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24783 - In the Matter of Ernest White

Davis Adv. Sh. No. 16
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of Ernest White, Respondent.

Opinion No. 24783

Heard March 4, 1998 - Filed April 27, 1998

PUBLIC REPRIMAND

Larry C. Smith, of Columbia, for Respondent.

Attorney General Charles Molony Condon and Senior Assistant

Attorney General James G. Bogle, Jr., of Columbia, for

Complainant.

PER CURIAM: In this judicial disciplinary proceeding, Respondent,

a former magistrate for Jasper County, is charged with misconduct arising

out of alleged misrepresentations he made on his magistrate application form.

The Panel of Hearing Masters recommended Respondent be publicly

reprimanded. The Board of Commissioners on Judicial Standards

unanimously adopted the Masters' report and recommendation. We agree

with the findings and recommendation of the Board and hereby publicly

reprimand Respondent for his misconduct.

FACTUAL/PROCEDURAL BACKGROUND

In May 1994, Respondent filed a notarized application form with the

Governor's office to become Magistrate of Jasper County. On the application,

Respondent indicated his level of education was a "high school graduate or

its equivalence (G.E.D.)." Respondent was, in fact, not a high school graduate

nor had he ever passed the high school level Test of General Equivalency

Development (G.E.D.) at the time he filed the application with the Governor's

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office. On July 12, 1994, Governor Campbell appointed Respondent as

Magistrate of Jasper County.

On July 14, Walter Leverette of Court Administration sent Respondent

a letter accompanied by an information form for Respondent to fill out.

Respondent indicated on the form that the highest level of education he had

completed was 9th grade in high school. There was no line on the form for

Respondent to indicate whether he had obtained a G.E.D. In the letter,

Leverette also informed Respondent that S.C. Code Ann. § 22-1-10(B) (1989)

required magistrates to have a high school diploma or its recognized

equivalent. The letter enclosed a form entitled, Statement of Compliance --

Minimum Education Requirements for Magistrates. The letter directed

Respondent to complete the form and return it with a certified copy of his

high school diploma. Respondent never sent Leverette a copy of a high

school diploma or G.E.D.

Leverette's letter further informed Respondent of a mandatory

orientation school for new magistrates to be held on July 18-30, 1994. At the

orientation, Respondent approached Louis Rosen, Director of Court

Administration, and admitted he was not a high school graduate nor had he

obtained a G.E.D. Rosen testified that after speaking with Respondent, he

formed the opinion Respondent was not qualified to serve as a magistrate in

South Carolina. Rosen asked Motte Talley, a staff attorney with Court

Administration, to look into the matter. Talley provided Respondent with the

name of a person to contact at the Department of Education in order for

Respondent to take the next available G.E.D. test. Talley also wrote

Governor Campbell alerting the Governor to the fact that Respondent did not

possess a high school diploma or G.E.D. On August 13, 1994, Respondent

took the G.E.D. test and initially received a passing score.

In October 1994, articles appeared in the State newspaper reporting

allegations that Respondent had lied about his level education when he filed

his application with the Governor's office. There were also reports that a

person by the name of John E. Brown had switched G.E.D. test scores with

Respondent to ensure Respondent would pass the exam. Subsequently, the

United States Attorney's Office initiated a Grand Jury investigation

concerning the "switched scores" allegation. John E. Brown and Stephon

Edwards were ultimately indicted by the Grand Jury for violating various

federal statutes. Respondent was not indicted.

On October 27, 1994, Respondent, through his attorney, informed

Governor Campbell that due to the adverse effects of the media attention, he

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IN THE MATTER OF WHITE

would take a leave of absence pending resolution of the matter. On February

2, 1995, Respondent officially resigned as Magistrate of Jasper County.

On June 9, 1995, a formal complaint was filed against Respondent,

alleging judicial misconduct under the Code of Judicial Conduct, Rule 501,

SCACR. The complaint alleged Respondent had violated Canons 1 and 2(A)

of Rule 501 by failing to disclose and/or misrepresenting his educational

eligibility on his magistrate application form. In his answer, Respondent

asserted three defenses: (1) the Board of Commissioners on Judicial

Standards lacked jurisdiction over him since he was no longer a member of

the judiciary; (2) the subject matter of the complaint was within the

jurisdiction of a federal Grand Jury investigation and subject to a gag order

issued by Judge Matthew J. Perry; and (3) Respondent was a target of the

federal criminal investigation, and therefore, any requirement imposed upon

him to answer the complaint would violate his Fifth Amendment rights.

A hearing before the Board of Commissioners on Judicial Standards

("Board") was scheduled to be held on October 20, 1995. Prior to the hearing,

we issued a Consent Order holding the proceedings in abeyance indefinitely

until the federal criminal proceedings could be concluded. We further stated,

"the Examiner or the Respondent may file the appropriate Motion before the

Commission for a hearing at such time as they believe that the reasons put

forth for the necessity of the continuance no longer exists or have been

adequately addressed."

On December 4, 1996, the Examiner submitted a motion to the Board

requesting a hearing before the Hearing Masters to be held on February 14,

1997. In the motion, the Examiner stated that the allegations against

Respondent only addressed Respondent's misrepresentation of his educational

qualifications and did not involve the switched G.E.D. scores which were the

focus of the federal investigation. The Board granted the Examiner's motion.

A hearing was held before the Hearing Masters on February 14, 1997.

At the hearing, Respondent's attorney expressed concern about whether

Respondent could testify in light of a gag order issued by Judge Matthew J.

Perry. The Masters recessed the hearing and directed the Examiner to make

inquiries about the gag order. On February 14, the Examiner wrote Judge

Perry, inquiring about the nature of any gag order. Judge Perry wrote back

on March 12, 1997, stating that the federal Grand Jury proceedings were

governed by the secrecy requirements provided in Rule 6(e), FRCP. Judge

Perry further stated that the federal court had done nothing to interfere with

any state investigation. The Examiner later spoke with Judge Perry by

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IN THE MATTER OF WHITE

telephone at which time Judge Perry informed the Examiner that he had not

issued a gag order but had only admonished the participants in the federal

proceedings to abide by the secrecy requirements provided in Rule 6(e),

FRCP.

The Examiner next wrote this Court requesting a partial lifting of the

confidentiality of the proceedings to the extent that the Examiner could

submit a copy of the complaint to the U.S. Attorney's Office and inquire as

to whether that office would use any testimony Respondent might give in the

.disciplinary hearing. On April 2, 1997, we issued an order granting the

partial lifting of confidentiality. The Examiner subsequently contacted the

U.S. Attorney's Office which responded, stating it could not give any

assurances that the grand jury would not use testimony given by Respondent

at a Judicial Standards hearing.

The Hearing Masters reconvened on August 1, 1997, at which time

Respondent invoked his Fifth Amendment right not to testify. The Hearing

Masters found Respondent had violated Canons 1 and 2(A) of Rule 501,

SCACR, and recommended a public reprimand. The Full Board unanimously

voted to adopt the report of the Masters. The Board certified the record to

this Court on December 30, 1997. Respondent elected not to submit a

supporting brief but reserved his right to make oral arguments before this

Court.

DISCUSSION

Respondent initially argues the Code of Judicial Conduct does not apply

to him because at the time he completed the application form, he was not yet

a judge. We disagree. Under Rule 502(l), SCACR, judicial misconduct

includes "not only judicial actions but also non-judicial actions, whether the

conduct complained of occurred before or after the judge assumed office, if .

. . (2) His conduct has violated the Code of Judicial Conduct or the Rules of

Professional Conduct." (emphasis added); see also In re Wright, 310 S.C. 191,

422 S.E.2d 746 (1990)(magistrate publicly reprimanded for submitting

fraudulent insurance application prior to taking judicial office). Moreover,

Respondent's alleged misconduct was directly related to his subsequent

appointment as Magistrate of Jasper County. Therefore, the Code of Judicial

Conduct applies to Respondent's conduct in this case.1


1 We note that this case is governed by former Rule 502, SCACR, since

Respondent's conduct occurred prior to January 1, 1997, the effective date of

amended Rule 502. Nevertheless, we would reach the same conclusion under

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South Carolina Code Ann. § 22-1-IO(B) (1989) provides,

No person is eligible to hold the office of magistrate who is not

at the time of his appointment a citizen of the United States and

of this State, and who has not been a resident of this State for

at least five years, and has not attained the age of twenty-one

years upon his appointment, and has not received a high school

diploma or its equivalent educational training as recognized by

the State Department of Education.

(emphasis added). At the time Respondent filed his application form with the

Governor's office, the Department of Education only recognized the G.E.D. as

the equivalent to a high school degree pursuant to amended Reg. 43-130.

State Register, Vol. 15, Issue No. 5 (May 24, 1991). This regulation, which

is now codified at 24 S.C. Code Ann. Regs. 43-259 (Supp. 1997), provides, in

part, "The State Board of Education recognizes the high school level Tests of

General Educational Development (GED) and shall issue a state high school

equivalency credential to eligible candidates who successfully complete the

tests. " Additionally, David Stout, G.E.D. Administrator for the South

Carolina Department of Education, testified before the Hearing Masters that

the South Carolina Department of Education had, since the 1950's, recognized

the G.E.D. as the only equivalent to a high school degree.

A factual finding of judicial misconduct must be supported by clear and

convincing evidence. In re Peeples, 297 S.C. 36, 374 S.E.2d 674 (1988). Line

12 of the magistrate application form unambiguously asks the applicant

whether he or she possesses a high school diploma or G.E.D. Pursuant to

section 22-1-10(B), a negative response to this question completely disqualifies

the applicant from pursuing the judicial office of magistrate. It is undisputed

that at the time Respondent completed and filed his magistrate application

form, he was not a high school graduate nor had he attained a G.E.D. Thus,

Respondent's misrepresentation in this regard was essential in allowing the

Governor to appoint him as Magistrate of Jasper County.


amended Rule 502. Under Rule 3(b)(1) of amended Rule 502, "The

Commission has jurisdiction over judges regarding allegations that

misconduct occurred before or during service as a judge . . . ." (emphasis

added). Rule 2(q) defines misconduct as "any conduct by a judge constituting

grounds for discipline. See Rule 7(a)." Rule 7(a) provides, "It shall be a

ground for discipline for a judge to: (1) violate or attempt to violate the Code

of Judicial Conduct or the Rules of Professional Conduct or any other

applicable ethics codes."

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IN THE MATTER OF WHITE

Canon 1 of Rule 501, SCACR, requires that a judge must "observe high

standards of conduct . . . so that the integrity and independence of the

judiciary shall be preserved." Canon 2(A) provides that a judge must "respect

and comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary."

A judicial candidate's truthful representation of his or her credentials is

fundamental to preserving the integrity of the judiciary. Public trust in

judicial office is founded upon the presumption that every judge has, at the

very least, met the minimum requirements for their position. Consequently,

a candidate who assumes judicial office by means of misrepresentation

directly threatens the public's confidence in the integrity of the judiciary.

Although Respondent later revealed his true academic credentials to officials

at the orientation school, his revelation came after the Governor appointed

him as magistrate. Moreover, Respondent failed to immediately resign. We

therefore find that Respondent violated Canons 1 and 2(a) of Rule 501,

SCACR, by assuming judicial office through the misrepresentation of his

academic credentials.

Because Respondent has since resigned from office, the most severe

sanction we can impose is a public reprimand. In re Parker, 313 S.C. 47,

437 S.E.2d 37 (1993).

PUBLIC REPRIMAND

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