The Supreme Court Reversal: An Analysis

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HIGH COURT UPHOLDS RULE OF LAW.
BUT WHY SECRECY IN FURTHER HEARINGS?

Wednesday’s ruling by the Supreme Court reversed an unprecedented and dangerous ruling issued by a Circuit Judge Casey Manning in May.

In a unanimous decision, the Supreme Court ruled that Attorney General Alan Wilson was acting within his statutory and constitutional jurisdiction when he and the Chief of the State Law Enforcement Division (SLED) asked a judge to convene a grand jury to investigate allegations against the Speaker of the House. The court ruled that that investigation may continue. The ruling reaffirms what SCPC and others have held: that violations by an elected official of the Ethics Act can be both civil and criminal, and since those violations can be criminal, the House and Senate Ethics Committees do not have exclusive jurisdiction.

If the Court had ruled in the opposite way, it would have effectively given lawmakers protection from investigation and prosecution for public corruption.

As it is, the precedent is a positive one. Lawmakers do not have sole jurisdiction over their own criminal violations of the Ethics Act. Moreover, it reaffirms the Attorney General’s authority to investigate public corruption – with or without a referral by a legislative ethics committee. This ruling wasn’t just (to rely on an overused phrase) a step in the right direction. The Supreme Court has ensured that lawmakers are under the law, and will be subject to the law’s demands in the future.

The opinion reverses Judge Casey Manning’s ruling, but it also makes clear that Judge Manning acted within his authority in asserting his authority in the grand jury process beyond the impanelment stage. The Justices argue that the judge who originally impanels the grand jury has the authoirty to hear all matters arising from the proceedings of a grand jury. The presiding judge also has the authority to limit the investigation so that it conforms to the jurisdiction of the grand jury and existing law. The judge may also discharge the state grand jury. In other words, if the judge believes the scope of the investigation has moved outside its statutory authority, he can discharge the it.

Although the Supreme Court reversed Manning’s decision to end the grand jury investigation for jurisdictional reasons, it also remanded the case back to the circuit court for a decision on whether or not Attorney General Wilson should be disqualified from the case. Before Manning raised the jurisdictional issue, Speaker Harrell and his lawyers tried to have Attorney General Wilson removed as the prosecutor in the case on the grounds that he had a personal vendetta against the Speaker. The Attorney General, they alleged, had once threatened a staffer working for the Speaker over a legislative matter (only the Attorney General and the staffer were present when the alleged threat took place).

One troubling footnote in the decision deserves attention. In footnote 11 of the opinion, the justices state: “Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera” – in camera meaning “in chambers,” i.e. away from the public view. State grand jury law limits the privilege of courtroom attendance to state grand jurors, the attorney general or his designee, the court reporter, an interpreter if necessary, and the witness testifying. It’s not clear, however, why “ancillary” hearings must also be held in secret? The Speaker’s attempt to have Attorney General thrown off the case was an ancillary matter, and the public was well served in knowing what the accusation was. Indeed, that hearing would have remained a secret hearing if a report by The State hadn’t revealed it first.

Footnote 11 is, therefore, troubling. Further analysis to follow here and at TheNerve.org.

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