In State v. Langford, decided on November 21, 2012, the South Carolina Supreme Court recognized control of the docket to be a “matter of significant public interest.” The Court “agree[d] with the Public Defender Association,” appearing as amicus curie (“friend of the court”), that solicitor docket control “violates the separation of powers [contained in S.C. Const. Art. I, §8] and therefore is unconstitutional.”
Citing Andrew M. Siegel, When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 Am. J.Crim. L. 325, 351–69 (2005) (detailing the potential ills of prosecutorial control of the docket), the Court observed:
Undoubtedly, [solicitor docket control] leaves room for abuses which can deny a defendant due process. Not only can the State theoretically pick a judge to preside because he will favor the prosecution, but the Public Defender Association’s brief contains very troubling examples of abuses occurring in other cases and in other forms.
Courts have the inherent authority to set dockets, including determining the order of the cases. Langford, therefore, held, “General Sessions dockets will henceforth be managed pursuant to the administrative order issued in conjunction with this opinion.” Contemporaneously with Langford, the Supreme Court issued two administrative orders: Dispositions of Cases in General Sessions Order and Uniform Differentiated Case Management Order. Both orders would be extremely deferential to Solicitors.
Under the Dispositions of Cases in General Sessions Order, which is attached to the end of the Langford opinion, “[a]bsent the grant of a speedy trial motion, the Solicitor shall have the initial responsibility for designating when a case is ready for trial.” Hence, the Solicitor retains control of the case for the first eighteen months before it is transferred to the “judicial docket.” After another year, the court must conduct a hearing where the Solicitor gets an opportunity to show “good cause” for continued delay. Other than notice and opportunity to be heard, the order is silent about the defendant’s rights at this hearing. Concerning “old case disposition,” cases “pending four (4) or more years from the date of indictment by the Grand Jury shall be dismissed by the [Chief Administrative Judge for Administrative Purposes], unless the Solicitor shall show good cause why it should not be dismissed.” Dismissal is “without prejudice,” and the Solicitor can seek a new indictment. Solicitors, however, might delay seeking an indictment, presumably meaning the Solicitor can delay triggering the “old case disposition” simply by not presenting the case to the Grand Jury.
The Uniform Differentiated Case Management Order continues the practice of requiring defendants to appear at initial and second appearances. All cases are assigned to a 180-day track. “If plea negotiations are unsuccessful at the Second Appearance, the case will be scheduled for trial before one of the presiding General Sessions Judges.” This order tracks the Disposition of Cases in General Sessions Order regarding the procedures for dismissal after eighteen months form arrest or four years following indictment.
Both the Attorney General and the Solicitors’ Association of South Carolina petitioned our Supreme Court to rehear Langford. Although the Supreme Court denied these petitions, the Court “held the implementation of the administrative orders entitled Disposition of Cases in General Sessions and Uniform Differentiated Case Management in abeyance, and has provided for the establishment of a committee to develop a plan to implement the changes necessary in light of the decision in Langford.”
When addressing General Sessions Court backlogs during the 2013 State of the Judiciary Address, Chief Justice Jean Toal declared, “This isn’t a judge run situation; no judge can run these dockets.” She called for “a joint cooperative partnership between Clerks of Court, Solicitors, Public Defenders, defense attorneys, and all others involved in the [criminal justice] system.” The week following the State of the Judiciary, the Chief Justice planned to “announce the appointment of a Stakeholders Committee to develop collaborative management of the criminal docket.” During the State of the Judiciary Address, the Chief Justice announced that state Representative Tommy Pope and state Senator Greg Hembree, both former elected solicitors, would be members of the committee. To date, the Supreme Court has not announced the other committee members.
Over six months have passed since Langford ended solicitor docket control. Yet, in the absence of guidance from our Supreme Court, solicitor docket control continues in violation of the state constitution. Until the Supreme Court resolves this constitutional crisis by establishing procedures for Circuit Court Judges to manage criminal dockets, litigants must seek enforcement of Langford on a case-by-case basis. In appropriate cases, lawyers can move for judicial supervision of the case. As Langford reminded, trial courts have “the inherent power to control the order of its business.”
Ultimately, judges will be responsible for managing General Sessions Court dockets. Judges can manage the General Sessions Court dockets, but they must abandon the historical, institutional deference to Solicitors and become comfortable exercising their inherent authority. Enforcement of judicial supervision through scheduling orders levels the playing field by requiring the prosecution to proceed under conditions and timeframes set by the administrative judge.
Our Supreme Court appears committed to continuing the track system with initial and docket appearances. While a case is pending within the track, the trial courts should allow the parties great latitude to work on the case. Either side should be able to seek judicial intervention by filing a motion or requesting a status conference. If a case remains pending at the end of the track, then it should be placed on a docket administered by the trial court. Orderly, consistent, and predictable management of General Sessions Court dockets will result.
Click these links to read State v. Langford, S.C. Const. Art. I, §8, Dispositions of Cases in General Sessions Order, Uniform Differentiated Case Management Order, Order Denying Petitions for Rehearing in Langford, and 2013 State of the Judiciary Address.
Preview: Langford’s appeal to the South Carolina Supreme Court involved the denial of his constitutional speedy trial right. A blog post discussing the speedy trial right in South Carolina will be released later this summer.
Disclosure: Charles Grose represented the South Carolina Public Defender Association as amicus curie in State v. Langford.