New bill would limit state senators’ power to nominate magistrates

Report highlights Fanning, Underwood connection

WINNSBORO – In small counties like Fairfield, a single state senator routinely has unilateral authority to nominate magistrates.

That would change, however, under a new bill recently prefiled by two Republican state senators.

Senate Bill 903 would expand nomination responsibilities to a county’s legislative delegation, which include both state House and Senate members.

Dubbed the “Magistrate Reform Act of 2020,” the bill strikes existing language that gives senators exclusive power over nominations.

If adopted, S. 903 would appoint magistrates “with the advice and consent of the legislative delegation of the county in which the magistrate shall serve,” the measure reads.

“An appointee receives the advice and consent of a legislative delegation if the appointee receives a majority of the weighted vote of the Senators in the legislative delegation and a majority of the weighted vote of the members of the House of Representatives in the legislative delegation,” the bill continues. “If the legislative delegation provides advice and consent to an appointee or if the legislative delegation rejects an appointee, then the legislative delegation shall report to the Clerk of the House of Representatives, the Clerk of the Senate, and the Governor.”

While the bill would affect every South Carolina county, its impacts would be most directly felt in smaller counties. Among them is Fairfield County, where Sen. Mike Fanning, D-Great Falls, has direct control of Fairfield appointments.

If S. 903 becomes law, Rep. Annie McDaniel, D-Winnsboro, would also be able to nominate magistrate candidates.

McDaniel said she supports the general premise of the bill, saying more than one person should be involved in nominating magistrates. However, she wanted to reserve comment on the bill’s specifics until she could read its full text.

“When you have just one person, it lends itself to some concerns,” McDaniel said. “Any time you have more people involved that means you’re empowering the people.”

In addition, S.903 prohibits the family member of any state lawmaker from being nominated. Family members of former lawmakers must wait two years after the lawmaker leaves office to become eligible.

Another provision, aimed at curbing magistrates serving in a “holdover capacity,” magistrates may not serve more than 90 days after the date that their term expires, according to the legislation.

When a “non-lawyer magistrate” sentences a defendant, magistrates hearing any appeals must possess a law degree, and any case that’s appealed begin from scratch, the proposed law states.

Introduced Dec. 11 by Sens. Tom Davis, R-Beaufort and Tom Young, R-Aiken, the bill has been referred to the Senate Judiciary Committee, according to legislative records.

Young is also the sponsor of a second bill that targets magistrates with stains on their record.

S. 905 states that “any magistrate or magistrate candidate who has been reprimanded by the supreme court or any other disciplinary authority may not be appointed or reappointed unless approved by a majority of the senate after the senate is informed of the reprimand or disciplinary action.”

If passed, S. 905 could impact Chester County Magistrate Angie Underwood, who previously was hit with a one-year suspension by the South Carolina Supreme Court.

Nominated by Sen. Fanning, Underwood is the wife of former Chester County Sheriff Alex Underwood, who’s now under federal indictment. Angie Underwood was also part of a panel that interviewed candidates for Fairfield County magistrate vacancies earlier this year.

“I support magistrate judge reform and am both sponsoring and cosponsoring separate bills that are filed right now to implement magistrate judge reforms,” Young said in an email sent to The Voice.

S.903 and S. 905 come in the wake of investigative reports by The Voice about four controversial magistrate nominations in Fairfield County. When Fanning nominated the magistrates last spring, none had law degrees and all were appointed without taking tests that are required by state law to be passed by nominees before they are appointed.

Two of Fanning’s appointments required multiple attempts to pass the basic, sixth-grade level competency exam.

One candidate required at least three tries before achieving a passing score, according to judicial records that The Voice obtained.

Two Chester County candidates that Fanning nominated also had to take the exams multiple times, records show.

In June, following The Voice’s initial reports about magistrate appointment irregularities in Fairfield County, the S.C. Governor’s Office instituted a new policy requiring proof that magistrate nominees have passed their competency exams before being appointed.

Since then, the Post and Courier (Charleston) and ProPublica, a non-profit investigative newsroom, published a joint report highlighting abuses in the nomination of magistrates statewide.

Both news organizations also published a report highlighting potential conflict of interest issues between Magistrate Angel Underwood and her husband, the former sheriff.

“And yet, just months after returning to her magistrate duties, the judge [Angel Underwood] secretly aided the sheriff’s office in drafting a complaint against her colleagues on the bench,” Post and Courier reporter Joseph Cranney wrote in This judge is married to the sheriff. Ethics complaints have piled up.

The report also notes that Fanning has removed six of 10 magistrates in his district while retaining Angel Underwood in spite of her having received a suspension from her magistrate duties after conflicts involving her husband, the sheriff.

To read the Post and Courier report, click here.