Lawmakers should tread carefully as they try to "fix" criminal court scheduling in South Carolina by changing a statute.
The S.C. Supreme Court in November ruled that the state law giving solicitors control over criminal court dockets was unconstitutional because it violated the separation of powers doctrine by usurping the court's authority on judicial matters. In short, solicitors, who are part of the executive branch of state government, had too much control over when cases were called to trial.
The lawmakers answer: Strike the word "exclusively" as it pertains to solicitors' control of the schedule and add that their control can't interfere with a court's ability to safeguard a person's right to a speedy and public trial.
Defendants also could get a hearing before a judge if a trial hasn't been scheduled within 180 days of an indictment. The bill has passed the House and is now in a Senate Judiciary subcommittee.
It's hard to see a statutory solution to this constitutional question. The bill's preamble points to a state constitutional provision that the Supreme Court -- subject to state law -- makes the rules that govern the courts. But the U.S. Constitution and the protections it offers to defendants also should come into play.
After its ruling, the state Supreme Court issued an order putting judges in charge of case dockets. The order was go into effect last week, but after solicitors objected, the court instead chose to form a study panel.
Lawmakers ought to wait for that panel to do its work before changing the law, even if their bill addresses some concerns about the current situation.
Tellingly, South Carolina is the only state that by law gives prosecutors control of scheduling. Two other states -- North Carolina and Maryland -- also involve prosecutors in docket management.
Bill Raftery, an analyst with the National Center for State Courts, said, "For the most part, the practice has been done away with. Most states have already had this fight, but they had it 30 years ago."
The Supreme Court's administrative order, now on hold, hardly handcuffs solicitors. Solicitors still control a case's schedule for a year and a half. After that, scheduling becomes the responsibility of the chief administrative judge for the circuit. If a case hasn't reached resolution a year after that -- a full 2-1/2 years after its first entered into a track for trial -- the case is dismissed unless the solicitor can establish "good cause" for continuing it.
A solicitor's discretion in deciding how to proceed with a case, including whether to prosecute and whether to bring it to trial or offer a plea bargain, was not affected by the decision.
In an adversarial system, it doesn't seem right to give one side so much power. And there must be some power in the ability to control trial schedules or solicitors wouldn't be fighting so hard to hang on to it.