According to state law, justices on the South Carolina Supreme Court have 60 days to file their decisions from the time a term ends after hearing a case. But ask any lawyer who’s had a case before the High Court if the turn-of-the-century law is always followed, and they’ll likely laugh in your face.
“I’ve never heard of that law being enforced,” says Bob Bockman, a University of South Carolina law professor who specializes in the appeals process. Furthermore, he says, “I’ve not seen any commentary about that.”
But it’s an issue some lawyers have been grumbling about in the days following the recent death of prominent Columbia attorney Steve Morrison. A titan of the South Carolina bar, Morrison played a central role in a school equity case that’s dragged on at the High Court for nearly 20 years without resolution.
“This is something that almost became his lifelong work, and he died before they ever gave a decision,” says House Democratic Minority Leader Todd Rutherford, a Columbia attorney.
The schools case is about whether the state of South Carolina gives enough money to poor, rural school districts to make sure they’re getting the same “minimally adequate” education as students in more well-off districts, as guaranteed by the state’s constitution. Morrison represented 36 rural school districts in the case. It was first filed in 1993. Last spring, the Supreme Court re-heard oral arguments in it because two justices had already retired since the last time arguments were made four years prior.
The school equity case “obviously is an extremely unusual circumstance in terms of the length of time the court has been considering the issues,” according to Bockman.
But the state Supreme Court has taken longer than 60 days to decide other cases, though certainly not as long. For instance, it took the court around 18 months to decide a high-profile public interest case filed in 2011 that challenged whether the state’s 78 special sales tax exemptions are constitutional. The court ruled they are. In the case of well-known Charleston talk radio host Rocky D, who appealed a decision by a lower court in a Freedom of Information lawsuit against a school association, it took several months for the court to eventually issue an opinion (in his favor) after the term ended in which the court had heard arguments.
Why isn’t the law being followed? It’s hard to say, because the Supreme Court’s justices can’t talk about it since it’s an issue that could one day come before them if someone were ever to challenge them on it. Getting South Carolina lawyers to talk openly about the issue is also tough, as practicing attorneys aren’t supposed to criticize the court.
As president of the limited-government S.C. Policy Council, Ashley Landess says the different branches of state government are notorious for ignoring what she describes as “old laws.” Her organization regularly points out how during the budget process each year lawmakers ignore a law requiring the appropriations committees of the House and Senate to meet in joint open sessions to consider the governor’s executive budget.
“I think one of the real flaws in the system is that all of these laws, the court, the legislature, the governor, all three branches of government are picking and choosing laws they want to ignore,” she says. “And there is no one who will step up to challenge them in the system itself. So that leaves citizens forced to hold the three branches accountable.”
But there might be a separation of powers issue at stake.
In the early 1970s, a constitutional amendment granted the Supreme Court the power to essentially make its own rules, says University of South Carolina law professor Jay Bender. Because of that, “My belief is that the General Assembly can’t tell the Supreme Court how it is to operate,” he says.
The history of the state statute on court decisions goes back to the late 1800s, and it was last updated in 1962. The constitutional amendment granting the court power to make its own rules came a decade later, Bender says, which in his opinion renders the state statute inoperative. And when it comes to Supreme Court justices making their decisions, he says, “Do you want the decision to be fast or do you want it to be right?”
Deadlines for when Supreme Court justices should make decisions can be tricky, and each state has its own rules, says Deborah Smith at the National Center for State Courts. In California, for instance, justices don’t get paid unless they issue opinions within 90 days.
According to time standards recommended by the American Bar Association, 50 percent of a state Supreme Court’s caseload should be resolved in 290 days or fewer after the date of filing the notice of appeal (or petition for review), and 90 percent should be resolved in one year or less.
How long South Carolina’s High Court justices should take in making decisions is something that could come up during this year’s rare race for who will lead the court. To the surprise of legal observers, current Chief Justice Jean Toal is facing a challenge from Associate Justice Costa Pleicones. A government judicial panel will begin a screening process Nov. 5, and the election will be held in February. In South Carolina, the 170 members of the General Assembly choose who leads the state’s High Court.
The race is a bit of a bizarre situation. The position of chief justice is usually decided behind the scenes by agreements on the court rather than elections. Pleicones says Toal told him she wouldn’t run for re-election, while Toal says she was surprised Pleicones challenged her when she decided to run again.
A legendary public defender, Pleicones says a periodic change in leadership has always been beneficial for the court, and he says the institution could benefit from a more expeditious processing time on cases.
“I think that there are some certain internal controls we could implement” to do that, he said, but declined specifics.
Asked if he planned to make the court’s decision times an issue in the race, Pleicones said, “I have said that I think we can improve our processing time. I don’t intend that, frankly, as an indictment of any individual or of the court generally.”
For her part, Toal, a former lawmaker and the state’s first female chief justice, says she doesn’t expect the length of time the court has taken to make decisions to come up in the race or the screening process. She’s said she’s running for re-election in part because there are a handful of important projects that began under her leadership she’d like to see through to completion. She regards technological reforms as the hallmark of her administration as chief, including the implementation of a statewide electronic filing system. Whoever wins likely won’t serve long as chief since they are both nearing the age of 72 when they’d have to retire from the bench in order to mainatain pension benefits.
Perhaps a larger question about the state statute on Supreme Court decision times is who would ever enforce the law. First, the court would probably have to face a challenge from an individual or business affected by a delay.
“I think it would be a rare lawyer that might take it upon herself or himself to do that,” says Bockman. And beyond that, the law professor says, “Who is it that’s going to order the Supreme Court to comply with that law? The Supreme Court is the Supreme Court. It’s the highest court in the state. What part of the judicial department would essentially be able to exercise that authority and tell the Supreme Court to issue an opinion within a certain period of time? I don’t know the answer to that one.”
Tom Fitton, president of Judicial Watch, a Washington, D.C.-based conservative group that watchdogs judicial officials, says the way to deal with such a law would be to challenge it, not ignore it.
“The idea of a relatively arbitrary 60-day limit doesn’t comport with getting the best decision from a court,” he says. “That being said, if the law is not being followed that’s a problem.”
For his part, Bockman says he believes South Carolina’s Supreme Court operates efficiently.
But for Rutherford, it’s a case of justice delayed, justice denied.
“One of the biggest issues that we deal with at the State House,” he says, “is trying to get government to do what government should because there are no penalties when the government doesn’t.”
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