South Carolina’s top court has decided to remove itself from investigations of ethics complaints against sitting justices.
But for now, members of the Supreme Court – whose six-figure salaries are paid by S.C. taxpayers – can still discipline a wayward fellow justice even with the creation of an “independent” panel to investigate the alleged ethical misconduct.
And given the secrecy baked into court rules, the public will continue to be left largely in the dark when it comes to ethics complaints filed against judges at any level.
Over the past 22 years, at least 90 formal complaints have been filed against S.C. appellate judges with the state office charged with investigating judicial ethics violations, according to court records reviewed by The Nerve.
Yet online disciplinary orders show no one on the five-member Supreme Court or the nine-member S.C. Court of Appeals – the state’s second-highest court – received any public sanctions during the period.
Of the total 90 complaints filed against appellate judges, 15 complaints were received in fiscal 2023 – the highest number since fiscal 2008 – though the annual disciplinary reports don’t specify whether the accused judges were Supreme Court or Court of Appeals members or give any specifics of the allegations.
Under court rules, the Supreme Court has final say on disciplining any judge under its jurisdiction. That includes deciding whether to sanction fellow Supreme Court justices who violate ethical rules – which, among other things, can create perceptions of favoritism.
The Nerve in 2010 revealed that the Supreme Court then had rejected a recommendation by the American Bar Association (ABA) to create a special, outside court to handle ethics charges against sitting Supreme Court justices.
In its September 2008 report, the ABA’s review team said a special court was needed because “allowing the Court to retain the authority to discipline one of its own members may create an appearance of impropriety.”
The state’s judicial canons – the ethical rules that judges, including Supreme Court justices, are supposed to follow – require a judge to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.”
In an Aug. 1 order, the court, led by newly installed Chief Justice John Kittredge of Greenville, created a five-member “Independent Committee for the Supreme Court,” which will “perform all duties normally performed” by the state Office of Disciplinary Counsel (ODC) – an arm of the Supreme Court that investigates ethics complaints against lawyers and judges – to handle ethics complaints against sitting justices.
“In the judgment of this Court, it is inappropriate for the ODC to handle complaints of ethical misconduct or incapacity against sitting Justices on the Supreme Court,” according to the order. “A justice system with integrity must not only be fair, it must avoid the appearance of impropriety.”
Under the order, the committee is made up of lawyers who are “independent and not employed by the Judicial Branch.” But the order assigns two former ODC chiefs who once answered to the Supreme Court to lead the committee.
And any hearing on ethical misconduct by a Supreme Court justice could still be handled by a panel of the 26-member Commission of Judicial Conduct, which is appointed by the high court and made up mainly of lower-court judges.
A current court rule allows, though it doesn’t require, the commission chair to appoint a lawyer who isn’t a Judicial Department employee to act as the disciplinary counsel in cases involving justices.
In addition, the Aug. 1. order doesn’t address whether the Supreme Court would retain final say on sanctions involving one of its own members.
Under court rules, public sanctions against judges, which typically – if there are any – make up a tiny percentage of the total number of complaints filed annually – can range from reprimands to suspension or removal from office.
The Nerve recently sent written questions to Kittredge, whom the Legislature elected in March to replace retired Chief Justice Donald Beatty, asking, among other things, whether there should be a separate, independent body with the authority to issue public sanctions against Supreme Court justices who engaged in ethical misconduct.
Kittredge, a former family, circuit and Court of Appeals judge who was first elected to the Supreme Court in 2008, didn’t respond to The Nerve by publication of this story. Under the S.C. Constitution, the chief justice is the administrative head of the “unified” state court system.
Disciplinary secrecy
Court rules generally require that complaints remain secret unless an investigative panel of the Commission on Judicial Conduct issues formal charges – which hasn't happened in recent years, records show – based on findings by the Office of Disciplinary Counsel.
More common, “consent” agreements are reached between the ODC and accused judges in cases involving public sanctions.
In comparison, 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.
Kittredge didn’t respond to The Nerve’s recent questions about whether basic details of ethics allegations against any judge, including Supreme Court justices, should quickly be made public with the accused judge’s formal response.
In a hearing last November before a special S.C. House committee, Kittredge – then a candidate for the chief justice seat – touted what he described as the almost “non-existent” number of ethics violations committed by state judges, as The Nerve reported then.
Kittredge in that hearing didn’t address secrecy in the disciplinary process but told lawmakers that unlike low-level magistrates and municipal judges who more often come in the “crosshairs of ethical complaints,” higher-level judges are screened by the state Judicial Merit Selection Commission (JMSC) for election by the 170-member Legislature.
South Carolina and Virginia are the only two states where their legislatures play primary roles in selecting judges. S.C. lawmakers this year expanded the size of the JMSC from 10 to 12 members, with the governor appointing four members, though three legislators will effectively control its makeup.
By law, the Legislature sets the Supreme Court justices’ salaries, which are used to determine, based on formulas, the salaries of lower-level judges. As of March, the chief justice’s salary was $235,186, with the other four justices making $223,987, according to records released then to The Nerve under the S.C. Freedom of Information Act.
The Nerve in recent years repeatedly has pointed out that the salaries of judges and higher-paid court staff have been excluded from the state salary database. In 2022, the South Carolina Policy Council - the parent organization of The Nerve – hired an attorney to pressure the court system to release its updated salary list.
In an Aug. 14 letter to The Nerve in response to a records request under the Freedom of Information Act, Jason Bobertz, the court system’s general counsel, said Kittredge has asked the state Department of Administration to include Judicial Department employees’ salaries in the state salary database, adding the information “should be available online at some point in the near future.”
Dismissals the norm
Judicial ethics in the Palmetto State is more than just a hypothetical discussion in a law school class.
When the 2008 ABA report was released, the high court was led by Jean Toal, a former S.C. House member who joined the court in 1988 and became chief justice in 2000. Toal was involved in hit-and-run property damage incidents in 2001 and 2007 while she was the state’s top judge, according to media reports at the time.
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 case, as The Nerve reported in 2010. A court rule bans accused justices from participating in their own disciplinary cases.
Toal retired from the Supreme Court in 2015 but subsequently has served as a special, part-time circuit court judge.
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.
The Nerve previously has reported that the Office of Disciplinary Counsel routinely dismisses most complaints against judges, generally contending that the allegations didn’t involve ethics violations but instead were legal issues for an appellate court to decide.
The public, though, usually has no way of evaluating whether dismissed complaints were valid or spotting trends with particular judges because of court secrecy rules that prohibit court staff from releasing complaints unless formal ethics charges are filed. Individuals can publicly release details of their own complaints, though that rarely happens.
Last November, The Nerve revealed that for fiscal year 2022-23, which ran from July 1, 2022, through June 30, 2023, the ODC dismissed 55% of total received and pending complaints against all types of judges. Dismissals by the Commission on Judicial Conduct’s investigative panels, composed of seven members under court rules, brought the total dismissal rate for that fiscal year to 71%, according to the commission's annual disciplinary report.
Overall, there were 540 filed and pending complaints, 385 of which were dismissed, in fiscal 2023 – the highest annual totals since fiscal 2003, records show.
The Nerve’s latest review of annual disciplinary reports also found that from fiscal years 2003 through 2023, 5,449 complaints, or nearly 79%, of the total 6,933 received and pending complaints during the period were dismissed.
Slaps on judicial wrists
Even in cases with misconduct findings, punishments typically are light. In recent years, the most common public sanction meted out was a reprimand, records show.
The Nerve in 2015 revealed that over the previous five fiscal years, no public sanctions were levied against any higher-level family, circuit, master-in-equity or appellate judges, though a total of 725 complaints were filed against those judges during the period, based on a review of Supreme Court disciplinary orders and Commission on Judicial Conduct annual reports.
A later review by The Nerve found that from fiscal years 2015 through 2019, a collective 639 complaints were filed against family, circuit, administrative law and appellate judges, though none received any public sanctions.
The 2019 story also revealed that over the previous 17 years, more than 250 “letters of caution” were issued – usually in secret – to judges statewide. The letters were the most common type of disciplinary action, which isn’t considered a formal sanction, taken on complaints that were not dismissed.
The Commission of Judicial Conduct’s reports don’t identify judges – or even the types of judges – who received letters of caution or other private types of discipline.
The Nerve’s latest review found that from fiscal years 2021 through 2023, a total of 22 letters of caution were issued. Commission investigative panels collectively met 13 times over the three-year period but filed no formal ethics charges, records show.
A total of 28 complaints were filed against appellate judges during the period, though no Court of Appeals judges or Supreme Court justices received any public sanctions, according to records.
In its Aug. 1 order creating a special committee to investigate complaints against Supreme Court justices, the high court described the five-member panel as “experienced and highly qualified members of the Bar,” which is the state’s professional organization for lawyers. The committee members, who under the order "shall serve on a voluntary basis without compensation," include panel chair John S. Nichols, vice-chair Lesley “Lee” Coggiola, Elizabeth “Betsy” Van Doren Gray, I.S. Leevy Johnson and Meliah Bowers Jefferson.
Although the order requires that the committee members not be currently employed by the Judicial Department, Nichols and Coggiola each formerly headed the Office of Disciplinary Counsel. Johnson is a past South Carolina Bar president and law partner with Bill Toal, who is former Chief Justice Jean Toal’s husband; Jefferson was a law clerk for Jean Toal; and Gray is a former Bar president, according to online biographies.
Outside of the court system, the S.C. Legislature has the authority under the state constitution, by a two-thirds vote of each chamber, to impeach and remove state judges from office for “serious crimes or serious misconduct in office.” The constitution also says that for any “willful neglect of duty” or “other reasonable cause” that is not sufficient grounds for impeachment, the governor can remove “any judicial officer” following a two-thirds vote by each legislative chamber supporting the removal.
S.C. Senate Clerk Jeff Gossett in a written reply Friday to The Nerve said he wasn’t aware of any impeachment of a judge that resulted in removal from office.
Nerve intern Laura Anne Kay contributed to this story. Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or
