More than three months after ignoring The Nerve’s written requests, the S.C. Judicial Department has released an updated salary list of state judges and other higher-paid court staff, which shows 141 employees making at least $100,000.
The third branch of state government responded to The Nerve only after the South Carolina Policy Council – The Nerve’s parent organization – hired a law firm to press for the release of the records.
Under the S.C. Freedom of Information Act (FOIA), the exact compensation of a public employee earning $50,000 or more year is a matter of public record. But unlike most other state agencies, the Judicial Department doesn’t provide salary information for its $50,000-plus workers to the online state salary database maintained by the S.C. Department of Administration.
The Judicial Department is among 17 state entities that specifically are exempted from the database, as The Nerve has pointed out. And, unlike other public officials, judges elected by the Legislature don’t have to provide annual income-disclosure statements to the State Ethics Commission, which are posted on the commission’s website.
South Carolina and Virginia are the only two states where their legislatures play primary roles in electing judges.
In an email response last March to an unrelated FOIA request, Ginny Jones, the Judicial Department’s public information director, informed The Nerve that “we take the position that (the) FOIA does not apply to the Judicial Branch.”
Although she said then that court staff would “make reasonable efforts to accommodate your requests,” the department ignored an Oct. 25 FOIA request for an updated salary list of all agency employees making at least $50,000 annually. Neither she nor Supreme Court chief justice Donald Beatty, who heads the department, responded to follow-up emails and a written letter requesting the records, as The Nerve reported.
In contrast, less than three hours after The Nerve revealed in a November 2020 story that the department had denied an FOIA request for staff salaries, the agency without explanation released those records.
Beatty, a former state House member who was first elected by lawmakers to the Supreme Court in 2007, makes a base annual salary of $217,464 – the top-paid department employee, according to the latest staff salary list.
The department finally agreed on Feb. 9 to release the list, a day after Taylor Smith, an attorney-partner in the Columbia law firm of Harrison, Radeker & Smith, notified the agency in writing that his firm was representing the South Carolina Policy Council and The Nerve in the matter. Another partner in the firm initially contacted the department the previous week.
Smith also represents the South Carolina Press Association. The Nerve, through the Policy Council, is an associate member of the press association.
“As an attorney who has tried Freedom of Information Act cases before the judges who work for the Judicial Department of the state of South Carolina,” Smith said in a statement Thursday, “I have many times heard them cite the codified purpose of the FOIA, such that the FOIA must be construed so as to make it possible for citizens or their representatives to learn and report fully the activities of public officials at a minimum cost or delay to the person seeking access to public documents or meetings.
Yet, in this case, that very purpose was frustrated by the Judicial Department.”
Smith continued: “Often, the gray area in the definition of what is a public body comes down to the receipt of public funds, in whole or in part, or the expenditure of those public funds. It is rare for me, as a practitioner, to hear an entity that describes itself as a department of the state say it is not a public body for purposes of the FOIA.
The bottom line is my firm shouldn’t have to be hired to assist individuals making open-records requests to departments of this state.”
Smith also said he wasn’t aware of a “trial court order, (S.C.) Court of Appeals opinion or (S.C.) Supreme Court opinion which addresses the Judicial Department’s legal status as being one of a public body for purposes of the FOIA.”
Six-figure club grows
The Nerve in 2018 revealed that Beatty, who was elected in 2016 by lawmakers as the chief justice, was seeking a 33-percent pay hike for himself and other appellate and lower court judges, which lawmakers later approved. With the raise, Beatty’s base annual salary jumped from $156,234 to $208,000 – what a U.S. District Court judge made at the time.
Under state law, the Legislature sets the salary of the chief justice; the base pay of the four Supreme Court associate justices is based on a percentage of the chief justice’s salary. Salaries of lower court judges are based on percentages of the pay of associate justices.
Following a breakdown of the current salaries of judges, based on the records released to The Nerve, with the number of listed judges in parentheses:
*Supreme Court chief justice: $217,464 (1)
*Supreme Court associate justices: $207,108 (4)
*Court of Appeals associate judges: $201,930 (8)
*Circuit court judges: $196,752 (49)
*Family court judges: $191,574 (56)
Outside judges, the top-paid department staffers are Tonnya Kohn, the state court administrator, and John Nichols, who heads the Office of Disciplinary Counsel, an arm of the Supreme Court that investigates ethics complaints against lawyers and judges. The base annual salary for Kohn and Nichols is $142,805.
A total of 319 department employees earn at least $50,000, with 141 making at least $100,000, salary records show, though the list didn’t include the position of the Court of Appeals chief judge, which was vacant at the time. In comparison, 300 staffers were making $50,000 or more in November 2020, 130 of whom were in the six-figure club, according to the salary list released at the time to The Nerve.
As The Nerve reported last December, Beatty wants nearly $9 million more in general funds for next fiscal year, which starts July 1, to cover 76 full-time equivalent (FTE) administrative support positions that have been funded with court fines and fees, according to the agency’s annual budget request submitted to the Department of Administration.
If approved, that amount would be in addition to $7 million in general funds that lawmakers approved for this fiscal year to cover 92 other FTE administrative support positions that had been funded with fines and fees.
The House Ways and Means Committee’s budget version for fiscal 2022-23, which was released last week, designates an additional $5 million for court administrative positions.