Could a South Carolina magistrate also serve on the Commission for Minority Affairs?

Plain-English summary

The Commission for Minority Affairs asked whether one person could serve both as a South Carolina magistrate and as a commission member. The Attorney General said that combination “most probably” did not violate the state constitution's dual-office prohibition. A magistrate was a public officer, but the office had previously concluded that membership on this commission was most probably not an office for this purpose.

The opinion did not give unconditional approval of the arrangement. It separately suggested consulting the Advisory Committee on Standards of Judicial Conduct about any Code of Judicial Conduct issue. Its constitutional conclusion remained expressly qualified.

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 dual-office ban automatically bar a magistrate from commission service?
A: The AG said most probably not. The prohibition required two public offices, and the opinion treated commission membership as most probably not one.

Q: Was a magistrate considered a public officer?
A: Yes. The opinion said the office had reached that conclusion in many earlier opinions.

Q: Did the opinion clear any judicial-ethics question?
A: No. It suggested consultation with the Advisory Committee on Standards of Judicial Conduct to check whether the Code of Judicial Conduct would be violated.

Background and statutory framework

The opinion quoted Article XVII, Section IA's prohibition on holding two offices of honor or profit at the same time. It described the test for a public office as involving exercise of state sovereign power, along with statutory duties, salary, qualifications and oath. Applying earlier AG views on the two positions, it reached a qualified answer limited to the dual-office rule.

Citations and references

• Article XVII, Section IA of the South Carolina Constitution, quoted in the opinion.
• Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), cited for the public-office test.
• State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980), cited for other office characteristics.

Official title

Concerning whether a dual office holding situation exists if a magistrate simultaneously serves on the Commission for Minority Affairs.

Requester

Janie A. Davis, Executive Director, Commission for Minority Affairs

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-8-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98oct8davis.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES M . C ONDON
ATTO RN EY G EN ERAL

October 8, 1998

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Janie A. Davis, Executive Director
Commission for Minority Affairs
2611 Forest Drive, Suite 203
Columbia, South Carolina 29204

RE:

Informal Opinion

Dear Ms. Davis:
Your opinion request has been forwarded to me for reply. You have asked whether an individual may simultaneously serve as a magistrate and on the Commission for Minority Affairs without violating 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 concluded on many occasions that a magistrate holds an office for dual office holding purposes. Ops. Any. Gen. dated January 29, 1998 and August 13 , 1986 as representative of these numerous opinions. We have also concluded that membership on the Commission for Minority Affairs is most probably not an office. Op. Any. Gen. dated November 21, 1996.

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Ms. Davis
Page 2
October 8, 1998
Based on the foregoing, it is this Office's opinion that an individual could most probably serve simultaneously as a magistrate and as a member of the Commission for Minority Affairs without contravening the dual office holding prohibitions of the State Constitution. However, the individual in question may wish to consult the Advisory Committee on Standards of Judicial Conduct to make certain that no provisions of the Code of Judicial Conduct would be violated.

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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

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Paul M. Koch
Assistant Attorney General

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