Could a retired South Carolina judge who practiced law serve as a special referee?

Plain-English summary

A circuit judge asked whether a retired judge who drew judicial retirement pay and practiced law could be appointed a special referee. The AG read the judicial-retirement provision barring such a retiree from serving as a justice or judge alongside the chapter’s definition of “judge.” He concluded that an earlier AG opinion excluding special referees from the restriction still appeared to apply despite later changes in the law.

The opinion distinguished the judicial-retirement definition from court conduct rules that included special referees as judges for those rules’ purposes. It noted that the statutory retirement definition did not list special referees and suggested seeking input from Court Administration and the Retirement System for the particular matter. The letter identified itself as an informal opinion by an Assistant Deputy Attorney General.

Currency note

This opinion was issued in 1998. 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 the judicial-retirement rule bar a practicing retired judge from acting as a special referee? A: The AG concluded that an earlier opinion saying it did not bar such an appointment remained applicable.

Q: Why did court conduct rules not settle the retirement question? A: The AG said those rules’ definitions including special referees were limited to conduct and discipline, while the provision at issue concerned judicial retirement.

Q: Did the AG give a final ruling about a particular appointment? A: He gave his interpretation and suggested that the judge also contact Court Administration and the Retirement System for their input.

Background and statutory framework

The opinion compared the retirement chapter’s definitions and service restriction with the distinct definitions used in judicial conduct rules. Its conclusion relied on the wording and context of the retirement law, as well as a 1981 AG opinion.

Citations and references

Statutes discussed: §9-8-120; § 9-8-10.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-25-1998-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98feb25maring.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES MOLONY C O NDON
ATTO RNEY G E NERAL

February 25, 1998

The Honorable David H. Maring
Resident Judge
Fifteenth Judicial Circuit
104 Screven Street
Georgetown, SC 29440
Dear Judge Maring:
You have requested advice as to whether s.c. Code Ann. §9-8120 (4) (Supp. 1996) prohibits the appointment of an individual as a special referee when that person is a retired Judge who is practicing law. This provision is part of the laws for the Judicial Retirement System, and provides in part that "[a] justice or judge drawing retirement compensation who engages in the practice of law may not serve as a justice or judge in any court in this State .... " A previous Opinion of this Office concluded that an earlier version of this law did not apply to the appointment of special referees. (Ops. Atty. Gen. February 2, 1981) Although the wording of §9-8-120 and other laws has changed since 1981, the Opinion does not appear to be affected. The Opinion was and is consistent with § 9-8-10 ( 1986) ( 16) that defines the word "Judge" for purposes of the chapter regarding judicial retirement as meaning" ... a justice of the Supreme Court or a judge of the court of appeals, circuit or family court .... '.i

Although the definitions section set forth in §9-8-10 may not apply if " ... a different meaning is plainly required by the context ... ", the 1981 opinion relied on the context of §9-8-120 and its references to judges other than referees to conclude that special referee appointments were not included.

EM BERT

c. D ENNIS B UILDING

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POST O FFICE Box 11 549

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COL UMBIA. S.C. 292 11 - 1549

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T ELEPHONE:

803-734-3970

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F ACSIMILE: 803-253-6283

The Honorable David H. Maring
February 25, 1998
Page 2
This def ini ti on does not reference special referees. 2 Rules regarding judicial conduct and disciplinary enforcement, both include special referees as judges, but those definitions are limited to those rules relating to conduct whereas §9-8-120 is written in the context of retirement. Rule 501 (Rule 2 (p)) and 502 (Application - Part A), SCACR. The conclusion of the 1981 Opinion appears to be unchanged by subsequent laws and should be applicable here; however, you may wish to contact Court Administration and the Retirement System regarding this particular matter for any input that those off ices may have. This letter is an informal opinion. It has been written by the designated Assistant Deputy Attorney General and represents the opinion of the undersigned attorney as to the specific questions asked. It has not, however, been personally reviewed by the Attorney General nor officially published in the manner of a formal opinion. If you have further questions, please let me know.

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2

Although a special referee may have all the powers of a master-in-equity under §14-11-60 (Supp. 1997) and a master is a judge of the equity court, a division of the circuit court, but referees do not appear to be judges of the circuit court for purposes of §14-11-15. Section 14-11-60 provides for compensation of the referees by the parties whereas Chapter 8 of Title 9 addresses judicial retirement which is calculated in relation to salary for State service. §9-8-10(13).