Cindi Ross Scoppe

Grand jury law needs a rewrite — this time by the Legislature

tdominick@thestate.com

IT’S TEDIOUS AND time-consuming and difficult to restore the state constitution to what it meant before a court reinterpreted it. But laws are relatively easy to change, and the Legislature needs to do precisely that after the Supreme Court last week completely changed the meaning of an important criminal law.

SCOPPE: How the Supreme Court just changed SC law, constitution

READ THE COURT’S OPINION

In deciding that Solicitor David Pascoe can initiate a State Grand Jury corruption investigation without the authorization of Attorney General Alan Wilson, the court essentially rewrote S.C. 14-7-1630(B), which limits that authority to the attorney general acting in conjunction with the SLED chief.

If you look up the law, it still says that. But in its order last week in Pascoe v. Wilson, the court’s majority said the Legislature could not have possibly intended to limit this power to the attorney general, because that would mean the State Grand Jury could not be used to investigate an attorney general. And that, the court concluded, would be an “absurd result” — a term of art that means the court may reinterpret even an unambiguous law. Which it did, saying that henceforth the attorney general’s designee may initiate an investigation in his stead.

That’s a sort of logical thing to think, if you don’t think about it too much. (Would an attorney general who needs to be investigated by the State Grand Jury actually designate someone to do that?) It also seems also logical if you aren’t familiar with the history of the State Grand Jury law: The Legislature was extremely reluctant to create such a powerful investigative entity, and agreed to do so only so long as it was controlled jointly by the attorney general and the SLED chief.

I doubt it occurred to lawmakers at the time that we might one day need the State Grand Jury to investigate the attorney general, or that an attorney general might need to be recused from a case.

But lawmakers were well aware of the limitation by the time Mr. Wilson started investigating Bobby Harrell: The speaker’s minions tried to sneak through changes to let speakers initiate investigations of attorneys general; they abandoned the effort once they were outed. Yet there is this important point: When the Legislature amended the grand jury law last year to increase the attorney general’s control over it, no one attempted to “correct” what the court just concluded was a clear error in the law.

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Of course, whether the court was right or wrong in its assessment of legislative intent is neither here nor there; the court has spoken, and what it says is the law — unless or until the court or the Legislature changes the law.

The Legislature needs to change it simply because laws should always be written by legislatures rather than courts. Legislatures can choose precise wording and are the bodies that are supposed to write laws, whereas the courts often act with blunt instruments and are not the bodies that are supposed to write laws. Even if the change simply rewrites the law so it officially says what a court has said it says, it needs to be done.

I’m neutral as to whether the Legislature ought to allow any alternative initiators for State Grand Jury investigations, but there’s a serious problem with the court’s rewrite that needs correcting.

(The changes the court made to the constitution were more significant, but they were implicit rather than explicit. And my guess is that the court will find a way to walk them back, much like it found a way earlier this year to walk back its ungrounded-by-law order in the Harrell investigation that said even jurisdictional questions involving the State Grand Jury had to be handled in secret.)

The problem is that the court’s rewrite is open ended, in two ways. First, it puts no limits on who the attorney general may designate or the circumstances under which he may lend out his authority. I think the court envisioned this happening only when there’s a conflict of interest, but it didn’t say that. So an attorney general can give the power the Legislature delegated to him to anyone — a solicitor, a deputy attorney general, a federal official, a private lawyer — for any reason. Or no reason. That’s crazy.

More significantly, there’s no way the ruling can apply only to the prosecutorial partner in the grand jury pas de deux. If it’s absurd to believe that the Legislature meant to limit this power to the attorney general himself, then it’s equally absurd to believe that the Legislature meant to allow only the SLED chief to be the second signatory.

Even if our legislators are happy to let attorneys general give away their power to initiate investigations, I can’t imagine they want the SLED chief handing off his authority to just any Podunk police chief.

Unless they want to simply rewrite the law to “clarify” that they really did intend for the law to say what it says, lawmakers need to spell out who may replace the attorney general and SLED chief in initiating a State Grand Jury investigation, and under what circumstances they may do so.

Ms. Scoppe writes editorials and columns for The State. Reach her at cscoppe@thestate.com or (803) 771-8571 or follow her on Twitter @CindiScoppe.

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