Scoppe: Sen. Sheheen and his judges

Associate EditorDecember 11, 2013 

— BEFORE WE talk about Sen. Vincent Sheheen representing clients before magistrates he effectively appointed, we need to talk about the magistrate system in South Carolina.

Technically, the governor appoints magistrates, the judges who hear most traffic cases, decide who stays in jail and who gets out on bond and mediate most civil disputes. In reality, the appointments are made by the senators from the magistrate’s county and, often, by the individual senator who represents that magistrate district. This is the reality because the Senate must confirm the governor’s appointment, and a single senator can block a nomination, so over the years governors have learned that it’s a waste of time to appoint someone other than the local senator’s preference.

Think about that for a moment: Senators appoint magistrates. Individual senators appoint magistrates.

It is a system that’s ripe for abuse, and one that has been abused spectacularly.

We talked about this a good bit five years ago, when then-Sen. Randy Scott, who, arrested on DUI charges, was recorded all but threatening to depose a magistrate if he didn’t come get the senator out of jail in the middle of the night.

Months later, a Highway Patrol trooper suggested that he let Sen. Brad Hutto’s clients plead guilty to reduced charges because “Brad appoints the judge, makes a motion and the judge agrees.”

It was easy for magistrates to get the idea that they worked for senators because, at the time, a full third of them were serving in legislative limbo: Their terms had expired, sometimes years earlier, but they had been neither replaced nor reappointed. So rather than having some political insulation appropriate to judges, they could be replaced at a moment’s notice, at the senator’s instigation.

Senate Republican Leader Harvey Peeler said then that he kept his magistrates in hold-over position because “you shouldn’t have to wait four years” to replace someone who is “not doing his job.” Which makes one wonder what it means not to be doing one’s job: Ruling the wrong way when a senator or one of his buddies represents clients before that magistrate? Not getting out of bed in the middle of the night to get the senator out of jail?

Sen. Sheheen’s judges

It is against that backdrop that the Haley campaign has jumped all over a report in The State that Mr. Sheheen has eight cases pending before one of his magistrates.

And rightly so. This is not like most of the charges Gov. Haley has thrown at Sen. Sheheen’s work as an attorney, which have been not just baseless but insulting to anyone who actually thinks, rather than simply pulling a straight-ticket lever — the sort of lawyer-bashing that we have come to expect from far too many populist politicians. This is about, at the very least, putting magistrates in an indefensibly difficult position.

The unfortunate fact is that not even the most honest person is capable of always ignoring the fact that he owes his job to one of the two lawyers standing before him — or, with most traffic cases, the one lawyer. No matter how hard you try to overlook such things, it’s human nature to, if nothing else, give the benefit of the doubt to the person you know and trust. And what’s not to trust about this fine senator? He obviously has good judgment, or he wouldn’t have gotten you this job.

How much worse is it with those magistrates who are nothing more than political hacks, who don’t even have any legal training, since we don’t require that, and who need their positions to feed their families?

Defenders of this arrangement say prosecutors can always ask a judge to recuse himself if they think there’s a conflict of interest. That’s true. But that’s hardly a fool-proof solution. It’s up to the judge whether to do so, and some don’t. And if the magistrate does recuse himself, the case goes to another magistrate — who probably also owes his job to the senator. Most significantly, most cases in magistrate’s court are tried not by a prosecutor but by the arresting officer, who might not feel so free to challenge the local power broker; in civil cases, parties often represent themselves and probably don’t even know about the arrangement, much less realize they have a right to challenge it.

Sen. Sheheen’s reform

Gov. Haley’s allies have proposed prohibiting senators from representing clients before their magistrates, and that’s sensible as far as it goes. But it ignores the much larger problem, which, as then-Sen. Scott demonstrated at the time, is not confined to lawyers.

To his credit, the person who has proposed the solution to the larger problem is Mr. Sheheen, who has been trying for several years to get himself and other senators out of the business of appointing magistrates. Indeed, he was one of the first senators to try to address the problems revealed by the Scott and Hutto scandals. He has proposed to have the Supreme Court either appoint magistrates or nominate candidates to the governor, whose selections still would be confirmed by the Senate. Between those two plans is the right solution: Put the governor and the high court into the mix and take the Senate out completely.

We can only hope that since this problem has become a campaign issue, senators will rethink their embrace of the status quo. That Democrats who have opposed Mr. Sheheen’s reform now will see it as helping them retake the governor’s mansion and Republicans who have opposed Mr. Sheheen’s reform will see it as an admission of guilt that will help their party, and the Senate will, at long last, clean up this mess. Which is a lot more important than which side scores points in this spitting contest.

About this spitting contest: Mr. Sheheen’s supporters say it’s unfair to expect him to stop defending clients before magistrates as long as that’s perfectly legal.

But that sort of misses the point, which is this: The idea that Gov. Haley not only has ethical problems but also is hypocritical when it comes to ethics (you know, trying to outlaw things she herself did as a legislator) is central to Sen. Sheheen’s campaign against her, and by and large, it’s a fair critique.

But when you build your campaign around that sort of narrative, you have to be not only ethical but above ethical. You have to obey the laws not only as they exist but as you want them to exist. You know, glass houses and all that.

No, this might not be as egregious as keeping ethics commissioners in that same sort of limbo as some senators kept magistrates. It might not be as egregious as then-Rep. Haley secretly accepting $1,000 a month from engineering company Wilbur Smith Associates to “keep your eyes and ears open.” Or logrolling her legislative office into a cushy job for Lexington Medical Center and then getting donations for her employer from lobbyists for an industry whose fate her subcommittee controlled. What Mr. Sheheen is doing is out there in the open, for all the world to see; what Ms. Haley did was not.

But the fact is that senators never should have been representing clients before magistrates they effectively appoint. And particularly not Mr. Sheheen of the glass house.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

The State is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service