Could a South Carolina magistrate continue hearing cases while on bond for a misconduct charge?

Plain-English summary

A police chief asked whether a magistrate charged with misconduct could keep hearing cases while out on bond, whether he should be removed, and whether his proceedings could be appealed on that basis. The Attorney General found no automatic disqualification rule based solely on the charge and bond. He identified court and statutory procedures for suspension or removal, but said applying them to the particular magistrate was for the authorized body, not the Attorney General.

The office also found no provision specifically answering whether participation in a pretrial-intervention program alone barred service. It knew of no appeal ground based only on the magistrate's arrest and bond. The letter reported that the case had been moved to another county to avoid a perceived conflict, based on what an attorney familiar with the case told the office.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did an arrest and release on bond automatically stop the magistrate from hearing cases? A: The Attorney General knew of no per se rule. Suspension or removal depended on action under the applicable statute or court rule.

Q: Did the AG decide whether this magistrate should be removed? A: No. The letter said that judgment belonged to the authorities assigned that role and depended on the particular facts.

Q: Were the magistrate's rulings automatically appealable because he was on bond? A: The office said it knew of no appeal ground based solely on the arrest and bond facts presented.

Background and statutory framework

The letter cited S.C. Code § 22-1-30 on Supreme Court suspension or removal of magistrates, judicial disciplinary rules on interim suspension, and statutes concerning gubernatorial suspension or removal of officers. It declined to apply those procedures to the named judge, and it did not decide that pretrial intervention itself ended service.

Citations and references

Statutes: S.C. Code § 22-1-30; S.C. Code Ann. § 8-1-100. Rule: Rule 17 of Rule 502, Rules for Judicial Disciplinary Enforcement, as identified in the letter.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-23-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/king-d-b-os-8747-4-23-09-questions-regarding-magistrate.pdf

Original opinion text

HENRY M CMASTER
A TIORN EY G ENERAL

April23, 2009

David B. King, Chief of Police
Town of Honea Path
30 North Main Street
Honea Path, South Carolina 29654
Dear Chief King:

In a letter to this office you requested an opinion regarding a case involving Magistrate William Gilmer.

In your first question you asked whether a magistrate can continue to hold court proceedings while out on bond for misconduct in office. I am unaware of any per se rule regarding such. There are procedures for suspension or removal of a judge, including a magistrate, from office in specified circumstances, such as by S.C. Code § 22-1-30, which authorizes suspension or removal of a magistrate by the Supreme Court for incapacity, misconduct or neglect ofduty. Rule 17 ofRule 502, Rules for Judicial Disciplinary Enforcement, provides for interim suspension of a judge by the Supreme Court for a charge of a "serious crime" or "[u]pon receipt of sufficient evidence demonstrating that a judge poses a substantial threat of serious harm to the public or to the administration ofjustice." S.C. Code Ann. § 1-3-240 allows for removal of certain officers by the Governor for the reasons specified. S.C. Code Ann. § 8-1-100 states that "[a]ny State or county officer who is indicted in any court for any crime may, in the discretion of the Governor, be suspended by the Governor...." Therefore, while there are means providing for suspension or removal of a judge in specified circumstances, this office cannot comment on the applicability ofany of these procedures as to a particular magistrate inasmuch as such a determination is more appropriately left for consideration by the appropriate body or other entity depending on the facts of a particular situation. As to your question of whether the particular magistrate should be removed from office until his case is resolved, again, this is not a decision appropriate for determination by this office inasmuch as certain provisions, such as those specified above, delegate any such determination to other entities based upon particular circumstances.

REMBERT c. DENNIS B UILDING •

POST OFFICE Box 11549 • COLUMBlA, SC 29211 · I549 • TELEPHONE 803·734-3970

• FACSIM ILE 803-253-6283

Chief King
Page2
April23,2009

You also asked whether a magistrate can serve in office while in a pretrial intervention program. Based upon my review, I am unaware of any provisions specifically responsive to such question. Again, any review of a magistrate's ability to continue to serve in office is a matter beyond the authority of this office as set forth by the above-referenced statutes and court rules. As to your question of why this case was transferred to another county or jurisdiction and not handled in the county in which the situation arose, I am informed by the attorney familiar with this case that such transfer was to avoid any sense of conflict which might have arisen from having the magistrate in a pretrial intervention program in the county in which he serves as magistrate. You last questioned whether court proceedings handled by this particular magistrate would be subject to appeal based on the facts "he had been arrested for a crime and is out on bond". I am unaware of any grounds for appeal based upon such a factual basis. With kind regards, I am, Very truly yours, Henry McMaster

~
By:

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General