August 16, 1979


TO: All Sheriffs and Chief Judges of the Magisterial Courts in South Carolina
FROM: L. Edmund Atwater, III, Staff Attorney

By Orders of Chief Justice J. Woodrow Lewis dated March 2 and March 29, 1977, Chief Judges for Administrative Purposes of the Magisterial Courts were appointed in each county in the State of South Carolina. These Orders required that the Chief Judge of the Magisterial Courts in each county establish with the other magistrates of the county a schedule so arranged that a magistrate will be available, in person or on call, at all times in the county to issue warrants and conduct bail proceedings. This requirement has been most recently restated in the Order of Chief Justice Lewis dated June 25, 1979. The purpose of this requirement is to insure the availability of judicial manpower for compliance with the Bail Reform Act of 1969.

Under this requirement, each Chief Judge is to establish a schedule which will insure that a magistrate is on duty in person or on call twenty-four hours a day seven days a week. The number of times the judge physically goes to the detention facility is dependent upon the size of the county and the activity in that county. As a minimum we have required that a judge physically go to the detention center at least twice every twenty-four hour period. At all other times during the twenty-four hour period the duty magistrate is to be available by telephone for contact by the law enforcement officials.

It is the responsibility of the duty magistrate to notify the detention center when he will be unavailable for contact by telephone. In this situation he should either advise the law enforcement officials where he can be contacted or the officials notified as to his expected time of return or instructed to contact the Chief Judge or Associate Chief Judge for Administrative Purposes of the Magisterial Courts.

It is the responsibility of the Chief Judge for Administrative Purposes to see that this schedule of assignments is filed in writing with the sheriff of the county, the person in charge of the detention facility if this other than the sheriff, the clerk of court of the county, each magistrate in the county , and the Office of S.C. Court Administration.

This roster should be posted by the Sheriff's Department so that is available to persons in charge with the intake of persons committed to jail. It should also be posted where it can be viewed by the public who come to the detention facility. The roster should contain the telephone number of the duty judge as well as the times in which he will appear.

In the event that your county is not in compliance with the above procedure, please notify this office immediately.

In the event the duty magistrate cannot be reached, the Chief Judge or the Associate Chief judge, if one is appointed for the particular county, should be contacted. In large counties, it is recommend that a backup emergency duty roster be established so that there is an alternate contact magistrate in the event that the regularly scheduled duty magistrate cannot be reached. I wish to stress that anytime the duty magistrate cannot be reached, the Chief Judge for Administrative Purposes be contacted or the Associate Chief Judge, if such has been appointed in the particular county.

Where an individual has been taken into custody and brought to the jail facility for commitment at a time other than when the magistrate is physically present, the committing officer or the intake officer should determine whether or not the magistrate should be contacted and requested to come to the facility at a time other than the scheduled time for appearance. It is not possible to list all situations in which the detention personnel should contact the judge or that they should not. The severity of the charge, the physical condition of the person being committed, the time period before the scheduled physical appearance of the judge are factors which should be weighed. When in doubt, the judge on duty should be contacted by telephone and it should be his determination as to whether or not he will appear. His response to the request should be noted in writing by the jail personnel as well as by the judge himself. This is in order to maintain a record of the actions taken.

The above procedure does not prevent the arresting officer or the law enforcement personnel at the detention center from taking the defendant to the duty magistrate or any other magistrate in the county who is available to the law enforcement officials at the particular time in question. This was the procedure used prior to the implementation of the twenty-four hour system and has not been revoked by that system.

Because the system requires the exercise of discretion and judgment decisions, it is imperative that the law enforcement agencies and judicial personnel cooperate to every extent possible. Where there are problems or questions, please contact this office and we will do our utmost to resolve those problems in a mutually satisfactory manner.