Could a South Carolina judge continue hearing cases after the mandatory retirement age of 72?

Plain-English summary

In April 2022, the South Carolina Attorney General concluded that the retirement provision for judges in the unified judicial system required retirement at age 72. Retirement did not necessarily end all judicial service. A separate statute allowed the Chief Justice to assign a retired judge or justice to specified proceedings in circuit, family, or appellate courts, subject to the statute's conditions.

The opinion distinguished continued service as an active judge from service after retirement by assignment. It did not decide the circumstances of the particular judge mentioned in the senator's request.

What this means for you

Judges and court administrators

The office read the retirement statute as mandatory at age 72. It identified the Chief Justice's assignment authority as the route for a retired judge to preside afterward. The quoted assignment statute also required a qualification review within the specified period, with an exception when retirement occurred before the prior term expired.

Litigants and legislators

The opinion explained why seeing a judge older than 72 on the bench did not, by itself, resolve the question: a retired judge could be assigned to judicial proceedings under the separate statute. The opinion supplied no finding about any named judge's appointment.

Common questions

Q: Did the AG consider 72 a mandatory retirement age for active judges? A: Yes. The office said the cited retirement provision required judges in the unified judicial system to retire at that age.

Q: Could a retired judge still hear cases?
A: Yes, if assigned by the Chief Justice under the cited retired-judge statute and its conditions. The opinion listed the courts and proceedings covered by that authority.

Q: Did the opinion say a judge older than 72 could simply stay in active office? A: No. Its explanation depended on retirement followed by assignment to judicial duties.

Background and statutory framework

A senator asked under what circumstances a judge could serve beyond 72. The AG read the judges' retirement-system statute together with the provision authorizing Chief Justice assignments of retired judges and the provision governing their compensation. The two sets of provisions addressed different stages of judicial service.

Citations and references

• S.C. Code Ann. § 9-8-60(1): retirement provision quoted in the opinion.
• S.C. Code Ann. § 14-1-215: authority and qualification conditions for retired-judge assignments.
• S.C. Code Ann. § 9-8-120(3): treatment of assigned service under the retirement system.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-service-of-judges-in-the-unified-judicial-service-after-age-seventy-two/
• Original PDF: https://www.scag.gov/media/2wppb4w0/02966576.pdf

Original opinion text

A
/Dr

o
*

Ri

Vi

I

I
A

8

Alan Wilson
attorney General

April 26, 2022

The Honorable Katrina F. Shealy
Member

South Carolina Senate
Post Office Box 84783

Lexington, South Carolina 29073
Dear Senator Shealy:

We received your request for an opinion of this Office concerning South Carolina judges and the mandatory retirement age. In your letter, you state: It is my understanding that judges in the unified judicial system have a mandatory requirement age of 72 years old. It is further my understanding that there is a judge currently on the bench that is older than 74.

Under what
circumstances may a judge in the unified judicial system serve beyond 72 years of age? Law/Analysis

In our review of state law, it appears that the mandatory retirement provision you refer to is contained in section 9-8-60 of the South Carolina Code (2019) pertaining to the Retirement System for Judges and Solicitors. This provision states as follows: (1) A member of the system may retire upon written application to the board setting forth at what time, not later than the end of the calendar year in which the member attains age seventv-two and not more than ninety days prior nor

more than six months subsequent to the execution and filing thereof the member desires to be retired, if the member at the time so specified for retirement is no longer in the service of the State, except as a member of the General Assembly or as allowed pursuant to subsection (7), and has completed ten years of earned service as a judge or eight years of earned service as a solicitor or circuit public defender or was in service as a judge or solicitor on

July 1, 1984, and has either:
(a) attained the age of sixty-five and completed at least twenty years of credited service;

Rembert C. Dennis Building

»

Post Office Box 11549

• Columbia, SC 2921 1-1549

» Telephone 803-734-3970

• Facsimile 803-253-6283

The Honorable Katrina F. Shealy
Page 2

April 26, 2022

(b) attained age seventy and completed at least fifteen years of credited service; or

(c) completed at least twenty-five years of credited service in the system for a judge, or twenty-four years of credited service in the system for a solicitor or circuit public defender, regardless of age. A member may retire under this section if the member was a member of this system as of June 30, 2004; attained age sixty-five with at least four years' earned service in the position ofjudge, solicitor, or circuit public defender; and, as of June 30, 2004, had a total of twenty-five years of credited service with the State in the South Carolina Retirement System, the Police Officers Retirement System, or the Retirement System for Members of the General Assembly.

S.C. Code Ann. § 9-8-60(1). In previous opinions, we recognized this provision as mandating retirement ofjudges in the unified judicial system at age seventy-two. See Ops. Atf y Gen., 2016 WL 4698869 (S.C.A.G. Aug. 29, 2016); 2004 WL 1297827 (S.C.A.G. Jun. 7, 2004); 1987 WL 342802 (S.C.A.G. Jan. 13, 1987).

However, section 14-1-215 of the South Carolina Code (2017) allows retired judges to preside in certain courts. This provision states:

A retired judge or justice from the Supreme Court, court of appeals, or circuit

court of this State may be assigned by the Chief Justice of the Supreme Court to preside over any official proceeding in any circuit court of this State. A retired judge or justice from the Supreme Court or court of appeals of this State may be assigned by the Chief Justice of the Supreme Court to act as an associate justice or judge in any proceeding before the Supreme Court or court of appeals. A retired judge from the family court of this State may be assigned by the Chief Justice of the Supreme Court to preside over any official proceeding in any family court of this State. In order to be eligible to be appointed by the Chief Justice to serve, any retired justice or judge of this State must have been reviewed in the manner provided in Section 2-19-10 et seq. and found by the commission to be qualified to serve

in these situations within two years of the date of his appointment to serve, except that if a justice or judge retired before the expiration of his then current

term, no further review of that justice or judge is required until that term would have expired.

The Honorable Katrina F. Shealy
Page 3

April 26, 2022

S.C. Code Ann. § 14-1-215.1 Furthermore, section 9-8-120 of the South Carolina Code (2019) discusses how service by retired judges will be handled in regard to the Retirement System for Judges and Solicitors. Subject to the limitations contained in Section 14-1-215, a retired justice or judge may be called upon and appointed by the Chief Justice of the Supreme

Court to perform judicial duties in the Supreme Court, Court of Appeals, circuit courts, and family courts as he may be willing and able to undertake. A retired justice or judge serving as an acting associate justice or as a judge shall serve

without pay except for his actual expenses while serving. If a retired justice or judge has performed for a period of three or more consecutive months full

judicial duties as an acting associate justice or as a judge his retirement pay for each full month during this period must be increased by an amount equal to the

difference between retirement payment and active pay.

Upon certification by

the Chief Justice setting forth the number of full months of the service the State Treasurer shall make payment accordingly.

S.C. Code Ann. § 9-8-120(3).
Conclusion

In keeping with prior opinions of this Office, we find section 9-8-60 of the South Carolina Code requires judges in the unified judicial system to retire at age seventy-two. However, section 14-1215 of the South Carolina Code allows the Chief Justice of the Supreme Court to call upon and appoint retired judges to preside over judicial proceedings in certain courts and under specified conditions. Sincerely, zi

Cydney Milling
Assistant Attorney General

REVIEWED AND APPROVED BY:

R/be/t D. Cook
Solicitor General

1 We also recognize the general powers of the Chief Justice to administer the unified judicial system under the South Carolina Constitution. S.C. Const. Art. V, § 4 (2009).