Could an assistant solicitor also serve as a part-time municipal court judge?

Plain-English summary

Mount Pleasant’s town attorney asked whether an assistant solicitor in the Ninth Circuit could also take a part-time municipal judgeship, despite the solicitor’s consent. The Assistant AG applied the state constitution’s dual-office rule, which required two public offices exercising a portion of the state’s sovereign power.

He cited earlier office opinions classifying part-time municipal judges and assistant solicitors as officeholders. On those classifications, he concluded simultaneous service would most probably contravene the dual-office provision. The letter did not make the solicitor’s consent an exception to that rule. It was an informal office view, not a court judgment on the proposed appointment.

Currency note

This opinion was issued in 1997. 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 solicitor’s approval resolve the dual-office question? A: No. The author applied the constitutional office-status analysis despite the approval described in the request.

Q: Was a part-time municipal judgeship considered an office? A: The letter said earlier AG opinions had treated it as one for dual-office purposes.

Q: How certain was the author’s conclusion?
A: He said simultaneous service would “most probably” create prohibited dual office holding.

Background and statutory framework

Article XVII, Section IA supplied the prohibition. The letter cited Sanders v. Belue and State v. Crenshaw for the public-office test and prior office opinions on the two positions.

Citations and references

Constitution discussed: Article XVII, Section IA. Cases discussed: Sanders v. Belue; State v. Crenshaw.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-30-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97may30young.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

May 30, 1997

R. Allen Young, Esquire
Town Attorney
Town of Mount Pleasant
Post Office Box 745
Mount Pleasant, South Carolina 29465
Re:

Informal Opinion

Dear Mr. Young:
This Office has received your opinion request dated May 30, 1997. In your request, you state that an assistant solicitor working in the Berkeley County Office for the Ninth Circuit Solicitor (Charleston/Berkeley Counties) has applied, with the Solicitor's consent and approval, and is being considered for the position of part-time municipal court judge. You ask whether the appointment of the solicitor to the position of part-time municipal court judge for Mount Pleasant would violate the dual office holding prohibitions of the South Carolina Constitution. 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 exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or notary public. For this provision to be contravened, a person concurrently must hold two public 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 such 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 (1980). This Office has previously found that the position of part-time municipal court judge would be considered an office for dual office holding purposes. Ops. A!!y. Gen.

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POST OFFICE Box 11549

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COLL'. MBIA. S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Mr. Young
Page 2
May 30, 1997
dated February 1, 1984 and September 19, 1994. (Copies enclosed). Further, this Office has also found that the position of assistant solicitor would be considered an office for dual office holding purposes. Ops. Any. Gen. dated October 19, 1990 and March 27, 1995. (Copies Attached). Thus, it must be concluded that one who would serve simultaneously as part-time municipal court judge and assistant solicitor would most probably hold dual offices in contravention of the dual office holding prohibitions of the state Constitution.

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This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kindest regards, I remain Very truly yours,

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Paul M. Koch
Assistant Attorney General