City Watch

Manning Flops on Wrong Court

Ruling Establishes Criminal Immunity for Legislators

By Kevin Fisher
Wednesday, May 21, 2014
“The question is whether Manning will make the legal free throw or choke at the judicial foul line.” — City Watch, May 7

As we all now know, state Circuit Judge Casey Manning choked. Then gagged. Then puked all over the court. Or the courtroom, as it were.

In a decision through which he embarrassed both himself and the people of South Carolina — ruling that state Attorney General Alan Wilson must cease a state grand jury investigation of House Speaker Bobby Harrell and send the matter to the House Ethics Committee — Manning showed that as a circuit judge he makes a good basketball player.

Of course, anyone who supports Manning’s ruling would say he bravely planted his feet and took the charge from Attorney General Alan Wilson driving the lane. But a slow-motion replay of the legal call shows Manning — who played basketball for USC in the early ‘70s — performing one of the great flops of all time.

For those who might not be basketball fans, Wikipedia defines the “flop” as follows: “an intentional fall by a player after little or no contact in order to draw a foul call on the opposing player by an official.”

Continuing with the flop analogy, it seems the “little or no contact” wording refers to Manning’s familiarity with both the S.C. Constitution and statutes regarding the power of the attorney general to investigate and bring charges. Here’s a little refresher course:

“The Attorney General shall be the chief prosecuting officer of the State, with the authority to supervise the prosecution of all criminal cases in courts of record.”— Article 5, Section 24, State Constitution

For good measure, the S.C. Supreme Court said in the landmark 1994 State v. Thrift case that both the constitution and the statutes “place the unfettered discretion to prosecute solely in the prosecutor’s hands.” Topping it off, Justice Jean Toal seemingly spoke 20 years into the future and directly to Manning in that opinion when she wrote: “The Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion.”

Accordingly, it is the “intentional fall” aspect of the flop analogy and Manning’s ruling that is most disturbing. With the weight of the constitution, the relevant Supreme Court decision and the words of the chief justice clearly before him, Manning simply buckled at the knees and flopped backwards on the court, all to the cheers of the “legislative state” crowd gathered behind the basket.

In doing the flop on behalf of House Speaker Bobby Harrell and calling the foul on Wilson, Manning established a new legal right in South Carolina — criminal immunity for legislators.

The great South Carolina political cartoonist Robert Ariail perfectly summed up the decision with a drawing showing a “Get out of jail free” card for lawmakers. Similarly, he nailed Manning’s lightweight approach to the fundamental issue of equality under the law with another cartoon that showed the judge wadding up the state constitution, then sinking a soft jump shot with it — right into the trash can. (See the cartoons at robertariail.com.)

In the wake of Manning’s ruling, some media coverage has played into the flop analogy as well. For example, the Associated Press assumed the role of the home court referee who goes along with a blatant flop in order to please the crowd when it reported as follows: “Manning’s decision is similar to one he made regarding ethics violations against Gov. Nikki Haley, a former House member.”

No, it isn’t, and reporting it that way both confuses the public and lends credibility to the incredible. Simply put, the Haley case was a civil court matter brought against her by a private citizen. While Camden attorney John Rainey is a big dog in this state, he is not the attorney general and has no constitutional authority to investigate or prosecute. Accordingly, his complaint against Haley (whatever the merits or lack thereof) was properly dismissed.

The Harrell case is obviously and entirely different, as it concerns the state’s chief law enforcement officer investigating alleged criminal activity under the authority granted him by law.

Again, none of this is to say Speaker Harrell is guilty of anything. This is about process, not outcome. But make no mistake: Judge Manning has short-circuited the legal process.

Taking a flop on the basketball court is one thing. Doing it as a judge is something else. The Supreme Court should review the tape and reverse the call.

Fisher is president of Fisher Communications, a Columbia advertising and public relations firm. He is active in local issues involving the arts, conservation, business and politics.

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