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24946 - In the Matter of Sons

Shearouse Adv. Sh. No. 19
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In the Matter of

Lexington County

Magistrate Shirley M.

Sons, Respondent.

Opinion No. 24946

Submitted May 11, 1999 - Filed June 1, 1999

PUBLIC REPRIMAND

Attorney General Charles M. Condon and Senior

Assistant Attorney General James G. Bogle, Jr., both

of Columbia, for Office of Disciplinary Counsel.

The Honorable Shirley M. Sons, of Lexington,

respondent pro se.





PER CURIAM: In this judicial disciplinary matter,

respondent, a Magistrate in the Central Traffic Court for Lexington County,

and disciplinary counsel have entered into an agreement under Rule 21,

RJDE, Rule 502, SCACR. In the agreement, respondent admits misconduct

and consents to a public reprimand. We accept the agreement.







Respondent's misconduct stems from the following facts.

Rebecca Ann Martin was charged with driving under the influence (DUI),

first offense, after she was involved in an automobile accident. Lance

Corporal L.D. Sells of the Highway Patrol issued a uniform traffic ticket and

told Martin to appear in Central Traffic Court on August 263.1997.

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IN THE MATTER OF SONS





After discovering the extent of the injuries to Martin's passenger,

Sells retrieved the copies of the original ticket and wrote a new ticket

charging Martin with felony DUI Sells met with Martin, her parents, and

her attorney and told Martin not to appear in court on August 26, 1997.





Court was held on August 26, 1997. Respondent was absent on

leave and thus did not preside. Instead, Judge Whittle was the presiding

judge; however, Judge Whittle was not present. Court Assistant Christine

Tindall processed the tickets that day.





During the court session, Tindall filled out paperwork connected

with the original ticket, indicating that Martin did not appear and that, after

a trial by the judge, a verdict of guilty was entered, a fine of $425 was

imposed, and a bench warrant was issued for Martin's arrest. At that point,

Sells, who was in court to prosecute tickets he had written in other matters,

intervened and prevented Tindall from signing respondent's name to the

ticket. Sells told Tindall that the original ticket had been withdrawn.





Sells then sent all the copies of Martin's original ticket to the

Department of Public Safety (DPS) to be voided. The Driver Records copy of

the ticket was separated from the rest of the copies and was returned to

Lexington's Central Traffic Court because it was not signed by the presiding

judge. Tindall signed respondent's name and returned the ticket to the DPS.

Respondent was not present when Tindall signed the ticket, and Tindall was

not under respondent's personal supervision when she signed the ticket. In

addition, the ticket Tindall signed contained numerous inaccuracies,

including a statement that the case was brought before a magistrate.





As a result of Tindall's actions, a DUI conviction was entered

with the DPS, and Martin's license was suspended for six months. In

response, Sells' District Commander directed Sells' immediate supervisor,

Sergeant Hicks, to obtain an Ishmell1 order to reopen the case against

Martin. Hicks went to Central Traffic Court on June 2, 1998, and, at Hicks'

request, Court Assistant Tammy Metts completed the Ishmell order and

signed respondent's name to that order. The Ishmell order contained factual




1 Ishmell v. South Carolina State Highway Department, 264 S.C. 340,

215 S.E.2d 201 (1975) (holding that the five day time limit for making a new

trial motion does not begin to run until defendant receives actual notice of

conviction).

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IN THE MATTER OF SONS





inaccuracies, including that Martin's ticket had been disposed of on August

26, 1997 and that the request to reopen had been made on September 5,

1997. Respondent was not present in the room nor did she have direct

supervisory control over Metts when Metts completed the Ishmell order. No

notice was given to Martin or her attorney regarding the Ishmell order. In

response to the Ishmell order, the DPS vacated Martin's DUI conviction.





Martin's attorney appealed the vacation of the original ticket,

and respondent filed with the circuit court a return captioned "Answer to an

Appeal." By filing an "Answer to an Appeal" rather than a "Return,"

respondent indicated a bias in favor of the DPS and the prosecuting

authority. The circuit court later issued an order reinstating the DUI

conviction as processed by the DPS.





A complaint was filed with the Commission on Judicial Conduct

concerning respondent. At a hearing, respondent presented a number of

Ishmell orders to establish that it was standard practice for Court Assistants

to complete these orders, including the signing of the judge's name.





By her conduct, respondent violated Rule 7(a), RJE, Rule 502,

SCACR (misconduct for judge to violate of the Code of Judicial Conduct and

to wilfully violate a valid Supreme Court order).2 Respondent's conduct

violated the Code of Judicial Conduct as contained in Rule 501, SCACR,

specifically Canon 1(A) (failure to establish, maintain, and enforce high

standards of conduct); Canon 2(A) (failure to respect and comply with the

law and act at all times in a manner that promotes public confidence in the

integrity and impartiality of the judiciary); Canon 2 (failure to avoid

impropriety and the appearance of impropriety); Canon 3 (failure to perform

the judicial duties with impartiality and diligence); Canon 3(B)(1) (judge

shall hear and decide matters assigned to the judge); Canon 3(B)(2) (judge

shall be faithful to the law and maintain professional competence in it; judge

shall not be swayed by partisan interests, public clamor, or fear of criticism);


2 See S.C. Sup. Ct. Order dated March 1, 1989 (judges should

personally sign all orders); S.C. Sup. Ct. Order dated July 10, 1986 (by

signing a uniform traffic ticket, magistrates certify the accuracy of the

disposition; a person designated by the judge may affix the judge's signature

to the certificate, "provided that the person is under direct supervision and

control by the judge" and that the signature is affixed in the judge's

presence).

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IN THE MATTER OF SONS





Canon 3(B)(5) (judge shall perform judicial duties without bias or prejudice);

and Canon 3(B)(7) (judge shall accord to every person who has a legal

interest in a proceeding, or that person's lawyer, the right to be heard

according to the law; subject to limited exceptions, judge shall not initiate,

permit, or consider ex parte communications).





Respondent has now changed the procedures in her office to

ensure her office complies with the applicable ethical rules and that these

problems will not occur again. We find respondent's misconduct warrants a

public reprimand. Accordingly, respondent is hereby publicly reprimanded

for her misconduct.





PUBLIC REPRIMAND.





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