Judicial Reform Lives, with House now Considering Senate Bill

UPDATE: The SC House overwhelmingly passed S.1046, amended as outlined below. The Senate did not concur in those amendments, and the bill now heads to a Conference Committee, made up of Senators Rankin, Massey, and Malloy and Representatives W. Newton, Caskey, and Stavrinakis. 

At the end of March 2024, following two weeks of debate and behind-the-scenes deliberations, the South Carolina Senate reached an agreement on what reforms should be included in S.1046, their plan to restructure the Palmetto State’s system for selecting judges. For a refresher on the shortcomings of the current process, read our 2021 report.

As you likely recall, judicial reform has been one of the top priorities of the General Assembly, the Governor, and the Attorney General this year, so much so that we dubbed this the “spring of judicial reform in the South Carolina Statehouse.” Yet, as the end of the legislative session draws near, the House and the Senate still have many disagreements on just what changes should be adopted. We do know this—finally most legislators see the need to bolster public confidence in the state judiciary, reduce potential conflicts of interest, and stamp out any cronyism.

What has been happening on Judicial Reform?

Over the last few weeks, the two meetings of the House Judiciary Committee’s Constitutional Law Subcommittee have highlighted the differences in the plans proposed by the Senate and those proffered by the House Speaker’s judicial reform ad hoc committee in H.5170.

In the first subcommittee meeting held March 21, Attorney General Alan Wilson, who has long advocated for judicial reform, urged lawmakers to find a compromise between their bills that better balances executive and legislative power in the judicial selection process. Following that testimony, Speaker Pro Tempore Tommy Pope and Senator Greg Hembree spoke at length regarding the specific provisions in their respective chamber’s bills, sharing the reasoning behind the proposals in each. Unfortunately, that subcommittee meeting adjourned before any conclusive decision could be made about how to merge the House and Senate’s proposals, but we were encouraged by the thoughtful conversation and excellent points raised on both sides.

That same week, Palmetto Promise Institute published a detailed comparison breaking down H.5170 and S.1046 in light of our own positions on judicial reform. We distributed this report widely among legislators, and we have been pleased with the appreciative feedback we received from lawmakers and advocates.

The next subcommittee meeting did not take place until April 24, where the group took public testimony from a variety of stakeholders and activists (featuring some of the most interesting testimony our team has ever seen on a bill…). I was proud to testify before the General Assembly for the first time on behalf of Palmetto Promise, particularly on such an important topic. In my testimony, I again directed legislators to our report comparing the two bills, highlighting the strengths and weaknesses of each and walking legislators through our Top 10 list. You can watch my full testimony here:

So what’s next?

The Senate bill will become the vehicle for judicial reform this session. The House is poised to take up the bill, add its own amendments, and send it back to the Senate for their approval.

But, in the April 24 meeting, Judiciary Chairman Weston Newton admitted, “We all know this is going to conference committee.” There, three members each of the House and Senate can hash out their differences and negotiate the final bill that can be approved by both chambers and signed into law. This will undoubtedly be a tedious negotiation process. There are substantial differences—not in principle necessarily but certainly in the specific details—between the two bills, discrepancies that were only highlighted by the amendment proposed in subcommittee that struck the entire Senate bill and replaced it with the text of H.5170 (albeit with a few changes).

In proposing that amendment, Judiciary Chairman Weston Newton underscored the strength of the House bill in light of Palmetto Promise’s recommendations:

“I appreciate Palmetto Promise for identifying those top 10 recommendations, because if you look at this list and compare to what we did in the House bill, virtually everything there we did and touched on in the House bill.”

The subcommittee adopted Chairman Newton’s amendment, and we expect to see the bill fly through the House as amended, since H.5170 has already enjoyed much bipartisan negotiation within the House.

There are a few key differences between H.5170 and Chairman Newton’s amendment to S.1046, however. Under the Newton amendment….

• The Judicial Merit Selection Committee (JMCS) would be composed of 13 members.
  • 5 appointed by the Governor (1 must be a retired state judge who would chair the JMSC, and the remaining 4 must be SC Bar members with 10+ years of experience)
  • 4 appointed by the Speaker of the House (3 must be Representatives and 1 must be a SC Bar member with 10+ years of experience)
  • 4 appointed by the Senate (3 must be Senators and 1 must be a SC Bar member with 10+ years of experience)

This is an improvement on S.1046, which, in its current form, removes the existing requirements for the 10 legislatively appointed JMSC members to include 4 members of the general public. Thus, the House and Senate appointments, which under that plan would comprise 8 out of 12 JMSC members, could all be General Assembly members, giving legislators a quorum and majority on the JMSC. We are glad to see the Governor have a role in appointing members (#1 on our Top 10 list).

• Does not establish the JMSC as an independent state agency, as it is likely too late in the legislative session to start discussing the creation of a new state agency.

Chairman Newton is likely correct that establishing an independent state agency (#3 on our Top 10 list) at this point in the legislative session would be extremely difficult. We hope the General Assembly will revisit this recommendation in future years so conflicts of interest can be further reduced by giving the JMSC its own staff, executive director, and office location separate from the General Assembly.

• Enacts these changes at the beginning of the 2025 Fiscal Year (July 1, 2025), so the new JMSC process can start at the beginning of the judicial selection process, rather than having one session of the JMSC interview candidates in fall 2024 and another session working during the 2025 legislative session. This just makes good sense.

Otherwise, Chairman Newton is right—the House amendment hits on nearly all of our Top 10 list!

S.1046 is scheduled to be heard in the full House Judiciary Committee on April 30.

Grading the Senate and House Proposals Alongside Palmetto Promise’s Top 10

1. Add executive appointments to the JMSC.
   ✅ Senate
   ✅ House
2. Limit lawyer-legislators’ current outsized power on the JMSC with rotating terms and clear ethical guidelines.
   ✅ Senate
   ✅ House
   The specifics of the term rotations and other ethical guidelines vary, but both bills bring effective ways to crack down on the potential for cronyism and eliminate conflicts of interest (or the appearance thereof). 
3. Establish the JMSC as an independent state agency.
   ❌ Senate
   ❌ House
   As mentioned above, this is unfortunately not feasible for this legislative session, but we hope to see it considered in the future.
4. Livestream JMSC hearings.
   ✅ Senate
   ✅ House
5. Streamline the screening process of the Citizens Committee and Bar Committee.
   ❌ Senate
   ✅ House
6. Raise (or even remove) the cap on the number of candidates advanced by the JMSC.
   ✅ Senate (raises the cap to 6)
   ✅ House (removes the cap)
7. Adopt mid-term reviews of judges and ensure disciplinary action and complaints are taken into consideration during reappointment.
   ❌ Senate
   ✅ House
8. Disclose to the General Assembly and the public why certain judicial candidates were found unqualified.
   ✅ Senate
   ✅ House
   The two bills take different approaches on the specifics of how this would work, but both do include measures to introduce more transparency in the process.
9. Establish clear campaign and ethics rules for judicial candidates.
   ✅ Senate
   ✅ House
   Again, the specifics of each proposal vary, but they both have some excellent recommendations for establishing a more ethical judicial campaign process than the current system provides.
10. Limit magistrates’ holdover status and bring more voices into their appointment process.
    ❌ Senate
    ✅ House
    While the Senate bill does allow magistrates to be recommended to the Governor with feedback from Senators and Representatives from a particular county, it does not address one of the most significant problems with the existing magistrate system: judges’ indefinite service on the bench in “holdover” capacity. The House bill limits holdover to 14 days and creates a Magistrates Review Subcommittee to screen candidates.

For a more detailed breakdown of the Senate and House proposals, you can read our recent legislative analysis report.

Conclusion

We applaud both the House and the Senate for the priority they have given judicial reform and the way that they have responded to citizen concerns about ethics in our current judicial selection process. All lawmakers involved are treating the issue with the necessary gravity and care and have been extremely gracious to all those who have reached out to make their voices heard on this subject. We have no doubt that whatever final product is reached by conference committee, the reforms enacted will be a marked improvement over the current judicial selection process.

You can count on Palmetto Promise to keep you informed on new developments in the judicial reform arena, and as S.1046 moves through the House and is potentially amended in the coming weeks, we will keep you updated. Make sure you sign up for our weekly email newsletter to stay abreast of all the significant topics in the Statehouse during these crucial final of the legislative session.