Opinions

Thursday, Jul. 10, 2008

Appointing magistrates

The separation of powers is crucial to the functioning of democracy in this nation. But that foundation is undermined in South Carolina when magistrates serve at the pleasure of state senators.

A recent study by The State newspaper found that a third of South Carolina's magistrates are serving in special "holdover" status, some of them for more than a decade. Allowing magistrates to serve as holdovers essentially places their fate in the hands of senators who place them in that status after the magistrates' regular four-year terms have expired.

Magistrates preside over hearings on the vast majority of minor criminal and civil cases in the state. Those cases include speeding offenses and other traffic cases, criminal cases that carry a maximum jail sentence of 30 days, and lawsuits involving disputed amounts of $7,500 or less.

Under state law, magistrates are nominated by their county's Senate delegation, appointed by the governor and confirmed by the full Senate. Senators can't remove magistrates once they are appointed; only the state Supreme Court is authorized to do that.

But there is a loophole in the law. Senators have the authority to keep magistrates on indefinitely after their four-year terms expire by designating them as holdovers.

Furthermore, senators have the authority to fire magistrates whenever they wish during the holdover period. In many cases, however, magistrates simply continue to serve long after their terms have expired.

Of 314 magistrates in the state, 107 -- more than a third -- are holdovers. More than half the holdover magistrates have been in that status for more than two years, and four have been held over for more than 10 years.

Senators argue that this system allows them to weed out bad apples if necessary. But allowing holdovers clearly creates a potential conflict of interest.

For example, in a number of cases, the senators who have placed magistrates in holdover status are attorneys who sometimes practice before their home-county magistrates. That puts a magistrate in the position of deciding a case in which one of the attorneys has the authority to fire him.

The State's review did not turn up specific instances in which senators had exercised that authority to their advantage. But the separation of powers has been breached nonetheless.

If senators are satisfied with the performance of magistrates, they ought to reappoint them to new terms. Then, if the magistrates violate the ethics of their position, they can be removed by the state Supreme Court.

That system apparently works for the nearly two-thirds of the magistrates in the state who are not holdovers. The Legislature should revise the rules to remove even the suggestion that undue pressure is being exerted on the judiciary.