As the South Carolina Legislature faces mounting pressure to amend the way the state selects members of the bench, the rejection of a circuit judge's bid for another term has become a microcosm in the debate surrounding whether the process is capable of advancing qualified and independent judges.
Ninth Judicial Circuit Judge Bentley Price was found unqualified Nov. 28 in a divided 5-5 vote by the Judicial Merit Selection Commission. Price needed a majority vote to keep his reelection bid alive. Now he cannot advance to a vote of the Legislature to win reelection for his seat. Price, 47, was elected to the bench in 2018. He has since withdrawn, meaning a detailed report of Price's qualifications will not be released publicly.
Price has not responded to requests for comment throughout the race.
The commission chairman indicated Price's failure to advance to a vote of the General Assembly is evidence that the panel takes concerns seriously and is dedicated to ensuring judicial candidates are qualified. Critics say commission members, who are under intense scrutiny, sacrificed Price to maintain their power over the process by undermining reform efforts. Their decision-making was shrouded in secrecy and relied on anonymous surveys, they said.
“This is an example of the process working in an era when people want instant results,” said state Rep. Micah Caskey, R-West Columbia, who chairs the JMSC.
An advocate for transforming the JMSC — and one of Price's most vocal critics — was not celebrating after the panel found the judge unqualified. First Circuit Solicitor David Pascoe said he predicted the outcome.
"They're going to use him as the scapegoat to try to say the process is right," Pascoe asserted. "It's laughable."
A lightning rod
Price became the poster child of judicial selection reform — a movement to amend the rules governing the JMSC, a 10-person panel selected by the leadership in the House and Senate that is tasked with screening judges based on merit. The group, however, has been criticized for abusing its power to handpick winners.
A survey administered by the South Carolina Bar, which is presented to the JMSC, found Price unqualified in reputation but qualified in the eight other categories. Price was attacked in anonymous lawyer surveys for treating women poorly, hastily making decisions and doling out favors to attorneys with whom he is friendly.
Some put their names to their allegations, including two longtime attorneys. One of those is a University of South Carolina law professor who testified against Price at his public hearing Nov. 14, stating the judge was belligerent, inappropriate and unprepared in his dealings with him in a complex civil case.
Pascoe told an ad-hoc committee of lawmakers who are taking up the issue of judicial reform that Price's rulings were a testament to the failures of the judicial selection process.
Price on Jan. 3 freed a man facing a series of drug charges who was again arrested on allegations he fired into a crowd in downtown Charleston's King Street. Four people were injured. The defendant was represented by former U.S. Attorney Peter McCoy, whom Pascoe said was influential in helping Price win his first term as a judge. Not only did Price free the defendant, who was subsequently charged with murder in another incident, but he consolidated and lowered his bond.
Pascoe said the result of one closely scrutinized judge's candidacy should not be interpreted as reflective of the larger process.
"The only reason they found Bentley Price unqualified was because of the press and the people," Pascoe said.
Caskey told The Post and Courier he voted against Price due to concerns raised about his temperament, reputation and professional judgment in the anonymous surveys of lawyers.
“It worries me that people didn’t put their name on things,” Caskey said. “At the end of the day, it was a tough decision, but ultimately it was the right decision.”
Sen. Dick Harpootlian, D-Columbia, who has authored his own judicial reform bill, criticized the commission for relying on anonymous rumors.
"Anonymous complaints, anonymous statements are not introducible in any court in this state or in the country, as far as I know," he said. "So it's not credible evidence in a court and they're picking a judge to decide credible evidence based on not credible evidence. This is insane."
Harpootlian proposes legislation that would remove the anonymous bar survey. His bill also removes the three-person cap on the number of candidates in one election who can proceed to a vote of the Legislature, and it prohibits candidates from withdrawing from the process once the investigation begins. Lastly, it would remove lawyer-legislators from the JMSC.
Harpootlian and Sen. Wes Climer, R-Rock Hill, are spearheading a bipartisan effort to force judicial reform on the floor.
"We intend on filibustering any joint resolution to vote on these judges until we have judicial reform," Harpootlian said.
JMSC member Rep. Todd Rutherford, D-Columbia, said those who are familiar with the commission's process know that it holds potential judges and incumbent judges accountable.
"I think the JMSC holds judges accountable, period," he said. "It’s not just that vote (Price's). It’s every single vote that we take. Limiting it to the Price vote suggests that on every other vote it does not hold judges accountable. It holds not only judges accountable, it holds lawyers accountable as well."
Future of the 9th Circuit
Price returned to the bench the morning after the selection committee vote. On Nov. 29, he presided over a civil jury trial and met with several attorneys with pending cases in the 9th Circuit, which is plagued by a backlog, in an effort to prod them forward.
Inside the fourth-floor courtroom in downtown Charleston, the judge belied the turmoil threatening to disrobe him. His demeanor was calm and authoritative. A fast talker, his exchanges with attorneys and jurors were concise, but pleasant.
The JMSC's vote against Price means that a now-deemed unqualified judge will preside over criminal and civil cases for the next seven months in Charleston and Berkeley counties.
Statute dictates that the election for a judicial seat becomes moot when an incumbent judge who declares his or her candidacy for reelection dies, withdraws or is found unqualified. When Price's term expires on June 30, therefore, no one will fill his seat — barring "some extraordinary legislative action," Caskey said.
The 9th Judicial Circuit will, however, benefit from a newly created seat. Eight candidates applied, three of whom were nominated by the JMSC to go before the Legislature.
They are Judge Daniel E. Martin Jr., who has presided over Family Court in the 9th Circuit since 2011; Judge Dale E. Van Slambrook, who has served as Master-In-Equity for Berkeley County since 2014 and also presides over the Berkeley County Adult Drug Court; and Thomas J. Rode, an attorney with the firm of Thurmond Kirchner & Timbes.
Editor’s Note: This article has been updated to correctly identify Todd Rutherford’s elected office.
Ali Rockett contributed reporting from Charleston. Alexander Thompson contributed reporting from Columbia.
