Scoppe: Two of SC’s five Supreme Court justices on record opposing basis of order quashing Harrell Grand Jury probe

June 4, 2014 

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TIM DOMINICK — tdominick@thestate.com Buy Photo

— ANYONE who’s been following House Speaker Bobby Harrell’s efforts to quash a State Grand Jury investigation into his campaign spending is familiar by now with Rainey v. Haley, in which the state Supreme Court unanimously threw out a lawsuit alleging that Gov. Nikki Haley had violated the ethics law when she was a legislator.

That 2013 decision was the basis of Circuit Court Judge Casey Manning’s order last month declaring the Harrell investigation invalid and concluding that the attorney general cannot investigate and prosecute legislators for profiting from office unless one of the legislative ethics committees asks him to. (The investigation continues while Attorney General Alan Wilson appeals it to the Supreme Court.)

What most people don’t realize is that while the Rainey decision was unanimous as to its conclusion, the justices were deeply divided over their reasoning. Specifically, Associate Justice Don Beatty, joined by Associate Justice Kaye Hearn, carefully dismantled the very language in the majority opinion on which Judge Manning based his order: the contention that the Legislature has given its internal ethics committees “exclusive jurisdiction” over legislators’ compliance with the ethics law.

To the contrary, Justice Beatty explained, the Legislature doesn’t have the option of stripping the courts of jurisdiction unless it is “able to point out some particular provision of the Constitution which either expressly or by necessary implication gives jurisdiction” to another entity. And in the case of the ethics law, there has not even been an attempt to do this. Indeed, “there is no statutory or constitutional authority to support the circuit court’s holding that it lacked subject-matter jurisdiction.”

The reason John Rainey couldn’t bring the lawsuit, Justice Beatty wrote, was that he was a private citizen who was trying to prosecute the governor, and private citizens don’t have that authority. If on the other hand he had simply been filing a civil suit, Justice Beatty wrote, then the majority would be right to say he couldn’t do that until after he worked his way through the process set out in the Ethics Act for citizens’ complaints.

I remember thinking when the opinion came out that Justice Beatty made a very strong case but finding it strange that he would go on at such length on what seemed such an obvious point. What was clear was that this was not simply two justices quibbling over technicalities with the other three but rather a forceful counter to the majority. I simply did not comprehend the significance of that dispute.

Today, as the high court prepares to hear oral arguments in S.C. Attorney General v. Harrell, the concurring opinion seems prescient. Particularly this passage: “Although Appellant is not the proper party to pursue the criminal action, his concern for the public was not without recourse as the Attorney General’s office, either on its own initiative or via a referral from the House of Representative Legislative Ethics Committee, could have sought a criminal determination of the alleged misconduct.”

What that means is that two of the five justices have not just thoroughly rejected the legal basis for Judge Manning’s decision; they have essentially anticipated the current situation and staked out a position on it. So thorough and powerful is their argument that I cannot conceive of any way that Justices Beatty and Hearn could possibly uphold Judge Manning’s order.

Of course, that wouldn’t matter if Judge Manning had simply applied Rainey to a similar case; Justices Beatty and Hearn were in the minority in Rainey, and they would be in the minority in the Harrell case. But Judge Manning applied Rainey to a very different sort of case.

Rainey was a civil lawsuit filed by a private citizen. Judge Manning, without giving any justification or even acknowledging what he was doing, expanded the Rainey reasoning to apply to a criminal investigation. That’s important because the constitution and the statutes and court rules treat civil cases and criminal cases as entirely different creatures, with entirely different legal standards.

That difference begins in the state constitution, which, as Justice Beatty noted in Rainey, designates the attorney general as “chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases.” That means that “‘the prosecution has wide latitude in selecting what cases to prosecute,’ which necessarily would include violations of the Ethics Act.”

So in order for Mr. Harrell to win, he will have to convince all three of the other justices that Judge Manning was correct in expanding Rainey exponentially to cover not just private lawsuits but criminal investigations by the state’s chief prosecutor. And that’s not all. He also will have to convince all three of them that the judge had his facts right when he declared that Mr. Wilson’s investigation did not concern criminal matters but was merely an “Ethics Act violation complaint.”

Of course, the Ethics Act clearly states that violations are misdemeanors, and misdemeanors are crimes. Beyond that, Mr. Wilson told Judge Manning in court that a 10-month SLED investigation had uncovered potential criminal activities beyond those contained in the Ethics Act. Rather than ask for the details that his order suggests Mr. Wilson refused to provide, Judge Manning concurred when the attorney general said he didn’t think he should discuss them in open court, since Grand Jury investigations are by law secret.

Given all that, it’s hard to imagine how Mr. Harrell could prevail. Chief Justice Jean Toal and Associate Justices Costa Pleicones and John Kittredge do not need to abandon their opinion in Rainey to find that Judge Manning was simply wrong on the facts. They wouldn’t even have to abandon their opinion to find that Rainey could not be expanded so dramatically to cover criminal prosecutions.

In fact, for the life of me, I still don’t see how anyone can get from the Rainey prohibition on private lawsuits to Judge Manning’s prohibition on criminal prosecutions.

And it’s worth recalling that up until last month, no one else could either: The judge did not rule in response to an argument put forth by Mr. Harrell’s very creative and audacious attorneys. They had not even thought to argue that the attorney general lacked authority to investigate their client. It was Judge Manning who raised the issue, and once he raised it, Mr. Harrell’s attorneys simply cooperated by writing a brief asking him to throw out the investigation based on his theory.

Now Justices Toal, Pleicones and Kittredge must decide whether to accept that breathtaking expansion of their precedent along with that absolute rejection of the facts.

Ms. Scoppe can be reached

at cscoppe@thestate.com

or at (803) 771-8571.

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