Could a Newberry municipal judge also work as a family court prosecutor for the solicitor in 2005?

Plain-English summary

In 2005, the Attorney General said that a Newberry municipal judge who also prosecuted family court cases as an assistant solicitor would most probably violate South Carolina’s dual office holding restriction. His answer assumed the prosecutor was in fact an assistant solicitor. Earlier AG opinions had classified both a part-time municipal judge and an assistant solicitor as public offices.

The requester asked about a conflict of interest. The AG answered under the constitutional dual office rule and suggested contacting the Advisory Committee on Standards of Judicial Conduct about any separate conflict with judicial canons. He did not resolve that ethics question.

Currency note

This opinion was issued in 2005. 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

Was the municipal judge position treated as a public office?
Yes. The AG cited earlier opinions that classified a part-time municipal judge as an officer.

Did the family court prosecutor role count too?
On the stated assumption that the prosecutor was an assistant solicitor, the AG relied on earlier opinions treating that position as a public office.

Did the AG decide the judicial ethics issue?
No. He suggested asking the judicial conduct advisory committee about possible conflicts with judicial canons.

Background and statutory framework

The opinion applied the constitutional restriction on holding two public offices at the same time. Its conclusion was framed as “most probably” because it relied on the described employment arrangement and the assistant solicitor assumption.

Citations and references

• Article XVII, Section IA of the South Carolina Constitution: dual office holding restriction as printed in the source.
• Sanders v. Belue and State v. Crenshaw: public office criteria cited in the opinion.

Official title

Indicating that there is a municipal judge, an attorney in Newberry County, who is also employed by the solicitor’s office as a prosecutor in the family court and if this constitutes a conflict of interest.

Requester

The Honorable Mark E. English, Chief Magistrate, Newberry County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-8-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05feb8-English.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsrnR
ATIDRNEY GENERAL

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February 8, 2005

The Honorable Mark E. English
Chief Magistrate, Newberry County
3239 Louis Rich Drive
Newberry, South Carolina 29108
Dear Judge English:
In a letter to this office you indicated that there is a municipal judge, an attorney in Newberry County, who is also employed by the solicitor's office as a prosecutor in the family court. I am assuming that the prosecutor is in fact considered an assistant solicitor. You have questioned whether holding such positions simultaneously constitutes a conflict of interest.

Article XVII, Section IA of the State Constitution provides that "no person may hold two offices of honor or profit at the same time ... " with the exception for an officer in the militia, a member of a lawfully and regularly organized fire department, a constable, or a notary public. For this provision to be contravened, a person concurrently must hold two offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other authority, establish the position, prescribe its duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1907). A prior opinion of this office dated May 30, 1997 cited prior opinions of this office which found that the position of part-time municipal judge would be considered an office for dual office holding purposes. See: Ops. Atty. Gen. dated February 1, 1984 and September 19, 1994. That opinion also cited prior opinions that determined that the position of assistant solicitor would be considered an office for dual office holding purposes. See: Ops. Atty. Gen. dated October 19, 1990 and March 27, 1995. As a result, the May 30, 1997 opinion determined that an individual who serves simultaneously as a part-time municipal judge and as an assistant solicitor would most probably hold dual offices in contravention with the dual office holding prohibitions of the State Constitution. See also: Ops. Atty. Gen. dated August 28, 1999, May 29, 1986 and May 3, 1982. Consistent with such, the individual cited in your letter simultaneously serving as a municipal judge and as an assistant solicitor in the family court would also most probably hold dual offices in conflict with the referenced provisions of the State Constitution.

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The Honorable Mark E. English
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February 8, 2005

You may also wish to contact the Advisory Committee on Standards of Judicial Conduct with regard to whether holding both of the referenced positions may conflict with judicial canons regulating judges in this State.

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Sincerely,

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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Assistant Deputy Attorney General