South Carolina: after state supreme court struck down law giving prosecutors control over court’s docket, legislature attempting to force issue; prosecutors “should not be restrained or controlled by another branch of government”

Up until a few years ago, South Carolina had a statute that granted the local prosecutors control over the criminal docket, allowing the prosecutor to set the calendar (emphasis added).

The solicitors shall attend the courts of general sessions for their respective circuits. Preparation of the dockets for general sessions courts shall be exclusively vested in the circuit solicitor and the solicitor shall determine the order in which cases on the docket are called for trial. Provided, however, that no later than seven days prior to the beginning of each term of general sessions court, the solicitor in each circuit shall prepare and publish a docket setting forth the cases to be called for trial during the term.

The state supreme court struck down on a 4-1 vote the law in 2012 as an unconstitutional infringement on the separation of powers (State v. Lankford, 735 S.E.2d 471 (S.C. 2012)) and issued an administrative order attached to the opinion regarding docket control. Now the legislature is attempting to force the issue and put control back with prosecutors.

HB 4981 and SB 1126 as introduced effectively declares that the control of the calendar is an executive, not judicial, function citing to the fact that prosecutors are elected by the voters (judges in SC’s higher courts are selected by the legislature).

Whereas, the General Assembly finds that developing and publishing a plan to properly proceed with the state’s criminal prosecutions, preparing the general session’s docket for the state’s prosecutions and determining the order in which the docketed cases are called for trial is an executive function of the government properly performed by the elected Circuit Solicitor; and

Whereas, the executive branch of government, as represented by the Circuit Solicitor, when exercising a discretionary official act such as preparing the general sessions court docket and determining the order in which docketed cases are called, should not be restrained or controlled by another branch of government; and

The bill then repeals the old statute, only to replace it with one that continues to give the prosecutor control (emphasis added)

Criminal cases in circuit court must be calendared by the Circuit Solicitor according to a written criminal case-docketing plan developed by the Circuit Solicitor for each circuit. Each criminal docketing plan must be published on the Circuit Solicitor’s website, if available, or at each courthouse in the Circuit Solicitor’s circuit if a website is unavailable. The Circuit Solicitor, in his sole discretion, may develop an individual docketing plan for each county within the circuit.

In addition it would the prosecutor who sets pleas, motions, and other events.

Both bills have been filed in their respective Judiciary Committees.