Usually, one of the prerequisites for becoming a judge is first attending law school and becoming a lawyer. The rationale for this thinking is that to be a judge of the law, one must first have been a student of the law and then a practitioner of the law. This required progression makes a great deal of sense because any judge who rules on a case should have at least a comfortable proficiency with the legal matters involved. But for reasons which are not entirely clear, in South Carolina this common sense progression does not apply to at least one judicial position, the office of Probate Court judge.
The Probate Court is the court in which the estates of people who have died are distributed to their heirs (whether or not they have a will), and where incapacitated persons can be appointed a legal guardian or conservator. Because there is no jury in Probate Court, the judge bears the significant responsibility of making not only the legal rulings but also all the factual findings and when there are disputes between heirs over an estate. In those instances, the Probate Judge is called upon to make legal findings based on the South Carolina Probate Code, a sometimes cryptic set of statutes.
Section 14-23-1040 of the South Carolina Code of Laws only requires that a person be a citizen of the United States and the State of South Carolina, have reached the age of 21-years-old, have a bachelors degree or four years experience working in a probate judge’s office, and be an elector in the county in which they seek office in order to be a probate judge. Significantly, the Probate Judge is also one of the only judicial positions in South Carolina elected by popular vote instead of being appointed by the General Assembly as are circuit court judges, magistrates, and family court judges.
This is important to know as Charleston County holds its elections for its Probate Court judge this year for the first time in four years. Two candidates have attended law school and served as lawyers prior to seeking election as a Probate Court. One has not.
On the Republican side, incumbent Judge Irv Condon seeks his seventh term as probate judge, having initially been elected in 1994. Prior to being elected, he served as a probate lawyer. In the Democratic Primary, attorney Kelsey Willey squares off against former County Magistrate Stephanie Ganaway-Pasley. Kelsey Willey has also spent time as a probate lawyer, while Ganaway-Pasley has not.
Former State Senator Robert Ford, a strong supporter of Ganaway-Pasley, has sent several mass emails in advance of the June Democratic primary indicating why he believes his candidate should be elected to the probate court. In his first mailing, he stated: “The mayor should not be in office, and we, as a people should stop supporting white elected officials for county races like probate judge and register of deeds.” In a later email supporting Ganaway-Pasley he pleads: “Please don’t turn your backs on the civil rights movement pioneers nor disrespect!” Really?
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While it is vitally important to have a diverse and representative judiciary in this state, it is also imperative that judges have the basic education, training, and experience for the offices they eventually hold. As an African-American attorney who practices in the Charleston County Probate Court, it is far more important to me that the judge deciding my client’s case have a thorough demonstrated proficiency in probate law than they be black or white. Ironically, the Charleston County Probate Court currently has a very capable black female associate judge who frequently hears cases. She too was a former probate lawyer.
Diversity on the bench is woefully deficient in South Carolina, but the way to best combat that is by nominating and electing judges whose qualifications are impeccable and beyond reproach. This guarantees that any minority or female judge will be respected because of their temperament, knowledge, and intellect, not discounted as simply filling a racial quota or for their gender alone. A racial call to arms is an interesting way to motivate black voters, but should not be the basis upon which one votes a non-lawyer to the probate bench.
Current Probate Judge Irv Condon and probate attorney Kelsey Willey have both passed the South Carolina Bar and demonstrated a proficiency in probate law which makes them both eminently worthy of re-election or election. From this lawyer’s perspective, either would be a better choice than Ganoway-Pasley, the only candidate in the race for Probate Court judge who has not.
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