Other needed changes to SC system include how they’re selected, how they’re paid
By John Crangle
The controversy over the selection of judges in South Carolina has focused on the Legislature’s elections of circuit court, family court and appellate judges.
That’s because lawyer-legislators practice before the same judges they elect. And there is widespread suspicion that lawyer-legislators receive favored treatment from those judges.
The controversy has grown to include whether the current system of selecting magistrates is compromised by conflicts of interest and also whether magistrate qualifications should be raised to assure due process of law to litigants in their courtrooms.
There are some 311 magistrates in this state. Most of them have not attended law school and are not lawyers.
Even so, non-lawyer magistrates have the jurisdiction to sentence defendants to up to 30 days in jail for each violation of law. In bad check cases, magistrates have been known to sentence defendants to 30 days for each separate bad check. I once consulted with a woman inmate who was sentenced to 53 months in prison for 53 bad checks.
There is a serious question of whether a criminal trial before a non-lawyer magistrate violates the defendant’s right to due process of the law. The 1972 Kentucky case Diddy v. Hampton raised the question but ducked an answer by ruling that a trial before a non-lawyer judge was permissible if the convicted defendant on appeal could obtain a trial de novo as a matter of right.
The California Supreme Court ruled in 1974 (Gordon v. Justice Court) that a judge in a criminal case should be a lawyer because the complexity of modern criminal law and criminal procedures could not by understood well enough by a non-lawyer judge and a trial before a non-lawyer judge would deny a defendant his due process right to a fair trial.
To assure parties to a criminal and civil case fair treatment and due process by a competent judge trained and admitted to the practice of law, the Legislature should amend the law to provide that all criminal defendants and parties to civil lawsuits involving $1,000 or more should be able to choose a jury trial and that only lawyer-magistrates should preside over all such jury trials.
The other major problem with the current magistrate system is that senators control who becomes a magistrate in their county and, in turn, practice before the same magistrates they choose. The favors handed out by magistrates to the lawyer-legislators who select them are legendary and too often include delaying criminal and civil cases for years or forever.
The selection of a magistrate should no longer be decided by the local senator in whose legislative district the magistrate holds court. All magistrate candidates should be screened and cleared by the Judicial Merit Selection Commission just like circuit, family, and appellate court judges.
The governor should then appoint magistrates only from the list of magistrate candidates cleared and forwarded to the governor. The commission may need to be increased in numbers and a separate panel assigned the duty of processing magistrate candidates. Senators should no longer be allowed to select the same magistrates that they practice law before.
Several other reforms would improve the performance of the magistrate judges, including more rigorous and frequent refresher training sessions and more difficult and relevant instruction
in the types of laws that magistrates deal with in their courts.
In addition, the salaries of magistrates should be uniform all over the state. Currently, judges in urban counties get paid more than those in rural counties.
And the salaries of lawyer-magistrates should be supplemented and increased to attract more lawyers to serve as magistrates.
The state should also assume the financial burden of operating magistrate’s courts from the counties and pay all magistrate courts’ salaries and operating expenses. That would ensure that the quality of magistrate courts is both high and uniform in the state and provide due process and equal protection to all litigants in all 46 counties.
Finally, improvements in magistrate courts would allow magistrates to handle civil cases where the amount in controversy is more than the current $7,500 limit. It could be raised to perhaps $10,000 or $15,000, which would relieve pressure on circuit courts and speed up the resolution of cases.
The authority of magistrate courts could be increased in criminal cases as well by raising the maximum sentence which a magistrate could impose from the current 30 days in jail per violation to six months or a year.
This would speed up the resolution of criminal cases and clear the clogged dockets of the circuit court judges.
John Crangle is a graduate of the University of South Carolina School of Law and member of the South Carolina Bar. He was a member of a commission appointed in 1991 that proposed ways to improve the selection of judges. Approved changes included a ban on sitting legislators voting for themselves for judicial positions and the creation of a Judicial Merit Selection Commission to screen judicial candidates. He also participated in reforming the magistrate system. Changes effective in 1996 included requiring new magistrates to have a four-year college degree and pass a course in the basic laws magistrates enforce.
