UPDATE: 3/4/15 – The S.C. House dropped a provision from an omnibus ethics bill (H. 3722) that would have criminalized “groundless” judicial complaints “wilfully” filed by citizens. The House action was based on an amendment by Rep. James Smith, D-Richland and an attorney, who earlier had successfully pushed for the criminal penalty to be reinstated in a smaller ethics bill (H. 3184) cited in The Nerve story below. The larger bill, sponsored by House Speaker Jay Lucas, R-Darlington and an attorney, was introduced after The Nerve story below.
Anyone who “wilfully” files a “groundless” ethics complaint against a South Carolina judge could face a maximum one-year prison sentence or a fine of up to $1,000 if convicted of the criminal misdemeanor charge, under a state House bill now in the Senate.
There currently is no such criminal charge covering “groundless” complaints filed with the S.C. Commission on Judicial Conduct, a 26-member panel appointed by the Supreme Court that can authorize ethics charges against judges and conduct hearings.
On top of the criminal penalty, H. 3184, sponsored by Rep. Tommy Pope, R-York and a former solicitor, would allow a reconfigured Commission of Judicial Conduct to impose a maximum $1,000 civil fine against a person who filed a complaint that was “groundless, wilful and without just cause or with malice” – something which is not specified in current law or court rules.
Judges in the Palmetto State rarely face any discipline – public or private – despite several hundred complaints filed yearly, The Nerve found in a review of court statistics over the past five fiscal years. And the disciplinary process is largely secret under court rules.
Under those rules, anyone filing complaints against judges can publicly reveal their allegations whether or not formal ethics charges are authorized by the Commission on Judicial Conduct, though H. 3184 would keep complaints secret unless charges are issued. Under the bill, the “wilful release of confidential information” would be a criminal misdemeanor, punishable upon conviction by a maximum one-year prison sentence or a fine of up to $1,000.
Contacted Friday, a retired Colorado appellate judge and former executive director of the American Judicature Society, a national judicial research organization that dissolved last year, told The Nerve that the language in H. 3184 could have a chilling effect on citizens filing legitimate ethics complaints against S.C. judges.
“It’s like going through a red traffic light – you just have to go through the traffic light to get a ticket,” said Russell Carparelli, who served on the Colorado Court of Appeals from 2003 to 2013. “That’s what they seem to be saying here (in H. 3184) – you just have to do it. There’s no criminal intent.”
Neither the terms “wilful” nor “groundless” are defined the bill, which Carparelli said would give S.C. authorities wide discretion in interpreting it, adding, “If you make it too wide in the beginning, it can have far more unintended consequences.”
Pope, who is the House speaker pro tempore, told The Nerve when initially contacted last week that he thought the bill’s language was copied from existing state ethics law covering state lawmakers and other public officials.
“I’m thinking it’s to mirror that,” said Pope, a former longtime solicitor for York and Union counties.
Under current ethics law, the House and Senate Ethics committees have sole jurisdiction over House and Senate members, respectively, while the State Ethics Commission polices other state and local public officials for ethics violations. Pope’s bill would give a reconfigured State Ethics Commission – which would be made up of members appointed by the governor, Supreme Court and Legislature – the authority to investigate state lawmakers.
Current law allows for a civil fine in lieu of, or in place of, the criminal penalty for the “wilful” filing of a “groundless” complaint against lawmakers or other elected public officials. In contrast, H. 3184 would allow for a civil fine in addition to the criminal penalty for “wilful” and “groundless” complaints against judges.
Under the bill, if the State Ethics Commission found that a “complaining party wilfully filed a groundless complaint, the finding must be reported to the Attorney General and to the Commission on Judicial Conduct.” The reconfigured judicial commission would be made up of 24 members, with the Supreme Court, governor and Legislature each appointing eight members.
The Nerve in a written follow-up message asked Pope, who previously served on the House Ethics Committee, whether he believed potential criminal and civil penalties for filing ethics complaints against judges and politicians would have a chilling effect on citizens’ free-speech rights. No response was given by publication of this story.
Lee Coggiola, who heads the state Office of Disciplinary Counsel, which screens ethics complaints against judges and conducts investigations on behalf of the Commission on Judicial Conduct, was surprised when contacted last week by The Nerve about the bill’s language concerning judicial complaints.
“I really thought that had come out (of the bill),” she said.
Pope included criminal and civil penalties for “wilfully” filing “groundless” complaints against judges when he initially introduced his bill on Dec. 18, though that section later was taken out by the House Judiciary Committee. But on Jan. 28 on the House floor, Reps. James Smith, D-Richland, and Doug Brannon, R-Spartanburg – both of whom are attorneys – successfully sponsored an amendment reinserting the sanctions and allowing the civil fine to be in addition to the criminal penalty instead of “in lieu of” as written in Pope’s original version, according to the House Journal.
The legislation, which is co-sponsored by 39 House Republicans and Democrats, including House Speaker Jay Lucas, R-Darlington and an attorney, is part of a package of House bills aimed at reforming various parts of state ethics law. Pope’s bill passed the House on Jan. 29 and was referred to the Senate Judiciary Committee, chaired by Sen. Larry Martin, R-Pickens. Freshman Rep. Jonathon Hill, R-Anderson, was the only House member to vote against the bill on the final reading.
Martin, who is chairman this year of the legislatively controlled judicial screening commission, was the main sponsor of an omnibus ethics bill (S. 1), which failed earlier this month on the Senate floor after an amendment, sponsored by Sen. Luke Rankin, R-Horry and the Senate Ethics Committee chairman, was added that would have kept lawmakers involved with investigating themselves for alleged ethics violations.
Under current law, neither the House or Senate Ethics committees nor State Ethics Commission has jurisdiction over judges for violations of the state’s judicial code of conduct. Discipline of judges rests with the S.C. Supreme Court; the Commission of Judicial Conduct – made up of 14 judges, four lawyers who have never held a judgeship and eight public members – is responsible for investigations and hearings, with assistance from the Office of Disciplinary Counsel (ODC), an arm of the Supreme Court.
One of the judicial conduct commission’s members – Greenville County Circuit Judge Edward “Ned” Miller, whom the Legislature re-elected earlier this month – is under investigation by the ODC for alleged ethics violations filed by Brenda Bryant of Lexington County in connection with her legal battle involving guardianship of her adult intellectually disabled daughter, as The Nerve has chronicled since October.
South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.
Few Judges Disciplined
The Nerve’s review of annual statistical reports by the Commission on Judicial Conduct found that the vast majority of complaints against judges are dismissed, and there are few public sanctions of judges.
Over the past five fiscal years, the commission received a total of 1,473 complaints against judges, plus handled a collective 180 complaints that were pending at the beginning of those fiscal years. The vast majority of complaints – 1,365, or nearly 83 percent of the total 1,653 received and pending complaints – were dismissed, mainly by the ODC after initial review.
Specifics about the dismissal reasons were not given in the reports. Court officials previously have toldThe Nerve that complaints typically are dismissed because they raise appellate issues rather than ethical allegations, though the public usually has no way of reviewing those complaints because they are kept secret under court rules.
The vast majority of complaints that were not dismissed over the five-year period were handled with private sanctions or other private actions – 120, or nearly 88 percent, out of 137 complaints, The Nerve’sreview found.
Of 17 public sanctions issued over the period, according to commission reports, 14, or 82 percent, were public reprimands – generally the least-severe public sanction available under court rules. Two judges were suspended, and one was removed from office, records show.
No disciplined judges are identified in the reports. The Nerve’s review of online Supreme Court disciplinary orders over the past five fiscal years found no public sanctions of any family, circuit, master-in-equity or appellate judges, though a total of 725 complaints were filed against judges in those categories over the period, commission reports show.
Virtually all of the judges identified in the disciplinary orders were lower-level magistrates, also known as summary court judges, which include municipal judges. The only sanctioned judge during the period besides a summary court judge was an associate probate judge. Most of the disciplined judges received public reprimands.
The only jurist removed from office by the Supreme Court during the period was a municipal judge; several magistrates resigned or retired from office before receiving public reprimands, The Nerve’sreview found.
Reach Brundrett @ (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.