J.A.I.L. News Journal
Los Angeles, California July 20, 2005
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South Carolina's Home Page
Tue, July 19, 2005
Magistrate system ripe for abuse, demands reform
PRETTY MUCH everybody, in Columbia and back home in Clarendon County, knows about Sen. John Land's lucrative practice before the state Workers Compensation Commission. It was one of the driving forces behind a provision in the 1991 Ethics Reform Act that required legislators to disclose fees they make representing clients before state agencies, and barring them from voting on matters affecting those agencies.
But what most people don't know is the extent to which legislators earn their living practicing before judges, over whose fate they have far more control than Workers Comp commissioners and other gubernatorial appointees.
Lawmakers treated the judiciary differently in the ethics law because the courts are much more heavily scrutinized than state agencies, and judges are governed by a code of conduct, enforced by the chief justice, that should preclude any inappropriate influence. Whether that justifies the distinction or not, one thing is for sure: When it comes to magistrates — already the weakest link in our criminal and civil justice system — such a distinction cannot be defended.
Officially, the governor appoints magistrates. In reality, senators pick them and the governor rubber-stamps their selections. In most of the state, magistrates are selected by an individual senator, either because only one senator represents the county or because each senator picks the magistrates in his Senate district.
Layered atop this bizarre selection system is the fact that, although bound by judicial conduct rules, magistrates aren't lawyers, aren't as sensitive to ethical propriety and aren't watched as closely as higher-court judges. As a result, it's the magistrates who most often wind up in trouble for putting personal interests ahead of the interests of the public.
This gives senators who are lawyers a decided advantage in the market: Who wouldn't want the magistrate's boss arguing their case before the magistrate? Worse, it undermines public confidence in the judiciary, and is ripe for abuse. Imagine an alleged batterer shows up in court to face domestic assault charges with the local senator as his lawyer. If the magistrate dismisses the charges, how confident can we be that justice was done?
It's extraordinary that this topic has never bubbled up for debate, given the tremendous potential for abuse. That needs to change.
At the least, senators should have to disclose money they make appearing before magistrates, just as do legislators who appear before state agencies, so voters can tell whether they are serving the public or themselves, and so we can get a sense of the scope of the potential problem. And lawmakers should at least debate whether to bar senators from magistrate court.
But that's only a partial fix, because the potential for undue influence isn't limited to lawyers. There's precious little to prevent a senator from building a power base by keeping people out of trouble (or getting them into trouble) through magistrates he appoints because he knows he can control them.
Ultimately, the way to ensure a professional judiciary at all levels is to treat it as such, by increasing educational standards for magistrates and by eliminating the feudal system that allows each senator to appoint his own magistrates. Even if there were no lawyers in the Senate, that would be an intolerable situation.