Wednesday, January 20, 2021

Authority Not Boundless

The South Carolina Supreme Court has affirmed in part and reversed in part a conviction obtained after the state Attorney General recused himself

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, 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 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.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/01/authority-not-boundless.html

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