Unfinished Business: The Case for Magistrate Selection Reform in South Carolina

On July 2, 2024, Governor McMaster signed S.1046 into law. This legislation reforms the process by which South Carolina selects its state judges. Well, most of them.

Our declaration of only partial victory is not meant to take away from the fact that S.1046 was indeed a substantial step in the right direction towards full judicial reform. Its success is the fulfillment of a cause that Palmetto Promise has been championing for years (see Judging the Judges and Our Top 10 Recommendations for 2024 Judicial Reform) and it deserves to be celebrated.

However, S.1046 failed to make sorely needed changes in South Carolina’s busiest court tier: magistrate courts (also known as Summary Courts). In McMaster’s S.1046 Signing Statement, he shared similar sentiments. The Governor stated, “I write to emphasize that this is a first step—but by no means the last—in implementing meaningful judicial reform.” McMaster later shares the need for reform among magistrate judges. He continued:

“The General Assembly must—at the very least—end the present ability of magistrates to serve indefinitely in holdover status…Such service essentially turns magistrates into at-will judges serving at the pleasure of, and functionally subject to removal only by, their home-county.”

To see the judicial selection reforms found in S.1046, you can read our analysis here: Historic Judicial Reform Bill Headed to the Governor – Here’s What It Does.

Why is Reform Needed in the Magistrate System?

In terms of volume, the magistrate or summary court is the most significant tier of South Carolina’s justice system, handling hundreds of cases in areas such as traffic violations, criminal misdemeanors, evictions, small civil claims, and even restraining orders. With approximately 300 judges across the state, South Carolina’s magistrates determine the fates of thousands of citizens every single year. Many citizens never see the wood-paneled courtrooms of the circuit court. Their only exposure to the state legal system is through less well-appointed magistrate courts.

Take the case of Sasha Darby, an ordinary citizen who got into a conflict with her roommate and in the heat of frustration struck her. Darby, a forklift driver by trade, did not have the finances to retain her own attorney and was never provided with any choice by the magistrate to receive a court-appointed attorney, violating Ms. Darby’s Sixth Amendment rights. Darby’s trial lasted only 11 minutes. However, these 11 minutes were life-changing for her. She received a fine of $1,000 and a criminal conviction, and due to her continued financial trouble and inability to pay, she ended up in jail and lost her home and car.

Sasha Darby had the misfortune of receiving a trial under a magistrate judge who had never practiced law, and his lack of training led to her constitutional rights being violated. She was barely given a respectable timeframe to plead her case, and the judge neglected to make her aware of her right to a court-appointed lawyer. In the short 11 minutes Darby was before the bar of justice, her life was forever changed.

This is just one example of the injustices carried out by South Carolina’s faulty magistrate system.

What’s Wrong with Magistrate Courts?

Qualifications

In South Carolina, a magistrate judge is not required to have a law degree before he or she may sit on the bench. In a 2023 Letter to the Senate, Governor McMaster pointed to the fact that only 27.8% of current magistrates were attorneys.
The only qualifications needed to be a magistrate judge are:

• Be a U.S. Citizen between 21 and 72 years of age

• Be a resident of South Carolina for at least five years

• Have a bachelor’s degree in any subject

• Take an Eligibility test

The Eligibility Test

If you are counting on the Eligibility Test to be the saving grace for justice, you would be disappointed. The magistrate eligibility test is composed of only multiple-choice questions. The test is not a legal exam but rather a basic competency test. The eligibility exam consists of two tests that the applicant must pass with a minimum score. The two tests required of applicants are the Wonderlic Personnel Test (WPT) and the Watson-Glaser Critical Thinking Appraisal (WGCTA).  The Wonderlic Personnel Test requires only a sixth grade reading level and basic skills such as telling time and reading dates. These tests are not comparable to the intense LSAT or Bar Exam taken by any practicing attorney or even the SAT taken by high school students.

Upon completion of the eligibility exam, candidates are qualified and available to be nominated by their senator for a magistrate seat.

Appointment

The South Carolina Constitution (22-1-10)  states that:

“The Governor, by and with the advice and consent of the Senate, may appoint magistrates in each county of the State for a term of four years and until their successors are appointed and qualified, or their positions are terminated.”

This constitutional language seems to indicate involvement by the Governor. However, the reality is that these magistrate candidates are handpicked by local senators, and there are no questions raised about their experience or lack thereof.

Senators nominate candidates to serve as magistrate judges. After nomination, candidates’ names are forwarded to the governor with appointments contingent on passing a simple routine background check. Unlike with any major judge (like the SC Supreme Court or Circuit and Family Courts), there is no public hearing, and the appointment of the magistrate judge is an unrecorded session with a voice vote.

Often, as many senators work as lawyers in their day jobs, this appointment process can have the potential for being self-serving, because senators could practice law in front of magistrate judges they appoint. (This is a problem with judges in the higher tiered courts as well, but in elections for those judges, the Senator has only one vote, not the deciding appointment power.)

As of 2019, there were 12 counties that had a one senator representing the entire county. This gives him or her sole power over the magistrate judges for that county. This presents a significant issue within the magistrate court because it allows one senator of a particular political party to control the appointment of all magistrate judges in that county. This dominant control over appointment of judges harkens back to eras in South Carolina where legislators functioned essentially as county bosses—running county government, the local court system and even road improvements. Magistrate reform is the last of the boss system left to reform.

Training

Upon appointment as a magistrate judge, individuals go through a 57.5 hour training course. For many and most candidates, this short training period is the first time they are ever exposed to any sort of legal training.

After completing training, magistrate judges are sent to the bench and able to decide verdicts that can change an individual’s life trajectory forever.
Magistrate judges have the power to:

• Try criminal cases up to $500 or 30 days in jail

• Try civil cases where the amount of dispute is $7,500 or less

• Issue search warrants and arrest, or restraining orders

• Issue emergency orders of protection

• Set bond for individuals charged with crimes

The House’s proposed judicial reform bill (H.5170) attempted to raise the jurisdiction of magistrate judges to $25,000. This fortunately did not make it into the final law; no changes in magistrate authority should be made without also increasing their training and competency requirements.

Reappointment

According to South Carolina Law, magistrate judges are appointed only for four-year terms. However, due to a loophole known as “holdover status,” many judges are left in their seats for much longer. At the end of their four-year term, they can either be considered for reappointment or replaced with a new candidate, but, under current law, judges are able to stay on the bench in “holdover status” until a decision is made about who would take over their spot (or until they are officially reviewed and reappointed). This has caused numerous judges to stay in their positions for many years past the end of their terms without an official reappointment or review of their record. As of 2023, there were 70 magistrate judges acting in holdover capacity.

The area of reappointment for magistrate judges is a much-needed area for reform. A bill filed in the 2023-24 session by Senator Young, S.155,  addressed this concern by ensconcing into law that no magistrate judge could serve in holdover capacity for more than 14 days after the last day of their term.  If a reappointment is not made with the advice and consent from the Senate, then the Governor will make a temporary appointment until a permanent one can be made.

Another 2023-24 bill drafted by the House Ad Hoc Committee on judicial reform, H.5170, addressed the need for a strict limit for magistrate judges to not serve in holdover capacity. It limited holdover service to no more than 14 days, while also requiring any magistrate judges disciplined by the Supreme Court to not be allowed reappointment unless the Senate was informed of disciplinary action and then the appointment approved by majority vote.

These proposed bills did not make it out of the 2023-24 legislative session, and it is Palmetto Promise’s hope that similar legislation will be filed in the 2025-26 session.

Our Recommendations

The General Assembly made great strides toward ensuring a fairer and more just judicial system in South Carolina with the passage of S.1046. However, their work is not finished. True judicial reform cannot be enacted until glaring issues in the magistrate system are addressed. For years, Palmetto Promise has championed the need for magistrate reform Unfortunately, many proposed bills have died or been left untouched by the end of the legislative session, year after year.

In 2021, our team shared their recommendations to fix the magistrate system in What Can be Done to Fix South Carolina’s Broken Magistrate System. These were outlined in this article as the need to:

• Cap how long judges may serve in holdover capacity after their term expires

• Eliminate the useless qualification test and establish an action plan for ensuring all magistrates hold a J.D. in the near future

• Increase the level and quality of legal training for current and future non-lawyer magistrates

• Limit non-lawyer judges’ ability to sentence defendants to jail and allow those previously jailed by non-lawyer judges to request a new trial

• Fight corrupt appointments by preventing current or former General Assembly members or their families from being selected as magistrates

• Disclose judges’ disciplinary records to the full Senate during their reappointment applications

• Require on-the-record voting during the appointment process

Palmetto Promise continues to stand firm with these recommendations and the need for reform. It is our hope that 2025-26 General Assembly will take seriously this charge of judicial reform and act upon promises made in 2024 to address magistrate reform in a standalone piece of legislation. South Carolinians must be able to trust their judges to be competent and fairly selected, and the current record of South Carolina’s magistrate courts raises questions about both.