The numbers tell the story: More than 1,000 complaints filed against S.C. Circuit Court judges in the past two decades. Not a single public disciplinary action.
“The Untouchables,” an investigation by The Post and Courier and ProPublica, found that only three other states have gone decades without publicly disciplining a major trial judge: Delaware, Hawaii and Virginia.
We realize that many complaints are filed against judges who did absolutely nothing wrong. But all of them? More than 1,000? As Rep. Gary Clary, himself a former Circuit judge, told Post and Courier reporter Joseph Cranney: “That defies the law of probability. You would have to say the system is built to protect judges.”
The laws of probability clearly demonstrate that the courts’ self-policing mechanism is a failure.
The state Supreme Court reformed the judicial disciplinary system in 1997, creating a Commission on Judicial Conduct that included some non-judges, allowing complainants to speak publicly about their grievances and requiring the complaints to be made public when the commission recommends something more than a private reprimand against a judge.
What never occurred to reformers was that no investigation would ever be made public, because the commission would never find a complaint that it considered serious enough to take to the Supreme Court for further action. In more than 20 years.
There are two obvious reasons for the failure: The commission is composed of 14 judges and 12 non-judges — the fourth-highest ratio of judges among the 44 states that have this type of commission. And it keeps its work secret; it doesn’t even explain its decisions to the people who file complaints.
That means we just have to take the word of a panel controlled by judges that not a single one of the more than 1,000 complaints filed against Circuit Court judges has been serious enough to warrant so much as a public reprimand, much less removal from the bench.
That is not acceptable. It’s well past time to reform the commission, and to lift the veil of secrecy.
At the least, we should flip the ratio, so we have 12 judges and 14 non-judges on the disciplinary commission. Better still, we should follow the American Bar Association recommendation of one third judges, one third lawyers and one third lay people.
And we should put an end to private reprimands — or “letters of caution,” as they’re called. More than either of the other two branches of government, our courts derive their legitimacy from public confidence; if a judge needs to be cautioned, the public should be able to find out about that.
Ideally, we should end the secrecy altogether. But if the Supreme Court (or the Legislature) isn’t willing to go that far, here’s the next best thing: Instead of just giving us numbers, the commission should provide redacted synopses of all complaints and resolutions.
That will give judges the protection from unfounded allegations that they insist is necessary while also giving the public a basis to determine whether the disciplinary system is protecting the public from unscrupulous judges — or whether, as Mr. Clary suggests, it’s built to protect judges.