Opposition Brief — Brown v. South Carolina Board of Commissioners on Judicial Standards

No. 96-993

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

HARRY C. BROWN, SR.,

Probate Judge for Jasper County

South Carolina,

Petitioner,

BOARD OF COMMISSIONERS

ON JUDICIAL STANDARDS

of the Supreme Court of South Carolina,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of South Carolina

RESPONDENT’S BRIEF IN OPPOSITION

CHARLES MOLONY CONDON

Attorney General for the

State of South Carolina

NATHAN KAMINSKI, JR.

Counsel of Record

Senior Assistant Attorney General

Post Office Box 11549

Columbia, SC 29211

(803) 734-3708

i

QUESTIONS PRESENTED

Whether an Order of the South Carolina

Supreme Court disciplining a State Court

Judge for misconduct, and directing the

Judge to remit to county government fees

received for the performance of marriage

ceremonies, raises an important question of

federal law under the equal protection or

due process clauses of the federal

constitution.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

COUNTERSTATEMENT OF THE CASE

A. Legal Basis for the

State Disciplinary

Proceedings

B. The Code of Judicial

Conduct i ae ae eae

C. The Factual Background

D. The Disciplinary Proceedings

REASONS FOR DENYING THE fk fee eee

A. The Petition Does Not

Raise Any Important

Issues of Federal Law . :

B. The Discipline Imposed

In This Case Does Not

Violate Petitioner’s

Due Process or Equal

Protection Rights re

ei Petitioner Cannot Rely

Upon a Local Law as

Authorization to Engage

In Conduct which Is

Prohibited By the Code

of Judicial Conduct

D. Petitioner Has Been

Given Ample Notice that

his Conduct Violates

the Code of Judicia]

Conduct ee oe ee

iv

~12

-15

18

CONCLUSION

iii

The September 11, 1995

Order in the State

Proceedings Is Not a

Ly Tr ee

Peal Seb Sec gies. ai get SY el tes Oe he ae

iv

TABLE OF AUTHORITIES

Page:

Cases:

American Civil Liberties undon_ Vv. Boze rat P

539 F.2d 340 (1976)... 9

Board of Regents v. Roth,

GU: Uses Bee Caete). 4 ee Se ee

Chicago Patrolmen’s Association v.

City of Chicago, 56 Ill.2d 503,

309 N.E.2d 3, cert den.

S19 ve. Gee tanta? -s..« 6 6 * «@ we ae

Geiler v. Commission on

Judicial Qualifications,

10 Cal.3d 270, 515 P.2d 1

(1973), cert. denied,

Gb7 Gile Ban haere «© hs Se 6 Se ee

Gipson v. New Jersey Supreme Court,

558 F.2d 701

(706 Sens cee eae eas ee ee ea

Graham v. Creel, 289 S.C. 165,

og Oe | ee os ae |

Hamilton v. Board of Trustees

of Oconee County School District,

282 $.C. 519,

319 8.2.2d 717, 721

(Cen ys ees Oo se ees se Ss

Hayes v. Alabama Court of Judiciary,

437 So.2d 1276 (Ala. 1983) ae ae eS

In re Piper, 271 Or. 726,

San Bue S00 S300 oak oe we

In re Primus, 436 U.S. 412

(S0Tes 6 + 8869-6 es ee

Vv

In re Seraphim, 97 Wis.2d 485, 294

N.W.2d 485, cert. denied ~*b_nom.

Seraphim v. Wisconsin,

449 U.S. 994 (1980) 10

In re Welch, 283 Md. 68, 388 A.2d 535

(1978) a at as ee a a eee 11

Jones v. Helms, 452 U.S. 412 (1981) 13

Kersey v. Shipley, 673 F.2d 730

[een Bale weet « + sta ies i

ht v. Salisb , 262 S.C. 565,

206 S.E.2d 875 (1974) 15

LandMark Communications Inc. v.

Virginia, 435 U.S. 829 (1978) 10

Matter of Ferguson, 304 S.C. 216,

403 S.E.2d 628 (1991) ... 2

Matter of Johnson, 302 S.C. 532,

397 S.E.2d (1990) jae 0 Beaeeae

Matter of Peagler, 303 S.C. 458,

401 S.E.2d (1991) .. 11

Middlesex County Ethics Committee

v. Garden State Bar Association,

GU! UeMe: Bam CROORS se ee 9

| Nordlinger v. Hahn, 505 U.S. 1 (1992). . 14

| North Dakota State Bd. of Pharmacy

Snyder’s Drug Stores,

44 U.S. 156 (1973) 21

O’Shields v. Caldwell, 207 S.C. 194,

35 S.E.2d 184 (1945) ° 12

| Parrish v. Gilstrap, 280 S.C. 184,

312 S.E.2d 4 (1984) 2

Perry v. Sinderm xman, 408 U.S. 593

(1972) ; ; , 17

vi

Spartanburg County y. ace,

204 S.C. 322, 29 S.E.2d 333

(1994) 7 * . o - . > . - . . . e . . 6

State, ex rel. McLeod v.

Court of Probate

of Colieton County, 266 S.c. 279,

223 S.E.2d 166 EE a a eg 8 tt

Constitution and Statutes:

U.S. Constitution

Amendment XIV

Due Process Clause Poe + a - Berke

Equal Protection Clause . -12,13,14

40 U.8.C. § See eeee Ago 55g oe Ft 20,21

C. Comet. aft. 7; @8 ... “ae ee oe ee F

C. Comet. O26. Fie 7. , St a 2 eae

S.C. Const. art. WEESE ON 8a Aote tek a ae

Cc

Code Ann., Title 8,

Chapter 21, Article 7 .... 5,18,19

S.C. Code Ann. § 8-21-760

(1986) 18

S.C. Code Ann. § 8-21-760 & 765

[Was Seeee eS Sa as a s + « sh

S.C. Code Ann. § 14-23-30

(1976) Ree ee 2

S.C. Code Ann. § 14-23-300

(1976) cs sca 4

S.C. Code Ann. § 20-1-20

(1985) te ce oe 4

S.C. Code Ann. § 20-1-230

(eee 6 4 a es ee ee “ei ae

vii

S.C. Code Ann. § 20-30.3

(1962) a

1974 S.C. Acts 2632

1976 S.C. Acts 1859

1979 §.C. Acts 311

1988 S.C. Acts 6239

Rules:

Code of Judicial Conduct,

Rule 501, SCACR

Canon 1

Canon 2

Canon 2A

Canon 5

Canon 5(C)(1)

Canon 6

Canen 6(C)

Rule on Judicial Discipline

and Standards, Rule 502,

SCACR . a ee oe

Rule 502, Section 2(b), SCACR

| Rule 503, SCACR .

Other Authorities:

§ 739 (1979)

63A Am. Jur. 2d Public Officers and

Employees § 441 (1984)

nen ne Vis COIL a A Mh sO -

16A Am. Jur. 2d, Constitutional Law,

3,6,19

7,9,21

12

—_ <<

No. 96-993

LL ss SESS

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

HARRY C. BROWN, SR.,

Probate Judge for Jasper County

South Carolina,

Petitioner,

BOARD OF COMMISSIONERS

ON JUDICIAL STANDARDS

of the Supreme Court of South Carolina,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of South Carolina

RESPONDENT'S BRIEF IN OPPOSITION

Respondent Board of Commissioners on

Judicial Standards of the Supreme Court of

South Carolina respectfully submits this

Brief in Opposition to the Petition for Writ

of Certiorari to the Supreme Court of South

Carolina dated December 10, 1996 filed by

Petitioner Harry C. Brown, Probate Judge for

Jasper County, South Carolina.

A Pepa he

2

COUNTERSTATEMENT OF THE CASE

A. Legal Basis for the State

Disciplinary Proceedings

Petitioner is a judge of the probate

court for the State of South Carolina and is

elected by the qualified electors of Jasper

County for the term of four years. s.c.

Code Ann. §14-23-30 (1976). Petitioner is a

“judge” pursuant to the express provisions

of the Rule on Judicial Discipline and

Standards, Rule 502, Section 2(b), South

Carolina Appellate Court Rules (SCACR). As

such, he is part of the Unified State

Judicial System over which the S.C. Supreme

Court (S.C. Sup. Ct.) exercises jurisdiction

pursuant to S.C. Constitution, Article V,

Section 1, and the S.C. Sup. Ct.’s inherent

common law powers to protect and preserve

the judicial system. Matter of Ferguson,

304 S.C. 216, 403 S.E.2d 628 (1991); Parrish

v. Gilstrap, 280 S.C. 184, 312 S.E.2d 4

(1984); State, ex rel. McLeod v. Court of

Probate of Colleton County, 266 S.C. 279,

223 S.E.2d 166 (1975). As a judge subject

to the Code of Judicial Conduct,

Petitioner’s activities, both judicial and

extra-judicial, are subject to scrutiny and

regulation by the S.C. Sup. Ct., both sua

sponte and through the Board of

Commissioners on Judicial Standards

(Commission) where the Judge’s activities

may reflect adversely on the integrity,

independence, and impartiality of the State

judiciary.

B. The Code of Judicial Conduct

The Code of Judicial Conduct is found

at Rule 501, SCACR. Canon 2 states that

“fA] Judge Should Avoid Impropriety and the

Appearance of Impropriety in All _ His

Activities". Canon 5 generally requires a

judge to regulate his extra-judicial

activities to minimize the risk of conflict

with judicial duties. Canon 5(C)(1)

specifically sets forth the proposition that

"a judge should refrain from financial and

business dealings that tend to reflect

adversely on his impartiality, interfere

with the proper performance of his judicial

duties, exploit his judicial position, or

involve him in frequent transactions with

lawyers or persons likely to come before the

court on which he serves." Canon 6 requires

a judge to regularly file reports of

compensation received for both quasi-

judicial and extra-judicial activities, and

precludes a judge from receiving any

compensation for extra-judicial activities

that “give the appearance of impropriety."

Cc. The Factual Background

In this case, the allegations of

misconduct revolve around the facts that the

Petitioner, as Jasper County Probate Judge,

performs marriage ceremonies during official

office hours, as well as on weekends, in the

county court house. Jasper County is a

border county between Georgia and South

Carolina. Restrictions attendant to the

issuance of a marriage license in South

Carolina are less restrictive than those in

border states such as Georgia. (Record

below, Tr., vol. 1, p. 54, ll. 11-18; Exh.

7, Article from the Savannah Mornin News

dated August 8, 1994, entitled “Questions

About Marriage Fees Policy Kindled, Probate

Judge Keeps Honorariums"). Each year,

hundreds of out-of-state couples routinely

come to the office of the Judge of Probate

in Jasper County to obtain marriage licenses

and subsequently to have a marriage ceremony

performed, often immediately after the 24

hour statutorily mandated “wait” period

which follows the license application. S.C.

“+

Code Ann. § 20-1-230 (1976). The number of

marriage licenses routinely issued in Jasper

County approach or exceed 1200 per year.

Any persons applying for a marriage

license in Jasper County pays the Petitioner

a license fee of $10.00 in accordance with

the provisions of local law, S.C. Code Ann.

§ 20-30.3 (1962) (Record below, Complaint

Ex.’s 1 & 2). The Petitioner collects the

$10.00 license fee and remits this monthly

to the County Treasurer (Record below, Tr.,

vol. 1, p. 46, ll. 16-22).

But Petitioner, like a notary public,

also possesses the authority to perform

marriages because he is authorized to

administer oaths. S.C. Code Ann. §§ 14-23-

300 (1976) and 20-1-20 (1985). Because the

marriage license applications funnel through

the Probate Judge’s office, Petitioner

performs hundreds of marriage ceremonies

each year. The couples obtain = an

appointment with Petitioner for the marriage

ceremony. (Record below, Tr., vol. 2, pp.

50-51). Petitioner usually collects a

The testimony reflects that in 1991, out of a

total of 1,114 marriages performed in Jasper County,

941 were for non-resident couples. In 1992, 1,138

marriage ceremonies were performed in Jasper County,

of which 931 were for non-residents. In 1993, 1,152

marriages were performed in that county, of which 961

involved non-resident couples. In 1993, Respondent

performed 1,017 of the Jasper County marriage

ceremonies, or 88% of the total. In 1994, 1,210

marriages were performed in the county, of which

1,015 were for non-residents. In 1994, Respondent

performed 980 of these marriages, or 81% of that

annual total. Finally, in 1995, through the month of

June, 482 ceremonies were conducted, of which 421

were for non-residents. During that 6 month period,

Respondent performed 352 of the Jasper County

marriages, or 73% of the total (Tr., vol 1, pp. 40-

42).

5

marriage ceremony "fee" when he conducts a

wedding, which Petitioner refers to as a

“gift/honorarium" (Record below, Tr., vol.

1, p 47, ll. 14-20). This cash payment or

fee is not set by a general or local law or

by ordinance, and the amount charged for

performing a marriage ceremony may depend

upon the time and/or place of the ceremony

(Record below, Tr., vol. 1, pp. 46-47).

The Petitioner states that each

honorarium varies in amount up to $50.00 and

the marriage ceremonies are performed at

different times (including week-ends) and in

different locations, but some marriage

ceremonies are performed in the Probate

Judge’s office during regular office hours.

(Record below, Tr., vol. aa Re 47).

Petitioner does not account for or remit any

of the “honoraria” to Jasper County and has

hever reported any of this compensation on

his Rule 501, SCACR, Disclosure Statements

Or on his Statement of Economic Interests

forms filed with the South Carolina State

Ethics Commission.

Petitioner has continued this practice

of accepting and retaining for his personal

use all fees/"honorariums" which he receives

for performing marriage ceremonies despite

the S.C. Sup. Ct.’s admonition in Matter of

Johnson, 302 s5.c. 332, 397 S.B.2ad 422

(1990), that any fee collected by a probate

judge, even if not specifically enumerated

by the General Assembly under S.C. Code

Ann., Title 68, Chapter 21, Article y

(dealing with probate fees and costs),

belonged to the county and must be remitted

by the probate judge to the county treasurer

for deposit into the general fund of the

county. In Johnson, the probate judge was

publicly reprimanded for retaining for his

personal use fees received from the Depart-

ment of Mental Health ("DMH") for hearings

ee

6

he conducted for DMH patients.’ There was

no fee established by ordinance or statute

for conducting those hearings. In the same

fashion, the marriage ceremony fee collected

by Petitioner is not set by either Jasper

County ordinance or by state statute.

D. The Disciplinary Proceedings

A formal disciplinary proceeding before

the Commission was initiated by a Notice and

Complaint dated June 9, 1995, alleging

misconduct by the Petitioner in accepting

and retaining fees/honorariums for perform-

ing marriage ceremonies. (Pet. App. 1-9).

An Answer dated July 5, 1995, and an Amended

Answer dated September 16, 1995, were filed

on behalf oof the Petitioner denying

misconduct. (Id. at 10-15).

A hearing was held before a three judge

panel of Hearing Masters on September 22,

1995. After some testimony was taken, the

hearing was continued, and subsequently

completed on November 17, 1995.

The Hearing Masters issued a Report

dated March 1, 1996, finding that certain

allegations of misconduct alleged in the

complaint had been proven by clear and

convincing evidence, and that the Petitioner

had violated Canon 5(C)(1), and Canon 6(C)

of the Code of Judicial Conduct, Rule 501,

The Johnson case is in keeping with the principal

enunciated in Spartanburg County v. Pace, 204 S.C.

322, 29 S.E.2d 333 (1944), where the South Carolina

Supreme Court, even prior to the passage of the

Uniform Judicial Act, was of the view that in those

counties where probate judges were placed entirely on

a salary (which is the case presently in every

county), the salary was "in full", and additional

compensation from whatever source was prohibited.

7

SCACR. The panel recommended a private

reprimand.

Pursuant to the Rule on Judicial

Discipline and Standards, Rule 502, SCACR,

the matter came before the full Commission.

The Petitioner, on April 5, 1996, filed

Objections to the Report of the Hearing

Masters, to which the Examiner filed a

Return on April 15, 1996. The Petitioner

also filed with the Commission a motion to

dismiss and/or to “remand” the matter to the

Masters, or, alternatively, to “suspend” the

proceedings.

After hearing oral arguments from both

the Petitioner and Examiner, and after

consideration of the record, the Commission

unanimously voted on April 30, 1996, to

adopt the Masters’ report as to findings of

fact and conclusions of law. However, the

Commission further voted to reject the

Masters’ recommendation of a private

reprimand, and instead recommended the

imposition of a sanction of a public

reprimand. (Id. at pp. 45-47).

Thereafter, the Commission certified

the record to the S.C. Sup. Ct. (Id. at

pp. 19-22). The S.C. Sup. Ct. received

briefs and heard oral arguments. On the

date of oral arguments, Petitioner served a

“Motion to Dismiss or Alternatively to

Suspend Further Action". (Id. at pp. 22-

26). On September 11, 1996, the S.C. Sup.

Ct. issued its Order finding misconduct and

imposing a private reprimand. (Id. at pp.

27-28). The S.C. Sup. Ct. held that the

retention of fees or honorariums given

Petitioner for performing marriage

ceremonies is unethical whether or not the

collection and retention of such fees are

permitted by law. The S.C. Sup. Ct.

8

directed Petitioner to “henceforth remit any

payments received for performance of

marriage ceremonies as provided in the

County Ordinance.” The S.C. Sup. Ct. noted

that the Petitioner’s failure to comply with

this Order “shall result in a more severe

sanction than we impose today.”

On October 10, 1996, Petitioner sent to

the S.C. Sup. Ct. a “notice of appeal” and

filed a “request for stay", requesting the

S.C. Sup. Ct. to stay its September 11, 1996

Order. (Id. at pp. 29-33). The S.c. Sup.

Ct. denied this request and directed that

Petitioner file an affidavit that he had

complied with the September 11, 1996 order.

(Id. at pp. 34-35). Petitioner then filed

a “motion for modification" which was denied

On November 7, 1996. (Id. at pp. 36-39).

On this same date, the Clerk of the

S.C. Sup. Ct. issued a Rule to Show Cause

directed to Petitioner why he should not be

held in contempt. (Id. at pp. 41-43). The

return date for the hearing on the Rule was

moved to December 4, 1996. On that date,

the Petitioner filed a motion to dismiss the

Clerk’s Order and Rule to Show Cause. (Id.

at pp. 49-64).

On December 18, 1996, the S.C. Sup. Ct.

dismissed the Clerk’s Rule to Show Cause and

issued an order withdrawing the earlier

private reprimand and substituting a further

Order of discipline. (Appendix A and B to

Resp.’s Brief in Opposition). In its

December 18th Order, the S.C. Sup. Ct.

privately reprimanded Petitioner; ordered

Petitioner not to personally retain any

further compensation for performing

marriages; and specifically directed him to

remit to the Jasper County Treasurer, within

15 days of the date of the Opinion, all

compensation he has received for performing

ee

9

marriages since September 11, 1996, and any

compensation he may receive in the future.

The Order further states that Petitioner’s

failure to comply “may result in a finding

of civil or criminal contempt, or the

imposition of a more severe form of

discipline under Rule 502, SCACR." Id.

Petitioner filed with the S.C. Sup. Ct.

a Petition for Rehearing on January 2, 1997

asserting that the December 18th Order

violated his equal protection and due

process rights under the state and federal

constitutions. On January 9, 1997, the S.C.

Sup. Ct. issued an Order denying the

Petition, finding that it was untimely. The

Sup. Ct. also found that even if the motion

for rehearing were timely, it was patently

frivolous and without merit. (Appendix C to

Resp.’s Brief in Opposition).

REASONS FOR DENYING THE WRIT

A. The Petition Does Not Raise Any

Important Issues of Federal Law

Nothing in these proceedings presents

any important question of federal law worthy

of certiorari. This Court has always shown

particular restraint before intruding into

an ongoing disciplinary proceeding by a

state court against a member of the state’s

bar or judiciary. Middlesex County Ethics

Committee v. Garden State Bar Association,

457 U.S. 423 (1982). Federal courts have

given exceptional deference to the

traditional and primary responsibility of

state courts for establishing and enforcing

standards of conduct for members of their

bars and judicial departments. Gipson v.

New Jersey Supreme Court, 558 F.2d 701 (3rd

Cir. 1977); American Civil Liberties Union

v. Bozardt, 539 F.2d 340 (1976); Geiler v.

Commission on Judicial Qualifications, 10 .

10

Cal.3d 270, 515 P.2d 1 (1973), cert. denied,

417 U.S. 932 (1974); In re Seraphim, 97

Wis.2d 485, 294 N.W.2d 485, cert. denied

sub nom. Seraphim v. Wisconsin, 449 U.S. 994

(1980).

The S.C. Sup. Ct. has determined that

Petitioner’s retention of marriage fees for

his own personal use is inconsistent with

the proper performance of his judicial

duties. - As the S.C. Sup. Ct. clearly

stated, “personal retention of payment for

performing these marriages involves “an

exploitation of [Petitioner’s] judicial

office for his own personal gain.”

(Appendix B to Resp.’s Brief in Opposition).

But from the outset of these

proceedings, Petitioner has not shown any

recognition that, as a judge subject to the

Code of Judicial Conduct, Petitioner’s

activities, both judicial and extra-

judicial, are subject to scrutiny and

regulation where the judge’s activities may

reflect adversely on the integrity,

independence, and impartiality of the

judiciary. Even those non-judicial

activities which might otherwise be lawful

and carried out by the Ordinary citizen may

rise to the level of misconduct by a judge

if such activities present the appearance of

misusing the judicial office, erode public

3

The Court has granted certiorari. in those

disciplinary cases where the appellants’ activities

have come within the “generous zone of protection’

reserved for First Amendment associational freedoms

and freedom of expression. In re Primus, 436 U.S.

412 (1978); LandMark Communications Inc. v. Virginia,

435 U.S. 829 (1978). This case, however, Clearly

does not present any issues which fall within the

First Amendment penumbra.

11

confidence, or appear to distract the judge

from his judicial duties. Matter of

Peagler, 303 S.C. 458, 401 S.E.2d (1991)

(probate judge who continued to serve

throughout primary and general elections

when he was candidate for office of county

supervisor warranted public reprimand); In

re Welch, 283 Md. 68, 388 A.2d 535 (1978)

(judge of the orphan’s court who earned

income as a part-time auctioneer, and who

failed to disclose this auctioneering income

on his financial disclosure forms, deserved

censure).

This point was specifically addressed

by the S.C. Sup. Ct. in the Order denying

the Petition for Rehearing:

The crux of respondent’s argument

appears to be that it is

impermissible for this Court to

hold judges to higher standards

than non-judges. This position is

patently frivolous. By accepting

the position of probate judge,

respondent has made himself

subject to the Code of Judicial

Conduct which does establish much

higher standards than those

applicable to other members of our

society. These higher standards

are necessary to maintain the

integrity and independence of, and

the public’s trust and confidence

in, the judiciary. We find

nothing in the state or federal

constitution which prohibits this

Court from applying more stringent

standards to those who have

elected to become judges in this

State. See, Hayes v. Alabama

Court of Judiciary, 437 So.2d 1276

(Ala. 1983)("Judges are not to be

measured by standards of ordinary

12

men and women."“); In re Piper, 271

Or. 726, 534 P.2d 159

(1975)(judges are held to greater

standards of ethical conduct than

even lawyers).

(Appendix C to Resp.’s Brief in Opposition,

pp. C=-Zg —- 3)

B. The Discipline Imposed in this Case

Does Not Violate Petitioner's Due

Process or Equal Protection Rights

Petitioner’s primary argument is that

the federal Due Process and Equal Protection

Clauses preclude the S.C. Sup. Ct. from

imposing any discipline because Petitioner

has a “vested right” in the compensation he

receives for performing marriages. But it

is a well-settled principle that property

interests are not created by the federal

constitution. Instead, they are created and

their dimensions are defined by existing

roles or understandings that stem from an

independent source such as state law. Board

of Regents v. Roth, 408 U.S. 564 (1972).

South Carolina follows the generally

recognized principle of law that prospective

fees or emoluments of a public office are

not the property of the incumbent, and do

not fall within the constitutional provision

against depriving a person of his property.

63A Am. Jur. 2d Public Officers and

Employees § 441 (1984), citing Chicago

Patrolmen’s Association v. City of Chicago,

56 Ill.2d 503, 309 N.E.2d 3, cert den. 419

U.S. 839 (1974).

In O’Shields v. Caldwell, 207 S.C. 194,

35 S.E.2d 184 (1945), the S.C. Sup. Ct.

considered the constitutionality of a 1939

Act passed by the General Assembly whereby

there was a transition for compensation of

13

certain county officers, previously paid in

whole or in part by fees, to salary alone.

The Sup. Ct. found that “[(p)Jublic officers

have no contract or property rights in their

offices", 35 S.E.2d at 190, and went on to

hold that:

A public employer, here a county,

may reduce the compensation of its

officers by means of legislation,

in the absence of (state) con-

stitutional restraint (there is no

provision in the current state

constitution which applies to

compensation of probate judges);

and the fact of such reduction

implies and raises no moral

obligation to later return the

amount of the reduction.

35 S.E.2d at 192.

Petitioner cannot legitimately

establish any property interest in marriage

fees within the meaning of the Due Process

Clause. Likewise, since state law does not

vest any property right in public office, or

its fees and emoluments, there is no

violation of equal protection. The Equal

Protection Clause does not create any new or

substantive legal rights or enlarge the

general classification of rights existing in

any state under its laws, nor does it

restrain the normal exercise of governmental

power. Jones v. Helms, 452 U.S. 412 (1981);

16A Am. Jur. 2d, Constitutional Law, § 739

(1979).

The private reprimand imposed in this

case under the Code of Judicial Conduct,

coupled with the further direction that

Petitioner desist from personally retaining

any compensation for performing marriages in

the future, were entirely reasonable and

14

appropriate. There was a full evidentiary

hearing conducted before the Hearing

Masters. The evidence contained in the

record fully supported the findings of

misconduct, and the findings of misconduct

warranted the imposition of the sanction

imposed by the Sup. Ct.

The Code of Judicial Conduct applies

equally to all state court judges under the

unified judicial system in South Carolina,

and certainly applies to all probate judges

who comprise the class to which the

Petitioner belongs. There is no claim in

this case, and no evidence in the record

below, that Petitioner has been singled out

for arbitrary treatment by the S.C. Sup. Ct.

This proceeding furthered the valid

purposes that underlie the Code of Judicial

Conduct: to foster respect for the

judiciary as a whole; to prevent conflicts

of interest; to avoid impropriety and the

appearance of impropriety that demeans a

judge’s high office; and to prevent the

exploitation of the judicial office for

personal financial gain. Unless the

Classification warrants some fform of

heightened scrutiny because it jeopardizes

the exercise of fundamental rights or

categorizes on the basis of inherently

suspect characteristics, the Equal

Protection Clause requires only that the

classification rationally further a

legitimate state interest. Nordlinger v.

Hahn, 505 U.S. 1 (1992).

ph

Cc. Petitioner Cannot Rely Upon a

Local Law as Authorization to

Engage In Conduct Which Is

Prohibited By the Code of Judicial

Conduct

Petitioner attempts to posit that a

local law (applicable only in Jasper County)

passed by the General Assembly in 1974

authorizes him to accept and retain marriage

fees. Although this local law has never

been specifically challenged, its constitu-

tionality and continued validity is

certainly suspect.

This law was passed after Art. VIII, §

7 of the South Carolina Constitution was

ratified and became effective in 1973. Art.

VIII, § 7 required the General Assembly to

provide for county functions only through

general laws, and specifically stated that

"{njo laws for a specific county shall be

enacted ...". Knight v. Salisbury, 262 S.C.

565, 206 S.E.2d 875 (1974). (See also S.C.

Const. art. V, § 1 governing the unified

Judicial Department, which also was ratified

and became effective in 1973).

Additionally, when the General Assembly

passed the Judicial Reform Act in 1976, Act

No. 690, 1976 S.C. Acts 1859, the probate

courts were brought under the uniform

judicial system. The General Assembly

reformed on a state-wide basis the method of

compensating probate judges, directing

counties to pay probate judges on a salary

basis, rather than allowing retention of

fees or commissions. This Act specifically

provided that fees and commissions collected

by the probate judge "shall be the property

ee

A me

16

of such county".‘ Article V, § 6, Act No.

690, Id. After 1976, the compensation of

probate judges, and the disposition of any

fees collected by these judges, were

controlled by general law, rather than the

local law upon which the Petitioner appears

to base his argument.

Petitioner cannot properly rely upon

any statute or rule to support his claim of

entitlement to marriage fees, nor can he

4

In furtherance of this uniform system, the General

Assembly has further amended these provisions (Act

No. 164, Part I. § 2A, 1979 S.C. Acts 311, 316 and

Act No. 678, Part IV, § 1, 1988 S.C. Acts 6239, 6259)

to now provide for a uniform salary schedule based on

county population codified at S.C. Code Ann. § 8-21-

760 & 765 (Supp. 1995). These acts repeal by

implication any previous act, special or general,

that deal with compensation of probate judges.

Additionally, under the authority of Graham v. Creel,

289 S.C. 165, 345 S.E.2d 717, local laws passed by

the General Assembly prior to 1973 remain in force

and effect (if not implicitly repealed by other

general law subsequently passed) until the governing

body of the county takes further action. As shown in

the record, Jasper County Council in December, 1994,

enacted an ordinance which directed that all funds

generated from fees collected and monies received by

Jasper County departments’ employees and/or elected

officials should be accounted for and timely

deposited with the Jasper County Treasurer's Office.

(Record below, Exh. 11). The County Administrator

then issued a memorandum to all county department

heads and elected officials directing that they

deposit into the County general fund “all fees,

honorariums, fees collected incident to {their}

position and collected on county time or property”,

and holding each official "accountable" for such fees

or collections as of the date of the ordinance. Id.

This, together with the language contained in S.C.

Code Ann. § 8-21~-760 (Supp. 1995), represents a clear

mandate that the Respondent must account for and pay

into the county’s general fund any fees or

honorariums collected for performing marriage

ceremonies.

17

identify any “mutually explicit

understandings” that create any

constitutionally protected property

interests in these fees. Perry Vv.

Sinderman, 408 U.S. 593 (1972); Kersey v.

Shipley, 673 F.2d 730 (4th Cir. 1982);

Hamilton v. Board of Trustees of Oconee

County School District, 282 S$.C. 519, 319

S.E.2d 717, 721 (Ct. App. 1984).

In the final analysis, the separation

of powers doctrine found in the S6.cC.

Constitution, S.C. Const., art. I, § 8, is

fatal to Petitioner’s contention that a

local law can authorize a judge to engage in

conduct otherwise prohibited under the Code

of Judicial Conduct. This is made clear by

the S.C. Sup. Ct. in its Order denying the

Petition for Rehearing:

Respondent also continues to argue

that by statute he is authorized

to retain fees for performing

marriages. First, we disagree

with respondent’s conclusion that

Act No. 1148, 1974 Acts 2632,

authorizes respondent to

personally retain fees for

performing marriages. Second,

even if we were to accept

respondent's strained

interpretation of this statute, we

adhere to our position that a

statute cannot authorize a judge

to engage in conduct which is

prohibited by the Code of Judicial

Conduct. To hold otherwise would

be to seriously diminish the

inherent authority given to this

Court by the South Carolina

Constitution to regulate’ the

conduct of judges.

(Appendix C to Resp.’s Brief in Opposition,

$

a

2

.

:

3

j

/

3

2

;

hon “ A A Ny A in ll OS oe core +

18

pp. C-3 - 4)

D. Petitioner Has Been Given Ample

Notice that his Conduct Violates

the Code of Judicial Conduct

Petitioner also appears to assert that

he was sanctioned “without prior notice”.

This claim has no basis in fact. The S.C.

Sup. Ct, in Matter of Johnson, 302 S.C. 532,

397 S.E.2d 522 (1990), made it clear that

probate judges could not continue to

personally retain fees as compensation. In

Johnson, the judge entered into a written

agreement with DMH providing for payment of

a hearing fee. In this case, Petitioner

reaches an oral understanding about the

"honorarium" with the couple for whom he

performs the marriage.

The probate judge in the Johnson case,

just as the Respondent has done in this

case, argued that he could keep these fees

for his personal use because these funds

were not among those specifically enumerated

under Article 7 (of the statutory provisions

dealing with probate fees) and therefore did

not belong to the county. Citing S.C. Code

Ann. § 8-21-760 (1986), the Supreme Court

completely rejected this argument:

Respondent claims his failure to

remit the DMH funds to the county

was not unlawful under. this

section because the DMH funds are

not among the fees and costs

specifically enumerated in Article

7. This claim is untenable. It

is undeniable that respondent was

acting in his capacity as probate

judge when holding the DMH

hearings. Any fees collected in

his capacity as probate judge are

EER OT ce oe ee ae ee ea

19

“probate fees" governed by Article

}) whether specifically enumerated

therein or not.

397 S.E.2d at 523 (emphasis added).

The S.C. Sup. Ct. went on to find that

the probate judge’s failure to deposit these

"fees" in the county fund was a violation of

"Canons 1 and 2(A) of the Code of Judicial

Conduct in failing to observe high standards

of conduct and failing to respect and comply

with the law." Whatever the practice in

Jasper County may have been or the

construction afforded the local laws in

effect in regard to these fees prior to the

Johnson decision in 1990, the Petitioner was

clearly on notice thereafter that his

retaining marriage ceremony fees\"honor-

ariums", and failing to turn these funds

Over to the county, constituted actions

likely to be construed by the Sup. Ct. as a

violation of the Code of Judicial Conduct.

As the record below reflects, in

October, 1994, seven months prior to the

filing of a formal complaint against

Petitioner, the Advisory Committee on

Standards of Judicial Conduct (Rule 503,

SCACR) issued its Advisory Opinion No. 26-

1994 specifically noting the applicability

of the Johnson case and stating

unequivocally that "[a] (probate) judge who

accepts an honorarium for marital services

performed is exploiting his judicial

position for his own personal gain and thus

violating Canon 5(C)(1)" (Record below, Ex.

3). But Petitioner has continued to retain

these fees/"honorariums", even after (1) the

advisory opinion was issued in October,

1994; (2) the Judicial Standards Commission

began directly questioning the Petitioner

about the propriety of this conduct through

a series of letters from September, 1994

ee

20

through April, 1995 (Id. at Exh. 6); and (3)

the Jasper County Council passed a local

ordinance in December, 1994 specifically

directing that all fees and “honorariums”"

collected by Jasper County “elected

officials“ be deposited with the Jasper

County Treasurer. (Id. at Ex. 11).

All of this occurred several months

prior to the filing of the Judicial

Standards Commission’s formal complaint

against Petitioner in June, 1995. As the

S.C. Supreme Court has already noted, “the

procedural due process afforded to

respondent, to include the proceedings

before the Judicial Standards Commission,

the hearings before this Court, and the

opportunity to file a motion for rehearing,

are more than sufficient under the due

process clauses of both the state and

federal constitutions." (Appendix C to

Resp.’s Brief in Opposition, p. C-3). Any

claim that Petitioner did not have adequate

“notice” that his conduct violated the Code

of Judicial Conduct is frivolous.

E. The September 11, 1995 Order in

the State Proceedings Is Not a

“Final Order”

Petitioner has also asserted that the

September 11, 1996 order of the S.C. Sup.

Ct. is the “final order” which he is asking

this Court to review pursuant to 28 U.S.C. §

1257(a). (Petition for Writ of Certiorari,

pe. i-2, 15). But this is an ongoing

disciplinary proceeding, as evidenced by

subsequent orders of the Sup. Ct. (Pet.

App. at pp. 34-35, 39; App. A, B, and C to

Resp. Brief in Opposition). The September

11, 1996 order has now been withdrawn and

the December 18, 1996 order substituted in

its place. Id.

21

Additionally, Petitioner has filed

various motions with the Sup. Ct. after the

September 11, 1996 private reprimand, none

of which are provided for under Rule 502,

SCACR. Paragraph 25 of Rule 502, SCACR,

provides a procedure for the filing of a

"motion for rehearing” within 10 days of the

filing of the Sup. Ct.’s decision in a

judicial discipline proceeding. The purpose

for such a motion is to point out to the

Sup. ct. any issues it may have

misapprehended or overlooked.

The Petitioner did not file such a

motion in this case after the Sup. Ct.

issued its September 11, 1996 order. As the

Sup. Ct. observed in its December 18, 1996

order, “We note that [Petitioner} did not

file a petition for rehearing with this

Court raising the issues he is now raising

to the United States Supreme Court.” (App.

A to Resp. Brief in Opposition). Petitioner

then filed a “Petition for Rehearing" with

the Sup. Ct. dated January 2, 1997, raising

the due process and equal protection

arguments. However, the Sup. Ct. in its

order denying rehearing found the Petition

was untimely under Paragraph 25 of Rule 502,

SCACR. (Appendix C to Resp.’s Brief in

Opposition).

From this perspective, Petitioner did

not adequately exhaust his state remedies.

Nor is the finality requirement oi 28 U.S.C.

§ 1257(a) satisfied since the Petitioner is

asking this Court to engage in a “piecemeal

review" of ongoing state disciplinary

proceedings and to unnecessarily intrude in

State affairs. North Dakota State Bd. of

Pharmacy v. Snyder’s Drug Stores, 414 U.S.

156 (1973).

Pale yas we RIA ane Ch

22

CONCLUSION

It is respectfully submitted that the

Petition for Writ of Certiorari in this case

is without merit and should be denied.

Respectfully submitted,

CHARLES MOLONY CONDON

Attorney General for the

State of South Carolina

NATHAN KAMINSKI, JR.

Counsel of Record

P.O. Box 11549

Columbia, South Carolina

29211

(803) 734-3680

Columbia, South Carolina

January 13,

1997