![[DEV] SC Policy Council](https://assets.nationbuilder.com/themes/64a70761f9279500cd767ee8/attachments/original/1680182376/logo-nerve.jpeg?1680182376){kind=logo}
By RICK BRUNDRETT
Update: 10/16/23- Less than three weeks after this story and a companion investigative piece were published, Gov. Henry McMaster in a letter to the S.C. Senate called for reforms in the magistrate selection process, pointing out that his "relatively recent predecessors adopted or acceded to a custom of senatorial deference, whereby a local senator or county senatorial delegation is relied upon as the sole source for nominations." McMaster in his letter contended that candidates have not been "sufficiently vetted in recent years" and noted that dozens of magistrates have been "acting in a holdover capacity" after their four-year terms have expired. He announced that future candidates who are considered by him for appointment will be required to complete "more detailed applications" and "waive confidentiality protections" for "any attorney or judicial disciplinary proceedings."
For more than a year, longtime senator-lawyer Brad Hutto has represented dozens of mainly criminal clients in Orangeburg County magistrate courts before judges whom he played a prominent role in nominating, an investigation by The Nerve found.
Hutto, the Senate’s Democratic minority leader who has been in office since 1996, also has appeared at times before magistrates in Bamberg and Barnwell counties, where he has sole nomination authority.
In addition, Hutto’s son, Skyler Hutto, who works in the same Orangeburg-based law firm as his father, represented dozens of clients over the past 18 months before magistrates whom his father helped nominate, The Nerve’s review found.
Sen. Hutto isn’t the only senator-lawyer who has handled cases before magistrates nominated by that senator, records show, though Hutto is the focus of this story because of the relatively large number of magistrate cases handled by him and his son.
Neither Hutto nor his son is accused of doing anything wrong under state law. State Sen. Tom Corbin earlier this year introduced a bill that would prohibit current senators-lawyers from appearing before magistrates in counties they represent.
The seat of a senator-lawyer who continued to do so would be declared vacant under the bill, which has remained stuck in committee.
“To me, it’s bad enough that the General Assembly appoints all the judges,” Corbin, R-Greenville, who is a businessman, told The Nerve recently. “But if you think about it, if the senators for each county appoint the magistrates for that county, that is even more egregious that a senator could appoint a magistrate judge and practice law in his courtroom.”
“That’s almost like this-judge-works-for-me sort of thing,” he added.
In a recent interview with The Nerve, Hutto acknowledged that he and his son have handled many cases before Orangeburg County magistrates whom he helped nominate.
But he stressed that those judges haven’t shown him, his son or other attorneys in the law firm where they work any special treatment.
“I don’t tell them how to do their jobs,” Hutto said. “My citizens elected me to do all the functions of a senator, including nominating magistrates. I’ve been nominating magistrates for nearly 30 years, and I’ve been practicing law for nearly 40 years. Everybody knows that, and it’s never been an issue.”
Under state law, South Carolina’s current 306 magistrates, as listed on the S.C. Judicial Department’s website, are appointed by the governor with “advice and consent” of the Senate. Their terms by law run for four years, though senators can keep them on the bench for years after their terms expire, as The Nerve revealed in another investigative story published with this piece.
When it comes to nominating magistrates, the reality is that the senators representing a county – not the entire Senate – recommend local magistrates to the governor, whose office typically rubber-stamps them for appointment after routine background checks.
In 12 counties, one senator has the sole nomination authority, including Bamberg and Barnwell counties where Hutto has that power, according to a Senate list provided earlier this year to The Nerve under the state’s open-records law.
The sole-nominator club, which The Nerve first revealed in 2019, currently includes senator-lawyers Shane Massey, R-Edgefield, who is the Senate majority leader; and Ronnie Sabb, D-Williamsburg; and non-lawyers Thomas Alexander, R-Oconee, who is the Senate president; and former Senate president Harvey Peeler, R-Cherokee, who chairs that chamber’s Finance Committee.
In another 17 counties, including Hutto’s home county of Orangeburg, just two senators control the magistrate nomination process, according to the Senate list. Of the 17 counties, 15 have at least one senator-lawyer; in six counties, including Allendale and Hampton counties, parts of which are represented by Hutto, both senators are attorneys.
In total, there currently are 19 senator-lawyers, which represents 41% of the 46-member chamber.
Magistrates are considered lower-level judges, generally handling traffic offenses and other minor criminal cases that carry a maximum penalty of 30 days in jail and a $500 fine, and civil cases involving claims of up to $7,500.
If South Carolinians have any experience with the state court system, it likely will be at the magistrate or municipal court level, collectively known as summary courts.
Under state law, a magistrate appointed after July 1, 2005, has to be a U.S. citizen who is at least 21 years old, a resident of the state for at least five years, and have a bachelor’s degree. Magistrates must pass a judicial certification test in their first year in office and a recertification test every eight years generally.
They also are subject to the state judicial ethics code, which is enforced by the S.C. Supreme Court, the state’s top court. Among other things, the code requires judges to avoid even the appearance of impropriety.
A national judicial ethics expert told The Nerve that at the very least, magistrates have an ethical duty to automatically disclose to opposing parties if senator-lawyers appearing before them played a role in getting their job.
“I think that’s what the best practice should be,” said David Sachar, director of the Center for Judicial Ethics with the Virginia-based National Center for State Courts.
As elected officials, S.C. senators, who serve four-year terms, also have ethical responsibilities, says Stephen Spaulding, vice president of policy and external affairs with the national government-watchdog organization, Common Cause, based in Washington, D.C.
“Constituents and voters need to know that those magistrates are acting independently consistent with the highest ethical standards,” Spaulding said in an interview with The Nerve. “South Carolinians, in my view, should have full confidence that their rulings are unbiased and impartial.”
Corbin’s bill, which has 11 co-sponsors, never made it this year out of the Senate Judiciary Committee, chaired by senator-lawyer Luke Rankin, R-Horry, who didn’t respond to The Nerve’s recent request for comment. The bill would have to be reintroduced in 2025 if it doesn’t pass the Legislature next year, given the two-year legislative cycle.
Hutto told The Nerve that he previously has introduced bills that would have transferred the authority to nominate magistrates to higher-level circuit court judges, contending that would be a “better way of doing it.”
Circuit court judges are elected by the full 170-member Legislature. The Nerve has pointed out over the years that South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.
Among other judicial reform proposals, the South Carolina Policy Council – The Nerve’s parent organization – has endorsed changing state law to address the power of small groups of senators over the selection of magistrates. Judicial reform is expected to be a hot topic when lawmakers return to Columbia in January for the next regular legislative session.
Dozens of cases
The Nerve earlier this year sent a formal request under a state court rule to the S.C Court Administration office asking for more than two years of magistrate docket records, if applicable, for 20 senator-lawyers (Senator-lawyer Marlon Kimpson later resigned his seat to take a position in the Biden administration).
In a May 31 letter, J. Daniel Jones, deputy court administrator, denied the request, noting the court rule permitting the release of the information is allowed only “when the identity of specific individuals is ancillary to the request,” and that even if the request didn’t involve identifying specific persons, his office would not have the “resources available to fulfill such a request.”
The Nerve’s review of Sen. Hutto’s magistrate cases was based on nomination records from the Governor’s Office going back to 2018 and Orangeburg County magistrate docket lists since the start of last year through this summer. Those records were obtained through multiple S.C. Freedom of Information Act requests.
The Nerve over the past year also randomly sampled online magistrate dockets from Bamberg, Barnwell and Orangeburg counties, as well as reviewed years of magistrate appointment records in official Senate journals.
The Nerve’s review found that docket information changed over time, with a criminal defendant, for example, appearing before multiple magistrates depending on the stage of the proceeding. In addition, no online records existed as of Sept. 20 for dozens of mainly criminal cases that initially were identified in earlier docket samplings.
Records show as of Sept. 20, Sen. Hutto had active or concluded criminal cases involving 54 traffic or other criminal defendants facing a collective 112 charges in Orangeburg County magistrate courts, plus was a plaintiff’s attorney for two clients in three civil cases, before eight current or former judges whom he and the county’s only other senator at the time had nominated.
Hutto has been recognized nationally over the last decade for his defense work in drunken driving cases, according to his profile on the website of the Williams & Williams law firm, where he works with his son, Skyler.
As of Sept. 20, Skyler Hutto represented 81 traffic and other criminal defendants facing 162 total charges in Orangeburg County, plus was the plaintiff’s attorney for four clients in more than a total of 30 civil cases, before magistrates whom his father helped nominate, records show. His totals were based on a sampling of court dockets over the past year.
Skyler Hutto’s position as a part-time public defender in Orangeburg County has allowed him to handle "dozens" of jury trials in Orangeburg, according to his Williams & Williams online profile.
In addition, at least three other lawyers at Williams & Williams, which has offices in Orangeburg and Columbia, each handled at least two Orangeburg County cases as of Sept. 20 before magistrates whom Sen. Hutto helped nominate, records show.
Original file dates, when listed, in cases in The Nerve’s review ranged from April 2018 to August of this year.
Current or former Orangeburg County magistrates before whom Sen. Hutto or his son appeared since Jan. 1, 2022, included chief magistrate Derrick Dash and associate chief magistrate Meree Wiliamson, as well as Robert Clariday, Dennis Gary Doremus, Peggy Doremus, Robert Lake, Valerie Lawrence and Stephanie McKune-Grant, The Nerve’s review found.
Those judges were nominated by either Sen. Hutto and former Democratic Sen. John Matthews, or Hutto and current Democratic Sen. Vernon Stephens, records show.
Sen. Hutto also handled as of Sept. 20 at least one criminal case before Bamberg County chief magistrate Richard Threatt and represented another criminal defendant before Barnwell County magistrate Robert Cooper. Hutto was the sole nominator of both judges, according to Governor’s Office records.
As of Sept. 20, more than half of the total listed cases involving Sen. Hutto and his son were still pending, according to online court records. In Orangeburg County, chief magistrate Dash was listed as the assigned judge for the vast majority of cases, followed by McKune-Grant, Lawrence, Dennis Gary Doremus and Clariday.
In his interview with The Nerve, Sen. Hutto estimated his win-loss record on magistrate cases over the years was “probably 50/50,” contending that rate was similar to the success percentages of other criminal defense lawyers representing cases before the same judges.
He said as an Orangeburg County public defender, his son Skyler handles more criminal cases before magistrates than he does, noting his son “gets maybe dozens of cases every month, every week.”
Asked if Skyler appears before the same magistrates whom he helped nominate, Sen. Hutto replied, “That’s all true,” though he added there was nothing unethical about that.
“They’re (the magistrates) doing their job; I’m doing my job; Skyler is doing his job,” he said. “We have rules to play by, and we’re all playing by those rules.”
Skyler Hutto did not respond to a written request by The Nerve for comment.
‘Known him for many years’
Contacted recently, former longtime Sen. Matthews, a non-lawyer who retired from office in 2020, told The Nerve that procedurally over the years, if a magistrate lived in Sen. Hutto’s district, Hutto would recommend that person for nomination, and he would sign off on the official nomination letter to the governor. If the magistrate lived in Matthews’ district, the nomination practice would be reversed with Hutto, Matthews said.
At least five Orangeburg County magistrates in The Nerve’s review lived at one time or another in Hutto’s district, which primarily covers the northern portion of the county, according to Senate Journal records and mapping information from the S.C. Office of Revenue and Fiscal Affairs.
Other parts of Orangeburg County currently are represented by Sen. Stephens, a non-lawyer who didn’t respond to a recent written request from The Nerve for comment.
Following a 1999 federal court ruling, votes by S.C. legislative delegations have been required to be weighted, based on the percentage of population that delegation members represent. In Orangeburg County, for example, Stephens and Hutto have 52.97% and 47.03% of the weighted vote, respectively, according to information provided by the Senate to The Nerve under the state’s open-records law.
Records from the Governor's Office included mostly standard nomination letters signed by Hutto. But in two cases, those records showed a greater level of involvement by Hutto.
For example, in a June 3, 2020, letter to the Governor’s Office regarding the initial appointment of Dennis Gary Doremus, Hutto thanked a staffer with “discussing with me some of the concerns” related to a credit report for Doremus.
Hutto in the letter explained that it was his understanding that Palmetto State (Bank) “charged off part of a bank note, and no money is currently due.” He also wrote that Doremus’ daughter was in a “very serious boating accident, and numerous medical bills were incurred,” adding that Doremus had a “medical condition from which he has recovered” and noting, “Both of these medical situations contributed to financial stress.”
“I am not aware of anything that would keep Gary Doremus from serving with distinction as a Magistrate,” Hutto continued. “He has a law degree and other capabilities that will allow him to handle the job without significant training.”
Less than three weeks later, Gov. Henry McMaster submitted a formal letter notifying the S.C. Senate of Doremus’ appointment, which was confirmed by the chamber by a simple voice vote, Senate journal records show – as is typically done with magistrate appointments.
Hutto told The Nerve that Doremus took over the position from his mother, Peggy Doremus, who had retired.
“Gary was interested in it,” he said, explaining that it is often difficult to attract lawyers to become magistrates in smaller counties partly because the pay typically is lower compared to larger counties. “His mother had done it and did an exemplary job, and he’s done a great job.”
According to the fiscal year 2022 wage-and-salary survey by the South Carolina Association of Counties, the salary for Orangeburg County’s chief magistrate ranged from $88,000 to $98,000, with other magistrate salaries ranging from $80,000 to $90,000. In comparison, the county of approximately 83,000 residents had a per-capita income in 2021 dollars of $22,282, according to the U.S. Census Bureau.
The Nerve recently submitted an open-records request to Orangeburg County for current magistrate salaries but declined to pay a requested fee for the short salary list.
In another magistrate case, the Governor’s Office notified Hutto in a Feb. 20, 2019, letter of a “potential” unspecified issue involving the appointments of Robert Cooper of Barnwell County and Willard Branch of Allendale County, who currently is that county’s chief magistrate.
Hutto and another senator-lawyer, Margie Bright Matthews, a Democrat, control magistrate nominations in Allendale County, with Bright Matthews having 61.05% of the weighted vote, Senate records show.
The day before the 2019 letter from the Governor’s Office, Hutto said in a letter to McMaster that after “reviewing the information and speaking with your office, it is the desire of the Senatorial Delegation to reappoint Judge Cooper.”
“I have known him for many years, he has served in a fair, honorable manner, and I believe he will continue to do so,” Hutto wrote.
On March 4, 2019, McMaster formally notified the Senate in a letter that he was reappointing Cooper. Hutto told The Nerve that Cooper is retiring because he has reached the mandatory judicial retirement age of 72.
Legal loopholes
Under state law, Senate delegations can appoint screening committees to help them in nominating magistrate candidates to the governor. But that section of law doesn’t require that committee meetings – or anything else connected to the nomination process – be open to the public before delegations make their choices, though the S.C. Supreme Court in 1996 ruled that county legislative delegations are considered public bodies under the state Freedom of Information Act.
Official magistrate nominations letters by Senate delegations, for example, aren’t published on the Legislature’s website. For this story, The Nerve obtained those records through several Freedom of Information Act requests to the Governor’s Office.
“There needs to be transparency behind how magistrates are selected, how they’re nominated; and it shouldn’t be done behind closed doors,” said Stephen Spaulding of Common Cause, who formerly served as a U.S. House attorney and the U.S. Senate Rules Committee’s policy director. “The vetting should be done publicly.”
Generally, South Carolina's ethics law bans public officials, including state lawmakers, from using their positions to obtain “an economic interest for himself, a family member, an individual with whom he is associated, or a business with which he is associated.” An economic interest is defined as an “economic benefit” of at least $50.
That section of law, however, doesn’t apply to “any court in the unified court system.” The state’s unified court system includes magistrate courts.
Another ethics law specifically bans lawmakers from representing clients for fees before agencies, boards, commissions, departments or “other entity” if they voted for the nomination, appointment or election of the governing body of those bodies within the preceding 12 months. But the “unified judicial system” is exempted from that section.
Outside of ethics laws, magistrates and municipal court judges are “explicitly subject” to a court rule dealing with judicial ethics, according to the S.C. Judicial Department’s “Summary Court Bench Book.” The five ethical “canons” are summarized as follows:
- A judge shall uphold the integrity and independence of the judiciary.
- A judge shall avoid impropriety and the appearance of impropriety in all his activities.
- A judge shall perform the duties of his office impartially and diligently.
- A judge shall conduct his extra-judicial activities as to minimize the risk of conflict with his judicial obligations.
- A judge or judicial candidate shall refrain from inappropriate political activity.
Nothing in the judicial ethics code, however, requires magistrates to recuse themselves from cases handled by senator-lawyers who played a prominent role in their nominations.
‘Threatens public confidence’
Stephen Gillers, a New York University professor emeritus specializing in legal ethics, told The Nerve in a recent written response that assuming the high level of control exercised by senator-lawyers over magistrate nominations, those judges under ethics rules adopted in South Carolina and nationwide would have to recuse themselves from cases handled by those senators if opposing parties requested it.
“It does not mean the magistrate could not be impartial, only that the public would have reason to question his impartiality,” Gillers said. “The rule operates from the premise that the appearance of justice is as important as justice.”
“In this situation, the magistrate would presumably be interested in keeping his job,” Gillers continued. “The (senator-) lawyer can make that happen or not happen. That reality threatens public confidence.”
Asked if magistrates should automatically recuse themselves in those cases, Gillers said there are “two schools of thought,” with some contending that a recusal request from an opposing party isn’t needed, with others taking the “dominant” view that a recusal request would be required.
“It seems to me there are some pretty obvious or potential conflicts of interest,” said Spaulding of Common Cause. “Even if there are not actual (conflicts of interest), there is an appearance issue. That appearance issue undermines those principles of fair and impartial courts.”
David Sachar of the National Center for State Courts said while judges in those cases might not be required to recuse themselves, they should at least disclose in advance the role that the senator-lawyer played in their nomination.
“That is something that should be disclosed at a minimum to the parties involved,” said Sachar, who formerly worked as a special circuit court judge and prosecutor. “It would be better for the judge as well as the parties.”
But when asked if magistrates whom he helped nominate should always disclose his nomination role in advance to opposing parties, Sen. Hutto replied: “You don’t think that every highway patrolman, that every deputy sheriff, that the sheriff himself, the solicitor – everybody knows that. Nobody has hidden that from them, and they never made a motion to recuse the judges because they know these judges are fair.”
In magistrate courts, it’s not uncommon for police officers to act as prosecutors. Hutto said in simple traffic cases handled by police officers, if his client wasn’t “obnoxious” with the officer who stopped him, he usually can reach an agreement the officer to reduce the number of points to be assessed against his client’s driver’s license, and the judge “just signs off on it.”
The Nerve recently sent written questions to current Orangeburg County magistrates Clariday, Dash, Doremus, Lawrence, McKune-Grant and Williamson, as well as chief magistrate Threatt of Bamberg County and Barnwell County magistrate Cooper, asking them if they ever had recused themselves automatically or did so when asked by an opposing party, or if they disclose in advance Sen. Hutto’s role in their nominations.
None of the magistrates responded.
‘Obligation’ to nominate judges
Regarding ethical requirements for Sen. Hutto and other senator-lawyers who appear before magistrates whom they helped nominate, Gillers, of the NYU Law School, in his written response said they would be “practicing his or her profession and not violating any lawyer ethics rules.”
Asked in a follow-up question if senators, as elected officials, should avoid handling cases before those magistrates to foster public trust in the judicial system, Gillers replied: “I suspect that few politicians would restrict their practices that way. It becomes a decision for voters to take into consideration.”
In South Carolina, lawmakers police themselves for ethics violations through their respective chambers’ ethics committees. In a written response to The Nerve, Senate Ethics Committee lawyer J.J. Gentry said he wasn’t able to find any committee opinions specifically addressing senator-lawyers who practice before magistrates.
Hutto is a member of the Senate Ethics Committee. So is senator-lawyer Luke Rankin, who also chairs the Judiciary Committee, which didn’t take up Sen. Corbin’s bill this year to ban senator-lawyers from appearing before magistrates in counties that they represent.
Corbin, a former S.C. House member who was first elected to the Senate in 2012, said he filed the same bill twice previously in recent years – with the same results. He said he’s been pushing judicial reform legislation for 12 years.
“It’s going to take a groundswell of the people to get this done because the good-ol’-boy network is not going to break loose of it if the people don’t demand it,” Corbin said.
Asked whether he agrees with Corbin’s bill, Spaulding of Common Cause replied, “Yes, I do think that’s one way to cut to the heart of the issue,” adding, “There needs to be a close look at the rules that govern outside employment by part-time legislators.”
Hutto told The Nerve that he has introduced bills over the years – which he acknowledged went nowhere – to transfer senators’ nomination authority to local circuit court judges. Asked why he preferred that change, he replied: “The circuit court judges are the judges who basically grade the papers of the magistrate courts. So if there are appeals, bonds that have to be reviewed, circuit court judges are looking at everything magistrates do as it moves up.”
Hutto said his plan was modeled after the federal system in which U.S. District Court judges appoint lower-level federal magistrates.
But absent a change in state law, Hutto said he will continue nominating magistrates – even those judges before whom he appears as an attorney.
“My obligation is to nominate judges,” he said.
Nerve interns Jasmine Creech and Max White, as well as former interns Tyler Fedor and Charlotte Morrison, contributed to this story. Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or [email protected]. Follow The Nerve on Facebook and Twitter @thenervesc.
Nerve stories are free to reprint and repost with permission by and credit to The Nerve.