Many Magistrates Still Serve at the Mercy of Senators

July 28, 2016

Investigative Reports

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By HANNAH HILL

courtroom

How ‘holdover’ status gives some senators unchecked power over judges

Four years ago, The Nerve’s Rick Brundrett highlighted a little-known facet of the South Carolina legislature’s hegemonic influence over the state’s judiciary. Many already knew about lawmakers’ unilateral power to appoint judges and the consequent imbalance that creates. Less well known is the way in which senators can in effect hold magistrates under their thumbs.

Under current law, the governor appoints magistrates with the advice and consent of the Senate. When a magistrate’s office is vacant or the term is expired, the Senator in that district will (after getting his fellow county delegation senator’s sign-off) recommend a candidate for nomination by the entire Senate. The Senate then votes on whether or not to nominate the candidate. Anyone who has observed the Senate for any length of time will guess correctly that these votes are a formality. Only after the Senate has formally nominated the candidate does the governor “appoint” him.

But this one-sided relationship becomes even more one-sided when a magistrate’s term has expired. He continues to hold office until his senator initiates the process of either reappointing him or choosing a successor. If no action is taken at the end of his term, the magistrate remains in office in “holdover” status – he remains in office until his senator decides to act. Once the magistrate is formally reappointed, only the Supreme Court can remove him, and only for incapacity, misconduct, or neglect of duty.

And so for years, many senators have – presumably intentionally – neglected to initiate reappointments, leaving their magistrates in office but subject to the whim of the senator.  

Interestingly, the only bill brought this year “reforming” the magistrate appointment process would simply have increased legislators’ power.

In 2008, 34 percent of magistrates were in holdover status. In 2012, Brundrett reported that 20 percent of magistrates were in holdover status.

Currently, 23 percent (71 of the state’s 310 magistrates) are in holdover status, according to information received from the Judicial Department. Two magistrates, Judge Kenneth Campbell of Colleton County and Judge Donna Lynah from Jasper County, have been in holdover status since 2002. 

You can view the entire list of holdover magistrates here.

All this raises the question: If a senator can remove a magistrate at any time for no reason at all simply by appointing a replacement, doesn’t that give the senator an improper power over a judge?

Hannah Hill is a policy analyst at the South Carolina Policy Council, The Nerve‘s parent organization.