THE DAY AFTER the state Supreme Court issued its second ruling in a month scaling back what our government has to do in public, I got a note from someone close to the chief justice that said, “It seems pretty clear the Court in this case and Lambries is telling the Legislature to revise the FOIA.”
That same day, the head of the S.C. Press Association foreshadowed what lots of critics would say when he complained that the court once again had ruled against openness and “punted important issues back to the Legislature for change.”
And it occurred to me that this might be a good time to review the job we assign to courts in our system of government.
But first, the rulings themselves. In the July order, the court said that autopsies are “medical records” and therefore must not be released to the public. In the June ruling, the court said that while governmental bodies must provide the public with agendas when they have them, they do not have to have agendas for most meetings.
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Both rulings reversed what has been common practice across the state. I can’t say that the court was clearly wrong in either case, but neither can I say that it was clearly right. Both look to me like close calls, where reasonable people could read the statutes either way. And I think that’s what surprised a lot of people, because this is a court that long has given the benefit of the doubt to open government. In fact the Freedom of Information Act directs judges and other officials to do precisely that.
Now, back to those dueling analyses. Both draw on the passage in the court’s latest ruling in which Associate Justice Kay Hearn wrote: “Although there may be policy concerns mitigating against this result, that is a matter for the legislature and not this Court.”
That sentence echoed Acting Justice James Moore, whose June ruling noted that since the Legislature had not specifically required agendas for most meetings, “The imposition of any additional restrictions in FOIA is a matter for the General Assembly.”
Frankly, if I were a justice, I would include that sort of language in every opinion I wrote that turned on statutory law. I might even start every opinion with that. Because there is probably nothing that is more misunderstood about our courts than this: Their job is not to say what the law should require or allow. Their job is to say what the law does require or allow. No matter how bad a law it is. No matter how bad the result of that decision might be.
Now, there are some exceptions, and there is some wiggle room in some cases. The biggest exceptions involve constitutional principles. If a law violates the state or federal constitution, the job of the court is to strike it down.
But most cases don’t involve constitutional principles; they involve a disagreement over precisely what the law means, as with these two Freedom of Information cases.
The wiggle room comes in when it’s not clear what the law means, or when there are conflicting statutes. The courts have well-established procedures for dealing with these situations. For instance, our Supreme Court says that if there is more than one way to read a statute, it will read it the way that would be constitutional, because acts of the Legislature are presumed to be constitutional until proven otherwise. If a statute is ambiguous, the court will not read it in a way that produces an absurd result. If a term is not defined in the law, the court will give that term its ordinary meaning. But our court also says that it will only use these rules of statutory construction if the statute is ambiguous or unclear.
That means that in almost all cases, the decisions are supposed to be driven by the laws that our legislative bodies have written. Often those are very bad laws, or very badly written laws, or both, and the court is usually powerless to do anything about that.
Clearly, courts sometimes get their decisions wrong. But there’s a difference between criticizing a court for getting its ruling wrong and criticizing a court for not taking it upon itself to fix a law it has decided does something that we — or even the justices themselves — don’t want that law to do.
Chief Justice Jean Toal’s friend might have been right with his hopeful suggestion that the court was sending a message to the Legislature to fix the Freedom of Information Act. But if he was right, the court was out of line, because it has no business telling the Legislature what the law ought to be.
If he was right, the court also has a pretty big log in its eye. It has judges, at least in the Lowcountry and likely across the state, who are blatantly ignoring its rules requiring open courtrooms and public documents. And whether deliberately or accidentally, the justices themselves just sent what has been widely viewed as a clear message to a Circuit Court judge to draw a veil of secrecy over what could be the most important political dispute in our state in decades: the extraordinary effort by perhaps the most powerful person in our state, House Speaker Bobby Harrell, to upend Attorney General Alan Wilson’s investigation into his campaign spending and, essentially, select his own prosecutor.
If the court is worried about closed government, perhaps it should work on getting its own house in order.
Ms. Scoppe can be reached at firstname.lastname@example.org or at (803) 771-8571. Follow her on Twitter @CindiScoppe.