Judicial Reform Moves Forward

Both houses are actively working on reforming the process of judicial selection.

House of Representatives

The House Ad Hoc Committee to Examine the Judicial Selection and Retention Process in South Carolina met again on Tuesday Jan 30 to hear public testimony and again on Wednesday Jan 31 to develop recommendations to the Speaker. A few committee members spoke, and Rep. Caskey chose to read aloud his 15-page memo. 

No committee report has been posted online (actually, no House ad hoc committee report has been posted since 2022) but the Chair outlined 16 recommendations. 

• Revise the membership of the Judicial Merit Selection Commission to reduce legislative appointments and add appointments by the Governor.
• Establish a term of office for the JMSC Chair. 
• Provide term limits, that are less than a judicial cycle for serving on the JMSC.
• Establish additional parameters for judicial candidate campaigning (e.g. timing and location).
• Remove the cap on presentation of qualified judicial candidates to the General Assembly for a vote.
• Establish the JMSC as an independent state agency.
• Streamline the JMSC’s process by combining the reviews of the bar and citizens committee.
• Establish a mid-term review process of judges to address any issues of concern sooner rather than later in a judge’s career.
• Encourage JMSC to exercise existing authority to streamline the process for incumbent candidates.
• Increase transparency to the public by live streaming all hearings of the JMSC.
• Increase transparency to the public by retaining all JMSC’s records once a public hearing commences.
• Limit the timeframe magistrates may serve in holdover status.
• Authorize the JMSC, or a subsection, to screen magistrate candidates to complement the Governor’s recent application enhancements.
• Increase the civil and criminal jurisdictional limits of magistrates.
• Encourage activation of the advisory council on magistrate eligibility, certification examination, and continuing education.
• Expressly authorize a county legislative delegation the ability to reject a master-in-equity candidate and direct the JMSC to reopen the process.

Note that neither public election of judges nor gubernatorial appointment is reflected in the recommendations. This is consistent with testimony to the committee recommending that actual election remain the duty of the General Assembly.

Another important recommendation not reflected in this document relates to the actual election process under General Assembly Rules. Rep. Russell Ott made the excellent point that the current process of obtaining “commitments,” usually leading to removal of some names from consideration, is seriously problematic and should be ended. Rep. Weston Newton recommended that legislators not be asked to make a decision on who they support until there has been some time to read and consider the JMSC report on candidates. Changes of this sort must be addressed through Rules, rather than through statute.

We applaud Rep. Tommy Pope’s chairmanship of this committee, both for hearing out everyone who wished to speak and for his diligence in organizing the complex body of information assembled by the committee to facilitate further work on recommendations and development of bills. 

Some of these recommendations are at present quite broad. For example, the first item speaks to appointment authority for JMSC positions, without addressing who would be eligible for appointment. Many speakers recommended to the committee that JMSC members not include anyone actively serving in the legislature or executive branch. Instead, they should instead be independent persons with significant legal and ethics expertise. It remains to be seen whether this is reflected in bills that emerge. 

Senate

The Senate has scheduled a Judiciary Subcommittee at 3:00 PM on Tuesday, Feb 6, in Room 105 of the Gressette Building. The subcommittee consists of Senator Talley (ch), Malloy, Campsen, Sabb, and Senn. 

The bills to be considered are as follows: S.99, S.130, S.171, S.178, S.248, S.249, S.444, S.450, S.476, S.477, S.482, S.693, S.871, S.872, S.873, and S.879. 

This meeting will consider invited testimony only. Public testimony will be taken at a later meeting.