A South Carolina Criminal Defense Blog

S.C. Supreme Court holds that solicitor control of the docket is unconstitutional

In State v. Langford, released today, the S.C. Supreme Court held that Section 1-7-330 of the S.C. Code, which grants absolute control of the criminal docket to the circuit solicitor (prosecutor’s office), is unconstitutional because it violates the separation of powers clause of the S.C. Constitution.  Along with the opinion the Court has issued an administrative Order re the disposition of cases in General Sessions Court, which lays out the new procedure that is to be followed for docket management.

We must determine whether Section 1-7-330 of the South Carolina Code (2005), which vests control of the criminal docket in the circuit solicitor, violates the separation of powers principle embodied in Article 1, Section 8 of the South Carolina Constitution. In 1980, we recognized that “[t]he authority of the court to grant continuances and to determine the order in which cases shall be heard is derived from its power to hear and decide cases.” Williams v. Bordon’s, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980). “This adjudicative power of the court carries with it the inherent power to control the order of its business to safeguard the rights of litigants.” Id. The time has now come for us to acknowledge that section 1-7-330 is at odds with this intrinsically judicial power. We therefore hold that section 1-7-330 violates the separation of powers and therefore is unconstitutional.

Section 1-7-330 vests control of the court’s docket exclusively in the circuit solicitor, the solicitor is without question an arm of the executive branch of government, and “[v]esting a member of the executive branch with the exclusive authority to perform an inherently judicial function unquestionably is a violation of separation of powers.”  As a practical matter, prosecutorial control of the docket is no different than giving absolute control of the docket to the plaintiff’s bar – some would take the responsibility seriously, and many would abuse it to gain advantage in their cases.  Neither system can be fair when one side controls when cases are called and in front of what judge.

The Court still affirms Langford’s conviction, holding that there was no prejudice to Langford that would require reversal.  There is also a discussion of Langford’s due process and speedy trial claims that is worth reading.

This is huge, and any attorney who handles criminal cases needs to read the opinion, study the administrative order, and hold our local prosecutors and judges to it.  I’ve been complaining about this for as long as I’ve been practicing law, and in the past year I’ve begun filing motions to dismiss based on due process violations in cases where I felt there was abuse of the solicitor’s control of the docket and/or resulting prejudice to my clients, in the hopes that one of those might make it to the Supreme Court.  Today’s decision shows that the Court was definitely ready to tackle this issue.

The docket management order, although more detailed, is similar to how Horry County Central Jury Court has been operating for some time – it works well and it is efficient.  Trial dates are set in advance, and both sides know what day they will need to be ready and subpoena their witnesses.  If either side has a valid reason and needs a continuance, the Court will usually grant it.  There is little room for manipulation or gaming by either side.  Cases usually do not sit idle for years and years, and when they do a motion to dismiss is likely to be granted.  Here’s hoping that our circuit judges will take the bull by the horns and make this work.

The Court took on solicitor control of the docket despite the issue not being raised or preserved in the court below or even raised by the parties as an issue on appeal.  The issue was raised in an amicus brief filed by the Public Defender Association, and the Court finds that it is appropriate to consider the issue because it is a “matter of significant public interest,” citing to Ex parte Brown, 393 S.C. 214, 216, 711 S.E.2d 899, 900 (2011) (another incredible opinion that got it right).

Kudos to the Court and to the Public Defender Association for taking on this issue and working to make the system fair to both sides.  Applause.

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