Chief Justice Silent about Stepping Down in Harrell Case

May 21, 2014

Investigative Reports

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SC Supreme CourtUnder an obscure S.C. Supreme Court order, Chief Justice Jean Toal would appoint the trial judge if House Speaker Bobby Harrell is indicted by the state grand jury.

Back in February, The Nerve asked Toal if she would voluntarily recuse herself from the case if that situation arose – given that Harrell actively campaigned for her in the General Assembly during her successful re-election bid in February.

Her response at the time through her court clerk was that she didn’t respond to “hypothetical” questions.

It’s no longer a “hypothetical” situation, however.

S.C. Attorney General Alan Wilson’s office on Monday filed a notice of appeal in the Harrell case with the Supreme Court and asked the five-member court to expedite the appeals process. Tuesday, Wilson formally asked the top court to reverse – pending the appeal – a May 12 ruling by Circuit Judge Casey Manning, who put a halt to the state grand jury investigation of Harrell.

The Supreme Court, including Toal, on Tuesday set a hearing in the matter for June 24 at 2:30 p.m. at the high court, Mark Powell, Wilson’s spokesman, told The Nerve Tuesday evening. When the justices will issue their ruling likely is unknown because they don’t announce deadlines to issue their decisions.

Earlier Tuesday afternoon, The Nerve asked Toal if she would step away from the Harrell case after pointing out to her it was no longer a “hypothetical” situation.

But as in February, Toal didn’t want to answer the question.

“The case is a pending matter here, and I cannot comment on any aspect of it,” she said only.

Powell and Charleston attorney Bart Daniel, one of Harrell’s attorneys, declined to comment Tuesday when asked about whether Toal should remove herself from the case.

“It is inappropriate for any of us lawyers to comment on any case that is pending before any court,” said Daniel, who also declined to comment on the appeal filed by Wilson.

Harrell, a Charleston Republican who has been the House speaker since 2005, didn’t respond Tuesday to a phone message from The Nerve seeking comment on the recusal issue and the appeal by Wilson. Harrell has maintained publicly he has done nothing wrong, and he has not been charged with any crimes.

‘Serious Disqualification Question’

Contacted Tuesday by The Nerve, Charles Geyh, an Indiana University law professor, said the Harrell-Toal situation “strikes me as a relatively serious disqualification question.”

He compared it 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.

Although 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.”

“The language of Caperton strikes me as applying to something like this (Harrell-Toal situation),” said Geyh, who 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, according to his online biography.

Asked if Toal, if she recuses herself from the Harrell case, also should not be involved with picking her replacement to hear the appeal, Geyh replied, “If she is disqualified, then logically, it should extend to naming her replacement.”

Under S.C. appellate court rules, following “recusal of the affected justice, the Chief Justice (or Acting Chief Justice) shall appoint an acting justice to replace the recused justice for the duration of the case.” A legal source told The Nerve that typically when a Supreme Court justice recuses himself or herself from hearing a case, the remaining justice with the most seniority names the replacement; that would fall to Justice Costa Pleicones, who was Toal’s opponent in the February election, if Toal recused herself in the Harrell case and Pleicones remained on it.

Bill Raftery, an information analyst with the National Center for State Courts, based in Williamsburg, Va., said when contacted Tuesday that some state high courts rely on the seniority rule to appoint replacements in specific cases when conflicts of interest arise; in other states, the remaining justices as a group name the replacements.

“Usually, the chief justices don’t have to recuse themselves,” Raftery told The Nerve. “It’s not something that comes up that often.”

Harrell-Toal Connection

Contacted Tuesday by The Nerve, John Crangle, attorney-director of the government watchdog organization Common Cause of South Carolina, reiterated his earlier calls for Toal to remove herself from the Harrell case.

“Harrell aggressively campaigned in favor of Toal,” said Crangle. “Jean Toal is a politician. She never left the House of Representatives, in my opinion, even though she put on the black robe.”

Toal served for 13 years as a Democratic House member before joining the Supreme Court in 1988, becoming the first woman to join the top court. In 1999, she was elected by the General Assembly as chief justice – the first woman to be elevated to the top judicial position in South Carolina.

South Carolina and Virginia are the only states where their legislatures play primary roles in electing judges. As the House speaker, Harrell is the leader of the 124-member chamber; the 46-member Senate has long complained that the House controls the outcome of judicial elections, which typically are held in joint sessions of the Legislature, because of its size.

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.

In the February Nerve story, two Republican lawmakers who asked not to be identified said 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 legislators cited several cases in which House members who were leaning toward Pleicones committed to Toal after their meetings with Harrell. Toal defeated Pleicones by a 95-74 vote.

“It’s troubling,” one lawmaker told The Nerve at the time.

Toal also would have a potential conflict of interest if Harrell is indicted by the state grand jury. 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.”

Under state judicial ethical rules of conduct, known as the judicial canons, all judges, include Supreme Court justices, “shall perform the duties of judicial office impartially and diligently,” and “shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”

‘Unprecedented in American Law’

In Harrell’s case, the justices will consider whether Manning, the administrative judge overseeing the state grand jury in the case, correctly ruled that the House Ethics Committee, which can’t investigate criminal allegations against House members, should have first crack at the case. In his May 12 ruling, Manning said, “Despite multiple requests, the Attorney General has failed to offer or present to the Court any evidence or allegations which are criminal in nature.”

But in a Feb. 14, 2013, letter to Wilson that accompanied a complaint against Harrell by the South Carolina Policy CouncilThe Nerve’s parent organization – Ashley Landess, the Policy Council president, wrote that the “apparent ethics violations, if proven, could be plausibly seen as a pattern of public corruption that would be out of the jurisdiction of the House Ethics Committee to investigate.”

Manning’s ruling also failed to acknowledge that the state ethics law, which was cited in the allegations contained in the Policy Council’s complaint, provides for criminal penalties, Wilson and others have pointed out. Wilson referred the complaint in February 2013 to the State Law Enforcement Division; after a 10-month investigation, SLED turned its report over to Wilson, who announced in January that it had been referred to the state grand jury for further investigation.

In his 24-page petition Tuesday to the Supreme Court for a “writ of supersedeas and interim relief,” Wilson blasted Manning’s ruling as “unprecedented in American law and unsupported by any known legal authority.”

“The Order interferes with, impedes and stops dead in its tracks an ongoing criminal investigation of public corruption by a State Grand Jury properly impaneled,” Wilson wrote.

“The lower court’s holding that the Attorney General can be somehow prohibited from initiating a criminal investigation is inherently repugnant not only to the South Carolina Constitution and principles of law, but also simply unacceptable to the basic principles of government for the people of South Carolina,” Wilson said in his conclusion. “The rule of laws should apply equally to everyone, without privilege or immunity for anyone.”

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.