Should I Stay or Should I Go? South Carolina’s Nonlawyer Judges
By
By
Christel Purvis[1]*
Each year approximately one million criminal cases are heard in South Carolina’s summary courts[2] where nearly two-thirds of the judges are not licensed attorneys.[3] Summary courts are spread throughout all forty-six counties (magistrate courts) and over 200 cities and towns (municipal courts) in the state.[4] They primarily have jurisdiction over low-level criminal cases such as misdemeanors[5] and traffic offenses.[6] However, these judges also have the power to issue most of South Carolina’s arrest and search warrants,[7] set bonds, and preside over preliminary hearings, no matter how egregious the crimes.[8] Summary court judges, mostly nonlawyers, are therefore extremely consequential in terms of the sheer number of lives they affect.[9] Furthermore, the smaller fines and shorter jail sentences of the “low-level crimes” only reveal a portion of the true cost to individuals who are processed through the nation’s misdemeanor courts:
It can cost defendants their driver’s licenses and voting rights; cripple employment opportunities; and end essential government benefits for housing, nutrition, and education. Some misdemeanor convictions lead to deportation or to registration and residency restrictions as a sex offender. And when a defendant is unable to pay fines, fees, and costs, even one of these “minor” convictions can lead to debilitating debt.[10]
Judicial appeals provide oversight of summary courts within South Carolina’s unified court system.[11] This means that a case may be reviewed by the Court of Common Pleas within the judicial circuit in which the original trial was held.[12] Cases can then be further appealed to the state’s Court of Appeals and subsequently to the South Carolina Supreme Court.[13] Importantly, appeals at every level require that a defendant allege a preserved error from a lower court to warrant a review.[14] This makes South Carolina one of only eight states that does not provide a de novo appeal for cases originally heard before a nonlawyer judge.[15]
South Carolina’s Commission on Judicial Conduct provides additional oversight for summary courts.[16] The Commission investigates complaints lodged against individual judges in the State, specifically concerning “ethical misconduct” or “physical or mental condition[s]” impairing the ability to properly carry out the judge’s duties.[17] Following an investigation, the Commission can choose to dismiss the complaint or recommend a sanction ranging from a letter of caution to removal from the bench.[18] The Commission dismisses over 90% of all complaints.[19]
This Note examines the nature of South Carolina’s nonlawyer judges and the impact these judges have upon the state’s judicial system. Part II addresses relevant judicial precedent, which upholds the use of nonlawyer judges as constitutional on both a national and state level. Part III provides an overview of the requirements and mandatory training of South Carolina’s nonlawyer judges. Part IV examines the pros and cons of South Carolina’s use of nonlawyer judges, especially in light of critical issues such as financial limitations and due process rights. Finally, Part V proposes a gradual transition to a summary court system exclusively comprised of lawyer judges.
Neither the United States Constitution nor the South Carolina Constitution requires that all judges be lawyers.[20] Nonlawyers were vital in the nation’s early history when “slow transportation among the communities of sparsely populated states made it almost impossible for the handful of attorney judges to cover all the rural areas.”[21] However, the twentieth century witnessed state courts begin to restrict or reform the use of nonlawyer judges, with many states eliminating them altogether.[22] Two cases specifically, North v. Russell and State v. Duncan, provide the constitutional green light for South Carolina’s nonlawyer judges.[23]
One crucial development leading up to those cases, however, was the United States Supreme Court’s 1972 Argersinger decision which extended the right to counsel to include defendants facing any length of imprisonment.[24] In doing so, the Court acknowledged that even cases involving minor offenses, such as misdemeanors, “often bristle with thorny constitutional questions.”[25] Several attributes of misdemeanor courts especially called for the legal acumen of attorneys: guilty pleas,[26] the large volume of cases that create a hasty courtroom environment,[27] and minimal preparation time for both parties.[28] Subsequent cases addressing the constitutionality of nonlawyer judges would confront this reasoning in determining whether a law degree is required for judges serving in the country’s increasingly complex judicial system.
In 1976, North v. Russell brought the constitutionality of nonlawyer judges directly before the United States Supreme Court.[29] At that time, forty-one states, including South Carolina, still retained nonlawyer judges at some level of their criminal courts.[30] In Kentucky, the Honorable C. B. Russell, who was not a lawyer, had found Defendant Lonnie North guilty of driving while intoxicated.[31] On appeal, North argued that Russell’s status as a nonlawyer judge violated North’s constitutional rights.[32] North alleged Fourteenth Amendment violations of his right to Due Process and his right to Equal Protection.[33]
The North Court acknowledged the extension to the Argersinger argument, which reasoned that a licensed attorney is required on the bench.[34] The logic was two-fold: a true right to counsel “is meaningless without a lawyer-judge to understand the arguments of counsel”;[35] and “the increased complexity of substantive and procedural criminal law” rendered a formal legal education indispensable for a fair trial.[36] Ultimately, the Court in North declined to rule on those due process assertions.[37] Instead, the Court pointed to Kentucky’s de novo appeals process which grants defendants an appeal before a lawyer judge as a matter of right.[38] Such a two-tiered system, coupled with a defendant’s right to counsel, rendered moot any potential unfairness of a lay judge at the lower level.[39] However, the Court did contrast the lower court with the second-tier court “where the full range of constitutional guarantees is available.” [40] This comparison appeared to suggest that the lower, nonlawyer adjudications could be constitutionally inadequate.
The Court then addressed Appellant North’s equal protection argument. Kentucky’s state constitution classified cities by size.[41] A Kentucky statute further established that cities of the lowest two classes—with fewer than 3,000 residents—did not require judges to be legally trained to hear misdemeanor cases.[42] The appellant contended that defendants in smaller cities were not guaranteed a legally trained judge and were thus not given equal protection compared to defendants in larger cities.[43] The Court determined that such classifications were constitutional “as long as all people within the classified area [were] treated equally.”[44] The Court relied on Ditty v. Hampton’s reasoning that such stratification was a permissible convenience, if not a necessity, to address relative shortages of lawyers in areas of lower population density.[45] Furthermore, larger cities had both greater financial resources and a larger number of cases, rendering lawyer judges more feasible and more necessary.[46] Therefore, after addressing both potential constitutional issues, the Supreme Court determined that nonlawyer judges did not constitute a per se violation of defendants’ constitutional rights.[47]
South Carolina’s judicial system falls within a gray area left by the U.S. Supreme Court’s decision in North v. Russell. The ruling left unresolved whether states without a two-tier system (which guaranteed the right to a de novo appeal) are in violation of the Fourteenth Amendment’s Due Process Clause.[48] South Carolina continues to be one such state without a two-tier system.[49] In other words, a criminal defendant in South Carolina, even one facing potential jail time, “may be convicted and sentenced after a proceeding in which the only trial afforded is conducted by a lay judge.”[50] In 1977, the South Carolina Supreme Court addressed this gray area in State v. Duncan. The appellant argued, as had been argued in North, that his trial before a nonlawyer judge violated both his due process and equal protection rights.[51] In rejecting those claims, the South Carolina court upheld the adjudication of misdemeanor cases by nonlawyer judges as constitutionally permissible despite the lack of a de novo appeals process.[52]
In Duncan, the Appellant first argued that “his trial before a non-attorney magistrate jeopardized his fundamental right to liberty, denied him the right to a fair trial and the effective assistance of counsel, and denied him due process of law.”[53] The court, citing Kentucky’s Ditty v. Hampton, clarified that defendants are not entitled to a judge who is legally trained; rather, they are only entitled to a judge who is “fair and impartial.”[54] The court seemed to implicitly draw upon cases such as Tumey v. Ohio, which focused on pecuniary interest as a major factor in identifying judicial bias.[55] South Carolina’s nonlawyer judges, including the magistrate in Duncan, are not paid based on fees collected as a result of their rulings.[56] Therefore, the Duncan court reasoned that South Carolina judges “are free to be independent and neutral in their judgment.”[57]
Duncan’s second argument, also mirroring North v. Russell, was that the nonlawyer court denied him equal protection because other counties provided defendants with legally trained magistrates.[58] This assertion was swiftly struck down by the court. Unlike the systemic classification of Kentucky’s court system−which guaranteed lawyer judges only in areas of larger populations−South Carolina had the same magistrate requirements throughout the state.[59] No matter the county’s size, the presiding magistrate was guaranteed to be “qualified under the South Carolina Constitution and Code of Laws.”[60] This is still the case today.
Specific circumstances of the Duncan case made it a less-than-ideal vehicle for challenging the fundamental unfairness of nonlawyer judges. Most notably, the defendant had voluntarily waived his right to counsel and had entered a guilty plea before the nonlawyer magistrate.[61] Duncan’s own discretionary choices severely weakened his assertion that he was unjustly prosecuted. However, the court did not completely dissuade all future constitutional claims, describing due process as “a living principle.”[62] The court proffered that “advancing standards or changing conditions have not yet made the lawyer judge a condition of fundamental fairness.”[63]
South Carolina’s forty-six counties are served by 313 magistrates, of which 210 (67%) are nonlawyers.[64] Every county has at least one nonlawyer judge, and fourteen counties’ magistrates are entirely nonlawyers.[65] Also, each county has a Chief Magistrate, of which 63% (29 of 46) are nonlawyers.[66] The role of Chief Magistrate is primarily administrative but encompasses duties that profoundly affect criminal justice within the county, including: assuring that a magistrate is available at all times for issuing warrants and conducting bail proceedings; ensuring that cases are disposed of timely; and monitoring all summary court judges to ensure that, among other things, “the constitutional and statutory rights of defendants and victims are being upheld.”[67]
While magistrates are county judges, municipal court judges serve much the same function but for a specific township. Municipal councils have the option to establish their own municipal courts rather than rely on county magistrate courts.[68] As a result, 328 municipal judges serve 193 municipalities throughout all counties except Edgefield, Lee, and McCormick.[69] Nonlawyers account for 194 (59%) of these municipal court judges.[70]
Summary courts, encompassing both magistrate and municipal courts, have jurisdiction over criminal cases involving fines up to $500 and/or thirty days of imprisonment.[71] They may also hear cases involving larger penalties such as third-degree domestic violence, which involves fines up to $2,500 and/or imprisonment up to ninety days.[72] Additionally, general sessions courts may transfer certain cases to summary courts, allowing those judges to hear cases involving fines up to $5,500 and/or one year imprisonment.[73] Magistrates also have concurrent jurisdiction to hear civil cases involving fines up to $7,500, whereas municipal court judges do not.[74] However, municipal court judges do have exclusive jurisdiction over the municipality’s ordinances.[75]
Both magistrate and municipal court judge appointment processes open themselves up to selection by personal favor and the “good ol’ boy” system, rather than by merit.[76] By state law, magistrates are appointed by the governor “by and with the advice and consent of the Senate.”[77] In reality, magistrates are hand-picked by each county’s senate delegation then approved by the governor more as a formality.[78] Those county delegations consist of up to eight senators (Charleston County), or as little as a single senator (twelve counties).[79] Such a selection process has been highly disparaged as enabling “controversial candidates to sail through the confirmation process.”[80] Critics have also maintained that senators “have stocked the courts with friends, political allies and legal novices while consistently turning aside efforts at reform.”[81] To be eligible for nomination by a senator, a potential magistrate must simply: be a United States citizen and South Carolina resident of at least five years; be at least twenty-one years old; and have earned a four-year bachelor’s degree.[82]
Municipal court judges, in contrast, are elected by city or town council.[83] Those judges need not be attorneys nor residents of the municipality in which they serve, and no minimum education is statutorily required.[84]
In lieu of a law degree, nonlawyer appointees must pass two examinations to be eligible for appointment.[85] Neither examination involves any knowledge specific to laws of evidence, constitutional rights, or criminal procedure.[86] Instead, the Wonderlic Personnel Test and Watson-Glaser Critical Thinking Appraisal II merely assess “basic skills.”[87] The Wonderlic is a test of skills such as “basic mathematics, how to tell time, days of the week and months of the year, and a basic knowledge of the U.S. monetary units and the U.S. Customary System of weights and measures.”[88] The Watson-Glaser tests the “ability to recognize assumptions, evaluate arguments and draw conclusions.”[89]
Once appointed, both lawyer and nonlawyer summary court judges undergo largely the same training requirements. First, they must complete a two-week orientation at the South Carolina Criminal Justice Academy.[90] The training “essentially runs through ‘SC Law 101,’”[91] culminating in a half-day certification examination for nonlawyers.[92] Judges must retake that examination every eight years.[93] All incoming summary court judges must also participate in the Mandatory Summary Court Judge Mentoring Program.[94] Each new judge is paired with a mentor judge who ideally handles similar cases and is in the same office in order to maximize opportunities for interaction.[95] Together, the mentor and mentee draft and execute an Individualized Mentoring Plan to be carried out over the course of one year.[96] Summary court judges are also annually required to complete a total of eighteen (magistrates) or fourteen (municipal judges) hours of accredited continuing legal education (CLE) credits which cover pre-approved relevant topics.[97]
The primary difference between lawyer and nonlawyer judge training is that the nonlawyers must also complete at least ten trial observations prior to taking the bench.[98] Those cases must include:
(1) four criminal cases in a magistrates court, two of which must be in a magistrates court where he will not preside; (2) four civil cases in a magistrates court, two of which must be in a magistrates court where he will not preside; (3) one criminal jury trial in circuit court; and (4) one civil jury trial in circuit court.[99]
Importantly, this trial observation requirement only applies to nonlawyer magistrates and not to their municipal court counterparts.[100]
Nonlawyer judges were most prevalent throughout United States history prior to the reform movements of the twentieth century.[101] However, several of the justifications for allowing lay judges are still present today and require each state to balance those benefits against the demands of an increasingly complex legal system. Perhaps the most prominent impediment to employing only lawyer judges is financial considerations.[102] In South Carolina, the average salary for a full-time lawyer magistrate is $80,148, while that of a nonlawyer is $73,316.[103] Similarly, the average salary for part-time lawyer magistrates is $45,203, and $40,526 for nonlawyer magistrates.[104] Based on these averages, the cost to replace all full-time and part-time nonlawyer magistrates with lawyers would cost the state an additional $1.2 million per year.[105] This figure does not include municipal courts, which publish salaries by township rather than by judge.[106] Alternatively, to compensate for a loss of all nonlawyer judges, courts may be forced to cut back on the number of summary court judgeships. As a result, case backlogs may be further exacerbated and pose potential violations of the right to a speedy trial.[107]
Figure 1. Magistrates’ annual salaries, differentiated by the number of work hours per week, showing that in nearly every instance the lawyer judges earn more than their nonlawyer counterparts.
Another justification for retaining nonlawyer judges is the benefit of a more ethnically diverse bench. The South Carolina Bar, like many other states, continues to maintain a disproportionately low number of non-white members compared with the overall state demographics.[108] As a result, only 15% of the justices and judges presiding over the state’s supreme court, appellate court, and circuit courts are Black.[109] In contrast, courtroom observations report a more diverse summary court bench, with 22% of judges being non-White.[110] As such, the summary courts may reflect a diversity that is closer to South Carolina’s overall demographics of nearly one-third of the population being non-White.[111]
Finally, retaining nonlawyer judges may be justified due to a number of cost-effective methods which compensate for their lack of legal training. For example, South Carolina’s mandatory summary court mentorship program provides nonlawyer judges with access to a more experienced judge in a similar role.[112] For at least one year, the mentor-mentee pair are encouraged to communicate often, providing frequent opportunities for the trainee to get rapid feedback to any questions that come about in that position.[113] The South Carolina Summary Court Judges Association provides another source of support.[114] The organization’s objectives include “the adoption of uniform practices and procedures” across the state, and “[t]o keep its membership informed on all subject matter of importance related to traffic, criminal and civil issues that pertain to the summary courts, including substantive and procedural law.”[115] The Association utilizes events such as training conferences to meet those goals.[116]
Other methods implemented to increase nonlawyer judges’ legal knowledge include requiring a minimum number of CLE courses relevant to their position.[117] South Carolina has also increased the minimum education requirement of magistrates from a high school diploma to a bachelor’s degree.[118] While seven other states with nonlawyer judges also do not provide de novo review, South Carolina is the only to require a college degree.[119]
The South Carolina judicial system also has other tools at its disposal to deal with constitutional and logistical issues as they arise, or to close the gap in legal knowledge between lawyer and nonlawyer judges. For example, one major finding of a 2016 courtroom study was that 11.3% of summary court defendants were not notified of their rights, including the right to counsel and the right to a jury trial.[120] Following that report and subsequent litigation, Chief Justice Donald Beatty issued a Memorandum to summary court judges in September 2017.[121] In that Memorandum, Chief Justice Beatty firmly reminded those judges that “[a]bsent a waiver of counsel, or the appointment of counsel for an indigent defendant, summary court judges shall not impose a sentence of jail time, and are limited to imposing a sentence of a fine only for those defendants, if convicted.”[122]
Given the sudden emphasis on assuring defendant’s rights within magistrate and municipal courts, one would expect to see a decline in summary court appeals on those grounds. Relevant data compare the number of successful appeals on the grounds of (1) denial of defendants’ rights, and (2) failure to notify defendants of their rights.[123] The data were also separated by lawyer and nonlawyer judges.[124] There does appear to be a noticeable decline in those appeals following Chief Justice Beatty’s Memorandum.[125] While some of the decline may be attributed to the COVID-19 pandemic, it is clear that a notable change began to emerge even prior to that 2020 event.[126] Such a response suggests that measures as simple as a memo from the Chief Justice spotlighting key issues may provide significant due process protection, even within a system of nonlawyer judges.
Figure 2. Successful summary court appeals decided on the grounds of a denial of defendants’ constitutional rights, or a failure to notify defendants of those rights.
Clearly, nonlawyer judges save counties money and resources, and many alternative measures are available to begin to compensate for the lack of legal education. Mentorship programs, mandatory CLEs, and issue-specific mandates are relatively cost effective.[127] However, absent a more rigorous review process it is difficult to determine the efficacy of many of these solutions. Such ad hoc measures begin to evoke the image of plugging holes in a leaky dam. At some point, decision-makers should question whether compensating for a lack of a law degree is more trouble than simply doing away with nonlawyer judges altogether.
While the practical challenges which arguably favor nonlawyer judges are fairly basic, the case for lawyer judges is more nuanced. As discussed above, the Fourteenth Amendment due process argument against nonlawyer judges remains unresolved at the Supreme Court level, and state courts have conflicting conclusions.[128] The North Court, presented with a case involving a two-tier judicial system, had deemed it “unnecessary to reach the question whether a defendant could be convicted and imprisoned after a proceeding in which the only trial afforded is conducted by a lay judge.”[129] In South Carolina, however, misdemeanor defendants are almost always afforded only a single trial, even if that one trial is before a nonlawyer judge. Concerns associated with such a system include: insufficient appellate review; courtroom proceedings frequently devoid of any attorneys; equal protection for rural counties; and legitimacy concerns in how the public perceives South Carolina’s court system.
In South Carolina, not only are most summary court judges nonlawyers but the appeals process prohibits a rigorous appellate review of those judges.[130] From 2018 to 2020, 2.9 million criminal cases were filed in the summary courts, as outlined in Table 1.[131] During those same years only 590 criminal appeals were filed across all forty-six counties.[132] Based on those figures, only 0.02% of all summary court cases began the appeals process. Obviously, defendants found innocent would have no reason to appeal a favorable decision. Therefore, Column 2 of Table 1 identifies only the cases which resulted in a guilty verdict.[133] Even considering only those guilty cases, a mere 0.05% of defendants began the appeals process. Potential explanations for the low number of appeals are discussed below.
| Table 1: Total number of criminal cases filed in all South Carolina summary courts per year, compared with the number of cases in which defendants were found guilty and the number of appeals filed each year.[134] | |||
| Summary Court Yearly Totals | |||
| Year | All Criminal Cases Filed | Criminal Cases Ending in Guilty Verdict | Criminal Cases Appealed |
| 2018 | 1,025,298 | 467,318 | 216 |
| 2019 | 1,085,293 | 492,901 | 265 |
| 2020 | 765,397 | 292,128 | 109 |
| TOTAL | 2,875,988 | 1,252,347 | 590 |
By comparison, 2016 courtroom observations reported, “More than one in ten defendants observed in this study were assigned to courtrooms in which no advisement of any rights was given at the beginning of the court session.”[135] The observations further stated that even when court staff provided general advisements they were often incomplete (e.g., failed to include the right to an attorney).[136] These data suggest that far more than 0.02% of summary court cases have sufficient grounds for an appeal and warrant further scrutiny. The question then arises: what is the cause of the low rate of appeals?
First, the penalties for summary court cases are relatively minor, making the appeals process cost- and time-prohibitive for most defendants.[137] That process can also compound the actual human costs of even minor criminal charges—such as lost wages, loss of benefits, and contribution to family debt—resulting in unquantified losses to the defendant.[138] For example, attending an appellate hearing could require time off work and arranging childcare and transportation. Thus, even defendants who initially believe they have valid grounds for an appeal may ultimately abandon their claim due to a lack of time and resources needed to complete the process. These situations are likely present in South Carolina’s summary courts, as evidenced by the high rate of abandoned appeals. Specifically, 26.1% (248 out of 951) of appeals were dismissed due to the appellant’s voluntary withdrawal or failure to appear at the appellate hearing, as outlined in Table 2.[139]
| Table 2. A break-down of the grounds for which the appellate judge: affirmed the summary court ruling; dismissed the appeal; or reversed or remanded at least part of the summary court ruling.[140] | ||||
| Outcome | Grounds | Lawyer Judge | Nonlawyer Judge | TOTAL |
| Affirmed | No Errors of Law or Fact | 218 | 204 | 422 |
| Dismissed | Failure to Appear or Withdrawn | 133 | 115 | 248 |
| Dismissed | Appeal Not Timely Perfected | 21 | 19 | 40 |
| Dismissed | Other/Unknown | 27 | 13 | 40 |
| Succeeded | Substantive Errors | 23 | 50 | 73 |
| Succeeded | Procedural Errors | 38 | 49 | 87 |
| Succeeded | No Fault | 20 | 19 | 39 |
| Succeeded | Unknown | 6 | 9 | 15 |
Second, procedural hurdles for summary court appeals may also preclude necessary appellate review.[141] “In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception.”[142] South Carolina’s courts do not afford defendants an appeal as a matter of right, unlike the Kentucky system in the North case.[143] Instead, an appellant must possess a sufficient level of education and legal knowledge to identify potentially reversible errors of law or fact.[144] Furthermore, appeals must be filed within ten days of sentencing and must include serving notice of the appeal upon the summary court judge and the prosecuting party.[145] The relatively small fine amounts and short terms of incarceration undermine a defendant’s understanding of the long-term imperatives of appealing.[146] By the time the defendant is aware of the larger ramifications, such as denial of education assistance or loss of employment opportunities, the ten-day deadline has long since expired.[147] One author describes this phenomenon as an “accidental anti-welfare policy” which “exacerbate[s] economic inequalities on a massive scale.”[148]
At least forty of the summary court appellants recorded in the Public Index failed to properly complete all requirements (not to mention the unknown number of defendants who contemplated an appeal only to find that the deadline had passed, or who found the process too arduous to even consider).[149] Several circuit court judges, upon reviewing these cases, noted more specific reasons for dismissal, including: failure to timely notify all parties;[150] filing after the deadline;[151] filing prematurely;[152] and lacking proof of service.[153] Simply extending South Carolina’s filing deadline for summary court appeals may increase defendants’ access to judicial review by lawyer judges.
Third, extremely few summary court defendants are represented by counsel, and therefore are less likely to even consider an appeal as a viable option.[154] A surprisingly large number of defendants are not even notified of their right to appeal, as is constitutionally required.[155] As noted above, the deadline for appeals is extremely short.[156] Therefore, a defendant who exits the courtroom without being made aware of the right to appeal has little chance of timely completing the process without an attorney. Recent research in other states indicates that these issues are not unique to South Carolina but are part of a larger issue regarding due process in lower-level courts throughout the nation.[157]
In addition to judicial review, due process also suggests that “a fair trial may require the presence of a lawyer.”[158] Yet South Carolina’s summary courts, in which the majority of judges are nonlawyers, greatly increase a defendant’s chances of having an entire proceeding—including those resulting in imprisonment—start and finish without the presence of a single licensed attorney. Given that the prosecution is often represented by police officers, as many as 26% of summary court hearings are conducted without a single attorney involved.[159]
One counterargument is that judges who preside over misdemeanor courts often hear a repetitive number of simple cases such as moving violations. A lay person could, the argument goes, become well acquainted with relevant law through this process, assuming the cases are substantially similar. However, “[l]egal issues that arise in lower-level misdemeanor cases often invoke complex constitutional arguments.”[160] One example is driving under the influence (DUI), of which there were 76,567 cases filed in summary courts in fiscal years 2017–2018 through 2020–2021.[161] DUI cases involve complex issues such as precise requirements for audio and video documentation of the driver’s initial Miranda warning and field sobriety test.[162] Other “minor” offenses could prove similarly nuanced:
A case may open up the possibility of challenging vague laws under the Fourth Amendment. An accusation of unlicensed vending or disorderly conduct might brush against a litigant’s freedom of expression guaranteed by the First Amendment. A ticketing and arrest for sleeping in public may impermissibly punish homeless status under the Eighth Amendment. Constitutional issues are involved and difficult for even experienced attorneys trained in litigation.[163]
To underscore this point, appellate reviews indicate that nonlawyer judges may be more likely than lawyer judges to make reversible errors. Figure 3 shows that appeals succeeded more often against nonlawyer summary court judges overall, and this was specifically due to increased substantive and procedural errors, as opposed to no-fault grounds such as a respondent’s failure to appear at the hearing.
Figure 3. Comparison of appeals from nonlawyer versus lawyer summary court judges, as reviewed by lawyer judges at the circuit or appellate court level.[164]
Given the highly complex nature of even “low-level” criminal convictions, many states have determined that due process calls for judges who are legally trained attorneys.[165] South Carolina’s summary courts arguably present the same urgent due process concerns, based on not only a complex legal system but also: the lack of de novo appeals (and limited access to misdemeanor appeals in general); a scarcity of defense attorneys; and the prolific use of police officers as prosecutors.
In North v. Russell, the appellant’s equal protection argument hinged upon the fact that low-population cities did not require judges to be lawyers, unlike their higher population counterparts.[166] The Supreme Court dismissed this argument “as long as all people within the classified area are treated equally.”[167] South Carolina lacks such legally established stratification, thereby likely precluding a facial challenge based on equal protection.[168] Instead, a successful claim would need to present an as-applied challenge to the summary court judge requirements. However, even in counties in which all summary court judges are nonlawyers, those citizens are not a recognized protected class. Furthermore, a challenge based on discriminatory impact would require a showing of discriminatory intent.
Finally, the empirical evidence does not show a strong correlation between rural counties and majority nonlawyer judges. In theory, rural counties are more likely to have a high number of nonlawyer summary court judges. Factors include lower education, lower income, and greater distance from large cities (which have a greater proportion of practicing attorneys). A comparison of the percent of nonlawyer judges and county population density shows no significant correlation, thereby failing to support this premise.[169] As a result, a violation of the Fourteenth Amendment Equal Protection Clause may be difficult to prove, and further debate on this topic goes beyond the scope of this Note.[170]
Figure 4. The percent of each county’s summary court judges compared to population density.
Nonlawyer judges have a disproportionate impact upon the validity of the entire justice system, despite presiding predominantly over minor criminal offenses. “[M]agistrates are one of the most frequently viewed faces of the system, placing much of its legitimacy in the eyes of the public in their hands.”[171] Although difficult to quantify, recent research has attempted to draw attention to this concern.[172] Rather than relying upon technicalities and complex legal justifications, it is important that courts also adhere to the “spirit of the constitutional guarantees of due process, common sense and basic principles of justice.”[173]
If the exercise of state power in a liberal democracy is to be legitimate . . . it must be justifiable in terms that all members of society subject to that power would accept as just and fair. This imperative is particularly acute in the context of criminal punishment, for of all the manifestations of power the state exercises against its own citizens, the punishment of convicted offenders is the most intrusive, and the most severe.[174]
Public perception of summary courts is undermined by frequent accounts of negative interactions with nonlawyer judges.[175] In a Fairfield magistrate court one defendant recounted that the nonlawyer magistrate “showed a clear and obvious bias towards the State, in that it referred to the Court and the State collectively as ‘we’ . . . [and] argued several of the State’s arguments for them, rather than requiring the State to try their own case.”[176] Another defendant, who incurred a speeding ticket while passing through South Carolina to attend a funeral, documented his impression of the court experience:
My wife and I felt bullied and intimidated by the Court during the entire course of the proceeding . . . . [D]espite my respectful appearance, language and what I considered to be a ‘reasonable’ defense to the charge, [the nonlawyer judge] sustained [the officer’s] statements, told me “not to go there” or “move on”, and even threatened to find me in contempt.[177]
While individual defendants are certainly impacted by nonlawyer judges, the South Carolina public at large has also expressed negative attitudes towards the practice.[178] Throughout 2019 and 2020, a prominent South Carolina newspaper, in conjunction with ProPublica, featured a series of articles drawing attention to the state’s judgeships, including nonlawyer judges.[179] The public response to such stories was strong enough to prompt Governor McMaster and the legislature to consider changes, including phasing out nonlawyer judges altogether.[180] Many of these proposed bills failed to pass the South Carolina legislature, and those that are still pending do not propose a requirement that all judges be lawyers.[181]
At least one report suggests that substantive summary court reforms may have lost traction in light of urgent issues surrounding the COVID-19 pandemic.[182] Furthermore, recently proposed bills have focused more acutely on issues involving specific judicial ethics violations rather than nonlawyer judges in general.[183] It appears that garnering support in the wake of judicial scandals is easier than fostering momentum in support of increased due process protections. This may be especially true when the latter would severely eliminate senators’ freedom to assure judgeships for friends and colleagues who do not happen to be attorneys.
Absent further decisions from the U.S. Supreme Court,[184] it is unlikely that South Carolina’s nonlawyer judges will be eliminated by judicial opinion. Ultimately, that change falls upon the South Carolina Legislature. More studies are required to determine the budgetary requirements involved in replacing all nonlawyer judges with members of the Bar. The legislature can then establish a timeline for placing only lawyer judges on the benches.
In a broader sense, the underlying issues of South Carolina’s summary courts cannot be attributed to the use of nonlawyer judges alone. The system is plagued with high case volumes and little oversight in the form of judicial review. The limited number of summary court appeals precludes a more thorough investigation into the grounds on which nonlawyer judges are reversed and how that differs from lawyer judges. Such difficulty underscores concerns regarding South Carolina’s summary courts in which approximately one million cases are addressed each year with fewer than 300 of those undergoing appellate review.
Ultimately, in light of an increasingly complex judicial system and growing availability of attorneys in the state, nonlawyer judges should be phased out to maintain the legitimacy of South Carolina’s summary courts. Yet this transition should be balanced with other, equally necessary improvements. One method of affecting a gradual change is to retain current nonlawyer judges while instituting a forward-looking policy that all new judges must be attorneys. This incremental replacement would spread out the financial burden of replacing lower-earning nonlawyer judges with lawyer counterparts and is in line with how other states have implemented the same transition.[185] Counties and municipalities could recoup those finances in the meantime by instituting other changes. One solution may be reducing the high case volumes of magistrate and municipal courts,[186] such as by decriminalizing traffic offenses.[187]
Due to the disproportionate effect summary court judges have upon South Carolina’s justice system, it is imperative that the condition of those courts be reassessed. As Chief Justice Beatty insightfully articulated: “I am mindful of the constraints that you face in your courts, but these principles of due process to all defendants who come before you cannot be abridged.”[188] Encouragingly, comprehensive improvement is feasible and can start with the assurance that every proceeding is overseen by a judge who is a licensed attorney, adequately trained in the law.
| County | Magistrate Judges | Municipal Judges | % Nonlawyer Summary Court Judges |
County Pop. |
# of Senators in Delegation |
||
|---|---|---|---|---|---|---|---|
| Lawyers | Nonlawyers | Lawyers | Nonlawyers | ||||
| Abbeville | 0 | 3 | 0 | 5 | 100% | 24,527 | 2 |
| Aiken | 3 | 3 | 5 | 2 | 38% | 170,872 | 3 |
| Allendale | 0 | 1 | 2 | 1 | 50% | 8,688 | 2 |
| Anderson | 2 | 12 | 4 | 5 | 74% | 202,558 | 2 |
| Bamberg | 0 | 2 | 0 | 4 | 100% | 14,066 | 1 |
| Barnwell | 0 | 5 | 0 | 3 | 100% | 20,866 | 1 |
| Beaufort | 9 | 3 | 4 | 2 | 28% | 192,122 | 3 |
| Berkeley | 5 | 5 | 6 | 3 | 42% | 227,907 | 5 |
| Calhoun | 1 | 2 | 0 | 1 | 75% | 14,553 | 2 |
| Charleston | 14 | 7 | 17 | 3 | 24% | 411,406 | 8 |
| Cherokee | 0 | 5 | 1 | 3 | 89% | 57,300 | 1 |
| Chester | 1 | 4 | 2 | 3 | 70% | 32,244 | 1 |
| Chesterfield | 3 | 1 | 0 | 4 | 63% | 45,650 | 2 |
| Clarendon | 0 | 9 | 0 | 2 | 100% | 33,745 | 1 |
| Colleton | 3 | 2 | 1 | 5 | 64% | 37,677 | 4 |
| Darlington | 2 | 1 | 6 | 2 | 27% | 66,618 | 3 |
| Dillon | 1 | 3 | 1 | 2 | 71% | 30,479 | 2 |
| Dorchester | 4 | 4 | 4 | 3 | 47% | 162,809 | 5 |
| Edgefield | 0 | 2 | 0 | 0 | 100% | 27,260 | 1 |
| Fairfield | 1 | 5 | 1 | 2 | 78% | 22,347 | 1 |
| Florence | 1 | 9 | 7 | 3 | 60% | 138,293 | 4 |
| Georgetown | 0 | 6 | 3 | 1 | 70% | 62,680 | 2 |
| Greenville | 4 | 17 | 13 | 23 | 70% | 523,542 | 7 |
| Greenwood | 3 | 2 | 0 | 6 | 73% | 70,811 | 2 |
| Hampton | 2 | 1 | 3 | 4 | 50% | 19,222 | 2 |
| Horry | 1 | 9 | 6 | 17 | 79% | 354,081 | 5 |
| Jasper | 3 | 2 | 0 | 2 | 57% | 30,073 | 2 |
| Kershaw | 3 | 2 | 4 | 0 | 22% | 66,551 | 3 |
| Lancaster | 1 | 3 | 2 | 5 | 73% | 98,012 | 2 |
| Laurens | 1 | 3 | 1 | 5 | 80% | 67,493 | 1 |
| Lee | 0 | 2 | 0 | 0 | 100% | 16,828 | 2 |
| Lexington | 1 | 7 | 6 | 10 | 71% | 298,750 | 5 |
| Marion | 0 | 3 | 0 | 6 | 100% | 30,657 | 1 |
| Marlboro | 2 | 1 | 0 | 4 | 71% | 26,118 | 2 |
| McCormick | 0 | 2 | 0 | 0 | 100% | 9,463 | 2 |
| Newberry | 0 | 3 | 1 | 3 | 86% | 38,440 | 1 |
| Oconee | 1 | 4 | 1 | 4 | 80% | 79,546 | 1 |
| Orangeburg | 2 | 6 | 5 | 3 | 56% | 86,175 | 2 |
| Pickens | 0 | 4 | 5 | 10 | 74% | 126,884 | 2 |
| Richland | 10 | 12 | 15 | 5 | 40% | 415,759 | 5 |
| Saluda | 0 | 2 | 0 | 1 | 100% | 20,473 | 3 |
| Spartanburg | 8 | 13 | 4 | 6 | 61% | 319,785 | 5 |
| Sumter | 3 | 3 | 2 | 2 | 50% | 106,721 | 2 |
| Union | 1 | 4 | 1 | 7 | 85% | 27,316 | 3 |
| Williamsburg | 1 | 6 | 1 | 4 | 83% | 30,368 | 1 |
| York | 6 | 5 | 6 | 13 | 60% | 280,979 | 4 |
Court Agency: Common Pleas
Case Type: Appeal
Case Subtype: [Magistrate Crim 920 AND Municipal 930]
Last Name/Business: [“a,” “b,” “c…” sequentially].
Data from 2013–2015 are largely incomplete due to a state-wide conversion to a new data-entering process around 2015. Telephone Interview with Marci Spires, Supervisor of Civil Records, Richland Cnty. Clerk of Ct. (Nov. 16, 2021). The available appeals were analyzed for (a) final disposition (Affirmed, Succeeded, or Dismissed); and (b) the grounds for that outcome. The presiding judges’ names were then searched in the South Carolina Judicial Branch’s Attorney Information Search to be identified as lawyer or nonlawyer. Of the 1,249 cases gathered, those that were pending (had not yet been decided by the reviewing judge) and those lacking sufficient documentation to determine outcome or judge type were removed, leaving 951 valid appeals for the purposes of this Note. Three hundred and twenty-eight of those valid appeals had resulted in dismissal, while 623 had been reviewed on the merits. Of the appeals judged on the merits, approximately two thirds (67.7%) affirmed the summary court judge’s ruling, and one third (32.3%) resulted in a successful outcome for the Appellant (meaning a reversal or remand of at least a portion of the original ruling). ↑