Many county magistrates still on bench past their terms

By RICK BRUNDRETT

Update: 3/13/24 - A total of 66 county magistrates statewide remain in "holdover status," according to an updated list released by the S.C. Court Administration office. The latest list was provided after The Nerve on Feb. 23 submitted a written request under the state Freedom of Information Act.

Dozens of county magistrates statewide continue to serve months or even years after their terms have expired – giving S.C. senators who control their nominations the power to fire them at any time.

As of last week, 71, or a nearly a quarter, of the 300 magistrates statewide identified on the S.C. Judicial Department’s website remained in “holdover status,” The Nerve found in a review of the most recently available holdover lists from the department and Governor’s Office, as well as Senate journals, which record official actions of senators while the 46-member chamber is in session.

The percentage of judges in holdover status changed little from when The Nerve examined those records last year. Over the past two months, senators reappointed two judges in holdover status – both of whom had been serving nearly a year past their terms – plus confirmed four new judges for seats that had been on the holdover lists.

Oconee County magistrates Blake Norton and William Derrick each have been serving almost 18 years beyond when their last terms expired – the longest holdover periods among all magistrates, records show. Senate President Thomas Alexander, a Republican who joined the Senate in 1994 and has been the chamber’s top officer since 2021, has sole control over magistrate nominations in his home county.

Alexander didn’t return a written message last week from The Nerve seeking comment.

The Nerve in 2019 revealed that in 12 counties, one senator controls the nominations of magistrates in those counties.

In Pickens County, three magistrates each have been serving nearly six years past their terms, The Nerve’s latest review found. In a written response last week to The Nerve, Sen. Rex Rice, R-Pickens, who largely controls magistrate nominations in his county, said one of the three magistrates is retiring, and that he plans to go through “evaluations and reappointments at that time.”

He added his reasons for keeping the other two judges in holdover status have remained the same since interviewed last year.

“By having them in holdover status, my belief is they are more accountable because I could change them tomorrow,” Rice, a contractor who controls nearly 80% of the weighted senatorial delegation vote in his county, said at the time.

At least one magistrate in 22 of the state’s 46 counties was in holdover status as of last week, The Nerve’s latest review found.

Magistrate judges handle traffic tickets and other relatively minor criminal and civil cases. They don’t have to be lawyers, though those appointed in recent years must have a bachelor’s degree.

Under the S.C. Constitution, magistrates are appointed by the governor with “advice and consent” of the Senate, though in practice, senators control the selection process in their home counties. Magistrates serve four-year terms “and until their successors are appointed and qualified,” under state law, which means they can continue working after their terms expire if allowed by their local senators.

It also means senators with nomination control can fire those judges in holdover status at any time. Senators have no firing authority by themselves while magistrates are serving their regular terms, though the S.C. Supreme Court can remove them for ethical violations.

Magistrates’ pay varies widely statewide. The Nerve last year reported, for example, that for most Oconee County magistrates, their annual pay ranged from $54,489 to $89,357, according to the fiscal year 2022 wage-and-salary survey by the South Carolina Association of Counties (SCAC).

In comparison, the annual salary for most Richland County magistrates for that fiscal year was $114,231, according to the SCAC report. As of last week, at least five magistrates in that county were in holdover status for 10 months, records show.

‘Not an indictment’

The Senate on Thursday began debate on a judicial reform bill, which, among other things, would strip Senate delegations’ control over magistrate nominations and redistribute it among House and Senate members serving their respective counties. The bill, however, would allow magistrates to remain indefinitely in holdover status.

“It is essential, it is absolutely critical to our form of government and democracy in South Carolina and America that the public have confidence in their judicial system and how that judicial system is elected,” Sen. Greg Hembree, R-Horry, a former longtime solicitor and the bill’s lead sponsor, told his Senate colleagues in summarizing the bill. “And if we have an opportunity to build that trust, to take those steps to try to increase that confidence, then it’s our obligation to do it.”

Debate on judicial reform is expected to resume this week in the Senate.

Hembree, who chairs the Senate Education Committee, pointed out that the Legislature’s judicial-reform efforts are “not an indictment of our current judiciary.” Yet in the statewide Republican presidential primary last month, a nonbinding advisory question asking whether the state should adopt reforms to “increase the independence and accountability” of the state’s judiciary was approved by 91% of the cast votes.

The Nerve last month before the primary election detailed how lawmakers over the years have favored ex-legislators, relatives and others with ties to current or former lawmakers when electing judges. Attorney James Smith of Columbia, a former House member and unsuccessful Democratic gubernatorial candidate in 2018, is the sole candidate for a 5^th Circuit Court seat after the other nominee dropped out, which is commonly done by candidates after tallying legislators’ expected votes before elections.

As The Nerve has pointed out over the years, South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges.

The South Carolina Policy Council – the parent organization of The Nerve – last April proposed a number of judicial reforms, including closing the holdover loophole and ending Senate delegation control over the magistrate nomination process. It recently created a “Judicial Reform Action Page” to encourage citizen involvement.

Besides reporting on the holdover-status problem last year, The Nerve in a companion investigative story revealed that longtime senator-lawyer Brad Hutto, D-Orangeburg, for more than a year represented dozens of mainly criminal clients before magistrates whom he played a prominent role in nominating.

Hutto, the Senate’s Democratic minority leader, acknowledged that he and his attorney-son, who works in the same law firm, have handled many cases before Orangeburg County magistrates whom he helped nominate, though he stressed that those judges haven’t shown him, his son or any other lawyers in their firm any special treatment.

As of last week, three Orangeburg County magistrates were among at least 43 judges statewide in holdover since last April 30, records show. Spartanburg County led all counties with at least 17 magistrates in holdover status – all of them serving past their April 30 term-expiration dates, records show.

Other reform efforts

Less than three weeks after The Nerve in September published the story on Sen. Hutto and the companion magistrate-holdover piece, Gov. Henry McMaster in a letter to senators 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, a Republican, 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 said 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."

The governor, however, said he didn’t “presently intend to eliminate the practice” of receiving magistrate nominations from senators.

Lawmakers in both chambers have introduced a variety of judicial reform bills this legislative session, though they have yet to make any significant changes.

The legislation includes a bill co-sponsored by Sens. Wes Climer, R-York, and Josh Kimbrell, R-Spartanburg, which, among other proposed reforms, would prohibit lawyer-senators from representing clients for fees before magistrates if they voted to confirm those judges within the preceding 12 months.

The bill, which was introduced last year, hasn’t moved out of the Senate Judiciary Committee, chaired by Sen. Luke Rankin, R-Horry, who is an attorney.

In an interview with The Nerve last week, Climer contended that Rankin is a “liberal who doesn’t believe what the rest of the caucus believes, so the habit has been to do whatever you need to get a bill out of Judiciary, and then you fix it as soon as it gets to the (Senate) floor.”

As for the current Senate floor debate on judicial reform, Climer said it didn’t matter to him whose bill ultimately is approved “as long as the bill is sufficiently brought to be widely amendable.”

Climer, who chairs the Senate Agriculture and Natural Resources Committee, last October threatened to filibuster judicial elections this year in the Legislature unless there were judicial reforms. Elections for state Supreme Court, Court of Appeals, Administrative Law Court, circuit and family court seats that normally would have been held early last month were postponed, as The Nerve reported then.

The Legislature last week approved an amended resolution to elect the next Supreme Court chief justice – expected to be current Justice John Kittredge of Greenville, who is the sole candidate for that seat – in a joint session scheduled for Wednesday. Other lower-court seats are set to be filled in elections scheduled for April 17.

Climer said he doesn’t believe magistrates should be kept in holdover status, adding, “I would love to accomplish that with judicial reform.”

There are no York County magistrates in holdover status, according to the most recently available holdover lists from the Judicial Department and Governor’s Office. Those lists were released under the S.C. Freedom of Information Act (FOIA) to The Nerve last July after the year’s legislative session had ended.

The Nerve has pending FOIA requests to the Governor’s Office and the Judicial Department for updated holdover lists. The Governor’s Office last month referred The Nerve to state court officials for updated records.

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 X (formerlyTwitter) @thenervesc.

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