Senators can’t argue cases before judges they directly control
By Jessica Holdman
SCDailyGazette.com
COLUMBIA — The chief of South Carolina’s court system is getting stricter on when state legislators who are lawyers can use their privileges to delay or potentially influence legal proceedings.
Recent orders from Supreme Court Chief Justice John Kittredge, who took the helm of the state’s judicial department in August, pare back when lawyer-legislators can skip court and restrict senators’ ability to argue cases before the judges they control.
The state Supreme Court has long excused lawyers in the General Assembly from appearing for depositions, trials and court hearings during the legislative session.
In 2001, then-Chief Justice Jean Toal turned the unwritten practice into an official order, telling judges to give lawyer-legislators a roughly seven-month pass, with limitations. Her order also applied to special sessions the rest of the year.
Chief Justice Don Beatty continued her order after he ascended in 2017 to the judiciary’s top spot. But amid the COVID-19 pandemic and lengthening court backlogs that followed, Beatty issued a series of orders in 2022 that Yoyo’d between hardening and softening court requirements, after receiving complaints from lawyers on each side.
“I find that lawyers who serve as members of the General Assembly provide a great service to the citizens of this state,” Beatty wrote.
But the exemption also enables people who hire lawyer-legislators for their defense to indefinitely delay their charges.
This month, Kittredge rolled the practice back with orders that go a little further than Beatty’s initial tightening of legislators’ privileges.
Instead of requiring lawyer-legislators to handle only bond revocations or family court hearings involving children during the legislative session, Kittredge’s order lets the presiding judge define what’s an emergency. Essentially, the judge in each case can decide when a legislator must appear in court to keep the wheels of justice moving.
However, in a state where legislators elect judges and decide whether they keep their seat on the bench, judges may use that authority sparingly.
Kittredge’s order also sets a cap on how long things can drag out. It requires lawyer-legislators to appear for trials if their client is facing criminal charges pending for two or more years. Beatty’s temporary order on that front required proceedings to continue if the charged dated back three years or more.
Like Beatty, Kittredge says lawyer-legislators must also appear for trials when a client’s case has been stalled for 18 months or more.
“This exception to the rule for absolute trial protection ensures that older cases will not languish for excessive periods of time,” Kittredge writes.
Kittredge also encourages judges to use Mondays and Fridays for emergency hearings involving lawyer-legislators as a way to keep schedules moving. The Legislature meets Tuesdays through Thursdays starting in January.
Suspects should not be allowed to delay justice simply by hiring a lawyer-legislator after their charges are filed, whether as the lead attorney or in an assisting role, Kittredge wrote.
Former Democratic Sen. Dick Harpootlian, who championed restrictions on lawyer-legislator immunity while he was in office, applauded Kittredge for his actions.
The Columbia lawyer said he was approached several times while in office by attorneys asking him to join a case and stall it, something he said he never agreed to do.
Harpootlian famously waived his legislator privileges to try the case of Alex Murdaugh, convicted of murdering his wife and son, that for months gripped national attention and kept Harpootlian from the Statehouse.
Kittredge also issued an order to prevent senators from arguing contested cases before the magistrates they have direct authority over as it “may lead the public to question the impartiality of the magistrate.”
While the governor technically appoints magistrates, senators actually control who occupies those county-level judgeships.
The ban also applies to any member of the senator’s family and law firm.
“Public confidence in the judiciary is paramount,” Kittredge wrote. “Our justice system must not only provide equal justice to all, the public must believe in the integrity of our justice system.”
Hearings involving bond or uncontested matters are the exception.
Jessica Holdman writes about the economy, workforce and higher education. Before joining the S.C. Daily Gazette, she was a business reporter for The Post and Courier. S.C. Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
