Would a South Carolina family court judge lose authority because the oath of office was not filed?

Plain-English summary

The Attorney General told a South Carolina family court judge that the absence of an oath of office filed with the Secretary of State did not affect his authority as a judge. It relied on earlier opinions treating oath and bond requirements as directory and stated that a third party could not use the omission to challenge the officer's decisions.

The opinion addressed the judge's authority and the effect of an unfiled oath; it did not investigate whether he had taken an oath or resolve any separate filing dispute.

Currency note

This opinion was issued in 2010. 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 missing oath filing take away the family court judge's authority? A: The opinion said no. It treated the filing omission as having no effect on the judge's authority.

Q: Could a litigant challenge a decision solely because the judge's oath was not on file? A: The office said a third party could not use an oath omission as a basis to question an officer's decision.

Background and statutory framework

Judge George M. McFaddin, Jr. asked whether the absence of a filed oath of office at the Secretary of State's Office affected his authority. The response cited an earlier Attorney General opinion and South Carolina cases concerning official acts and oath requirements.

Citations and references

The original opinion text below cites Kottman v. Ayer, 3 Stroh. 92 (1848), and State ex rel. McLeod v. Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1975).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-19-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/mcfaddin-g-m-jr-os-9042-3-19-10-absence-of-filed-oath-authority-as-family-court-judge.pdf

Original opinion text

HENRY Mc.MASTER
A1TORNEY G ENERAL

March 19, 2010

The Honorable George M. McFaddin, Jr.
Family Court Judge
Third Judicial Circuit
108 N. Magnolia Street
Sumter, South Carolina 29150
Dear Judge Mcfaddin:
You have asked whether the absence of a filed oath of office with the Secretary of State's Office would affect in any way your authority as a Family Court Judge. The answer is no. This Office has continuously ruled over many years that matters such as oaths do not in any way affect the authority of a public officer such as yourself and that a third party may not raise such lack of authority as any basis to call into question any decision made by an officer. Specifically, an opinion ofthis Office dated October 26, 1992 stated that" ... the law which requires a bond or oath is 'merely directory.' ... (Furthermore) ... so long as the officer appointed continues to discharge the duties of his office, his official acts as to third persons, are legal." See, Kottman v. Ayer, 3 Stroh. 92 (1848) see also State ex rel. McLeod v. Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1975). Very truly yours, Henry McMaster

~oily ~eneral

~fi't~~

Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

~/~
Robert D. Cook
Deputy Attorney General

R EMBERT c. D Ei'lNIS B Uil..DING •

POST OFFICE Box 11549

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