Judicial reform gathering momentum at the Statehouse

Two very important legislative proposals that would make substantial changes to the judiciary are working their way through the Statehouse.

Both bills – H. 3530 (magistrate reforms) and H. 4755 (Judicial Merit Selection Commission reforms) – originated in the House.

H.3530 is currently being debated on the House floor, while H.4755 passed the House last month and awaits consideration by the Senate Judiciary Committee.

Background

The Judicial Merit Selection Commission

Judicial selection has been an issue in South Carolina for many years, as The Nerve – SCPC’s investigative arm – has repeatedly pointed out. In 2024, the Legislature made a number of changes in the selection process in line with SCPC recommendations. Most notably:

Giving the governor four appointments to the Judicial Merit Selection Commission (JMSC), while increasing its membership to 12.

Limiting JMSC members to serving no more than two consecutive two-year terms.

Raising the cap on qualified judicial nominees to six per open seat (previously three), fostering more competition in races.

Creating a review process for judges at the midpoint of their terms.

Requiring the JMSC to livestream its hearings to the public.

Ending the practice of allowing candidates who face no opposition to bypass the public hearing process.

While these changes are a good start, as noted in our initial recap, it’s just that – a start. Historically, the main issue with the selection process has been lawmakers’ inherent control of the JMSC and potential conflict of interests.

Under the S.C. Constitution and state law, the JMSC is responsible for qualifying judicial candidates for election in the Legislature. South Carolina and Virginia are the only two states where their legislatures play primary roles in electing judges.

The JMSC consists of 12 members: four appointed by the House speaker, four by the Senate president and Senate Judiciary Committee chairman collectively, and four by the governor. While the 2024 law for the first time gave the governor appointment powers, the House and Senate members of the commission as a group still can block candidates supported by the governor’s appointed members.

Judicial independence is essential to ensuring qualified judges. Currently, all six legislative members of the 12-member JMSC are attorneys. When lawyer-lawmakers on the commission (or their law firm partners) practice before the judges whom they voted to nominate, that raises serious questions about the perception of a conflict of interest.

The Nerve last month reported that a total of 49 members, or nearly 30%, of the 170-member Legislature are lawyers. Compared to the general population, attorneys represent far less than 1% of the state’s workforce, as The Nerve has reported.

To be clear, the current situation is not an allegation of wrongdoing by any lawyer-legislator or JMSC member, nor is it a claim that any sitting judge is unqualified. However, the public’s perception of questionable practices is real, and that perception alone warrants legislative action to address the issue.

Given the Legislature’s historic control over judicial screening and elections, SCPC has recommended that the JMSC be abolished, and judges be appointed by the governor with Senate confirmation, similar to the federal model. But that would require a constitutional amendment approved by S.C. voters.

Magistrate selection

Two areas deeply in need of reform are the magistrate selection process as it relates to senatorial delegations and magistrates who are allowed to serve long past when their terms expired. Both issues have been covered by The Nerve and have drawn reform recommendations from SCPC for several years.

Under state law, county magistrates are appointed by the governor with Senate confirmation, but only after the candidate has been first recommended by the senatorial delegation representing the particular county. And unlike higher-level judges, magistrates aren’t screened by the JMSC.

The Nerve in 2019 revealed that in 12 counties, one senator has the sole nomination authority, with two senators having that control in another 17 counties.

In past years, if that senator were an attorney, he could have handled cases before the magistrate whom he nominated or had a heavy hand in recommending. The Nerve in 2023 published a related investigation into a senator-lawyer’s court cases.

In 2024, S.C. Supreme Court Chief Justice John Kittredge issued an order generally banning magistrates from hearing any contested matter involving a state senator, whether as a lawyer or party, who has "direct authority" to recommend the magistrate for appointment by the governor. But that order didn’t end senatorial delegations’ control over magistrate nominations.

Magistrates are appointed for four-year terms but under state law can serve months or even years past when their terms expired “until a successor is appointed.” Having magistrates in “holdover” status gives senators with nomination power indefinite control over them.

The Nerve in 2024 revealed that 38 county magistrates in 17 counties were in “holdover” status – two of them serving more than 18 years past their terms.

As with the JMSC discussion above, this situation is not an allegation of wrongdoing. But it does highlight the need for reform.

Fortunately, there are two pending bills aimed at remedying the holdover status and JMSC issues.

H.4755 summary

This proposal represents some of the most substantial changes in the judicial selection process in years, going several steps further than the 2024 reform. As noted above, the biggest issue is the amount of control the Legislature has over the selection process. The main point of this bill is to correct that issue by allowing the governor to appoint all 12 members of the JMSC.

The bill also places additional requirements on the criteria for the members of the JMSC. Namely, those requirements are:

Eight members must be members of the South Carolina Bar in good standing.

No more than four members may be law enforcement professionals.

No sitting lawmakers may serve on the JMSC, and ex-legislators must wait at least two years out of office, up from the current one year waiting period, before seeking a judicial seat.

No individual who donated to the governor's campaign in the most recent election cycle is eligible to serve on the JMSC.

The bill also apparently attempts to improve transparency by eliminating the requirement that the JMSC determine who can testify at screening hearings. While it is unclear who would make that determination under the revised language, allowing both supportive and dissenting testimony on candidates would help provide JMSC members with a fuller picture of a nominee’s qualifications.

In addition, the proposal would reform the process for finding a candidate to be unqualified. Those changes would include:

Finding a candidate unqualified must be supported by “clear and convincing evidence,” a higher standard of proof than a “preponderance of the evidence.”

Anonymous lawyer survey responses alone cannot support a finding that a candidate is unqualified. Any such finding must instead be based on independent, verifiable evidence or sworn testimony; and the candidate must have an opportunity to respond to the claims.

A finding of not qualified must be included in the JMSC’s qualifications report, with specific reasons for the finding.

The bill also would remove DEI (diversity, equity and inclusion) language from state law requiring that the commission consider a candidate’s race, gender, national origin and other demographic factors in making nominations.

Finally, the proposal would remove the current six-nominee cap for each open judicial seat. The cap was raised from three to six nominees with the 2024 statutory changes

The verdict on H.4755

The bill reflects a bold change from the status quo. For over a decade, SCPC has been calling for a change in state law to allow the governor to make all appointments to the JMSC, and the House deserves credit for this proposal. We also support removing judicial nominee caps to foster more competition and improving transparency with the JMSC.

Some contend that because the proposed changes are only statutory, future legislatures could reverse course without a state constitutional amendment. But changing the S.C. Constitution likely would be difficult because voters usually don’t approve proposed amendments, and any amendment change on this issue, if approved, wouldn’t go into effect until after November.

Given that these issues currently are affecting judicial selections, this bill should be advanced quickly.

H.3530 Magistrate Reform

This bill makes several notable changes to the magistrate selection process. Importantly, magistrate candidates must be screened by the JMSC before appointment by the governor; candidates found unqualified by the JMSC cannot be considered for appointment.

But the bill specifies that the Senate “shall forward” magistrate candidates to the JMSC “for review” upon vacancies, which apparently would leave intact the senatorial delegations’ role in the process.

The proposal also would effectively close the “holdover” loophole in state law, which allows magistrates to serve indefinitely after their four-year terms expired.

Under the bill, a magistrate would be allowed to serve in holdover capacity for 14 days. If Senate fails to confirm a magistrate appointed by the governor within this time frame, the governor could make a temporary appointment until there is a permanent appointment.

Magistrates who have been reprimanded by the S.C. Supreme Court would not be eligible for appointment or reappointment.

The bill also stipulates that magistrates going forward would be required to have a law degree and be a member in good standing of the South Carolina Bar. With the additional qualifications, the bill would allow magistrates to handle civil claims of up to $25,000, up from the current $7,500; and criminal cases with maximum sentences of one year in prison and a $25,000 fine, up from the present cap of 30 days in jail and a $500 fine.

While these changes appear to be reasonable, they do raise some practical questions with an expected increase in magistrate caseloads. Will counties, for example, greenlight additional funds for magistrate support?

If the state wishes to make it more palatable to counties, it should consider some cuts at the state level to help counties offset the likely additional costs that would come with the expanded magistrate jurisdiction – especially if county revenues resulting from increased fine and fee collections are insufficient

The verdict on H.3530

All things considered, requiring that magistrate candidates be found qualified by the JMSC and removing the holdover loophole provision in state law are solid reforms. In addition, we also support requiring magistrates to be lawyers, given that they can be confronted with complex legal questions and should have the education and experience to understand the issues.

Expanding magistrates’ civil and criminal jurisdiction will likely increase costs to the county. But with the state general fund well over the $14 billion mark, lawmakers should be able to find existing areas that are in need of trimming. From previous budget reports SCPC has published, there is no shortage of state-funded projects that can be cut.

One area left untouched in the bill is the senatorial delegations’ control over magistrate nominations. As noted in the background section of this analysis, this is one of the biggest problems with the current nomination process.

While the bill is still on the House floor, lawmakers should consider eliminating the senatorial delegations’ role in the process. This is a statutory issue, meaning no change to the state constitution would be necessary.

Major takeaways

To conclude, both of these bills represent positive changes and good reforms that will ultimately improve judicial independence and qualifications.

Lawmakers should advance the bills unaltered, though we recommend adding language to the magistrate reform bill to remove senatorial delegations’ role in the appointment process.

Citizens in South Carolina should be encouraged that the Legislature is taking this issue seriously. SCPC urges lawmakers to move on these reforms and get these proposals to the governor’s desk as soon as possible.

This report may be republished in whole or in part, provided that proper credit is given to the author(s) and the South Carolina Policy Council.