By Paul Gable
The new House Ad Hoc Committee to Examine the Judicial Selection and Retention Process in South Carolina began hearings earlier this month.
The committee was formed because of the increasing calls from citizens, prosecutors and law enforcement personnel from around the state that judicial reform should be a priority in the coming legislative year.
South Carolina is one of two states (Virginia is the other), where judges are elected by the legislature. The Judicial Merit Selection Commission was a key component of the inquiry by the ad hoc committee at its second hearing of the month.
SC Attorney General Wilson was asked by a member of the committee if he thought it was possible that undue influence was put on judges by lawyer/legislators who are members of the JMSC or the larger General Assembly as a whole. Wilson answered, “Yes.”
First Circuit Solicitor David Pascoe told the committee it’s unfair that lawyer/legislators argue cases before the judges they elect. “Under this system, the judiciary arguably becomes an employee of the legislature, not a co-equal branch of government,” Pascoe said.
Earlier this year, Pascoe addressed a group of concerned citizens in Horry County. At that meeting, Pascoe gave examples of two different judges who were up for reappointment to a new judicial term with no other candidates for their position. However, because each had made a ruling against a lawyer/legislator before them in a case, these already serving judges were deemed “not-qualified” by the JMSC.
The JMSC is composed of 10 members, three members of the House and three members of the Senate along with four non-legislators. The three House members and two of the non-legislators are appointed by the Speaker of the House. The three Senate members and the other two non-legislators are appointed by the Senate Judiciary Committee Chairman.
The Senate Judiciary Chairman is Horry County Senator Luke Rankin. Rankin is also a member of the JMSC, serving either as chairman or vice-chairman in alternate terms. The word around the General Assembly in Columbia is ‘you can’t be a judge without Rankin’s okay.’ It is not a healthy system for so much power to be concentrated in the hands of one person.
The process can also work to guarantee appointment to a judgeship for a ‘buddy’ candidate. Below is an extract that appeared in GSD last year tracking the timeline of events that led to the appointment of Alan Clemmons to the position of Master-in-Equity for Horry County over two more qualified candidates. Clemmons served for 18 years in the SC House and was a member of the Horry County legislative delegation, alongside Rankin, for the entire time.
Clemmons won the state primary for nomination to his 10th term in office as a state representative for SC House District 107 on June 9, 2020.
On June 20, 2020, the SC Judicial Merit Selection Commission issued a media release announcing it was accepting applications for judicial offices named in the release. Included in that release was the statement, “A vacancy will exist in the office currently held by the Honorable Cynthia Graham Howe, Master in Equity, Horry County. The successor will serve a new term of that office, which will expire December 31, 2027.”
Four days later the JMSC issued a “Media Release Amended” in which the only change was removal of the advertisement for applications for the Horry County Master in Equity position.
An inquiry to the JMSC about the elimination of the Horry County position elicited the following email response, “JMSC issued a media release on June 20, 2020, announcing screening for Horry County Master in Equity (Judge Howe’s seat) and the successor to serve a new term to expire December 31, 2027. Since the new term would not begin until January 1, 2022, a subsequent media release was issued, deleting the seat from the 2020 screening.”
There were two problems with this response. First, according to SC Senate Journal records, Gov. Nikki Haley appointed then incumbent Horry County Master-in-Equity Cynthia Ward Howe to a six-year term ending July 31. 2021. Second, the Greenville Master-in-Equity position was advertised in both the original media release and amended media release. The term of incumbent Greenville Master-in-Equity was to end on December 31, 2021, according to both media releases, with the new term to expire on December 31, 2027, the exact same dates that the JMSC said caused the Horry County position to be deleted.
Horry County state Sen. Luke Rankin was the Chairman of the JMSC in 2020, according to state records.
State law requires members of the General Assembly to be out of office for one year before they can begin the application process for a judicial appointment.
Clemmons resigned from his SC House seat on July 17, 2020. Because Clemmons had already won the regular primary for nomination for the November 2020 general election ballot, he had to send a sworn affidavit to the SC Election Commission stating his resignation was for “non-political reasons” in order for the Republican Party to hold a special primary election to name a new nominee.
Clemmons’ stated reasons, in the sworn affidavit, for resigning from his House seat were to spend more time with his family and to attend to the needs of new, large clients of his law firm, which would require substantial time.
Immediately after Clemmons’ resignation, this reporter questioned whether Clemmons’ resignation was due to his desire to seek the Horry County Master-in-Equity position.
According to the above referenced JMSC email response, the JMSC discovered the error in the end date of the Howe term in Spring 2021.
A JMSC media release of June 21, 2021, again advertised the position of Horry County Master-in-Equity as open for application. However, in this release, it was stated the new Master-in-Equity appointee would serve out the remainder of the current term of Judge Howe, which was now listed to expire on July 31, 2027.
There are no state records indicating how the expiration of Judge Howe’s term was changed from July 31, 2021, to July 31, 2027. This would have required Judge Howe to be appointed to a new six-year term with the attendant advertisement and application process by the JMSC, which never happened.
The entire process of advertisement and date changes was handled internally at the JMSC. It all played out over the year Clemmons needed to be out of the legislature before he could apply for a judgeship. Although Clemmons was only rated “qualified” for the position, he was appointed over two candidates who were rated “well-qualified.”
Considering the events described above, one could conclude the system was gamed to have Clemmons selected as Horry County Master-in-Equity. Clemmons was also known for liberal use of campaign funds during his tenure in the House. In the five election cycles between 2010 and 2018, filings with the S. C. Ethics Commission show Clemmons raised $460,000 in donations to and spent $480,000 in expenses from his campaign account but never had an opponent in either Republican primaries or general elections during those cycles.
It is difficult to determine if there is a majority of General Assembly members who desire to change the way judges are appointed. It is very difficult for politicians to give up powers they already hold, even in the interests of better government.
However, with the conflicts in the current system, it may be best to take the selection of judges away from legislator/lawyers altogether and allow the voters to determine by election who should sit on the bench.