Thursday, February 20, 2014

Watchdog questions S.C. chief justice's ties to Bobby Harrell

Too close to call?

Posted by Corey Hutchins on Thu, Feb 20, 2014 at 11:48 AM

click to enlarge S.C. Chief Justice Jean Toal - SEAN RAYFORD
  • Sean Rayford
  • S.C. Chief Justice Jean Toal
Bobby Harrell is under a state grand jury investigation. If he's indicted, Jean Toal will pick the trial judge who would handle the case. As House Speaker, Harrell recently helped get Toal re-elected as chief of the state Supreme Court.

It's a classic game of South Carolina inside baseball that has one government watchdog calling for a new ref. Common Cause of South Carolina director John Crangle says he delivered a letter to Toal's office on behalf of his organization asking her to recuse herself if such a scenario arises. He says it's a conflict of interest.

That Harrell helped Toal's re-election effort earlier this month isn't in dispute. Lawmakers and media accounts attest to it. In South Carolina, state legislators cast votes to elect the chief justice, and that's what they did on Feb. 5 when they re-elected her over associate justice Costa Pleicones in a rare close race. The two jurists camped out at the Statehouse lobbying lawmakers hard to lock down votes right up until the election. They each had their own lieutenants in the House and Senate working other members on their behalf. In Toal's corner was Harrell, who as House Speaker maintains a lot of influence over junior members. He chooses what committees they sit on, oversees staff budgets, signs off on expenditures, and determines what bills will likely pass or fail.

If someone is indicted by a state grand jury, it is up to the chief justice to pick the circuit court judge who will handle any proceedings. Because Harrell helped Toal get re-elected, Crangle doesn't think it would be proper for Toal to choose who might oversee a potential determination of his fate.

“We are sure that the court is aware of the problems of prejudice and of the appearance of possible conflict of interest related to any actions the candidates might take with regard to Speaker Harrell,” reads part of the letter. “We know for a fact that journalists contemplate raising the issue of actual or apparent conflict of interest and prejudice if either of the candidates is involved in any decisions relating to litigation in which Speaker Harrell is a part whether it be criminal or civil.”

Toal's clerk, Daniel Shearhouse, said it would be inappropriate for Toal to respond what she'd do in such a hypothetical situation, according to The Nerve, an investigative newsroom of the limited-government S.C. Policy Council. (Policy Council president Ashley Landess filed a complaint about Harrell last February that led to the investigation.)

Crangle says he's also asking Pleicones to recuse himself if Harrell's legal situation ever winds up before the state Supreme Court.

“We don't want any distraction from the central issue, which is Bobby Harrell's conduct in office, and we're afraid if the chief justice or associate justice Pleicones are involved in any legal matters related to Bobby Harrell, that will distract attention from Harrell onto the question of whether there is any kind of prejudice or partially,” Crangle says. “We want this thing to be above reproach.”

On Valentines Days last year, Attorney General Alan Wilson requested the State Law Enforcement Division to investigate a complaint alleging that the powerful House Speaker might have improperly reimbursed himself hundreds of thousands of dollar from his campaign without keeping proper records, used his public office to help his private pharmaceutical business, improperly appointed his brother to a government panel that screens judges, and other issues. Harrell has maintained he did nothing wrong. Last year, he re-paid his campaign around $20,000 for after he couldn't find proper receipts for personal reimbursement.

SLED completed its inquiry near the end of 2013 and sent it to Wilson. A day before the 2014 legislative session was set to begin in early January, Wilson's office announced it had sent the matter to a state grand jury, making it a criminal investigation.

To get an outside perspective on whether there could be a potential conflict for Toal, The Nerve reached out to Charles Geyh, an Indiana University law professor who served as director of the American Judicature Society’s Center for Judicial Independence and director of the American Bar Association’s Judicial Disqualification Project.

From The Nerve's Feb. 12 report:
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.”

Common Cause letter to S.C. Supreme Court on Harrell case by CharlestonCityPaper

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