, Senate president pro tempore and Senate Judiciary Committee chairman.
Two national legal organizations, including the American Bar Association, have said South Carolina’s judicial screening committee doesn’t meet their standards because the Legislature controls the appointment to and makeup of the committee.
The JMSC relies on a variety of sources for information on judicial candidates, including a survey of lawyers and judges, a report by regional citizen committees, a criminal background check by the State Law Enforcement Division, a credit check, any state grievance investigations for ethics violations, and an investigation of complaints filed by the public for the screening hearings.
But under state law (Section 2-19-50), those records are secret unless “presented under oath” at a public hearing; and information “required to be kept confidential must be destroyed” after the JMSC reports its findings.
Last month, S.C. Supreme Court Associate Justice Costa Pleicones told The Nerve he plans on running again for the seat of Chief Justice Jean Toal, who informed the JMSC last year that she planned to retire at the end of this year. The screening for her seat is set for April 24 and 27; Pleicones lost last year to Toal in an election for her seat.
Asked last week if the JMSC would waive its screening hearing for Pleicones should he face no opposition, Jane Shuler, the commission’s chief lawyer, told The Nerve, “I’ve never seen the commission waive a hearing for a candidate for an open seat for chief justice.”
Shuler said unopposed incumbent judges can be exempted under state law from public hearings “if they have no concerns raised.” She acknowledged that incumbents rarely escape criticism in lawyer surveys, though she added those candidates likely would face public screening hearings only “if there is a pattern” of complaints in the surveys, assuming no other concerns were identified.
No Concerns ‘Validly Raised’
In waiving public hearings in November for the 17 judges, Rep. Alan Clemmons, R-Horry and the then-JMSC chairman, repeatedly said there were no complaints or concerns “validly raised” about the candidates, and cited the lack of required requests by commission members to hold a hearing.
Clemmons, an attorney, was appointed to the JMSC in 2008 by then-House Speaker Bobby Harrell, R-Charleston, who resigned from office after pleading guilty Oct. 23 to misspending campaign funds in connection with the use of his private airplane. Harrell in 2007 appointed his brother, Charleston attorney John Harrell, who resigned from the JMSC in early October.
Clemmons on Friday did not respond to written questions from The Nerve about how the public interest is served by waiving public hearings for incumbent judges. The Nerve in December reported that Clemmons spent a collective $29,297 in campaign funds from January 2008 through January 2014 on men’s neck ties and women’s scarves for House members, staff and others.
During November’s screening hearings for the 33 judicial seats, Clemmons ordered that screening hearings be waived for the following 17 judges, with their latest-sought terms in parentheses:
- Aphrodite Konduros of Greenville, Court of Appeals – the state’s second-highest court (6 years);
- Robert Hood of Chapin, 5th Circuit Court (6 years);
- Roger Young of North Charleston, 9th Circuit Court (6 years);
- Robin Stilwell of Greer, 13th Circuit Court (6 years);
- Carmen Mullen of Hilton Head Island, 14th Circuit Court (6 years);
- Clifton Newman of Columbia, at-large Circuit Court seat (6 years);
- J. Mark Hayes of Spartanburg, at-large Circuit Court seat (6 years);
- William Seals of Marion, at-large Circuit Court seat (6 years);
- Deborah Durden of Columbia, Administrative Law Court (5 years);
- Marvin Dukes of Beaufort, Beaufort County Master-in-Equity, (6 years);
- Charles Simmons of Greenville, Greenville County Master-in-Equity (6 years);
- Cynthia Howe of Myrtle Beach, Horry County Master-in-Equity (6 years);
- Gordon Cooper of Spartanburg, Spartanburg County Master-in-Equity (6 years);
- S. Jackson Kimball III of York, York County Master-in-Equity (6 years);
- Jasper Cureton of Columbia, Court of Appeals active-retired judge (4 years);
- G. Thomas Cooper of Camden, Circuit Court active-retired judge (4 years); and
- Robert Jenkins of Travelers Rest, Family Court active-retired judge (4 years).
Immediately before becoming a circuit judge in 2012, Hood worked in the Columbia law firm of Pete Strom, a member of the JMSC since 2013 and a former U.S. attorney for South Carolina. Bobby Harrell’s son, Trey Harrell, currently works for the firm, though Strom earlier told The Nerve that Trey Harrell joined the firm after Hood left.
Only one JMSC member – Sen. Gerald Malloy, D-Darlington and an attorney – requested a public hearing for Hood at the November screening proceedings. Clemmons ordered there would be no public hearing because there were not enough requests by members.
“Not obtaining the threshold of six, then as Chair, I deem that a public hearing is unnecessary for the Honorable Robert E. Hood,” Clemmons said.
‘Twenty minutes of time’
South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. Under S.C. law, Supreme Court, Court of Appeals, Administrative Law Court, circuit, and family court candidates are eligible for election in a joint session of the General Assembly only if nominated by the JMSC. No more than three candidates can be nominated for any seat; by law (Section 2-19-35), the JMSC evaluates each candidate on nine criteria, including “ethical fitness,” reputation, experience, professional and academic ability, and “judicial temperament.”
Supreme Court justices, who serve 10-year terms, make a base salary of $141,286 this fiscal year, with Toal receiving a base $148,350 (not counting a six-figure judicial pension, as The Nerve reported last year); Court of Appeals judges, $137,753 base (except chief judge); Circuit Court judges, $134,221 base; Family Court judges, $130,689 base; and Administrative Law Court judges, $107,377 base (except chief judge), according to state budget records. With a pay raise that lawmakers gave to state employees for this fiscal year, the chief justice will receive a salary of $151,317; associate Supreme Court justices, $144,111; chief Court of Appeals judge, $142,670; associate Court of Appeals judges, $140,508; Circuit Court judges, $136,905; and Family Court judges, $133,302, Judicial Department records show.
Master-in-equity candidates are nominated by their respective county legislative delegations from a list of those found qualified by the JMSC; the governor then decides whether to appoint a nominated judge, and the Legislature has to confirm the appointment, though not in a joint session as with other judges. The names of qualified active-retired judges are forwarded to the chief justice to determine whether and where they will be assigned.
Besides Clemmons and Malloy, the other legislative members of the JMSC are Sen. Larry Martin, R-Pickens and this year’s commission chairman; Sen. Chip Campsen, R-Charleston; House Majority Leader Bruce Bannister, R-Greenville; and Rep. David Mack, D-Charleston.
Malloy was the only commission member in November to request public hearings for the judges whose hearings were waived.
In a written statement included in the JMSC’s nomination report released last month, Malloy said while he had “no problems with the records of any of these judges and have confidence in their future service on the bench, I believe that each and every judge should have to be screened when they are offering for initial or continued service on the bench.”
“Twenty minutes of time for a candidate with the Commission is not too much to ask in return for the benefits of being a judge as they generally are a six year term,” he wrote. “The public deserves an open and transparent process wherein judges are put under oath and asked questions about their work ethic, prior service, and experience.”
Contacted last week by The Nerve, Malloy said he believes public hearings should be held for every candidate given the relatively long length of time between terms.
“A lot of things could happen in six years,” he said.
Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.