Could a South Carolina magistrate court fund its operations and salaries from criminal fees it collected?

Plain-English summary

A House committee chair asked whether criminal fees and assessments imposed by a magistrate court could support that court's operating costs, salaries and fringe benefits. The Attorney General said the General Assembly generally had broad appropriations power, but this funding plan would raise a serious constitutional problem: a court financed by the fees it imposed might have a financial incentive to convict.

The opinion compared Tumey v. State of Ohio, where compensation depended on convictions, with Dugan v. State of Ohio, where a fixed salary paid from a general fund did not depend on individual outcomes. It also discussed the South Carolina Supreme Court's rejection of magistrates retaining fees from their judicial work in State ex rel. McLeod v. Crowe. The AG called the proposed funding plan “constitutionally suspect” and subject to challenge, while emphasizing that only a court could rule an enacted law unconstitutional.

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 opinion say a magistrate could personally keep criminal-case fees?
A: No. It cited the South Carolina Supreme Court's decision rejecting a magistrate's financial interest in fees from cases before the court.

Q: Was every use of collected fines to pay a fixed court salary held unconstitutional?
A: The opinion did not make that broad ruling. It distinguished a fixed salary paid from a general fund from compensation dependent on convictions, then warned that the particular proposed funding plan raised constitutional difficulties.

Q: Could the Attorney General invalidate the proposed legislation?
A: No. The opinion said a proposed statute would receive a presumption of constitutionality and only a court could declare it unconstitutional.

Background and statutory framework

The opinion's concern was judicial impartiality under due process. Its authorities examined whether a judge had a pecuniary interest in case outcomes. The request described a proposal, not an enacted appropriation, so the AG assessed likely constitutional objections rather than administering an existing court budget.

Citations and references

• Tumey v. State of Ohio, 273 U.S. 510 (1927), the Supreme Court decision on fees tied to convictions discussed in the opinion.
• Dugan v. State of Ohio, 277 U.S. 61 (1928), discussed as a fixed-salary contrast.
• State ex rel. McLeod v. Crowe, 272 S.C. 41, 249 S.E.2d 772 (1978), the South Carolina magistrate-fee decision discussed in the opinion.

Official title

Asking: [c]an criminal fees and assessments imposed by a Magistrate’s Court be used as a revenue source for funding the Court’s operations? That is, can these funds expended for operating expenses, salaries, and fringe benefits?

Requester

The Honorable Stephen P. Lanford, Chairman, Personnel & Benefits Subcommittee, Ways and Means Committee, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-14-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98oct14lanford.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
C H A RLES M . CON DON

October 14, 1998

ATTO RNE Y GENERA L

The Honorable Stephen P. Lanford
Chairman, Personnel & Benefits Subcommittee
Ways and Means Committee
House of Representatives
P. 0. Box 11867
Columbia, South Carolina 29211

Re: Informal Opinion
Dear Representative Lanford:
You have requested an opinion concerning the following question:
[c]an criminal fees and assessments imposed by a Magistrate's Court be used as a revenue source for funding the Court's operations? That is, can these funds be expended for operating expenses, salaries, and fringe benefits? Law I Analysis

Of course, it is well recognized
... that the General Assembly possesses full authority to make such appropriations as it deems necessary, in the absence of a specific constitutional prohibition against such appropriations. Clarke v. South Carolina Public Service Authority, 177 S.C. 427, 181 S.E. 481 (1935). See also, State ex rel. McLeod v. Mclnnis, _ S.C. _ , 295 S.E.2d 633 (1982) . Indeed, ' [t]he power of the Legislature over the matter of appropriations is plenary, except as restricted by the Constitution.' Cox v. Bates,

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REM B ~RT c. D ENNIS B UILDING

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POST OFFICE B ox 11549

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COLU MBIA. S.C. 292 11 - 1549

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T ELEPHONE : 803-734-3970

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FKS IM ILE: 803-253 -628:1

The Honorable Stephen P. Lanford
Page 2
October 14, 1998

[237 S.C. 198, 116 S.E.2d 828 (1960)], 116 S.E.2d, supra at
834.

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Op. Atty. Gen., March 13, 1991. Moreover, as we have stressed time and again, in
considering the constitutionality of an Act, it must be presumed that the Act is constitutional
in all respects. No statute will be considered void unless the constitutionality is clear beyond
all reasonable doubt. Thomas v. Macklen, 186 S.C. 290, 190 S.E. 539 (1938); Townsend v.
Richland County, 190 S.C. 270, 2 S.E.2d 777 (1939). All doubts of constitutionality are
generally resolved in favor of constitutionality. While this Office may comment upon
potential constitutional problems, it is solely within the province of the courts of this State
to declare an act unconstitutional.
The principal constitutional problem I see with the proposal which you have
referenced is the potential conflict of interest in funding a court with the fines which such
court imposes. The seminal case in this area is Tumey v. State of Ohio, 273 U.S .. 510, 47
S.Ct. 437, 71 L.Ed. 749 (1927). In Tumey, the defendant was arrested and brought before
the mayor, charged with unlawfully possessing intoxicating liquor. The defendant
challenged the mayor's bias in acting as judge in the case. The Court described the fee
structure for the mayor's court as follows:
[t]he fees which the mayor and marshal received in this case
came to them by virtue of the general statutes of the state
applying to all state cases, liquor and otherwise. The mayor was
entitled to hold the legal fees taxed in his favor. General Code
Ohio, s 4270; State v. Nolte, 111 Ohio St. 486, 146 N.E. 51, 37
A.LR. 1426. Moreover, the North College Hill village council
sought to remove all doubt on this point by providing (section
5, Ordinance 125, supra), that he should receive or retain the
amount of his costs in each case in addition to his regular salary,
as compensation for hearing such cases. But no fees or costs in
such cases are paid him, except by the defendant, if convicted.
There is, therefore, no way by which the mayor may be paid for
his service as judge, if he does not convict those who are
brought before him; nor is there any fund from which marshals,
inspectors and detectives can be paid for their services in
arresting and bringing to trial and furnishing the evidence to
convict in such cases, except it be from the initial $500 which
the village may vote from its treasury to get the court going or

The Honorable Stephen P. Lanford
Page 3
October 14, 1998

from a fund created by the fines thereafter collected from
convicted defendants.
273 U.S. at 519.
The United States Supreme Court concluded that such system violated due process
of law. In the view of the Court,
[t]he mayor received for his fees and costs in the present case
$12, and from such costs under the Prohibition Act for seven
months he made about $100 a month, in addition to his salary.
We cannot regard the prospect of receipt or loss of such an
emolument in each case as minute, remote, trifling or
insignificant interest. It is certainly not fair to each defendant
brought before the mayor for the careful and judicial
consideration of his guilt or innocence that the prospect of such
a prospective loss by the mayor should weigh against his
acquittal ... . There are doubtless mayors who would not allow
such a consideration as $12 costs in each case to affect their
judgment in it, but the requirement of due process of law in
judicial procedure is not satisfied by the argument that men of
the highesthonor and the greatest self-sacrifice could carry it on
without danger ofinjustice. Every procedure which would offer
a possible temptation to the average man as a judge to forget the
burden of proof required to convict the defendant, or which
might lead him not to hold the balance nice, clear and true
between the state and the accused denies the latter due process
oflaw ... . It is also correctly pointed out that it is completely
within the power of the Legislature to dispose of the fines
collected in criminal cases as it will, and it may therefore divide
the fines as it does here, one-half of the state and one-half to the
village by whose mayor they are imposed and collected. It is
further said with truth that the Legislature of a state may and
often ought to stimulate prosecutions for crime by offering to
those who shall initiate and carry on such prosecutions rewards
for thus acting in the interest of the state and the people. The
Legislature may offer rewards or a percentage of the recovery to
informers. United States v. Murphy & Morgan, 16 Pet. 203, 10

The Honorable Stephen P. Lanford
Page 4
October 14, 1998

L.Ed. 937. But these principles do not at all affect the question
of whether the state, by the operation of the statutes we have
considered, has not vested the judicial power in on who by
reason of his interest, both as an individual and as chief
executive of the village, is disqualified to exercise it in the trial
of the defendant.
Id., at 534-535.

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A year after Tumey, the United States Supreme Court rendered another decision in
this area, Dugan v. State of Ohio, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed.2d 784 (1928). There,
the mayor received a set salary paid from the general fund and was not dependent upon fees
or fines collected. The Court distinguished the facts in Dugan from Tumey, stating the
following:
[a]s the plaintiff in error contends, however, the mayor's
individual pecuniary interest in his conviction of defendants was
not the only reason in the Tumey case for holding the Fourteenth
Amendment to be violated. Another was that a defendant
brought into court might with reason complain that he was not
likely to get a fair trial or a fair sentence from a judge who as
chief executive was responsible for the financial condition ofthe
village, who could and did largely control the policy of setting
up a liquor court in the village with attorneys, marshals, and
detectives under his supervision, and who by his interest as
mayor might be tempted to accumulate from heavy fines a large
fund by which the running expenses of a small village could be
paid, improvements might be made, and taxes reduced. This
was thought not to be giving the defendant the benefit of due
process of law.
No such case is presented at the bar. The mayor of Xenia
receives a salary which is not dependent on whether he convicts
in any case or not. While it is true that his salary is paid out of
a fund to which fines accumulated from his court under all laws
contribute, it is a general fund, and he receives a salary in any
event, whether he convicts or acquits. There is no reason to
infer on any showing that failure to convict in any case or cases

The Honorable Stephen P. Lanford
Page 5
October 14, 1998

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would deprive him of or affect his fixed compensation. The
mayor has himself as such no executive, but only judicial duties.
His relation under the Xenia charter, as one of five members of
the city commission, to the fund contributed to by his fines as
judge, as to the executive or financial policy of the city, is
remote. We agree with the Supreme Court of Ohio in its view
that the principles announced in the Tumey case do not cover
this.
277 U.S. at 64-65.
Also instructive is the case of State ex rel. McLeod v. Crowe, 272 S.C. 41, 249 S.E.2d
772 (1978). In Crowe, the South Carolina Supreme Court addressed the constitutionality of
a non-unified magistrate's court system. The Court held that the magistrate court was part
of the unified court system mandated by Article V of the South Carolina Constitution and
that legislation could not constitutionally be enacted whereby different jurisdiction or fee
schedules involving the magistrate's court existed. The Court also dealt with the
constitutional problem engendered by legislation which enabled magistrates to retain fees
collected in cases before them. Referencing the Tumey case, the Court stated:
[l]astly, we rriust determine whether magistrates may accept fees
derived from their performance as judicial officers. We
conclude that they may not. In the context of criminal law, the
United States Supreme Court has concluded a judicial officer
should be disqualified from sitting in any case in which he
possess a pecuniary interest through fees, forfeiture or fees paid
by the litigants. See Tumey v. Ohio, 273 U.S. 510, 4 7 S.Ct.
43 7, 71 L.Ed. 749. This proscription is based on the theory that
such pecuniary interest deprives the litigants of due process of
law. Id. In recognition of the requirements of due process,
magistrates are precluded by statute from receiving fees in
criminal cases. See S.C. Code Sections 22-7-30 and 22-7-40.
We believe the potential for deprivation of due process also
exists in civil matters where judicial officers possess a pecuniary
interest in the outcome of litigation.
In State. ex rel. Reece v. Gies, 156 W.Va. 729, 198
S.E.2d 211 (1973) a statutory scheme which afforded justices of

The Honorable Stephen P. Lanford
Page 6
October 14, 1998

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the peace a financial interest in the result of civil litigation was
held unconstitutional. Moreover, in State ex rel. Shrewsburg v.
Poteet, 202 S.E.2d 628 (W.Va. 1974) the Court concluded a
justice of the peace must be disqualified despite the fact that a
standard fee was charged in civil actions regardless of the
prevailing party. Recently, in Ward v. Monroeville, 409 U.S.
57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) Justice Brennan,
speaking for the Court, set forth a test for determining whether
a fee system possesses constitutional validity:
"Whether the ... situation is one 'which would
offer a possible temptation to the average man as
a judge to forget the burden of proof required to
convict the defendant, or which might lead him
not to hold the balance nice, clear and true
between the State and the accused."'
While the facts in Ward involved a criminal proceeding,
we believe the above principle is equally applicable to civil
matters. See State. ex rel. Shrewsburg v. Poteet, supra..

f!J}~

Several of the instant actions challenged statutes which
authorized magistrates to collect and retain fees received for the
performance of judicial acts. To the degree such statutes vest
judicial officers with a pecuniary interest in the proceedings
before them, they violate Article I, Section 3 of the South
Carolina Constitution and are likewise impermissible under the
Fourteenth Amendment of the United States Constitution.
249 S.E.2d, at 776.
Based upon the foregoing authorities, it is my opinion that the type of legislation
which you contemplate would encounter constitutional difficulties. While such legislation
would, of course, be entitled to a presumption of constitutionality, and only a court of
competent jurisdiction could adjudge a statute to be unconstitutional, the Tumey and Crowe
cases would render any attempt t_o fund a magistrate's court's operating expenses, salaries
and fringe benefits through fees and assessments as constitutionally suspect. This type of

The Honorable Stephen P. Lanford
Page 7
October 14, 1998

proposal would undoubtedly be subject to legal challenge. Thus, any proposal of the type
you are contemplating would have to pass muster under Tumey, Dugan, Crowe, etc.
This letter is an informal opinion only. It has been written by a designated Assistant
Deputy 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 m3.IJller of a formal opinion.
With kind regards, I am
Very truly yours,

Jh--

Robert D. Cook
Assistant Deputy Attorney General
RDC/an