Harrell v. Attorney Gen. of State

• Decision Date: 09 July 2014
• Docket Number: No. 27412.,27412.
• Citation: 409 S.C. 60,760 S.E.2d 808
• Court: South Carolina Supreme Court
• Parties: Ex parte Robert W. HARRELL, Jr., Respondent, v. ATTORNEY GENERAL OF the STATE of South Carolina, Appellant. In re State Grand Jury Investigation. Appellate Case No. 2014–001058.

409 S.C. 60

760 S.E.2d 808

Ex parte Robert W. HARRELL, Jr., Respondent,

v. ATTORNEY GENERAL OF the STATE of South Carolina, Appellant.In re State Grand Jury Investigation.Appellate Case No. 2014–001058.

No. 27412.

Supreme Court of South Carolina.

Heard June 24, 2014.

Decided July 9, 2014.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Solicitor General Robert D. Cook, Assistant Deputy Attorney General S. Creighton Waters, Assistant Deputy Attorney General Wayne Allen Myrick, Jr., and Assistant Attorney General Brian T. Petrano, all of Columbia, for Appellant.

Gedney M. Howe III, of Gedney M. Howe III, P.A., and E. Bart Daniel, both of Charleston, and Robert E. Stepp, Robert E. Tyson, Jr., and Roland M. Franklin, Jr., all of Sowell Gray Stepp & Laffitte, LLC, of Columbia, for Respondent.

PER CURIAM.

The Attorney General appeals the circuit court's order finding the state grand jury lacks subject matter jurisdiction to investigate a violation of the Ethics, Government Accountability, and Campaign Reform Act ¹ (ETHICS ACT). WE reveRSe.

Facts/Procedural Background

On February 14, 2013, the Attorney General received an ethics complaint, alleging possible violations of the Ethics Act by the Speaker of the House of Representatives, Robert W. Harrell, Jr. (the Speaker), originally submitted by a private citizen to the House Legislative Ethics Committee (House Ethics Committee).² That same day, the Attorney General forwarded the complaint to South Carolina Law Enforcement Division (SLED), and SLED carried out a 10–month criminal investigation into the matter. At the conclusion of the investigation, the Chief of SLED and the Attorney General petitioned the presiding judge of the state grand jury to impanel the state grand jury on January 13, 2014. Acting presiding judge of the state grand jury, the Honorable L. Casey Manning, subsequently impaneled the state grand jury. ³

On February 24, 2014, the Speaker filed a motion to disqualify the Attorney General from participating in the state grand jury investigation. On March 21, 2014, a hearing was held on the motion. Following that hearing, the court sua sponte raised the issue of subject matter jurisdiction, and another hearing was held on May 2, 2014, to address the jurisdictional issue.

By order dated May 12, 2014, the court found it—as presiding judge of the state grand jury—“lack[ed] subject matter jurisdiction” to hear any matter arising from the Ethics Act, and refused to reach the issue of disqualification. In essence, the court found that because the complaint was civil in nature, the state grand jury lacked criminal jurisdiction to investigate, and likewise, the Attorney General lacked the authority to investigate absent a referral from the House Ethics Committee. More specifically, the court found “that ethics investigations concerning members and staff of the Legislature are solely within the Legislature's purview to the exclusion of the Courts,” and, as such, any alleged criminal violations which arise out of the Ethics Act must be referred from the legislative investigative body to the Attorney General. Citing Rainey v. Haley, 404 S.C. 320, 327–28, 745 S.E.2d 81, 85 (2013), the court found the Attorney General's investigation “premature” because the Ethics Act's “administrative remedies have not been exhausted.” Finally, the court held that its exercise of jurisdiction over the present action would contravene principles of the separation of powers. Thus, the court discharged the state grand jury and ordered the Attorney General to cease his criminal investigation.⁴

The Attorney General appealed pursuant to sections 14–7–1630(G) and 14–8–200(b)(6) ⁵ of the South Carolina Code and Rule 203(d)(1)(A)(v), SCACR.⁶ By order dated May 19, 2014, this appeal was expedited.

Issue

Whether the circuit court erred in discharging the state grand jury after finding that it lacked jurisdiction to investigate allegations stemming from violations of the Ethics Act?

Standard of Review

“Appellate courts are bound by fact findings in response to motions preliminary to trial when the findings are supported by the evidence and not clearly wrong or controlled by error of law.” State v. Amerson, 311 S.C. 316, 320, 428 S.E.2d 871, 873 (1993).

Analysis

I. Jurisdiction

The Ethics Act is “a comprehensive statutory scheme for regulating the behavior of elected officials, public employees, lobbyists, and other individuals who present for public service.” Rainey, 404 S.C. at 323, 745 S.E.2d at 83 (citations omitted).

To enforce the Ethics Act, the General Assembly created the State Ethics Commission and the Senate and House Legislative Ethics Committees. S.C.Code Ann. §§ 8–13–310,–510 (Supp.2013). “[T]he House and Senate Legislative Committees are charged with the exclusive responsibility for the handling of ethics complaints involving members of the General Assembly and their staff.” Rainey, 404 S.C. at 324, 745 S.E.2d at 83 (citations omitted).

The House Ethics Committee must conduct its investigation of a complaint filed pursuant to the Ethics Act in accordance with section 8–13–540. SeeS.C.Code Ann. § 8–13–540 (Supp.2013). This section provides, in relevant part:

If after [a] preliminary investigation, the ethics committee finds that probable cause exists to support an alleged violation, it shall, as appropriate:

(a) render an advisory opinion to the respondent and require the respondent's compliance within a reasonable time; or

(b) convene a formal hearing on the matter within thirty days of the respondent's failure to comply with the advisory opinion. All ethics committee investigations and records relating to the preliminary investigation are confidential. No complaint shall be accepted which is filed later than four years after the alleged violation occurred.

S.C.Code Ann. § 8–13–540(1)(a)–(b). Following a formal hearing, if the committee finds that a member has violated the Ethics Act, the Act requires the committee to:

(a) administer a public or private reprimand;

(b) determine that a technical violation as provided for in Section 8–13–1170 has occurred;

(c) recommend expulsion of the member; and/or,

(d) in the case of an alleged criminal violation, refer the matter to the Attorney General for investigation.

S.C.Code Ann. § 8–13–540(3)(a)–(d) (emphasis added).

The circuit court read into section 8–13–540(3)(d) a requirement that a House Ethics Committee investigation and referral occur prior to the Attorney General's initiation of his own criminal investigation, which the Attorney General argues was clearly erroneous in light of our constitution and this Court's precedents. We agree.

In State v. Thrift, this Court announced that legislative jurisdiction over violations of the Ethics Act is civil in nature. See Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994). There, the State appealed a pre-trial order of the circuit court dismissing the indictments against multiple defendants charged with public corruption. Id. at 287, 440 S.E.2d at 344. The State in Thrift submitted that if the Court interpreted a prior version of the Ethics Act ⁷ to require the State Ethics Commission to refer criminal allegations to the Attorney General as a precondition to the institution of a criminal investigation in every prosecution, then the referral scheme was unconstitutional. Id. at 307, 440 S.E.2d at 355.

Noting that the State possesses “wide latitude in selecting what cases to prosecute and what cases to plea bargain,” the Court observed that the Attorney General's authority to prosecute derives from our state constitution and thus “cannot be impaired by legislation.” Thrift, 312 S.C. at 307, 440 S.E.2d at 355; seeS.C. Const. art. V, § 24 (providing that “[t]he Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record”). Therefore, the Court deemed any requirement placing the power “to supervise the prosecution of a criminal case in the hands of the Ethics Commission” unconstitutional. Id.

However, “ by recognizing the civil nature of the Ethics Act complaint,” the Court avoided the constitutional problem caused by the referral language of the old scheme, and concluded:

In light of our narrow construction of the statute, .... the referral system only applies to civil complaints to the Ethics Commission which are referred by it to the Attorney General for criminal prosecution. The absence of a complaint to the Ethics Commission will never operate as a limitation upon the State's independent right to initiate a criminal prosecution.

Id. (emphasis added).

Rather than looking to Thrift, the circuit court found that the House Ethics Committee had exclusive jurisdiction over this matter, relying on the more recent case, Rainey v. Haley. See 404 S.C. at 322, 745 S.E.2d at 82.

In Rainey, the appellant sought a civil declaratory judgment in the court of common pleas that Governor Nikki Haley was criminally culpable for ethical violations allegedly committed while she was a member of the House of Representatives. 404 S.C. at 322, 745 S.E.2d at 82. We affirmed the circuit court's dismissal of the action for lack of jurisdiction, finding the House Ethics Committee had exclusive jurisdiction to hear a civil ethics complaint against one of its members. Id.⁸

Other than the particular situation defined in section 8–13–530(4), we stated “the Legislature has granted exclusive authority over ethical complaints to the appropriate Ethics Committee” and “it is therefore clear the Legislature intended the respective Ethics Committee to otherwise have exclusive authority to hear alleged ethics violations of its own members and staff.” Id. at 325–26, 745 S.E.2d at 84. Finally, we opined:

[T]he South Carolina Constitution and this Court have expressly recognized and respected the Legislature's authority over the conduct of its own members. Consequently, a court's exercise of...