Could a county magistrate serve where the magistrate’s spouse worked for the solicitor?

Plain-English summary

In 2011, the South Carolina Attorney General concluded that a magistrate judge could not serve in the same county where the judge's spouse worked for the solicitor. The opinion relied on the Judicial Canons' requirements to avoid impropriety and its appearance. Even if a judge could remain personally objective, the spouse's connection with the prosecuting office could cause the public to question impartiality.

The AG cited a Judicial Conduct Advisory Committee opinion about a magistrate whose spouse worked for a sheriff's department, and a later advisory opinion involving a spouse who was the solicitor's primary investigator. The latter said a full-time magistrate should not try criminal cases in that situation. The AG reached its own broader same-county conclusion while expressly deferring final interpretation of the canons to the South Carolina Supreme Court.

Currency note

This opinion was issued in 2011. 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

Could the magistrate and solicitor-office spouse work in the same county? A: The AG's opinion said no, based on its reading of the Judicial Canons and related advisory opinions.

Did the AG say the spouse was forbidden from working? A: No. The opinion quoted an advisory discussion saying the Code of Judicial Conduct did not itself prohibit a judge's spouse from employment; the issue was the judge's service and appearance of impartiality.

Why did the spouse's job matter if the magistrate felt unbiased? A: The AG said the public could still perceive impropriety when the judge's spouse or the spouse's employer appeared in criminal proceedings before the judge.

Who had the final word on the Judicial Canons?
A: The AG expressly deferred to the South Carolina Supreme Court's interpretation.

Background and statutory framework

A senator asked about a magistrate in a county where the judge's spouse was employed by the solicitor. The AG reviewed Canons 1 and 2 of the Code of Judicial Conduct and two Advisory Committee opinions concerning judicial spouses in local law enforcement or prosecution roles. Its conclusion addressed same-county service, while noting the Supreme Court's authority over canon interpretation.

Citations and references

The opinion quotes Rule 501 and the Judicial Canons and discusses Advisory Committee Opinions No. 8-2007 and 4-2011. It concerns the appearance of impropriety, not a finding of actual bias.

Official title

Concerning Standards of Judicial Conduct. Specifically, whether a magistrate judge can serve in the same county in which the judge’s spouse is employed by the Solicitor.

Requester

The Honorable Raymond E. Cleary, III, Senator, District No. 34

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-25-2011-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/06/cleary-r-e-iii-os-9265-5-25-11-standards-of-judicial-conduct-magistrate-spouse-employment.pdf

Original opinion text

ALAN W ILSON
ATTORNEY GENER.AL

May 25, 2011

The Honorable Raymond E. Cleary, Ill
Senator, District No. 34
PO Box 142
Columbia, SC 29202
Dear Senator Cleary:
We received your letter requesting an opinion of this Office concerning Standards of Judicial Conduct. You asked whether a magistrate judge can serve in the same county in which the judge's spouse is employed by the Solicitor. Law/Analysis

As noted in your request, the Advisory Committee on Standards of Judicial Conduct addressed a similar question, the "propriety of the spouse of a full-time magistrate accepting a position with the sheriff's department in the same county." The Advisory Committee concluded that the two should not serve in the same county. Opinion No. 8 - 2007. The committee explained as follows: A judge must uphold the integrity and independence of the judiciary. Canon 1, SCACR, Rule 501. Canon 2 further states that a judge must avoid all impropriety and appearance of impropriety. The Code of Judicial Conduct does not prohibit the spouse of a judge from employment although " [a) judge shall not allow family, social, political or other relationships to influence the judge' s judicial conduct or judgment." Canon 2B.

In Opinion No. [12-2005], this Committee addressed the situation in which applicant for the position of part-time bond magistrate was married to a captain of the detective unit in the same county where the magistrate sought employment. The spouses employees would appear regularly before the magistrate to request issuance of warrants. This Committee detennined that the spouse's employment was not separate and distinct, as the spouse or spouse's employees would regularly appear before the magistrate seeking the issuance of warrants. This Committee determined that the relationship between the magistrate and the

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The Honorable Raymond E. Cleary, Ill
Page2
May 25, 2011

potential for the spouse to appear created the appearance of impropriety or would cause the public to question the impartiality of the judiciary. The same reasoning is applicable here. The spouse's employment by the sheriff and the fact that the spouse will be required to testify as to the authenticity of the 911 tapes before the court may create the appearance of impropriety or partiality. Thus, the magistrate may not serve in the same county where the magistrate's spouse is employed. Advisory Committee on Standards of Judicial Conduct, Opinion No. 8 - 2007. Recently, the Advisory Committee on Standards of Judicial Conduct issued another opinion addressing almost the exact question before us, the "[p]ropriety of a full-time magistrate trying criminal cases, setting bonds, and holding preliminary hearings in the same county where judge's spouse is primary investigator for the solicitor' s office." Opinion No. 4 - 2011. The committee concluded that "[a] full time judge may not try criminal cases where the judge's spouse is the primary investigator for the Solicitor's office in the same county." The committee further explained:

In this situation, the judge's spouse and/or the spouse's employer-the Solicitor-would appear before the judge in various criminal proceedings. Thus, as in the previous opinions, this would result in violations of Canons l and 2, by creating the appearance of impropriety and causing the public to question the impartiality of the judiciary. Therefore, the magistrate should not serve in criminal cases under these circumstances. Advisory Committee on Standards of Judicial Conduct, Opinion No. 4 - 2011. As mentioned above, the Judicial Canons emphasize the importance of not only avoiding impropriety but avoiding the appearance of impropriety. The commentary to Canon 1 explains that deference to the courts "depends upon public confidence in the integrity and independence of judges," meaning judges must act "without fear or favor." In other words, if the public is aware that the judge's spouse is employed by the Solicitor's office in the same county, confidence in the independence and integrity of the judge's rulings may be questioned. Even though the judge may be able to remain objective, the public may perceive impropriety. While such precautions may seem extreme, the commentary to Canon 2a discusses that judges must accept restrictions on his or her conduct ''that might be viewed as burdensome by the ordinary citizen." Conclusion Of course this issue is a matter for the Supreme Court and our Office defers to the Court' s interpretation of the Judicial Canons. However, in accordance with the Judicial Canons and

The Honorable Raymond E. Cleary, III
Page3
May 25, 2011

consistent with prior opinions of the Advisory Committee on Standards of Judicial Conduct, it is the opinion of this Office that a magistrate judge cannot serve in the same county in which his or her spouse is employed by the Solicitor. Sincerely,

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Leigha Blackwell
Assistant Attorney General

REVIEWED AND APPROVED BY:

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Robert D. Cook
Deputy Attorney General