State v. Harrison, Appellate Case No. 2018-002128

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJUSTICE KITTREDGE
Citation432 S.C. 448,854 S.E.2d 468
Parties The STATE, Respondent, v. James H. HARRISON, Appellant.
Decision Date20 January 2021
Docket NumberAppellate Case No. 2018-002128,Opinion No. 28005

432 S.C. 448
854 S.E.2d 468

The STATE, Respondent,
v.
James H. HARRISON, Appellant.

Appellate Case No. 2018-002128
Opinion No. 28005

Supreme Court of South Carolina.

Heard June 11, 2020
Filed January 20, 2021
Rehearing Denied March 9, 2021


Elizabeth Van Doren Gray, Robert E. Stepp, and Vordman Carlisle Traywick III, all of Robinson Gray Stepp & Laffitte, LLC, of Columbia for Appellant.

First Circuit Solicitor David M. Pascoe Jr., of Orangeburg, and Assistant Solicitor W. Baker Allen Jr., of St. George, both for Respondent.

JUSTICE KITTREDGE :

432 S.C. 452

Appellant James H. Harrison, a former state legislator, was convicted and sentenced to eighteen months’ imprisonment in a public corruption probe. The case was prosecuted by David Pascoe, Solicitor of the First Judicial Circuit, who was serving as the acting Attorney General. As recognized by this Court in Pascoe v. Wilson ,1 Solicitor Pascoe's authority to pursue the corruption probe was bestowed on him by South Carolina's current Attorney General, Alan Wilson. The extent of the power granted to Solicitor Pascoe lies at the heart of this appeal. Appellant contends Solicitor Pascoe's authority did not grant the solicitor the power to investigate or prosecute him (Appellant). Conversely, Solicitor Pascoe dismisses any suggestion that his authority was limited, for he contends he had the authority to prosecute public corruption wherever the investigation led. For the reasons we will explain, Solicitor

432 S.C. 453

Pascoe had the authority to prosecute Appellant for perjury, but did not have the authority to prosecute Appellant for misconduct in office. Consequently, we affirm Appellant's conviction and eighteen-month sentence for perjury, but reverse the statutory and common law misconduct in office charges and remand to the presiding judge of the State Grand Jury for further proceedings.

This is a difficult case, one that has resulted in a sharply divided Court. This is the lead opinion of the Court. With the Court's three separate writings in this case, there are:

(1) four votes to affirm Appellant's perjury conviction (Chief Justice Beatty, Justice Kittredge, Justice Hearn, and Justice Few); and

(2) three votes to reverse and remand the misconduct charges (Justice Kittredge, Justice Few, and Justice James).

Justice Hearn, joined by Chief Justice Beatty, would affirm all of Appellant's convictions, thus adopting Solicitor Pascoe's position that our decision in Pascoe granted him boundless authority to pursue and prosecute public corruption in South Carolina. Justice James would reverse and remand all of Appellant's convictions based on Solicitor Pascoe's clear lack of authority beyond that spelled out in Pascoe . Despite the fact that both separate writings are concurring dissents, we will refer to Justice Hearn's writing as the dissent and Justice James's writing as the concurrence, because Justice James's writing most closely resembles the lead opinion.2

854 S.E.2d 471

I.

The duly elected Attorney General for South Carolina is Alan Wilson. The South Carolina Attorney General is imbued by our state constitution with substantial authority over the prosecution of criminal cases. S.C. Const. art. V, § 24. To that end, the Attorney General has the constitutional duty to

432 S.C. 454

supervise all criminal prosecutions and ensure all laws be faithfully executed, as well as the statutory duty to direct the state solicitors, including the ability to assign solicitors to assist in matters outside of their respective judicial circuits. See, e.g. , S.C. Const. art. IV, § 15 ; S.C. Const. art. V, § 24 ; S.C. Code Ann. § 1-7-50 (2005) ; id. § 1-7-100(2) (2005); id. § 1-7-320 (2005); id. § 1-7-350 (2005); Ex parte McLeod , 272 S.C. 373, 377, 252 S.E.2d 126, 127 (1979).

David Pascoe is the duly elected Solicitor for South Carolina's First Judicial Circuit, which comprises Orangeburg, Calhoun, and Dorchester Counties. See S.C. Const. art. V, § 24 (providing that "in each judicial circuit a solicitor shall be elected by the electors thereof.... The General Assembly shall provide by law for their duties and compensation."). Section 1-7-350 of the South Carolina Code sets forth some of the duties of local solicitors:

The several solicitors of the State shall, within their respective circuits, in cooperation with, and as assigned by the Attorney General, represent in all matters, both civil and criminal, all institutions, departments, and agencies of the State. Likewise in criminal matters outside their circuits, and in extradition proceedings in other states, they shall be subject to the call of the Attorney General, who shall have the exclusive right, in his discretion, to assign them in case of the incapacity of the local solicitor or otherwise.

(Emphasis added).

As set forth in detail in our decision in Pascoe , Attorney General Wilson originally appointed Solicitor Pascoe to serve as the "designated prosecutor" in the investigation and prosecution of Robert Harrell, who, at the time of the solicitor's appointment, was under investigation for alleged crimes committed in his capacity as a legislator. 416 S.C. at 631, 788 S.E.2d at 688. A report generated by the South Carolina Law Enforcement Division (SLED) during the Harrell investigation contained the redacted names of two legislators who also were allegedly implicated in illegal conduct. Id. We now know those legislators to be James Merrill and Richard Quinn Jr. (Quinn Jr.). The SLED report additionally referenced and incorporated the businesses of the two redacted legislators because it appeared the businesses had been used by the two

432 S.C. 455

legislators in derogation of state law. For example, the investigation of Quinn Jr. necessarily included an investigation into businesses in which he allegedly had an interest, specifically, Richard Quinn & Associates (RQA), First Impressions, Mail Marketing Strategies, and the Copy Shop.

Solicitor Pascoe contacted Attorney General Wilson and indicated his belief that the redacted legislators should be investigated as part of "any corruption probe on the legislature." Id. In response, Attorney General Wilson emailed the Chief Deputy Attorney General, John McIntosh, stating he (Wilson) had a possible conflict of interest between "[him]self and members of the [H]ouse." Id. The Attorney General therefore asked McIntosh to "firewall" him from any involvement and "take over as supervising prosecutor." Id. at 631–32, 788 S.E.2d at 688.

Several months later, McIntosh emailed the Chief of SLED, asking that he forward the SLED report involving the redacted legislators to Solicitor Pascoe "for a prosecutive decision." Id. at 632, 788 S.E.2d at 688 (internal quotation marks omitted). The email further stated that the Attorney General had "recused th[e entire] office from the legislative members in the redacted portions of the SLED report" but had not recused the office from "any other matters." Id. (emphasis

854 S.E.2d 472

omitted).3

Eventually, following the SLED investigation, Solicitor Pascoe sought to impanel the State Grand Jury. Id. at 637, 788 S.E.2d at 691. Due to a deterioration of the relationship between Attorney General Wilson and Solicitor Pascoe, the Attorney General's Office opposed the solicitor's request, and, as a result, the Clerk of the State Grand Jury refused to swear-in the solicitor's staff. Id. at 638, 788 S.E.2d at 691–92. Solicitor Pascoe responded by filing a petition for declaratory relief with this Court. Id. at 639, 788 S.E.2d at 692. As part of Solicitor Pascoe's petition, he admitted that "the nature of the

432 S.C. 456

Attorney General's conflict [ ] [wa]s not known" at the time of the Court's decision.4

The Court accepted Attorney General Wilson's recusal and ruled accordingly, granting Solicitor Pascoe's requested relief and finding "Pascoe [ ] met his burden of proving by a preponderance of the evidence he was vested with the authority to act as the Attorney General in the redacted legislators matter, and that this authority necessarily included the power to initiate a state grand jury investigation." Id. at 640, 788 S.E.2d at 692. In its analysis, the Court referred repeatedly to the "redacted legislators matter" or the "redacted legislators investigation," using those phrases to define the scope of the recusal of the Attorney General's Office and Solicitor Pascoe's authority. See, e.g. , id. at 642–44 & nn. 15–16, 788 S.E.2d at 693–95 & nn.15–16 ("Further, we find the preponderance of the evidence supports two conclusions: that Wilson unequivocally recused himself from any aspect of the redacted legislators investigation ...; and, subsequently, that McIntosh, acting as the Attorney General, recused himself and the Attorney General's Office from the redacted legislators investigation , and appointed Pascoe to act as the Attorney General vested with the Attorney General's power and authority for the purpose of that investigation ...." (emphasis added)).

Ultimately, the...

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2 practice notes
  • In re Harrison, Appellate Case No. 2021-000670
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 2021
    ...motion to resign in lieu of discipline pursuant to Rule 35, RLDE, Rule 413, SCACR, following this Court's decision in State v. Harrison , 432 S.C. 448, 854 S.E.2d 468 (2021). In the affidavit attached to his motion, Respondent acknowledges that Disciplinary Counsel can prove the allegations......
  • In re Harrison, Appellate Case 2021-000670
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 2021
    ...a motion to resign in lieu of discipline pursuant to Rule 35, RLDE, Rule 413, SCACR, following this Court's decision in State v. Harrison, 432 S.C. 448, 854 S.E.2d 468 (2021). In the affidavit attached to his motion, Respondent acknowledges that Disciplinary Counsel can prove the allegation......
2 cases
  • In re Harrison, Appellate Case No. 2021-000670
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 2021
    ...motion to resign in lieu of discipline pursuant to Rule 35, RLDE, Rule 413, SCACR, following this Court's decision in State v. Harrison , 432 S.C. 448, 854 S.E.2d 468 (2021). In the affidavit attached to his motion, Respondent acknowledges that Disciplinary Counsel can prove the allegations......
  • In re Harrison, Appellate Case 2021-000670
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 2021
    ...a motion to resign in lieu of discipline pursuant to Rule 35, RLDE, Rule 413, SCACR, following this Court's decision in State v. Harrison, 432 S.C. 448, 854 S.E.2d 468 (2021). In the affidavit attached to his motion, Respondent acknowledges that Disciplinary Counsel can prove the allegation......

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