S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
In the Matter of Ernest White, Respondent.
Opinion No. 24783
Heard March 4, 1998 - Filed April 27, 1998
PUBLIC REPRIMAND
Larry C. Smith, of Columbia, for Respondent.
Attorney General Charles Molony Condon and Senior Assistant
Attorney General James G. Bogle, Jr., of Columbia, for
Complainant.
PER CURIAM: In this judicial disciplinary proceeding, Respondent,
a former magistrate for Jasper County, is charged with misconduct arising
out of alleged misrepresentations he made on his magistrate application form.
The Panel of Hearing Masters recommended Respondent be publicly
reprimanded. The Board of Commissioners on Judicial Standards
unanimously adopted the Masters' report and recommendation. We agree
with the findings and recommendation of the Board and hereby publicly
reprimand Respondent for his misconduct.
FACTUAL/PROCEDURAL BACKGROUND
In May 1994, Respondent filed a notarized application form with the
Governor's office to become Magistrate of Jasper County. On the application,
Respondent indicated his level of education was a "high school graduate or
its equivalence (G.E.D.)." Respondent was, in fact, not a high school graduate
nor had he ever passed the high school level Test of General Equivalency
Development (G.E.D.) at the time he filed the application with the Governor's
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office. On July 12, 1994, Governor Campbell appointed Respondent as
Magistrate of Jasper County.
On July 14, Walter Leverette of Court Administration sent Respondent
a letter accompanied by an information form for Respondent to fill out.
Respondent indicated on the form that the highest level of education he had
completed was 9th grade in high school. There was no line on the form for
Respondent to indicate whether he had obtained a G.E.D. In the letter,
Leverette also informed Respondent that S.C. Code Ann. 22-1-10(B) (1989)
required magistrates to have a high school diploma or its recognized
equivalent. The letter enclosed a form entitled, Statement of Compliance --
Minimum Education Requirements for Magistrates. The letter directed
Respondent to complete the form and return it with a certified copy of his
high school diploma. Respondent never sent Leverette a copy of a high
school diploma or G.E.D.
Leverette's letter further informed Respondent of a mandatory
orientation school for new magistrates to be held on July 18-30, 1994. At the
orientation, Respondent approached Louis Rosen, Director of Court
Administration, and admitted he was not a high school graduate nor had he
obtained a G.E.D. Rosen testified that after speaking with Respondent, he
formed the opinion Respondent was not qualified to serve as a magistrate in
South Carolina. Rosen asked Motte Talley, a staff attorney with Court
Administration, to look into the matter. Talley provided Respondent with the
name of a person to contact at the Department of Education in order for
Respondent to take the next available G.E.D. test. Talley also wrote
Governor Campbell alerting the Governor to the fact that Respondent did not
possess a high school diploma or G.E.D. On August 13, 1994, Respondent
took the G.E.D. test and initially received a passing score.
In October 1994, articles appeared in the State newspaper reporting
allegations that Respondent had lied about his level education when he filed
his application with the Governor's office. There were also reports that a
person by the name of John E. Brown had switched G.E.D. test scores with
Respondent to ensure Respondent would pass the exam. Subsequently, the
United States Attorney's Office initiated a Grand Jury investigation
concerning the "switched scores" allegation. John E. Brown and Stephon
Edwards were ultimately indicted by the Grand Jury for violating various
federal statutes. Respondent was not indicted.
On October 27, 1994, Respondent, through his attorney, informed
Governor Campbell that due to the adverse effects of the media attention, he
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would take a leave of absence pending resolution of the matter. On February
2, 1995, Respondent officially resigned as Magistrate of Jasper County.
On June 9, 1995, a formal complaint was filed against Respondent,
alleging judicial misconduct under the Code of Judicial Conduct, Rule 501,
SCACR. The complaint alleged Respondent had violated Canons 1 and 2(A)
of Rule 501 by failing to disclose and/or misrepresenting his educational
eligibility on his magistrate application form. In his answer, Respondent
asserted three defenses: (1) the Board of Commissioners on Judicial
Standards lacked jurisdiction over him since he was no longer a member of
the judiciary; (2) the subject matter of the complaint was within the
jurisdiction of a federal Grand Jury investigation and subject to a gag order
issued by Judge Matthew J. Perry; and (3) Respondent was a target of the
federal criminal investigation, and therefore, any requirement imposed upon
him to answer the complaint would violate his Fifth Amendment rights.
A hearing before the Board of Commissioners on Judicial Standards
("Board") was scheduled to be held on October 20, 1995. Prior to the hearing,
we issued a Consent Order holding the proceedings in abeyance indefinitely
until the federal criminal proceedings could be concluded. We further stated,
"the Examiner or the Respondent may file the appropriate Motion before the
Commission for a hearing at such time as they believe that the reasons put
forth for the necessity of the continuance no longer exists or have been
adequately addressed."
On December 4, 1996, the Examiner submitted a motion to the Board
requesting a hearing before the Hearing Masters to be held on February 14,
1997. In the motion, the Examiner stated that the allegations against
Respondent only addressed Respondent's misrepresentation of his educational
qualifications and did not involve the switched G.E.D. scores which were the
focus of the federal investigation. The Board granted the Examiner's motion.
A hearing was held before the Hearing Masters on February 14, 1997.
At the hearing, Respondent's attorney expressed concern about whether
Respondent could testify in light of a gag order issued by Judge Matthew J.
Perry. The Masters recessed the hearing and directed the Examiner to make
inquiries about the gag order. On February 14, the Examiner wrote Judge
Perry, inquiring about the nature of any gag order. Judge Perry wrote back
on March 12, 1997, stating that the federal Grand Jury proceedings were
governed by the secrecy requirements provided in Rule 6(e), FRCP. Judge
Perry further stated that the federal court had done nothing to interfere with
any state investigation. The Examiner later spoke with Judge Perry by
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IN THE MATTER OF WHITE
telephone at which time Judge Perry informed the Examiner that he had not
issued a gag order but had only admonished the participants in the federal
proceedings to abide by the secrecy requirements provided in Rule 6(e),
FRCP.
The Examiner next wrote this Court requesting a partial lifting of the
confidentiality of the proceedings to the extent that the Examiner could
submit a copy of the complaint to the U.S. Attorney's Office and inquire as
to whether that office would use any testimony Respondent might give in the
.disciplinary hearing. On April 2, 1997, we issued an order granting the
partial lifting of confidentiality. The Examiner subsequently contacted the
U.S. Attorney's Office which responded, stating it could not give any
assurances that the grand jury would not use testimony given by Respondent
at a Judicial Standards hearing.
The Hearing Masters reconvened on August 1, 1997, at which time
Respondent invoked his Fifth Amendment right not to testify. The Hearing
Masters found Respondent had violated Canons 1 and 2(A) of Rule 501,
SCACR, and recommended a public reprimand. The Full Board unanimously
voted to adopt the report of the Masters. The Board certified the record to
this Court on December 30, 1997. Respondent elected not to submit a
supporting brief but reserved his right to make oral arguments before this
Court.
DISCUSSION
Respondent initially argues the Code of Judicial Conduct does not apply
to him because at the time he completed the application form, he was not yet
a judge. We disagree. Under Rule 502(l), SCACR, judicial misconduct
includes "not only judicial actions but also non-judicial actions, whether the
conduct complained of occurred before or after the judge assumed office, if .
. . (2) His conduct has violated the Code of Judicial Conduct or the Rules of
Professional Conduct." (emphasis added); see also In re Wright, 310 S.C. 191,
422 S.E.2d 746 (1990)(magistrate publicly reprimanded for submitting
fraudulent insurance application prior to taking judicial office). Moreover,
Respondent's alleged misconduct was directly related to his subsequent
appointment as Magistrate of Jasper County. Therefore, the Code of Judicial
Conduct applies to Respondent's conduct in this case.1
1 We note that this case is governed by former Rule 502, SCACR, since
Respondent's conduct occurred prior to January 1, 1997, the effective date of
amended Rule 502. Nevertheless, we would reach the same conclusion under
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South Carolina Code Ann. 22-1-IO(B) (1989) provides,
No person is eligible to hold the office of magistrate who is not
at the time of his appointment a citizen of the United States and
of this State, and who has not been a resident of this State for
at least five years, and has not attained the age of twenty-one
years upon his appointment, and has not received a high school
diploma or its equivalent educational training as recognized by
the State Department of Education.
(emphasis added). At the time Respondent filed his application form with the
Governor's office, the Department of Education only recognized the G.E.D. as
the equivalent to a high school degree pursuant to amended Reg. 43-130.
State Register, Vol. 15, Issue No. 5 (May 24, 1991). This regulation, which
is now codified at 24 S.C. Code Ann. Regs. 43-259 (Supp. 1997), provides, in
part, "The State Board of Education recognizes the high school level Tests of
General Educational Development (GED) and shall issue a state high school
equivalency credential to eligible candidates who successfully complete the
tests. " Additionally, David Stout, G.E.D. Administrator for the South
Carolina Department of Education, testified before the Hearing Masters that
the South Carolina Department of Education had, since the 1950's, recognized
the G.E.D. as the only equivalent to a high school degree.
A factual finding of judicial misconduct must be supported by clear and
convincing evidence. In re Peeples, 297 S.C. 36, 374 S.E.2d 674 (1988). Line
12 of the magistrate application form unambiguously asks the applicant
whether he or she possesses a high school diploma or G.E.D. Pursuant to
section 22-1-10(B), a negative response to this question completely disqualifies
the applicant from pursuing the judicial office of magistrate. It is undisputed
that at the time Respondent completed and filed his magistrate application
form, he was not a high school graduate nor had he attained a G.E.D. Thus,
Respondent's misrepresentation in this regard was essential in allowing the
Governor to appoint him as Magistrate of Jasper County.
amended Rule 502. Under Rule 3(b)(1) of amended Rule 502, "The
Commission has jurisdiction over judges regarding allegations that
misconduct occurred before or during service as a judge . . . ." (emphasis
added). Rule 2(q) defines misconduct as "any conduct by a judge constituting
grounds for discipline. See Rule 7(a)." Rule 7(a) provides, "It shall be a
ground for discipline for a judge to: (1) violate or attempt to violate the Code
of Judicial Conduct or the Rules of Professional Conduct or any other
applicable ethics codes."
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IN THE MATTER OF WHITE
Canon 1 of Rule 501, SCACR, requires that a judge must "observe high
standards of conduct . . . so that the integrity and independence of the
judiciary shall be preserved." Canon 2(A) provides that a judge must "respect
and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary."
A judicial candidate's truthful representation of his or her credentials is
fundamental to preserving the integrity of the judiciary. Public trust in
judicial office is founded upon the presumption that every judge has, at the
very least, met the minimum requirements for their position. Consequently,
a candidate who assumes judicial office by means of misrepresentation
directly threatens the public's confidence in the integrity of the judiciary.
Although Respondent later revealed his true academic credentials to officials
at the orientation school, his revelation came after the Governor appointed
him as magistrate. Moreover, Respondent failed to immediately resign. We
therefore find that Respondent violated Canons 1 and 2(a) of Rule 501,
SCACR, by assuming judicial office through the misrepresentation of his
academic credentials.
Because Respondent has since resigned from office, the most severe
sanction we can impose is a public reprimand. In re Parker, 313 S.C. 47,
437 S.E.2d 37 (1993).
PUBLIC REPRIMAND
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