UPDATE: 2/20/14 - John Crangle, executive director of Common Cause of South Carolina, said he hand-delivered a letter Wednesday to the S.C. Supreme Court asking Chief Justice Jean Toal and Justice Costa Pleicones to consider recusing themselves from "any legal matters relating to the state grand jury's consideration" of S.C. House Speaker Bobby Harrell's actions as a "public official," according to a copy of the letter he provided to The Nerve.
"We make this request in view of the fact that Speaker Harrell took an active role in trying to influence the votes of House members in the recent election of candidates for the office of Chief Justice of the Supreme Court," Crangle, an attorney, wrote. "We are sure that the Court is aware of the problems of prejudice and of the appearance of possible conflicts of interest related to any actions the candidates might take with regard to Speaker Harrell."
It’s no secret that S.C. House Speaker Bobby Harrell actively campaigned for state Supreme Court Chief Justice Jean Toal, who won re-election last week in a rare judicial race decided by the General Assembly.
It’s also no secret that Harrell, R-Charleston, is under investigation by the state grand jury for possible violations of ethics laws.
In February 2013, the South Carolina Policy Council – The Nerve’s parent organization – filed a complaint with state Attorney General Alan Wilson, asking for an investigation of, among other things, whether Harrell’s campaign reimbursements connected with his private plane use violated state ethics law.
After a 10-month investigation by the State Law Enforcement Division, Wilson last month announced that the case was being referred to the state grand jury, which has the authority to subpoena witnesses and documents in deciding whether to issue an indictment.
Harrell, the House speaker since 2005 and a House member since 1993, has repeatedly denied publicly that he did anything wrong, and he has not been charged with any criminal or administrative violations.
Under a Dec. 7, 2000, administrative order issued by the Supreme Court, including Toal, who took over as chief justice earlier that year, after the state grand jury issues an indictment, the chief justice “will assign a circuit court judge to take jurisdiction of and preside over all civil and criminal cases arising out of that investigation.”
Given that longstanding court order and Harrell's involvement in Toal's election last week, The Nerve left written and phone messages for Toal asking her whether she would disqualify herself from appointing a judge to preside over Harrell’s case if he is indicted by the state grand jury.
Toal didn’t directly respond but forwarded The Nerve’s written message to her clerk of court, Daniel Shearouse, who replied by email Friday evening.
“It is simply inappropriate for the Chief Justice to consider or respond to your hypothetical questions,” Shearouse, an attorney, said.
The Nerve issued follow-up written questions to Shearouse, asking him how Toal in the past appointed judges to state grand jury cases after indictments were issued, and how many such cases there have been since Jan. 1, 2012.
In an emailed response Tuesday afternoon, Shearouse said in making assignments in those cases, Toal considers “many factors,” including the “caseload in the county where the case is to be tried, what judges are already assigned to that county, and the availability and workload of other judges in the Unified Judicial System.”
Since January 2012, 20 such assignments have been made, including two made by Justice Costa Pleicones, who was the acting chief justice when Toal was “unavailable due to overseas travel,” Shearouse said. Pleicones, who joined the high court in 2000 when Toal became the chief justice, lost to Toal by a vote of 95-74 in last Wednesday’s election in the Legislature for the chief justice seat.
Shearouse confirmed Toal’s authority to appoint judges in state grand jury cases under the December 2000 court order, and also cited Article 5, Section 4 of the S.C. Constitution, which states in part that the chief justice “shall have the power to assign any judge to sit in any court within the unified judicial system.”
Request for Recusal
When informed of Toal’s appointment authority by The Nerve, John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, said Tuesday he would ask his organization’s executive committee to allow him to immediately write a letter to Toal requesting that she recuse herself from Harrell’s case if he is indicted.
“She should not be allowed to exercise that discretion,” Crangle said. “It would only be prudent and would prevent the appearance of any quid pro quo.”
As the House speaker, Harrell is the leader of the 124-member chamber, which senators complain largely has controlled the outcome of judicial elections because of its size. South Carolina and Virginia are the only states in which their legislatures play primary roles in electing judges; in the Palmetto State, family, circuit, Court of Appeals and Supreme Court judges are elected during joint sessions of the Legislature.
Harrell also has influence over the Judicial Department's budget, given his authority to appoint members to the budget-writing House Ways and Means Committee.
Two Republican S.C. lawmakers who asked not to be identified told The Nerve that before the election for Toal’s seat, Harrell summoned a number of House members while the chamber was in session to talk with him privately about the election. The lawmakers cited several cases in which House members who were leaning toward Pleicones committed to Toal after their meetings with Harrell.
“It’s troubling,” one lawmaker told The Nerve.
Crangle said he heard similar accounts involving Harrell, adding, “I think Harrell’s behavior was very unprecedented, and it aggravates the appearance of a conflict of interest that can only be cured by her (Toal’s) recusal.”
An attorney who asked not to be identified, with years of experience handling state grand jury cases, told The Nerve that Toal’s authority to appoint judges in those cases is “completely discretionary,” adding, “A lot of people will tell you she ought to recuse herself (in Harrell’s case).”
But contacted Tuesday by The Nerve, Henry McMaster, a former U.S. attorney general for South Carolina who served from 2003 to 2011 as the Republican state attorney general during then-Gov. Mark Sanford’s administration, said if Harrell is indicted, Toal shouldn’t disqualify herself from appointing the trial judge in his case “unless she thinks she ought to.”
“When someone is elected as a judge, or to any other office, it’s unwise to expect them to recuse themselves and not do their job and turn it over to someone else every time when a question is raised about a connection,” he said.
“There is a lot of work, a lot of time and a lot of people involved in any prosecution that comes out of the state grand jury,” McMaster said. “If you look hard enough, you can always find some sort of a connection that somebody could characterize as a conflict.”
‘Debt of Gratitude’
To get an outside perspective on the Toal-Harrell situation, The Nerve this week contacted Charles Geyh, an Indiana University law professor who, according to his online biography, has served as director of the American Judicature Society’s Center for Judicial Independence and director of the American Bar Association’s Judicial Disqualification Project.
He also served as counsel to the U.S. House of Representatives Committee on the Judiciary, and a consultant to the National Commission on Judicial Discipline and Removal.
Geyh said Toal’s authority to appoint the judge to preside over Harrell’s case if the speaker is indicted could pose a conflict of interest if Harrell actively campaigned for Toal in last’s week election, and if Toal’s appointment authority is more than “ministerial” – meaning she has discretion in choosing the judge as opposed, for example, selecting a judge from a rotating list.
“At some point, you cross the line, creating a debt of gratitude,” he said. “I would worry that this judge (Toal) – her future was so dependent on the performance of this legislator (Harrell).”
“This might be the type of case that raises eyebrows,” he added, “and this might be the type of case that calls for disqualification.”
Geyh said the Toal-Harrell situation could have parallels to a West Virginia case in which a justice on that state’s Supreme Court of Appeals cast a deciding vote that reversed a $50 million civil verdict against a coal mining company, whose CEO and president earlier had spent $3 million in the election campaign of the deciding justice.
The justice in question repeatedly refused to disqualify himself from the civil case. The U.S. Supreme Court in that case, known as Caperton et al versus A.T. Massey Coal Co., Inc., et al, ruled in 2009 that in “all the circumstances of this case, due process requires recusal.”
“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the other parties’ consent – a man chooses the judge in his own cause,” Justice Anthony Kennedy wrote for the majority.
Reach Brundrett at (803) 254-4411 or firstname.lastname@example.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and on Twitter @thenervesc.