Politics & Government

July 9, 2014

SC Supreme Court: Harrell probe can continue

South Carolina’s Supreme Court on Wednesday dealt a blow to S.C. House Speaker Bobby Harrell, granting Attorney General Alan Wilson’s request to allow a State Grand Jury probe of Harrell to continue.

South Carolina’s Supreme Court on Wednesday dealt a blow to S.C. House Speaker Bobby Harrell, granting Attorney General Alan Wilson’s request to allow a State Grand Jury probe of Harrell to continue.

Still up in the air is whether Wilson can continue leading the State Grand Jury proceedings. In their unanimous ruling, the justices instructed a lower court to decide whether the attorney general should be disqualified from the case, as Charleston Republican Harrell has asked.

In a statement, Harrell said he was “disappointed with the court’s ruling,” but noted the justices did not reject his argument that Wilson should be replaced.

“It was (Circuit Court) Judge (Casey) Manning, not my attorneys, who brought up the jurisdictional issue in this case” that the justices ruled on Wednesday, Harrell said in his statement.

“The only thing we originally asked the court was for a fair and impartial prosecutor to be put in charge of this matter. As (the) Supreme Court justices clearly pointed out at the hearing, the attorney general has improperly handled this case from the beginning.”

Mark Powell, a spokesman for Lexington Republican Wilson, said, “The attorney general's office is not commenting at this time.”

The opinion comes after a public court battle that started when Wilson asked the State Grand Jury to investigate allegations that Harrell may have violated state ethics laws.

A libertarian public-interest group alleged Harrell violated the law by reimbursing himself from his campaign money for the cost of flying his private plane, using his position as speaker to help his pharmaceutical company and appointing his brother to a panel that reviews candidates who want to be judges.

Wilson ordered a State Law Enforcement Division investigation of Harrell and sent the report to the State Grand Jury for review.

State Grand Jury proceedings are required by law to remain secret. But Wilson announced the proceedings — something the justices said they found odd during a hearing last month.

“The whole behavior in this case has been very strange,” Chief Justice Jean Toal said during that hearing, referring to Wilson’s news release.

‘Checks and balances worked’

Harrell, who has not been charged with a criminal or civil ethics violation, has accused Wilson of targeting him politically and asked the court to disqualify Wilson from the case.

In May, Circuit Court Judge Manning ordered the State Grand Jury investigation of Harrell to stop, arguing the House Ethics Committee — not the State Grand Jury — had exclusive jurisdiction over legislative ethics violations that are civil in nature. Manning added Wilson had provided no evidence that Harrell might have committed a criminal violation, the type of public corruption that a State Grand Jury would investigate.

But Wilson asked the higher court to overturn that ruling, saying he has a constitutional right to investigate crimes and prompt a State Grand Jury investigation, which requires a judge and the SLED chief to agree.

The justices agreed.

In their opinion, the justices wrote the attorney general’s right to investigate crimes is not dependent on the legislative ethics committees’ process of investigating ethics complaints against lawmakers.

The House Ethics Committee’s authority to investigate ethics complaints against members “does not affect the attorney general’s authority to initiate a criminal investigation in any way, whether or not there is a referral, or even a pending House investigation,” the justices wrote.

The decision won praise from the government watchdog group that filed the complaint against Harrell with Wilson.

“The court did the right thing,” said Ashley Landess, president of the S.C. Policy Council. “We were looking at legislators beyond the law. The checks and balances worked.”

But Landess was disappointed the justices also said future hearings on matters tied to the State Grand Jury would be held in private. “Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera (in private),” they wrote.

“The public ought to be in the hearings,” Landess said.

However, Jay Bender — an attorney for a number of S.C. newspapers, including The State — said that there is likely little the media or other public advocates can do to gain access to the hearing. “I’d rather have it all out in the open, but historically, grand jury meetings are not in the open,” he said.

On whether Wilson would be able to continue overseeing the State Grand Jury investigation, Landess said Harrell should not get to go shopping for a prosecutor.

“Let's hope (Judge) Manning gets this one right,” Landess said. “Bobby Harrell is not entitled to an impartial prosecutor. He is entitled to an impartial judge.”

‘Clearly erroneous’

In their opinion, the justices said Manning misinterpreted a state law that directs legislative ethics committees to refer possible criminal violations to the attorney general for investigation.

The circuit court “read into (the statute) a requirement that a House Ethics Committee investigation and referral occur prior to the attorney general’s initiation of his own criminal investigation, which the attorney general argues was clearly erroneous in light of our Constitution and this court’s precedents,” the justices wrote, adding, “We agree.”

The justices also said Manning failed to consider a relevant case, in which the court found the absence of an ethics complaint being referred to the attorney general “will never operate as a limitation upon the state’s independent right to initiate a criminal prosecution.”

Instead, Manning relied on a more recent case, where the Supreme Court upheld the authority of legislative ethics committees to investigate civil ethics complaints against lawmakers.

In that case, the House Ethics Committee had twice investigated and cleared Gov. Nikki Haley on charges of illegal lobbying while a state representative. However, a public citizen, Camden attorney and GOP fundraiser John Rainey, subsequently filed a lawsuit asking the courts to decide whether Haley violated ethics laws.

The courts ruled those civil allegations belonged before the House Ethics Committee, not in the judicial system.

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