S.C. high court decision sad judicial-reform lesson

Now we know. Short of a highly unlikely change of heart, there is nothing that will diminish the Legislature's virtually unbridled power to decide who will wear the robes in this state's court system.

Indeed, the S.C. Supreme Court has ruled that the lawmakers who serve on the relatively new Judicial Merit Selection Commission are even exempt from the state's dual office holding ban which means they can serve both as judicial qualifiers and electors.

That conclusion is part of a much-watched high court decision that recently rejected a challenge to the makeup of the JMSC, once hailed as the best hope for reform of the Legislature's "good old boy" way of electing judges in this state. The lawmakers' too-often blatant disregard of qualifications continued despite the establishment of an in-house screening committee.

Public outrage over the election of a number of judges found to be the least qualified resulted in a 1997 constitutional amendment intended, in effect, to serve as a legislative restraint. Its most important aspect was its ability to prevent the Legislature from even voting on candidates who fail to get JMSC approval.

Unfortunately, too little attention was paid to the fact that the lawmakers made sure in the enabling legislation that they would dominate the JMSC with six of the 10 members.

While there had been rumblings over several JMSC decisions, concerns erupted statewide last fall when the commission turned thumbs down on the re-election of 9th Circuit Family Court Judge Frances P. Segars-Andrews. A 12-year judge, she had been previously praised by the House of Representatives for her volunteer drug court service.

But what the court described as a "disgruntled Family Court litigant" took his complaint against the judge to the JMSC after two separate legal panels found she had acted properly. The JMSC found her unqualified on ethical fitness grounds, stemming solely from her refusal to withdraw from the complainer's divorce case.

Segars-Andrews filed suit against the JMSC, raising a number of legal and constitutional issues. Among those were her arguments that the makeup of the JMSC violated the intent of the 1997 amendment that the JMSC be a new and independent body, which meant that the six legislators who were serving were violating the dual office holding ban. The high court agreed that the JMSC is a separate office. But, it said, lawmakers meet the narrow exemption that allows them to serve as ex officio members since the office is "incidental to their legislative duties."

Another key issue in the Segars-Andrews challenge was whether the JMSC could, in effect, ignore the courts' dismissal of the ethics complaint. It could, according to the decision, because the power to elect and re-elect judges is vested solely in the Legislature. In other words, lawmakers have a constitutional right to make subjective, political decisions on who should sit on the bench and the courts can't interfere. To do so, according to the decision, would be a violation of separation of powers. There is a hedge. Lawmakers can't violate a state law in order to find a judge qualified or unqualified. The opinion cites as an example a previous ruling that stopped the Legislature from electing highway commissioners beyond the term limits set out in state law.

The opinion did refer to an earlier decision that should have long been a warning to lawmakers. The landmark Greenville case, which deals with a county auditorium commission, prohibits legislators from serving on boards and commissions they create that have nothing to do with their duties as state lawmakers. The recent inclusion of two Charleston legislative leaders on the county's Aviation Authority, for example, is legally questionable at best.

There's a sad lesson in all this for judicial reformers. If they had intended to get politics out of the qualifying process, then the constitutional amendment should have specifically banned or limited legislative service on the JMSC. When it comes to legislative power over judicial elections, the decision says, in effect, that what's not specifically prohibited is allowed.

Unfortunately, since there is no petition or initiative for referendum in this state, only the legislators themselves can make a change. And that's very unlikely.

But Constance Anastopoulo, attorney for the League of Women Voters, which joined in the Segars-Andrews suit, said the League isn't giving up on getting more diversity in the qualifying process. According to Anastopoulo, retired U.S. Supreme Court Justice Sandra Day O'Connor is known for her concerns over the judicial selection process in general and there is hope that she will agree to participate in a forum that would include legislative leaders. Anastopoulo believes it will take someone of Justice O'Connor's stature to focus the kind of attention that the issue deserves.

In its decision, the S.C. Supreme Court described judicial independence as the lawsuit's "elephant in the room" and took pains to point out that the principle is not designed for the protection of judges but the integrity of the system itself. A system that concentrates so much power in a commission dominated by six legislators needs another look.

Barbara S. Williams, editor emeritus of The Post and Courier, may be reached at bwilliams@postandcourier.com.