United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendants' motion to
dismiss. For the reasons set forth below, the Court denies
Tina Bairefoot was convicted of shoplifting miscellaneous
merchandise worth approximately $163 from a Walmart. (Dkt.
No. 1 ¶ 57.) She was not represented by an attorney and
she was not advised of her right to counsel. (Id.
¶¶ 59-66.) Beaufort Municipal Judge Ned Tupper
sentenced her to pay a fine and court costs of $2, 220, or to
serve thirty days in jail. See Beaufort County,
Public Index, availableat
[hereinafter "Beaufort County Judicial
Records"]. Ms. Bairefoot's income is below the
federal poverty guidelines.(Dkt. No. 1 ¶ 55.) Although
Beaufort court records appear to indicate that Ms. Bairefoot
was incarcerated because she was unable to pay that fine,
Plaintiffs allege with specificity that Ms. Bairefoot was
sentenced to incarceration immediately upon conviction on
February 6, 2017. (Id. ¶ 66.) She served 15
days. (Id. ¶ 67.)
Dae'Quandrea Nelson was convicted of third-degree assault
and battery and disturbing the schools. (Id. ¶
100.) The charges arose from a fight between students at a
high school that occurred when Mr. Nelson was a 17-year-old
student. (Id. ¶ 76.) He was not represented by
an attorney and he was not advised of his right to counsel.
(Id. ¶¶ 86, 93, 102.) When he first
appeared in Bluffton Municipal Court on February 2, 2016, he
applied for pretrial intervention and his application was
accepted. (Id. ¶ 83-88.) Mr. Nelson however
failed to complete required weekend community service and he
failed to pay a required $30 fee (although he had already
paid $350 to apply to pretrial diversion), so he appeared
again in Bluffton Municipal Court on February 21, 2017.
(Id. ¶¶ 87-89, 93.) Judge Dustin Lee
sentenced him to pay a fine and court costs of $3, 212.50, or
to serve two concurrent 30-day jail sentences. See
Beaufort County Judicial Records. Mr. Nelson's income is
below the federal poverty guidelines. Mr. Nelson was
incarcerated immediately upon sentencing. (Dkt. No. 1 ¶
101.) Mr. Nelson served 16 days in jail. (Id. ¶
Nathan Fox was convicted of speeding (10 mph or less), no
proof of insurance, driving under a suspended license (third
or subsequent offense), use of a license plate issued for a
different vehicle, and defacement of a license plate.
(Id. ¶ 108.) Judge Ned Tupper set a cash bond
of $2, 926.25, an amount apparently calculated to equal the
expected fine and court costs of the charges. (M ¶IIO.)
Mr. Fox's income is below the federal poverty guidelines.
(Id. ¶ 107.) He was unable to post the cash
bond and remained in jail for three weeks awaiting trial.
(Id. ¶ 113.) He appeared before Beaufort
Municipal Judge Mary Sharp on February 20, 2017. He was not
represented by an attorney and he was not advised of his
right to counsel. (Id. ¶¶ 114, 116.) He
pleaded guilty to the charges. (Id. ¶ 115.)
Judge Sharp did not hold a plea colloquy with Mr. Fox.
(Id.) She sentenced him to a fine and court costs of
$2, 879.38 and five consecutive 10-day jail sentences for the
five charges, even though South Carolina law does not
authorize imprisonment for one of those charges (speeding
less than 10 mph). See S.C. Code §
56-5-1520(G); Beaufort County Judicial Records; (Dkt. No. 1
¶ 115). After sentencing, he returned to the Beaufort
County Detention Center under two bench warrants from
magistrate court. (Dkt. No. 1 ¶ 117.) Ultimately, Mr.
Fox spent 38 days in jail on the five municipal charges.
Beaufort County records indicate that may have been sentenced
to jail on the traffic charges for inability to pay the $2,
879.38 fine, see Beaufort County Judicial Records,
but that is unclear because of the warrants for Mr. Fox's
arrest on other charges.
The municipal court system
South Carolina, municipal courts are optionally created by
municipalities to hear petty criminal cases. See
S.C. Code § 14-25-5. Where there is no municipal court,
such cases are heard by magistrate courts. The municipal
judges often are lawyers in private practice who serve in a
part time capacity, but they are not required to be
lawyers. They are part of the unified state
judicial system under the supervision of the Chief Justice of
South Carolina, SC Code § 14-25-5(a), but the
municipalities appoint and reappoint the judges for terms of
two to four years and the municipalities set the judges'
compensation, SC Code § 14-25-15(A).
2009, the Public Defender for the Fourteenth Judicial Circuit
provided representation to indigent defendants in Beaufort
and Bluffton Municipal Courts. (Id. ¶ 30.) In
2009, Defendants ignored requests from the public defender
for funding to cover those services. Consequently, the public
defender notified the municipal judges that the public
defender would no longer provide representation and the
municipalities that they needed to contract with private
attorneys to provide indigent defense they needed to contract
with private attorneys. (Id. ¶ 30.)
in 2015, the state legislature required municipalities that
elect to have a municipal court to provide adequate funds for
representation of indigent defendants. Act No. 91, 2015 S.C.
Acts 429, 884 (2015) [hereinafter "Proviso 61.12"].
The legislature has reenacted that requirement each
subsequent fiscal year. The Municipal Association of South
Carolina's October 2015 newsletter, under the banner
headline "Indigent defense costs are municipal
responsibility, " informed South Carolina's
municipalities that this law gave them "four potential
courses of action":
1. Negotiate an agreement for indigent defense with the
circuit public defender. Several cities and towns have
already taken this option.
2. Contract with an independent attorney for a fee or pro
bono. Before contracting with the attorney, the town should
ensure the attorney has malpractice insurance.
3. Remove the threat of jail time for indigents, although
this makes it more difficult to collect any fines that might
be imposed on the defendant.
4. Close the municipal court and negotiate an agreement with
the county to have municipal cases tried in magistrate court.
Mun. Ass'n of S.C, Indigent defense costs are
municipal responsibility, Uptown, Oct. 2015 (cited at
Dkt. No. 1 ¶ 27). It also warned, "Failure to
provide indigents with counsel could expose cities to
liability" and "advocacy groups around the country
are seeking opportunities to sue cities that violate the
indigent defendant's right to counsel." Id.
nonetheless failed to provide counsel for indigent defendants
before Plaintiffs were sentenced to jail in 2017. At an April
25, 2017 Beaufort City Council meeting, city operations
manager Linda Roper discussed with the city council a request
for $10, 000 in fiscal year 2018 to contract with a private
attorney to provide municipal court indigent defense, which
she described as "a mandate from the state."
Beaufort City Council, Minutes, April 25, 2017, at 2. The
Beaufort Municipal Court annual budget is approximately $500,
000 and the court generates about $220, 000 in revenue.
Id. at 2-3. Ms. Roper recommended contracting with a
private attorney rather than the public defender because the
public defender has a case backlog and because Beaufort would
get more "bang for the buck" from a local attorney
retained by the council than from the public defender for the
Fourteenth Judicial Circuit, who operates beyond the control
of the City of Beaufort. Id. at 2. Councilman Philip
Cromer asked if Beaufort could simply pay a fine rather than
provide counsel for indigent defendants as required by law.
Id. Councilman Mike McFee noted that course of
action could result in litigation brought by the American
Civil Liberties Union ("ACLU"). Id.
the time of those discussions, at least fifty unrepresented
persons were sentenced to incarceration in Beaufort and
Bluffton municipal courts (Dkt. No. 1 ¶ 41 (period March
21 to June 19, 2017)) and 36% of the inmates in the Beaufort
County Detention Center were incarcerated on municipal court
charges without the assistance of counsel (Id. 1
¶ 42 (as of July 1, 2017)). On September 15, 2017, the
Chief Justice of South Carolina issued a memorandum to all
municipal court judges instructing them that "[a]ll
defendants facing criminal charges in your courts that carry
the possibility of imprisonment must be informed of their
right to counsel and, if indigent, their right ...