Could someone serve as court clerk in two South Carolina towns while also serving as a municipal judge?

Official title

As to whether an individual can serve as Elloree’s clerk of court if she currently serves as a neighboring municipality’s clerk of court and associate municipal court judge.

Requester

The Honorable Mike Fanning, Mayor Pro Tem

Plain-English summary

Elloree asked whether it could appoint a court clerk who already served as clerk and associate municipal judge in another town. The Attorney General concluded that this combination violated South Carolina's constitutional rule against holding two public offices. It regarded both municipal clerk and municipal judge as offices; the fact that the positions belonged to different municipalities did not change the answer.

The opinion described the legal effect of taking a second covered office: the first office became vacant automatically. The person could continue acting in the former role as a de facto officer until a successor was chosen, and actions affecting the public or third parties generally remained valid unless a court ruled otherwise.

Currency note

This opinion was issued in 2014. 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 holding the jobs in different towns avoid the rule?
A: No. The AG said the constitutional prohibition applied even across different municipalities.

Q: Were both court clerk and associate municipal judge public offices? A: The opinion treated both positions as offices for dual-office-holding purposes.

Q: What happened to the first office on taking the second?
A: The opinion said the first office was vacated by operation of law, although the person might continue acting as a de facto officer until a successor took over.

Background and statutory framework

The South Carolina Constitution prohibited one person from holding two offices of honor or profit at once, subject to listed exceptions. The office relied on prior opinions classifying municipal clerks and judges as public officers and explaining the effect of a second appointment. Its answer addressed the proposed combination of two clerk posts and one judicial post.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-15-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/07/OS-9801-Fanning-Mike-Mayor-Pro-Tem-07-15-2014-00383839xD2C78.pdf

Original opinion text

Alan Wilson
Attorney General

July 15,2014

The Honorable Mike Fanning
Mayor Pro Tem
PO Box 413

Elloree, SC 29047
Dear Mr. Fanning:

This Oftlce received your request for an opinion as to whether an individual can serve as Elloree's clerk of court if she currently serves as a neighboring municipality's clerk of court and associate municipal court judge. LAW/ANALYSIS:

The South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time. This limitation does not apply to officers in the militia, notaries public, members of lawfully

and regularly organized fire departments, constables, or delegates to a constitutional convention."

S.C.

Const, art. X VII § I A.

The South Carolina Supreme Court explains that an "office" for dual office holding purposes is: "One who is charged by law with duties involving an exercise of some part of the sovereign power, cither small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer." Sanders v. Bclue. 78 S.C.

171, 174. 58 S.E. 762. 763 (1907). "In considering whether a particular position is an oftlce in the constitutional sense, it must be demonstrated that "[l]he power of appointment comes from the slate, the authority is derived from the law, and the duties are exercised for the benefit of the public." Willis v. Aiken County. 203 S.C. 96. 103 26 S.E. 2d 313, 316 (1943). "The powers conferred and the duties to be discharged with regard to a public office must be defined, directly or impliedly, by the

legislature or through legislative authority..." 63C Am Jur.2d Public Officers and Employees § 5 (2009).

Seuars-Andrews v. Judicial Merit Selection Commission. 387 S.C. 109. 691 S.E.2d 453 (2010). "Other relevant considerations [as to whether a position is a public office] include; "whether the position was created by the legislature; whether the qualifications for appointment are established: whether the duties, tenure, salary, bond, and oath are prescribed or required; whether the one occupying the position is a

Rembert C, Dennis Building

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Post Office Box 1 1 549

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Columbia. SC 292 1 1 - 1 549
Telephone 803-734-3970

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Facsimile 803-253-fi9RT

The Honorable Mike Fanning
Page 2

July 15, 2014

representative of the sovereign; among others.'"

See Op. S.C. Attv. Gen.. June 17, 2013 (2013 WL

3243063) (quoting State v. Crenshaw. 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980)). A municipal clerk of court is a public officer.

In Op. S.C. Attv. Gen.. September 12, 2003 (2003 WL

22172235), we determined:

[t]his Office has also consistently opined that a Municipal Clerk of Court (Town Clerk, City Clerk, by whatever name called) holds an office for

dual office holding. See, as representative of those numerous opinions. Ops. S.C. Attv. Gen., dated July 25, 2002; August 5, 1992; March 14,

1983; August

18,

1981. It does not appear that we reached this

conclusion based on the specific duties of any given municipal clerk of court. The determining factor in the conclusion that a municipal clerk of

court is an office holder appears to be based rather in the fact that the General Assembly has created and authorized such an office. Section 5 7-220, Code of Laws of South Carolina, 1976, authorizes the city council or city manager to appoint "an officer of the municipality who shall have

the title of municipal clerk." That code section further prescribes the duties of the municipal clerk. This Office has held on numerous occasions that a position that is statutorily authorized by the General

Assembly is an office for dual office holding purposes. See, as representative of those numerous opinions. Ops. S.C. Attv. Gen., dated April 21, 1998; January 7, 1991; July 13, 1981; March 6, 1980; August 28, 1974.

Since a municipal clerk of court holds an office, an individual serving simultaneously as clerk of court for different municipalities would be in violation of the state constitution. It is irrelevant that each office would be held in a different jurisdiction. See Og. S.C. Attv. Gen.. February 4, 1994 (1994 WL 84335); Op. S.C. Attv. Gen.. May 29, 1 986 ( 1 986 WL 289799).

A municipal court judge is also an officer for dual office holding purposes. In a prior opinion, we opined:
[tjhis Office has advised on numerous occasions that both clerks of court and municipal judges are office holders for purposes of dual office holding. See, as representative of those numerous opinions. Ops. S.C. Attv. Gen.. July 25, 2002 (Town of Westminister Clerk of Court);

August 5, 1992 (City of Pamplico Clerk of Court); March 14, 1983 (City of Cayce Clerk of Court); October 1 1, 2000 (part-time municipal judges are office holders); August 5, 2000 (Johnsonville City Judge; June 22, 1998 (Town of Hilton Head Associate Judge). More importantly, we

specifically advised the Town of Summerville, in an opinion dated August 18, 1981, that a person who simultaneously serves as part-time municipal judge and clerk of the municipal court would clearly violate the dual office holding prohibition of the South Carolina Constitution. We are aware of no recently enacted law that would alter the August 1 8,

.

The Honorable Mike Fanning
Page 3

July 15, 2014

1981 opinion and, therefore, advise that an individual who holds both offices would be in violation of the state constitution. Op. S.C. Attv. Gen.. September 1 1, 2003 (2003 WL 22172234).

Accordingly, it is our opinion that it

would be dual office holding for an individual to serve as both clerk of court and judge, even if it is for different municipalities. Based upon our prior opinions, an individual serving as Elloree's clerk of court as well as clerk of court

and associate municipal court judge for another municipality would violate the constitutional prohibition against dual office holding. If a violation against the constitutional prohibition against dual office holding does occur, the law resolves

the situation as follows:
[w]hen

a

dual

office

holding situation

occurs, the

law

operates

automatically to "cure" the problem. If an individual holds one office on the date he assumes a second office, assuming both offices fall within the

purview of Article XVII, Section I A of the Constitution (or one of the other applicable constitutional prohibitions against dual office holding), he is deemed by law to have vacated the first office held. Thus, the law operates automatically to create a vacancy in that first office. However, the individual may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris. 170 S.C. 242 (1933); Dove v. Kirk land. 92 S.C. 313 (1912); State v. Coleman. 54 S.C. 282 ( 1 898); State v. Buttz. 9 S.C. 156(1 877). Furthermore, actions taken by a

de facto officer in relation to the public or third parties will be as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for examples. State ex rel. McLeod v. Court of Probate of Colleton County. 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West. 249 S.C. 243, 153 S.E.2d 892 (1967); Kittman v. Aver. 3 Stob. 92 (S.C. 1848).

Op. ^C. Atty. Gen., September 12, 2003 (2003 WL 22172235), suora. CONCLUSION

In conclusion, this Office believes that an individual serving as Elloree's clerk of court as well as clerk of court and associate municipal court judge for another municipality would violate the constitutional prohibition against dual office holding.

The Honorable Mike Fanning
Page 4
July 15,2014

Sincerely,

Elinor V. Lister
Assistant Attorney General

REVIEWED AND APPROVED BY;

Robert D. Cook
Solicitor General

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