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Updated: January 22, 2022 @ 7:59 am
S.C. Chief Justice Donald Beatty questions an attorney during arguments in Attorney General Alan Wilson’s lawsuit against the city of Columbia seeking to nullify school mask mandates. File/SCETV/Provided
S.C. Chief Justice Donald Beatty questions an attorney during arguments in Attorney General Alan Wilson’s lawsuit against the city of Columbia seeking to nullify school mask mandates. File/SCETV/Provided
COLUMBIA — Earlier this month, South Carolina’s top judge made waves when he rolled back protections that ensure lawyers who also serve as state legislators can’t be compelled to appear in court while the General Assembly is in session.
Prosecutors and victims’ advocates praised the move, having complained bitterly in recent years that defendants and corporations who hire lawyer-legislators can use them to stall their cases indefinitely. The new order from Supreme Court Chief Justice Donald Beatty appeared tailored to quickly resolve cases that had dragged on for years.
But then, a day after issuing his ruling, Beatty quietly backtracked.
In an email obtained by The Post and Courier, one of Beatty’s deputies on Jan. 12 advised the state’s judges not to act on the order he had just publicly announced.
“The Chief Justice has now asked me to reach out to you and advise you that you should refrain from calling these cases for trial for the immediate future and until further notice,” read the email, which appeared in the inboxes of more than 40 judges. “If you have any questions concerning this, feel free to reach out to the Chief Justice directly.”
The U-turn has become a source of consternation and confusion in legal circles over the past week, including among advocates who have long pushed to limit the broad protections that lawyer-legislators now enjoy.
“That seems like a direct contradiction,” said Laura Hudson, executive director of the S.C. Victim Assistance Network. “Gosh, that’s really unsettling.”
In a Jan. 19 statement to The Post and Courier, Judicial Branch spokeswoman Ginny Jones said Beatty still believes those long-lingering legal cases should be resolved. But, Jones said, he issued his follow-up directive in response to a flood of concerns from lawyers and court officials about trying to hold trials during an omicron-fueled COVID-19 surge.
“This operational directive does not diminish the urgency with which all attorneys and courts in our state should approach their collective responsibility to resolve all pending cases,” Jones wrote in a statement.
Beatty, a former lawyer-legislator himself, and his predecessors at the Supreme Court have long excused lawyers who serve in the General Assembly from appearing for depositions, trials and court hearings while the Legislature is in session. That gives those lawyers a get-out-of-court-free card from January through July 31, a month after the General Assembly typically finishes most of its work for the year.
Lawyer-legislators also can’t be called into court during special offseason sessions, such as the redistricting hearings held late last year.
House Minority Leader Todd Rutherford, a Columbia Democrat and trial attorney, on Jan. 19 defended those protections.
“I think it’s a recognition of the fact that while we’re in session, it’s virtually impossible to try a case,” Rutherford said.
Still, the protections have delayed everything from criminal trials to divorce proceedings. Prosecutors say it has also made it extremely difficult to get bail revoked for some defendants who commit new crimes while out on bond awaiting trial.
First Solicitor David Pascoe, who led the Statehouse corruption probe, took direct aim at the practice on Jan. 6 during a wide-ranging speech before the Greenville County GOP.
Pascoe, a Democrat who serves as the top prosecutor for Dorchester, Orangeburg and Calhoun counties, told the crowd he had a domestic violence case delayed indefinitely after a lawyer-lawmaker was added to the case a week before it was to go to trial. More recently, he said, a complex drunken-driving case was delayed just before trial in Charleston County after a lawyer-lawmaker joined the legal team as the legislative session was about to begin. In another case, a defendant dodged a January hearing to revoke his bond by hiring a lawyer-legislator who was protected from having to appear in court, Pascoe said.
“Yet the same legislator can come and go as they please from court and choose whatever cases they want to handle,” Pascoe said. “So, in essence, they control their docket for most of the year. … It’s unfair.”
Beatty issued his order five days after Pascoe’s speech, surprising many in the legal community. The Jan. 11 order still held that lawyer-legislators are generally immune from being called into court during the Legislative session. But it allowed for exceptions, such as bond revocation hearings, cases that are more than three years old and emergency family court hearings involving children.
But those changes barely had time to take effect before the courts issued the follow-up directive the next day, telling judges to disregard Beatty’s order until further notice.
In a Jan. 19 interview, Pascoe said he had been pleased to learn of Beatty’s order curbing the protections and had praised the chief justice to other members of the bar. They told him he was naïve, Pascoe said, and that it was only a matter of time before the order was rescinded.
“Unfortunately, they turned out to be right and I was wrong,” Pascoe said. “It’s very disappointing.”
Hudson, who leads the victim advocacy group, similarly said Beatty’s previous order had been encouraging.
Defendants have a right to a speedy trial, but so do victims, Hudson said.
“It’s difficult for them to understand why somebody else has the right to delay and delay and delay,” Hudson said. “There are a lot of advantages (to defendants) to delaying. Witnesses die. People move out of state. Law enforcement officers are transferred.”
Hudson said she wasn’t sold on Beatty’s stated reasoning for backtracking.
“That sounds like a flimsy excuse.”
Reach Avery Wilks at 803-374-3115. Follow him on Twitter at @AveryGWilks. Send tips to [email protected].
Projects reporter
Avery G. Wilks is an investigative reporter based in Columbia. The USC Honors College graduate was named the 2018 S.C. Journalist of the Year for his reporting on South Carolina’s nuclear fiasco and abuses within the state’s electric cooperatives.
Watchdog/Public Service Editor
Glenn Smith is editor of the Watchdog and Public Service team and helped write the newspaper’s Pulitzer Prize-winning investigation, “Till Death Do Us Part.” Reach him securely on Signal at 843-607-0809 or by email at [email protected].
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