The Attorney General’s Appeal: An Analysis

“The lower court’s order is unprecedented in American law and unsupported by any known legal authority.”

On May 19, Attorney General Alan Wilson filed an appeal with the Supreme Court in which he argued – persuasively – that he has the constitutional authority to prosecute lawmakers without the permission of the legislature’s ethics committees. Two weeks before, Circuit Judge Casey Manning ruled that an ongoing investigation of House Speaker Bobby Harrell had to pass through the House Ethics Committee before it could proceed. We noted at the time that Judge Manning’s ruling was outrageous and had no basis in state law or the constitution.

The Attorney General’s writ to the Supreme Court makes a similar case but goes further by citing precedent in every area.

It is, from a legal point of view, unanswerable. If the Supreme Court fails overturn Judge Manning’s decision, South Carolinians may be forgiven for believing that something other than legal reasoning is at play.

What follows is a brief summary of the A.G.’s arguments.

Rainey v. Haley precedent?

Judge Manning ruled the state grand jury lacked subject matter jurisdiction (the right to investigate the case) based on precedent set in Rainey v. Haley. In that case, a private citizen, John Rainey, alleged that then-Representative Nikki Haley had illegally lobbied while a House member. Judge Manning ruled in that case that Rainey’s complaint had to be filed with the House Ethics Committee.

The Attorney General points out, however, the following.

  • The Rainey precedent does not apply to this case, since John Rainey was a private citizen, not the state’s constitutionally empowered prosecutor.
  • While the present investigation was spurred by a letter from SCPC President Ashley Landess, the A.G.’s investigation was never a citizen-led action. The State law Enforcement Division (SLED) conducted the investigation, and the Attorney General has full constitutional authority to initiate investigations and prosecutions. That is affirmed in In re Richland Co. Magistrate’s Court and State v. Addison.
  • Even in Rainey, two sitting State Supreme Court justices (Beatty and Hearn) held that “the Attorney General’s Office either on its own initiative or via a referral from the House of Representatives Legislative Ethics Committee could have sought a criminal determination of the alleged misconduct.”
  • Previous case law – State v. Sheppard,   State v. Wilson, and State v. Adams – makes it clear that the state grand jury’s jurisdiction is based solely on SC Code 14-7-1630, which allows the jury to investigate public corruption. The definition of public corruption in the Ethics Act encompasses legislators.

Criminality vs. Ethics

Judge Manning ruled that the Attorney General failed to present allegations that are criminal in nature, and ruled that ethics violation allegations must be addressed the House or Senate ethics committees. In fact, however, nothing in state or federal law supports that contention.

  • Under SC Code 8-13-1520(A) all violations of the Ethics Act are criminal.
  • The courts have already agreed that the grand jury has the authority to investigate by approving the request to impanel the grand jury. Such a request must allege an offense over which the jury has jurisdiction. It makes no sense, therefore, to argue that the Harrell case is somehow off-limits.
  • The grand jury is empowered to investigate public corruption, which the law code defines as “any unlawful activity under color of or in connection with any public office or employment”: SC Code 14-7-1615(B).
  • In both federal and state case law, the courts have held that the legislature may not limit the authority granted the Attorney General by the constitution, and that the absence of a referral cannot limit the state’s independent right to initiate a criminal prosecution.  In other words, the Attorney General doesn’t need the House Ethics Committee’s approval before investigating a lawmaker.
  • The grand jury investigating a House member does not compromise the separation of powers. Article 1 Section 11 of the state constitution makes clear that “nothing contained in this constitution is deemed to limit or prohibit the establishment by the General Assembly of a state grand jury.”
  • By contrast, giving executive functions like criminal investigation and prosecution to a legislative committee would violate the constitution. See State v. ex rel. McLeod v. McInnis and Knotts v. S.C. Dept. of Natural Resources.
  • The only immunity given to legislators in the constitution is for civil processes during the legislative session. Criminal proceedings are expressly exempted from this protection. See Eaddy v. Eaddy and Williamson v. U.S.

Halting a Grand Jury?

Finally, Judge Manning ordered an immediate halt to the grand jury investigation. But as the A.G. contends, Judge Manning simply does not have that power.

  • Under SC Code 14-7-1630(G), the state grand jury can continue its investigation while the Attorney General appeals to the state Supreme Court a ruling that states the grand jury lacks subject matter jurisdiction.
  • The state Supreme Court itself argued in Harvie v. Heise that a court of equity may not halt or interfere with an ongoing criminal investigation or prosecution unless the statute being used for prosecution is unconstitutional or otherwise void. Obviously, the Ethics Act is not a void statute.
  • Where the statutes being enforced are valid, it is “improper to enjoin their enforcement”: Charleston Oil Co. v. Poulnot.

It’s unfortunate that the Attorney General has to compile such a thorough argument for why South Carolina law isn’t designed to protect a special class of citizens from criminal prosecution. In short: the state grand jury has the authority to investigate the House Speaker, and the Attorney General has the power – if he chooses to use it – to prosecute.

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