April 29, 2011
An Appearance Of Impropriety
Opinion No. 4-2011 of the South Carolina Advisory Committee on Standards of Judicial Conduct:
A full-time magistrate’s spouse is the primary investigator for that county’s Solicitor’s office. The magistrate inquires into the propriety of trying criminal cases, setting bonds and holding preliminary hearings under these circumstances.
A full time judge may not try criminal cases where the judge’s spouse is the primary investigator for the Solicitor’s office in the same county.
This Committee has previously addressed similar situations. In Opinion No. 8-2007, the Committee concluded that a full-time magistrate could not serve in the same county where the judge’s spouse was employed by the sheriff and might appear before the magistrate. Additionally, in 12-2005, the Committee found that a part-time bond magistrate should not serve where the judge was married to a captain in the detective unit in the same county, and the spouse or spouse’s employees would appear before the judge requesting the issuance of warrants. In both of the previous opinions, the Committee found that the situations would violate Canons 1 and 2 of the Code of Judicial Conduct because they created the appearance of impropriety and would cause the public to question the impartiality of the judiciary.
In this situation, the judge’s spouse and/or the spouse’s employer—the Solicitor—would appear before the judge in various criminal proceedings. Thus, as in the previous opinions, this would result in violations of Canons 1 and 2, by creating the appearance of impropriety and causing the public to question the impartiality of the judiciary. Therefore, the magistrate should not serve in criminal cases under these circumstances.
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