Lawmakers still haven’t fixed SC’s magistrate problem

In South Carolina, magistrate judges have serious power, especially over the lives of everyday citizens. For many, their courtroom will be the final stop when it comes to adjudicating legal issues. This is why it is particularly alarming that in South Carolina, Senate delegations (often comprised of just one senator) still play a primary role in their appointment, as this influence totally undermines any chance of judicial independence.

Our latest review of delegation power looks at senators’ control over magistrates, and examines what lawmakers are doing to address the issue according to recent legislation.

What is a magistrate? 

Magistrate judges are important players in South Carolina’s judicial system. As The Nerve describes, “they are the highest court level that many affected S.C. citizens will typically experience”.  

Generally, they handle misdemeanor offenses that carry fines up to $500 and imprisonment not exceeding 30 days. They also hear civil cases when the amount in question doesn’t exceed $7,500.  In practice, this includes everything from landlord/tenant disputes, to cases involving domestic violence, to more severe traffic violations like DUIs.  

The qualifications to become a magistrate judge are fairly basic. An individual must be at least 21 years old, possess a four-year college degree, and pass an initial training course/certification test. It should be noted that magistrates do not need a law degree.  

According to the S.C. Judicial Branch, there are approximately 300 magistrate judges working in South Carolina.  

The unique power of Senate delegations

While magistrates are technically appointed by the governor and confirmed by the Senate, the governor may only appoint someone who is first recommended by the Senate delegation of the county where the magistrate will serve. The Nerve, which has reported extensively on this subject, found that in 12 counties, single-senator delegations control appointments for 54 magistrates. In 17 counties, magistrate appointments are controlled by just two senators.   

In other words, individual lawmakers are often primarily responsible for selecting the judges that run many of the state’s most important courtrooms. This, of course, is exacerbated by the fact that many state lawmakers themselves are practicing attorneys, and some will inevitably end up representing a client in front of the very magistrate they helped to office.

A senatorial delegation can also change the number, location and full or part-time status of the magistrates in their county so long as the local government agrees to the changes. The only practical limitation under the law is that a magistrate’s salary cannot be decreased during their time in office. 

A review of magistrate legislation  

SCPC and The Nerve have spent over a decade researching and reporting on the issue of magistrate independence. While, more recently, lawmakers have started to acknowledge the flaws of the current system, a review of legislation filed this year demonstrates they aren’t in a rush to make any serious changes.  

Filed during the 2021 session (and still active heading into 2022) 

There were a handful of bills filed during the 2021 session dealing with magistrates. These bills range from enhancing magistrate benefits and expanding their authority, to making positive (yet limited) fixes to longstanding issues. However, not a single bill filed this year would remove Senate delegations from the magistrate selection process.  

Four bills would increase the civil jurisdiction of magistrate judges to include cases dealing with amounts up to $10,000 or $15,000, depending on the bill. Another (S.27) would impose a fifteen-dollar fee on all filings in magistrate court, increase the starting salary for magistrate judges, and affirm that magistrates are entitled to cost of living and salary increases similar to other county employees.  

Astoundingly, there is nothing preventing a senator from appearing as an attorney before a magistrate in his/her home county. One bill filed earlier this year (S.586) would end this practice, and would remove a senator from office who violates this rule. Another bill (S.246) would allow the governor to appoint an interim magistrate if the sitting judge has served in holdover status for longer than 14 days (magistrates regularly serve after their term has expired).  

None of the bills mentioned here advanced past the committee process.

It’s worth noting that, unlike the remainder of South Carolina’s judges, the S.C. Constitution already provides for the correct method of appointing magistrates: appointment by the governor with Senate confirmation. The rule that Senate delegations must first recommend an individual to the governor is merely part of state law.  

In other words, removing Senate delegations from the process and returning true appointment power to the governor would not require a constitutional amendment as it would for reforming the rest of the state judicial system.  Until lawmakers address this issue, citizens should have little faith in the independence of their local judges.

*** As this is the first year in a two-year session, bills that failed to become law in 2021 are still active heading into next year. *** 

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