Scoppe: Justices’ questions offered hints on their ruling in Harrell investigation

Associate EditorJune 29, 2014 

— IT’S RARELY safe to predict what the state Supreme Court will do based on the justices’ questions at oral arguments. But those questions often can give us clues as to which issues are in play, and which are not.

After Tuesday’s oral arguments over whether Attorney General Alan Wilson can continue his State Grand Jury investigation into House Speaker Bobby Harrell’s use of campaign funds, this much seems pretty clear: The justices are not buying Circuit Judge Casey Manning’s contention that their 2013 decision in Rainey v. Haley gave the House and Senate Ethics committees “exclusive” jurisdiction over legislators’ compliance with the State Ethics Act.

Justices Don Beatty and Kay Hearn already had argued strongly in their concurring opinion in Rainey that any exclusivity applied only to lawsuits brought by individuals, not to criminal prosecutions. And during oral arguments, Chief Justice Jean Toal quickly signaled that she agreed, at one point asking almost rhetorically, “There was nothing in the majority opinion that disputes that, is there?”

Of course there wasn’t; it was only Judge Manning’s expansive reading of that opinion that made it so, and the fact that a majority on the high court appears to have rejected that very dangerous interpretation of Rainey is hugely significant. By using that reasoning to quash the Grand Jury investigation, Judge Manning had transformed what was just a case about the extremely powerful speaker of the House into a case about the rule of law.

Certainly, it’s important that Mr. Harrell be investigated appropriately — and exonerated or charged and convicted based on whatever facts are uncovered. But the greatest danger in Judge Manning’s order was that the Supreme Court would uphold his reasoning, and turn legislators into a special class above the law, unprosecutable for any crimes related to their office unless their colleagues on the legislative ethics committees asked a prosecutor to investigate them.

So we should be able to take some comfort in the fact that the justices seemed to focus on a factual rather than a legal question. After all, while individual cases can be decided wrongly, bad law is rarely made when judges rule on questions of fact.

The central question now appears to be the distinction between a criminal and civil violation of the Ethics Act, and more specifically Judge Manning’s contention that Mr. Wilson was acting outside of his jurisdiction as the state’s chief criminal prosecutor because he failed to present any “evidence or allegations which are criminal in nature.”

Even if Mr. Wilson has a vendetta against Mr. Harrell, as Mr. Harrell contends, it seems difficult to imagine that SLED would have spent 10 months investigating the speaker, and that SLED Chief Mark Keel would have requested a Grand Jury investigation, if there were no criminal allegations. The challenge is proving to doubting justices that those allegations exist, and were presented to a judge who says otherwise — particularly since everything that has been presented to the Grand Jury is by law secret.

As part of his appeal, Mr. Wilson asked the Supreme Court for permission to provide the justices with copies of three documents — the petition he and Mr. Keel presented to Judge Manning asking him to empanel the Grand Jury, a document stating why the investigation should be started and Judge Manning’s order initiating the investigation — for the justices’ eyes only, in keeping with the secrecy requirement. The justices said no.

So on Tuesday, Assistant Deputy Attorney General Creighton Waters knew that he couldn’t talk about any of that factual information. Instead, he stuck to pointing out that all Ethics Act violations are by law crimes, even if they aren’t usually treated as such, and arguing that Judge Manning had used too high a standard to determine whether the Grand Jury was operating within its jurisdiction.

Mr. Waters repeatedly told the justices that a Grand Jury investigation is not the end of the process but the beginning. That seems a stretch — it might more appropriately be called the middle, with the SLED investigation being the beginning — but it doesn’t change the fact that nothing in the law suggests that the attorney general has to produce indictment-worthy evidence before he attempts to produce … an indictment.

The absence of those three documents in the case before the high court points to what might have been an understandable but significant error on Mr. Wilson’s part: When Judge Manning pressed him in court for “evidence or allegations” of criminality, Mr. Wilson referred to the secrecy requirements of the Grand Jury and the judge cut him off, saying, “We don’t need to go too far; I know what you’re saying.”

Mr. Waters told the justices on Tuesday that at that point, “we thought, ‘OK, he knows what we’re talking about,’ ” and Mr. Wilson moved on. In retrospect, it seems clear that Mr. Wilson should have requested a private meeting with the judge to re-present those allegations.

As to how crucial that error will turn out to be … well, I know better than making predictions. But I suspect we’ll all find out sooner rather than later.

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

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