Could a South Carolina probate judge also serve as a municipal court judge?

Plain-English summary

A police chief asked whether one person could serve as both a probate judge and a municipal court judge, and what happened if they did. The Attorney General said both positions were public offices under earlier AG opinions, so simultaneous service violated the state constitutional dual office holding rule.

The letter said assuming a second covered office automatically vacated the first as a matter of law. The person might continue performing duties in the first position as a de facto officer until a successor took over; the letter described those public-facing acts as generally valid unless a court declared them void or removed the person.

Currency note

This opinion was issued in 1998. 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 AG classify both judgeships as offices?
A: Yes. It relied on earlier opinions treating probate and municipal judges as public officeholders.

Q: What happened to the first post on taking the second?
A: The letter said the first office was deemed vacated by law.

Q: Would all acts in the first post automatically be invalid?
A: The AG said a de facto officer's acts toward the public or third parties were generally effective unless a court ruled otherwise.

Background and statutory framework

The opinion applied Article XVII, Section IA of the state constitution to the two judicial positions, then described the de facto officer consequence of a dual office holding conflict.

Citations and references

• Article XVII, Section IA of the State Constitution, the dual office provision quoted in the letter.

Official title

Concerning whether a dual office holding situation exists if a municipal court judge simultaneously serves as a probate judge.

Requester

Kenneth W. Arthur, Chief of Police, Walterboro Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-7-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98may7arthur.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

May 7, 1998

Kenneth W. Arthur, Chief of Police
Walterboro Police Department
Post Office Box 709
Walterboro, South Carolina 29488
RE:

Informal Opinion

Dear Chief Arthur:
Your opinion request has been forwarded to me for reply. You have asked whether an individual may simultaneously serve as a municipal court judge and as probate judge. You have also asked for an explanation of the legal ramifications if such a situation exists.

L.
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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 concluded that a probate judge would be considered an office holder for dual office holding purposes. Ops. Atty. Gen. dated September 15, 1994 and January 17, 1985. We have also concluded that a municipal judge would be considered an office holder for dual office holding purposes. Op. Atty. Gen. dated September 9, 199 l. Therefore, it must be concluded that one who would simultaneously serve as a probate judge and as a municipal court judge would violate the dual office holding prohibitions of the state Constitution. RFMHERT

c. DENNIS BUILDI NG

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE:

803· 734-3970

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FACSIMILE: 803-253-6283

Chief Arthur
Page 2
May 7, 1998

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When a dual office holding situation occurs, the law operates to automatically "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 IA 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. However, the individual may continue to perform the duties of the previously held office as a de facto officer until a successor is duly selected to assume the duties or complete the term of office. Moreover, actions taken by a de facto officer in relation to the public or third parties will be considered as valid and effectual as those of a de jure officer unless or until a court would declare such acts void or remove the de facto officer from office. Ops. Any. Gen dated April 8, 1996 and July 13, 1995. 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

i

Very truly yours,

BA i.J

Paul M. Koch
Assistant Attorney General