Scoppe: The Supreme Court’s gift to the Legislature

Associate EditorJuly 2, 2013 

Scoppe

— WHEN IT COMES to ethics reform, nothing worries many legislators more than the idea of letting non-legislators enforce or even investigate their compliance with the ethics law.

The House rejected anything more than token public representation on a new ethics panel dominated by legislators, and a plan to allow independent investigations stalled the reforms in the Senate, allowing legislators to leave for the year without passing their 2013 priority.

Now the state Supreme Court, in an embarrassingly unconvincing way, and for no clear legal reason, has ignored one of its fundamental principles and handed those legislators the rhetorical justification they’ve been seeking to fend off any sort of independent oversight of their ethics.

This gift was delivered via Rainey v. Haley, in which the court unanimously, though for different reasons, threw out GOP donor John Rainey’s lawsuit challenging then-Rep. Nikki Haley’s ethics compliance.

Former College of Charleston law professor John Simpkins, who wrote an analysis for the governor’s ethics reform panel that undermined the argument that the state constitution prohibits the Legislature from delegating its ethics enforcement, notes that the court didn’t actually say the Legislature can’t do that. Indeed, but for a single paragraph, the majority opinion clearly indicates that it can.

But that opinion, written by Associate Justice John Kittredge and joined by Chief Justice Jean Toal and Associate Justice Costa Pleicones, sounds like it precludes such delegation of authority.

Which is enough for a Twitter fight. Or a legislative debate.

And coming as powerful legislators attempt to stare down sustained pressure to overhaul an ethics law that demands too little of them and makes it too easy to sidestep even what little it demands, Mr. Simpkins told me, “it does seem like a sop to the Legislature.”

The opinion starts off reasonably enough. The Supreme Court will not allow the lawsuit because it’s up to the Legislature to determine how legislative ethics are policed, and the Legislature gave jurisdiction to the House Ethics Committee.

The Legislature did allow people to take their complaints directly to court during the 50 days before an election, the justices noted, but that was the only exception. Therefore, the majority said again, Mr. Rainey had no standing to challenge Ms. Haley.

Then, in the penultimate paragraph of the six-page opinion, after they already had stated and explained their decision, the justices added this astounding conclusion: “Finally, the South Carolina Constitution and this Court have expressly recognized and respected the Legislature’s authority over the conduct of its own members. Consequently, a court’s exercise of jurisdiction over Appellant’s ethical complaint against Governor Haley would not only contravene the clear language of the State Ethics Act, it would also violate separation of powers.”

What makes its pronouncement astounding is not merely that the court failed to justify the sweeping contention that it would violate the constitution to allow a court to be involved in reviewing legislators’ ethics — and by implication, that it would violate the constitution for any non-legislators to be involved. Of course, the court did fail to justify that contention; the only precedents it cited deal with the Legislature’s exclusive authority to judge the qualifications of its members and decide whether to expel them — not whether they should be sanctioned for violating state law.

What makes it astounding is not merely that it’s inconsistent to say on the one hand that the Legislature can require the courts to act as judge and jury during the 50 days before a primary or general election while at the same time declaring that it would violate the constitution to do that during any of the other 612 days every two years. Of course, that is inconsistent. And the justices gave us no clue as to how they can reconcile those inconsistent ideas.

Nor is this astounding merely because it’s also inconsistent to declare that the constitution prohibits the courts from reviewing legislative ethics while simultaneously framing the legislative ethics committees as part of a “comprehensive statutory scheme” that “the Legislature intended” to give exclusive authority over ethics allegations. Of course, that too is inconsistent, because what the Legislature “intends” doesn’t matter if its statutes violate the constitution, and the justices appeared oblivious to the contradiction.

No, what makes this decision astounding is that on top of all that, this constitutional proclamation represents such a sharp departure from one of the court’s core principles.

“It is axiomatic,” Associate Justice Costa Pleicones wrote last fall, “that this Court will not address a constitutional issue unless it is necessary to a resolution of the case.”

Necessary to a resolution of the case. Which this was not.

One court observer theorized that the majority might have reached to the constitution to try to refute Associate Justice Don Beatty’s concurring opinion that said the law allows the courts to consider ethics complaints — just not this one. But while that at least is theoretically plausible, it still doesn’t get us past Justice Pleicones’ axiom.

Justice Pleicones made his observation in a dissent, but it is by no means a minority viewpoint. On this or any other court in this country. I can’t count the number of times the justices have left me frustrated by their refusal — often unanimous — to address constitutional issues that the Legislature desperately needed some schooling in. Having decided a case on procedural or statutory grounds, they steadfastly refuse to explore constitutional issues because, as they explain repeatedly, “It is this Court’s firm policy to decline to rule on constitutional issues unless such a ruling is required.”

Required. Which this was not.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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