A conflict between the S.C. Supreme Court and leaders of the General Assembly is shaping up as a battle of the branches.
The judicial branch has mandated – in the form of a Supreme Court order – that Gov. Nikki Haley, House Speaker Jay Lucas and Senate President Pro Tempore Hugh Leatherman, all Republicans, develop a plan, including legislation, to improve South Carolina schools by Feb. 1.
The deadline gives the court veto power over what the General Assembly does, Leatherman said last week. “You can’t have that,” he added.
Leatherman and Lucas plan to ignore the Supreme Court’s deadline order in the two-decade-old school equity lawsuit, which could set up a constitutional crisis.
“Can one branch of government hold another branch of government in contempt when you’re equal branches of government?” Leatherman asked, rhetorically.
South Carolinians could be about to find out.
What happens next is unclear. But some of the drama could play out in the February race to fill a looming vacancy on the Supreme Court.
Chief Justice Jean Toal will step down from the state’s highest court in December because she turned 72 this year, the mandatory retirement age.
Associate Justice Costa Pliecones will succeed Toal as chief justice, having been elected unanimously by the General Assembly in May.
But Toal’s retirement will leave a vacancy on the court – the fifth justice’s post. That vacancy will be filled by the General Assembly, the branch of government currently at odds with the Supreme Court.
Five candidates for associate justice now are being screened by the S.C. Judicial Merit Selection Commission. They are:
▪ Ralph King Anderson III of Columbia
▪ David Craig Brown of Florence
▪ John Cannon Few of Greenville
▪ Aphrodite Konduros of Greenville
▪ Harris Bruce Williams of Columbia
Anderson is chief judge of the state’s Administrative Law Court. Brown is a Circuit Court judge. Few, Konduros and Williams are members of the state’s Court of Appeals, where Few is chief justice.
The five candidates will be narrowed down to three before legislators elect a new associate justice at noon on Feb. 3.
That is two days after the Feb. 1 deadline for the House, Senate and governor to present their plan to fix the state’s poor, rural schools to a three-member panel that the Supreme Court ordered created.
Legislative election of South Carolina’s judges is controversial.
Critics say the current system allows legislators to control the judiciary. Some of those critics favor the voters electing judges; others favor allowing the governor to nominate judges and the Senate to confirm nominees.
However, the General Assembly’s Feb. 3 vote sets the stage for legislators to elect the associate justice who could decide the Legislature-Supreme Court rift. (Toal, who is retiring, was part of the 3-2 majority that decided the school equity lawsuit and, by the same 3-2 vote, gave the Legislature and governor a deadline last month to resolve the issue.)
Candidates for the associate justice’s position will be “asked very pointedly what their view is on the separation of powers,” said state Sen. Larry Martin, R-Pickens, chairman of the Judicial Merit Section Commission.
But, Martin added, it would be inappropriate for legislators to ask the candidates about the school equity case, specifically, since it is an issue before the court.
Still, candidates can expect to be asked if they view the state Constitution as literal or elastic, allowing a broader interpretation of South Carolina’s obligation to public school students, Martin said.
(Critics, including some justices, say the court’s school equity ruling exceeded the state Constitution’s educational guarantee.)
Carl Epps, attorney for the school districts that sued the state in 1993 for more money, says the battle of the branches is a distraction.
Epps said he has had discussions with representatives of the House and Senate about resolving the dispute between legislators and the court, and agreeing on a process to fix the state’s funding of schools.
But, he added, the General Assembly is refusing to allow the Supreme Court to interpret the state Constitution and enforce it.
“If possible, we’d like to get rid of the constitutional crisis, eliminate that, and move on,” Epps said.
2016 in SC
Where the presidential candidates will be:
▪ Ben Carson, the retired neurosurgeon from Maryland who is one of the frontrunners for the GOP nomination for president, is scheduled to be at the Barnes & Noble at Richland Mall from 9:30 a.m. to 2:30 p.m. Saturday. Carson will be signing copies of his book, “A More Perfect Union: What We the People Can Do to Reclaim Our Constitutional Liberties.”
▪ Lindsey Graham, the U.S. senator from Seneca, will speak Monday at Hilton Head’s 1st Monday Club lunch at Aunt Chiladas Mexican Restaurant, 69 Pope Ave. He will also attend a town hall meeting hosted by the Sun City Republican Club at 2:30 p.m. at Magnolia Hall, 114 Sun City Lane, in Bluffton.
Cassie Cope: 803-771-8657