Feudal Warfare
S.C. LAWMAKERS CHALLENGE SUPREME COURT’S AUTHORITY
FITSNews – December 15, 2007 – Three South Carolina lawmakers are seeking to strip the State Supreme Court of its authority to regulate the legal profession, turning it over instead to an agency within the Governor’s Cabinet. At least that’s what The (Columbia, S.C.) State newspaper is reporting this morning.
Under the proposed legislation - sponsored by three guys who are probably wishing we put their names right about HERE in this brewing run-on sentence - a new “Commission on the Legal Profession and the Judiciary” would be created within the S.C. Department of Labor, Licensing and Regulation. The commission would be made up of eight attorneys, two members of the judiciary and three “lay members.” And no, Sic Willie, “lay” in this context has nothing whatsoever to do with actually getting laid. Sorry.
Anyway, this proposed legislative reaction (which would require a statewide referendum since it involves a constitutional change) is a direct result of the bar exam scandal that broke exclusively here on FITSNews five weeks ago. We also did this story highlighting potential abuses in the Court’s disciplinary procedures.
So yeah, if they pass this bill and you end up having to vote “Yes” or “No” on yet another mind-numbingly indecipherable, long-winded ballot question (when all you wanna do is pick the lesser of two presidential evils and go home), sorry about that. Our bad. Of course in our defense, we are sexy as hell.
Comments
By The Organ Grinder on December 16th, 2007 at 12:14 pm
Wasn’t one of those three Legislators the same Ted Pitts so recently maligned here?
So, it would seem that he gets singled out when he runs afoul of the FITS ladies, but won’t get his props when he takes on a S.Ct. in obvious need of reform.
Interesting……
By fitsnews on December 16th, 2007 at 12:51 pm
OG (Original Gangsta?),
We don’t give out extra credit points around here, and in the interest of fairness we left off both of the other legislators’ names who are sponsoring these bills.
Don’t worry, though, Mr. Pitts was rewarded handsomely by his new friends at La Socialista with an above-the-fold photo in yesterday’s paper, proving once again that when you suck up to the education establishment in this state, they treat you like a God.
We haven’t reviewed this bill thoroughly yet, and as such we can’t say whether it’s a good idea or not, but in the event it is we’ll be sure to say so, and be equally sure to credit “Pittsy” for his role in that process.
It’s just funny that every time we call somebody out for brazenly sacrificing the good of the state for their own selfish ambitions (and then document in excrutiating detail the precise circumstances behind how it happened), Sic Willie gets accused of working for their opponent and our website gets dipshit comments like this one questioning our credibility.
Finally, if there’s anybody who’s been on the front lines in pointing out the “obvious need (for) reform” at the S.C. Supreme Court, it’s this website.
-FITSNews
P.S. – In case you haven’t noticed, we don’t “let the organ grinder go” around here.
By SC Lawyer on December 16th, 2007 at 11:17 pm
Bring it on, Rep. Pitts. You will fail for constitutional reasons. There’s something called separation of powers.
By D. Jenkins on December 17th, 2007 at 7:29 am
#3
Yes, they can succeed. It’s something called a constitutional amendment. How can a constitutional amendment be unconstitutional?
By notverybright on December 17th, 2007 at 8:49 am
Explain how the separation of powers would prevent this. What is that argument?
By Gal Leo on December 17th, 2007 at 10:19 am
SC Atty…
You mean, like the separation of powers whereby legislators elect ex-legislators to the bench?
That one?
By SC Lawyer on December 17th, 2007 at 12:49 pm
Constitutional amendments that abridge fundamental powers inherent to each branch of government are unconstitutional. That’s how.
By SC Lawyer? on December 17th, 2007 at 1:38 pm
#7,
Where did you come up with that? See Article V of the US Constitution and XVI of the SC Constitution.
http://www.constitution.org/constit_.htm
http://www.scstatehouse.net/scconstitution/a16.htm
By SC Lawyer on December 17th, 2007 at 2:09 pm
@8
It’s a fundamental principle of constitutional law. The SC Constitution doesn’t give the legislature carte blanche to pass unconstitutional amendments. And an amendment that purported to interfere with the regulation of the judicial branch would do that.
By Pete on December 17th, 2007 at 4:40 pm
SC Lawyer: The constitutional amendment which gave this Supreme Court its dictatorship was passed November 7, 1992. The preceding chief justices just had the sense not to so blatantly abuse the power. She must be stopped. See Generations of Lawyers, George C. Rogers, Jr. (1992)
By Pete on December 17th, 2007 at 4:41 pm
THat was November 7, `972
By Oh, you're kidding, right? on December 17th, 2007 at 5:59 pm
I have a hard time believing that having the lawyers in this state report to a group of politicians is going to make anyone more honest. This is also the group of lawmakers that had to have an FBI sting happen to make them stop selling their votes. (Operation Lost Trust, anyone?) The legislators pick the Supreme Court anyway, NOT the voters, and they think they need MORE power over the judicial branch! Letting the General Assembly go for a separation-of-powers-violating grab is not a “reform.”
By notverybright on December 17th, 2007 at 6:15 pm
I think what SC Lawyer missed in Con Law is that when you amend the constitution, you AMEND THE CONSTITUTION.
By SC Lawyer on December 17th, 2007 at 8:38 pm
@11: and the amendment might not be constitutional. Did you miss that in Con Law or are you just not very bright?
By Skeptic on December 17th, 2007 at 9:11 pm
SC Lawyer–
Are you freaking kidding me? How can you violate a document that you’re amending? Isn’t that the point of amending it? Just take a minute and think about what you’re writing before you write it.
Hell, we can amend the Constitution right now and make the Governor the Chief Justice of the Supreme Court and make his vote outcome-determinative. Now that wouldn’t be good public policy. (Just like giving the same agency that regulates elevators and barbers authority over the legal profession.) But it wouldn’t be “unconstitutional.”
My recommendation: let’s do what we do in our case law and follow North Carolina. Republican (little “r”) principles work for society as a whole, and will work for regulating the profession as well. Too much power concentrated in the hands of too few, like our current system, makes problems like the current debacle inevitable.
By Another SC Lawyer on December 18th, 2007 at 6:38 am
While SC Lawyer raises an interesting question, i.e., what happens when one constitutional provision or amendment apparently (and unintentionally) contradicts another provision still in force, the lawyer has forgotten something important from high school civics. While, yes, amendments originate in the legislature, they are only ratified by the people of South Carolina. Last I checked, the separation of powers was intended to protect all of us, not to prevent us from taking action to amend our constitution.
By Anonymule on December 18th, 2007 at 7:32 am
SC Lawyer –
How about citing some authority for your proposition? Please report to all of us what you find. If you report nothing (as I am 100% sure you will) then my next question is why do you keep restating a patently false statement? Either you are grossly misinformed or you have some other motivation.
By Pete on December 18th, 2007 at 8:24 am
#15 Are you Jean Toal? The group that you malign as being the group that “regulates elevators and barbers” also “regulates” your neuro-surgean and cardiologist.
By Another SC Lawyer on December 18th, 2007 at 9:06 am
I think SC Lawyer #1 is right– it is a violation of the separation of powers doctrine. As for the origin of the principle– see Marbury v. Madison. Doctors and neurosurgeons or cosmetologists don’t have have constitutionally embedded principles of independence that keep them from being regulated by a branch of the executive. But judicial independence is pretty freaking important to a democracy and so it exists for lawyers. Can you just imagine if the executive has the ability to discipline the Supreme Court? You know, there’s probably a good reason that no other state allows licensing of attorneys by way of the executive branch– its fundamental unconstitutionality. And the problem is not the Supreme Court as an institution, as I think everyone is aware. And frankly, I don’t understand the above rants about how something can’t be unconstitutional if the constitution is amended bit. The legislation is about amending the SC constitution, but the federal constitution embeds the separation doctrine. Supremacy Clause, anyone?
By What? on December 18th, 2007 at 10:02 am
Constitutional or not, won’t it inevitably be the Supreme Court that decides whether or not the law is constitutional? That poses somewhat of a conflict huh? Looks like we might need to amend the whole Article of the constitution that created the Judicial Branch. We could revamp the whole three branch form of government altogether, or better yet, let’s put war paint on our faces and worship a fly-ridden pig head. Look, the point is, you’re not going to change political influence in decision making just because you take power from one part of government and it give it to another. Back sctratching should be confronted head on with swift penalties if proven beyond a reasonable doubt. This proposed law doesn’t help the problem, it just changes the participants, and it appears to be constitutionally unfeasible.
By notverybright on December 18th, 2007 at 11:55 am
I’m beginning to think this year was not the first time lawyers were gift-passed. Or else (I’m hoping) people in these comments who claim to be lawyers aren’t really.
An amendment BY DEFINITION conflicts with the document it amends. When freed slaves were given the right to vote, that conflicted with the US Constitution. Ditto women. When the voting age was lowered, that conflicted with the US Constitution. Do I need to track through all of the amendments?
The fact that the concept being amended is more amorphous (ie, your “separation of powers” argument) doesn’t make any difference.
It’s, um, an AMENDMENT.
By notverybright on December 18th, 2007 at 12:27 pm
PS: If somebody here is claiming that US Constitution’s separation of powers describing the FEDERAL government’s branches has some applicability here, it doesn’t.
By Been There, Done That... on December 18th, 2007 at 1:00 pm
Although I’d like to see this bill pass, if just the threat of something like this amendment could get the Court to evaluate the current process and make changes, then perhaps such a drastic step wouldn’t be needed.
As a lawyer who has been the target of an Office of Disciplinary Counsel investigation, I can say from experience that the current rules offer no due process…the ODC does what it wants and when it wants to do it. And the ODC itself is pretty much inbred…friends of the Court and brothers and sisters of other employees work there, outsiders don’t last very long, so if you piss one of them off, don’t expect any fairness from the others. Have any of them actually ever practiced law in a real office with real clients?
But anyway, here’s how it plays out…if you refuse to admit to unfounded and untrue allegations and demand a hearing, they can put you on interim suspension and then give you a hearing later…21 months later in my case. They have no time limits…so if you don’t just back down and sign what they want, your career can be ended for two years (or longer) for no reason. “Due process takes time,” I was told.
There is no due process, yet there is nothing you can do about it. Unless you happen to be independently wealthy, you have to play along. I’m sure the reason many of the consent agreements for discipline are signed by lawyers is just to end the process…otherwise the accused could be looking at financial ruin. And if you are willing to admit to only some of the charges against you and want to deny others, well too bad…you either sign an agreement admitting to all charges, or wait for a hearing when they get around to it…your choice.
Each state has a different way of regulating lawyers, and they all lead to their Supreme Courts, but they don’t necessarily start there. Many have revolving members on independent panels (in large enough states ususally in different districts so a complaint can be handled away from the location of the accused lawyer’s practice) who investigate and determine a sanction, and if you wish to appeal, only then does it go to the Court for a final review.
And most states at least have time guidelines…if the charges can’t be substantiated within a certain time frame (270 days seems to be an often used limit, but some are as long as 18 months), then they get dismissed. That seems to make sense, and if we did that in South Carolina, at least the process would seem fair (although since it is South Carolina, that might still be questionable). The ABA has rules for discipline that many states have adopted, maybe that would be a good starting point for the Court to look at here. But I won’t hold my breath.
Anyway, what I do know is this…under the current system you are guilty before you are proven innocent. And if you do happen to be innocent, don’t expect an apology…the ODC is too busy moving on to the next unlucky victim to worry about that.
By SC Lawyer III on December 18th, 2007 at 1:36 pm
Going to need assistance in locating the language in Marbury v. Madison that suggests that a Constitutional Amendment is subject to judicial review.
Somehow, I believe that some of my colleagues are confusing a Constitutional Amendment with a legislative act. They are separate and distinct in that an Amendment requires the ratification by the people and is not then an Act of a legislature. No conflict between the branches in that respect.
By Anonymule on December 18th, 2007 at 3:27 pm
#19, #20
Y’all need to read the US and SC Constitutions. A state constitutional amendment is final unless there was some procedural violation or it was somehow preempted by federal law. Federal law is controlled by the US Constitution and there is NOTHING in the US Constitution that would prohibit such an amendment as is being discussed in the post. The fact that “separation of powers” has remained a stalwart in all states of the union is a function of its success and NOT because it is somehow required by a magical document carved in stone.
The proposed amendment would simply be a check and not some sort of steamrolling of one particular branch of government. This executive agency would not be deciding cases! Even if they were, there is noting that would prevent the people from choosing such a form of government unless the agency action ran afoul of the 14th amendment or some other US Constitutional provision or Amendment.
Again, please cite me one case or constitutional provision that supports your proposition. I personally don’t think this amendment is the way to go, but to argue that it would be unconstitutional is just plain wrong.
By Pete on December 19th, 2007 at 7:41 am
#23 is not the only one. The SC Bar and the public have no idea how bad and corrupt the attorney discipline system is in South Carolina. While you guys are bouncing all these little ideas around about, tit and tat, know that everyday Jean Toal wins while you argue. She reigns supreme for another day and has another day to beat somebody into oblivion. #25, if you don’t like what others suggest, then come up with a proposal yourself. Don’t wait on Jean Toal and her four do-boys to do the right thing – ’cause that ain’t gonna happen.
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