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Saturday, April 13, 2024 - 01:46 AM

INDEPENDENT CONSERVATIVE VOICE OF UPSTATE SOUTH CAROLINA

First Published in 1994

INDEPENDENT CONSERVATIVE VOICE OF
UPSTATE SOUTH CAROLINA

SC Supreme Court justice defends secretive disciplinary system

At a recent S.C. House special committee hearing on judicial reform, Supreme Court Justice John Kittredge touted the “almost non-existent” number of ethics violations committed by state judges.

“Each week, members of the judiciary receive a report of all the ethical violations of judges around the country, and regrettably, it’s a pretty long list,” Kittredge said at the Nov. 7 hearing, the first of two public meetings held so far by the committee.

“But what you don’t see on that long list for every other state in the country,” Kittredge, 67, of Greenville, continued, “is you don’t see reports of South Carolina judges being reprimanded, being sanctioned, being removed.”

Kittredge, who is expected to be elected by the Legislature in early 2024 as the next chief justice, didn’t mention, however, that court officials typically receive hundreds of complaints annually against judges but seldom find any ethics violations.

And the public never learns about the specifics of the vast majority of those cases because of court secrecy rules.

Under those rules, as set by the five-member Supreme Court, complaints against taxpayer-funded judges – who make six-figure salaries in higher-level courts – have to be filed with the Office of Disciplinary Counsel (ODC), a branch of the Supreme Court. Complaints must be kept confidential by court officials unless formal ethics charges are issued later by a panel of the 26-member Commission on Judicial Conduct, which is appointed by the Supreme Court, or the high court imposes a public sanction.

But formal charges or public sanctions rarely are issued against judges, court records reviewed by The Nerve show. Public discipline by the Supreme Court can range from reprimands to suspension or removal from office.

Year after year, the ODC dismisses most complaints, usually contending that the allegations didn’t involve ethics violations but instead were legal issues for an appellate court to decide. Yet because dismissed complaints are secret under court rules – unless released by the complainants themselves, which typically doesn't occur – the public often has no way of evaluating whether those complaints had any merit or spotting trends involving certain judges.

By contrast, for example, state court lawsuits, which often involve claims of civil wrongdoing by one private party against another private party, generally are a matter of public record when filed – and remain public even if later dismissed.

In South Carolina, judges are required under the following ethical “canons” to:

  • Uphold the integrity and independence of the judiciary;
  • Avoid impropriety and the appearance of impropriety in all of their activities;
  • Perform their judicial duties impartially and diligently;
  • Conduct outside activities so as to minimize the risk of conflict with judicial obligations; and
  • Refrain from inappropriate political activity.

For fiscal year 2022-23, which ended June 30, the ODC dismissed 297, or 55%, of 540 total pending and received complaints against judges after an “initial review,” claiming it had “no jurisdiction,” and dismissed two other cases for “lack of evidence” after an investigation, according to an annual disciplinary report.

Commission on Judicial Conduct (CJC) investigative panels, composed of seven members under court rules, dismissed another 86 complaints, according to the CJC report, which didn't identify panel members. In total, 385, or 71%, of all complaints were dismissed during the fiscal year.

Of the 11 complaints not dismissed – 2% of the total – seven resulted in private "letters of caution," and three were closed “due to Death,” though no specifics were provided in the report. CJC investigative panels met a total of four times last fiscal year, issuing no formal ethics charges. There were no full CJC meetings or disciplinary hearings, according to the report.

No judges were suspended or removed from office during fiscal 2022-23, and there was one public sanction – a reprimand of former Greenwood County Magistrate Walter R. Martin for using profanity in court and having a separate outburst involving the chief county magistrate and a scheduling clerk, court records show.

The Supreme Court imposed the August 2022 reprimand after accepting an “Agreement for Discipline by Consent” between Martin and the ODC, currently headed by William Blitch Jr. Consent agreements are common in cases involving public sanctions, The Nerve found in reviewing ethics cases over the years.

Last month, S.C. House Speaker Murrell Smith, R-Sumter, who is a lawyer, created a 13-member, bipartisan special committee to study judicial reform, formally titled the “Ad Hoc Committee to Examine the Judicial Selection and Retention Process in South Carolina.”

Given Kittredge's remarks at the Nov. 7 hearing, it remains to be seen whether any legislation dealing with judicial discipline will result from scheduled committee meetings. 

System with ‘teeth’?

As with last fiscal year, court officials in previous years have leaned heavily toward dismissing judicial complaints. The Nerve, for example, in 2021 revealed that in previous 10 fiscal years, nearly 85% of the total 3,016 received and pending complaints were dismissed – the vast majority by the ODC, with the remainder dropped by CJC investigative panels.

The Nerve’s review of annual disciplinary reports then found as many as 97 private caution letters were issued over the decade, though no judges – or even the types of courts in which they served – were identified in the reports. Of the sanctions imposed during the period by the Supreme Court, reprimands – the least-serious public sanction – were the most common, with magistrates typically on the receiving end.

Magistrates, who don’t have to be attorneys, are considered among the lowest-level judges in South Carolina, handling traffic offenses and other minor criminal and civil cases.

By law, the governor appoints magistrates with advice and consent of the S.C. Senate. In two investigative stories published in September (here and here), The Nerve detailed senators’ control over the magistrate appointment process; less than three weeks later, Gov. Henry McMaster announced a reform plan requiring a more-detailed vetting of magistrate candidates.

The South Carolina Policy Council – the parent organization of The Nerve – earlier this year recommended changes in the magistrate appointment system. In a just-released online poll by the Policy Council, 98% of respondents in the category of legal reform agreed or strongly agreed that lawyer-lawmakers should not present cases in front of judges they helped put on the bench, which was the focus of one of The Nerve's investigative pieces in September.

In his remarks at the Nov. 7 House special committee hearing, Justice Kittredge said the reason that magistrates and municipal judges more often come in the “crosshairs of ethical complaints” is because of the “absence of vetting on the front end.”

In contrast, Kittredge said, higher-level judges, which include family, circuit and appellate judges, are screened and nominated by the state Judicial Merit Selection Commission (JMSC) for election by the 170-member Legislature.

But under state law, just three lawmakers – the House speaker, the Senate president and the Senate Judiciary Committee chairman – control appointments to the 10-member JMSC, six of whom must be lawmakers. All current six lawmakers are attorneys.

As The Nerve revealed in 2010, national legal organizations, including the American Bar Association (ABA), don’t classify South Carolina as having a true merit selection system because lawmakers control the appointment to and dominate the makeup of the JMSC.

South Carolina and Virginia are the only two states where their legislatures play primary roles in selecting judges, as The Nerve has pointed out over the years. In September, the South Carolina Policy Council released its findings of a comparison of the two states’ systems, noting that South Carolina falls short in its judicial nomination process and election rules.

Kittredge told the House special committee that some critics have claimed the current judicial disciplinary system is a “judge-friendly environment,” given the Supreme Court’s oversight of the ODC.

But Kittredge, who served on the Family Court, Circuit Court and Court of Appeals before his election to the Supreme Court in 2008, rejected that view, contending that current disciplinary rules “mirror the ABA standards.”

“We have a real system with teeth,” he said.

In a 2008 report, however, an ABA review team recommended that a special outside court be created to handle any ethical complaints against Supreme Court justices – a proposal that never was implemented by the high court, led then by Chief Justice Jean Toal, as The Nerve revealed in 2010.

Toal, who joined the Supreme Court in 1988 and became chief justice in 2000, was involved in high-profile, hit-and-run property damage incidents in 2001 and 2007. The Commission on Judicial Conduct cleared Toal of any ethical wrongdoing in the 2001 incident, though it was unknown whether a formal ethics investigation was done in the 2007 incident, as The Nerve reported then.

Toal retired from the Supreme Court in 2015 but subsequently has served as a special, part-time Circuit Court judge. In 2019, current Chief Justice Donald Beatty, who was elected to his seat in 2016 and next year faces a mandatory retirement age of 72 as a full-time judge, assigned Toal to oversee all asbestos litigation filed in the state.

A report released in December 2022 by the American Tort Reform Foundation ranked South Carolina’s asbestos litigation as among the eight-worst “judicial hellholes” in the nation. A press release about the report contended that South Carolina has “developed a reputation for bias against defendants” with “unfair trials, severe verdicts, and a willingness to overturn or modify jury verdicts to benefit plaintiffs.”

The South Carolina Policy Council cited the ranking in a report released last month calling for reforms in the state’s civil liability laws.

Protected process

The secrecy of South Carolina’s judicial disciplinary process is baked in court rules from start to finish. Here’s a sampling:

  • Members or staff of the Supreme Court, Commission on Judicial Conduct or Office of Disciplinary Counsel “shall not in any way reveal the existence of the complaint, while the matter remains confidential,” except to those “directly involved in the matter and then only to the extent necessary for a proper disposition of the matter.”
  • Outside of public hearings after ethics charges are authorized – which rarely happens – CJC deliberations and records of those meetings “shall not be disclosed.”
  • If a CJC investigative panel finds “reasonable cause” that a judge committed misconduct but determines that “public discipline is not warranted,” it can inform the judge of its intent to impose a "confidential admonition as a final disposition on the matter(s).”
  • If a disciplinary agreement between the judge and ODC is rejected by the Supreme Court, or if it results in a private admonition, a “deferred discipline agreement” or a letter of caution by an investigative panel, the agreement “shall not be available to the public at any time, nor shall any statement or other documents in mitigation filed therewith.”
  • If allegations of “incapacity” are raised during public misconduct proceedings, “all records, information, and proceedings relating to these allegations shall be held confidential.”

The Judicial Department’s website lists Circuit Court judges Thomas Cooper, who is classified as an "active/retired" judge, and George McFaddin as the CJC’s chairman and vice-chairman, respectively, though it doesn’t name any of the other 24 members. Under court rules, the commission is made up of 14 judges, four attorneys who never held judicial office and eight members of the general public – all of whom are appointed by the Supreme Court. Terms run for four years.

The Nerve earlier this month submitted a written request to Tonnya Kohn, the state court administrator, for a current list of CJC members, though no reply was provided by publication of this story.

As of 2021, the CJC included now-retired Circuit Court Judge Casey Manning of Richland County, according to a commission list provided then to The Nerve by the Judicial Department. In September this year, the Supreme Court voided a secret, Dec. 30, 2022, order by Manning allowing Jeroid J. Price to be released in March this year from prison after serving 19 years of a 35-year murder sentence in the 2002 shooting death of Carl Smalls Jr., 22.

Manning issued the order the day before his last official day as a full-time judge because of the mandatory retirement age of 72 – which also was the same day his CJC term expired, records show.

Price was arrested in New York City in July this year and returned to South Carolina to serve the remainder of his murder sentence. His attorney when Manning issued his order was state Rep. Todd Rutherford, D-Richland, the House minority leader and a member of the Judicial Merit Selection Commission, which held screening hearings this week for the latest round of judicial candidates.

The majority of justices, including Kittredge, in their September 3-2 ruling said Manning’s order was “both outside the circuit court’s authority and contrary to law.” The parents of Smalls Jr. in July filed an ethics complaint with the ODC against Manning, Rutherford and 5th Circuit Solicitor Byron Gipson, according to media reports, but given court rules, it’s unknown for now whether the ODC conducted an investigation.

The Nerve asked the ODC about whether any formal ethics charges have been issued in connection to the complaint but was referred to a Judicial Department spokeswoman, who didn’t respond by publication of this story.

Meanwhile, the JMSC on Tuesday voted 10-0 to qualify and nominate Kittredge as the next chief justice, according to Erin Crawford, the commission’s chief lawyer. The Legislature is expected to elect Kittredge, who is the sole nominee for that seat, in an election tentatively set for Feb. 7.

Nerve intern Jasmine Creech contributed to this story. Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow The Nerve on Facebook and X (formerlyTwitter) @thenervesc.

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