In Matter of Danny Oran Barker

THE STATE OF SOUTH CAROLINA
In The Supreme Court
In Matter of Danny Oran Barker, II, of the Marion
County Magistrate Court, Respondent.
Appellate Case No. 2022-000329
Opinion No. 28098
Submitted May 25, 2022 – Filed June 15, 2022
PUBLIC REPRIMAND
Disciplinary Counsel John S. Nichols and Deputy
Disciplinary Counsel Carey Taylor Markel, both of
Columbia, for the Office of Disciplinary Counsel.
Danny Oran Barker, II, of Marion, pro se.
PER CURIAM: In this judicial disciplinary matter, Respondent and the Office
of Disciplinary Counsel have entered into an Agreement for Discipline by Consent
(Agreement) pursuant to Rule 21 of the Rules for Judicial Disciplinary
Enforcement (RJDE) contained in Rule 502 of the South Carolina Appellate Court
Rules (SCACR). In the Agreement, Respondent admits misconduct, consents to
the imposition of a confidential admonition or a public reprimand, and agrees to
pay costs. We accept the Agreement and issue a public reprimand. The facts, as
set forth in the Agreement, are as follows.
I.
Respondent has been married since 1996. His wife was employed with the Marion
County Sheriff's Office (Sheriff's Office) from 2000 until her recent retirement in
February 2022. In 2007, the Respondent's wife was promoted to Captain of the
Sheriff's Office's investigation unit, a role which required Respondent's wife to
handle "administrative supervision" of certain Sheriff's Office deputies.
On June 30, 2009, Respondent was appointed to serve as a Marion County
Magistrate. Respondent never presided over any case or hearing in which his wife
appeared or was directly involved. However, prior to the ODC investigation in this
case, Respondent regularly presided over bond hearings, traffic citations,
preliminary hearings, and other matters in which Sheriff's Office deputies who
were supervised by Respondent's wife appeared before him. 1
In cases involving the Sheriff's Office, it was Respondent's practice to call the
court to order and state on the record "[m]y wife is a Captain with the Marion
County Sheriff's Office, and she was not involved in your case, but I would be
happy to disqualify myself and have another judge hear your case." After this
statement (or something substantially similar), Respondent's practice was to ask
whether a defendant objected, and if the defendant did not speak up, Respondent
would preside over the hearing.2
II.
Canon 3E of the Code of Judicial Conduct in Rule 501, SCACR, requires a judge
to disqualify himself in proceedings in which his impartiality might reasonably be
questioned. In disclosing a disqualification, a judge is required to communicate all
information the parties might consider relevant to the issue of disqualification. See
Canon 3E(1) cmt., Rule 501, SCACR (providing a judge should disclose on the
record information the parties or their lawyers might consider relevant to the
question of disqualification "even if the judge believes there is no real basis for
disqualification"). Following disclosure under Canon 3E, a judge may
nevertheless preside in a matter if the parties agree to waive the disqualification
pursuant to the remittal procedure set forth in Canon 3F, Rule 501, SCACR.
Specifically, Canon 3F provides that a judge may disclose on the record the basis
for the disqualification and ask the parties and their lawyers to consider, out of the
presence of the judge, whether to waive disqualification. If, following disclosure,
the parties and lawyers, without participation by the judge, all agree that the judge
should not be disqualified, then the judge may participate in the proceeding. Id.
1
Since October 2021, Respondent has not presided over any matter involving the
Sheriff's Office.
2
Respondent represents that no defendant in any case involving the Marion County
Sheriff's Office ever requested that Respondent recuse himself from a matter.
This agreement shall be incorporated in the record of the proceeding. Id. The
commentary to Canon 3F makes clear that the parties' consideration of whether to
waive the judge's disqualification must be made independently of the judge and
that the judge "must not solicit, seek[,] or hear comment on possible remittal or
waiver of the disqualification unless the lawyers jointly propose remittal after
consultation as provided in the rule."
Respondent admits that because his wife was employed with the Sheriff's Office,
Respondent's impartiality might reasonably be questioned in matters involving the
Sheriff's Office. Although Respondent disclosed his wife's role as Captain in each
case involving the Sheriff's Office, Respondent violated Canon 3E(1), Rule 501,
SCACR, by failing to disclose, when appropriate, that even though is wife was not
involved in a particular matter, she nevertheless supervised Sheriff's Office
deputies involved in a case, a fact which the parties might find relevant to a
determination of whether to waive Respondent's disqualification and which
therefore should have been disclosed.
Respondent further admits he violated Canon 3F, Rule 501, SCACR, by failing to
allow the parties and their lawyers time to consider the question of remittal outside
his presence and by failing to ensure that any agreements to waive disqualification
were placed on the record.
Respondent admits his misconduct constitutes grounds for discipline under Rule
7(a)(1), RJDE, Rule 502, SCACR (providing a violation of the Code of Judicial
Conduct shall be a ground for discipline). 3
3
Respondent is not licensed to practice law in South Carolina. However, as an
officer of the unified judicial system eligible to perform judicial functions in South
Carolina, he is subject to the jurisdiction of the Commission on Judicial Conduct.
See Rule 2(r), RJDE, Rule 502, SCACR (defining a judge as "anyone, whether or
not a lawyer, who is an officer of the unified judicial system, and who is eligible to
perform judicial functions"); Rule 3(b)(1), RJDE, Rule 502, SCACR (providing
the Commission on Judicial Conduct has "jurisdiction over judges").
III.
We find Respondent's misconduct warrants a public reprimand. See In re
Underwood, 417 S.C. 433, 790 S.E.2d 761 (2016) (publicly reprimanding a
magistrate for handling numerous cases without properly following the remittal
requirements of Canon 3F). Accordingly, we accept the Agreement and publicly
reprimand Respondent for his misconduct. Within thirty days, Respondent shall
pay the costs incurred in the investigation and prosecution of this matter by ODC
and the Commission on Judicial Conduct.
PUBLIC REPRIMAND.
BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.