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South Carolina
JUDICIAL DEPARTMENT
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Advisory Opinions

ADVISORY COMMITTEE
ON STANDARDS OF JUDICIAL CONDUCT

OPINION NO. 2 - 2012

RE: Propriety of a magistrate judge employing a constable whose spouse is the Chief Enforcement Animal Control Officer.

FACTS

A magistrate court judge is the process of hiring a constable.  Under S.C. Code § 22-9-10,  a magistrate may appoint one person to discharge the duties of constable for the jurisdiction.  The constable’s duties include: execute all legal orders directed to them by the governing bodies of the counties in which he or she serves; attend any of the circuit courts if required by the sheriff and perform the appropriate duties assigned to him or her by the sheriff or presiding judge; execute all process lawfully directed to him by appropriate authorities; and levy executions. S.C. Code §§ 22-9-60 to -110.  One candidate is married to the Chief Enforcement Animal Control Officer. The Chief would not necessarily appear in court, but the officers directly under the Chief’s supervision will. The constable may or may not be in court at the time the cases are presented.  The judge inquires as to whether presiding over animal control cases would be permissible should the judge hire, as constable, the spouse of the Chief.

CONCLUSION

A magistrate may not appoint a constable who is married to the Chief Enforcement Animal Control Officer and still preside in animal control cases.

OPINION

Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s  impartiality might reasonably be questioned, including where “the judge’s spouse or person within the third degree of relationship to either of them, or the spouse of that person” is an attorney in the proceeding or is a material witness in the proceeding.”  In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.

Obviously, here,  neither the Chief Animal Control Officer nor the Chief’s employees are the judge’s spouse or person within the third degree of relationship. Thus, the magistrate is not required to disqualify himself or herself in animal control cases under Canon 3.  However, we must also consider whether there would be appearance of impropriety and if the public’s confidence in the integrity and impartiality of the judiciary would be eroded under these circumstances.

The judge not only has the power to appoint a constable, he or she has the power to remove the constable prior to the expiration of the constable’s two-year term of office.  The constable also must, by law, execute process for the magistrate’s court and can be fined or imprisoned for failure to do so.  Thus, the magistrate has a certain amount of control over the constable.  In turn, in situations where the constable’s spouse or his/her employees regularly appear before the court, the appearance of impropriety could be created or the magistrate’s partiality could be questioned.  Therefore, the magistrate should not appoint as constable the spouse of the Chief Enforcement Animal Control  Officer.

 

s/_____________________________________
A. CAMDEN LEWIS, CHAIRMAN

s/_____________________________________
G. EDWARD WELMAKER

s/_____________________________________
JOCELYN B. CATE

January 11, 2012