Supreme Court Seal

State of the Judiciary 2002

Address of The Honorable Jean H. Toal
Chief Justice of South Carolina



Joint Session of the General Assembly
March 6, 2002
Columbia, South Carolina

There is a tide in the
affairs of men,
Which taken at the flood
leads on to fortune.
Omitted, all the voyage of their life
is bound in the shallows
and in miseries.
And we must take the current
when it serves
or lose our ventures.

W. Shakespeare
Julius Caesar IV iii 217,222

As American icons collapsed under the evil acts of our enemies, we were more frightened, more angry, and more confused than at any time since December 7, 1941.

Through it all, Americans rediscovered what has always been right and good about our way of life: we rolled up our sleeves, we dusted off our sense of charity and saluted firefighters and police officers as heroes and heroines.

Through the ash and smoke and devastation, we saw the clearest evidence of the instability of steel and concrete and the permanence of our beliefs - beliefs which led our nation’s founders to adopt the rule of law as the foundation of our national life.

These beliefs . . . more than two and a quarter centuries in the making . . . are a central fiber of our public discussion and our military action since September 11th.

Time and time again, the President and other world leaders have proclaimed: "We will bring them to justice."

Is there a bolder statement of confidence in America’s courts than to suggest that we will expose, to the American justice system, most of those suspected of committing terrorist acts?

Why can an American president promise the world that we are prepared to determine the fate of a suspected terrorist in the same forum, and by the same rules as we determine the fate of a suspected thief?

We know that in a democracy, the justice system draws its strength from constant principles and consistent practice; everyone is subject to and protected by the same rules. In America, a person accused of committing a terrorist act and a person arrested for exceeding the speed limit have the same expectation - due process of law, an impartial fact-finder, independent judgment and a penalty that is appropriate to the finding of guilt.

We speak of justice in times of trouble because it is in justice that we find comfort, and even solace. Predictability and consistency are basic elements of the rule of law.

Citizens of New York, their judges and court administrators have provided a living monument to our system of justice. One New York court was within the damage center of the collapsed World Trade Center. Court operations were moved and reopened in a matter of days. With no phone service in lower Manhattan, court administrators in that court put in place an internet-based phone system.

Like all New Yorkers, Chief Judge Judith Kaye has been deeply touched by the attacks. As she recalls the events of that day and those that followed, and she talks movingly about the dedication of those citizens who were scheduled to serve on jury duty.

With lower Manhattan in shambles, it was impossible to reach the courts by phone or public transportation. And still, jurors appeared by the hundreds. They were eager to serve. Many even declined offers to be excused.

The endurance of New York’s court system at a time of ultimate crisis is a powerful testimony to the stability of ordered liberty and to America’s confidence in our system of law.

So it is in that spirit that I have come today to report to you on the State of our Judiciary and to offer some observations as your Chief Justice on some of the court issues you will face.

Judicial Selection
Judicial Independence

One of the most awesome of the General Assembly’s institutional responsibilities is your duty to elect judges. Twenty one of the 50 states select judges by popular election, 26 of the 50 states select judges by appointment of the Governor. Three states use some form of legislative election. South Carolina has, since Colonial times, followed the ruggedly independent course of election of judges by a joint assembly of its General Assembly.

Our legislative system of election is rooted in a healthy distrust of putting too much authority in the executive and a strong desire to assure judicial independence by protecting the selection process from the temporary passions of popular election. Judicial independence is the cornerstone of any system of judgment or dispute resolution. Independence is the hand maiden of fairness and consistency, and these two are the hallmarks of a successful judicial system. The perceived absence of judicial independence was, from early colonial times in this state, one of the catalysts for the creation of our present system of legislative election.

South Carolina’s constitutional design has proved a wise one - even more so in this age of instant sound bite politics and incredibly costly election campaigns.

Over the last 30 years, beginning with South Carolina’s adoption of a modern judicial article of our Constitution in 1972, this General Assembly has led the effort to introduce a high level of scrutiny of potential judges and at the same time to level the playing field so that the election process is open to all candidates. Our state has an objective screening process which involves review by the legislature, the public and the legal profession. The result is we have a judiciary which is slowly beginning to reflect the diversity of South Carolina’s citizenry. Have we achieved the goal of a truly diverse judiciary? No, we have not, and there continues to be some very thoughtful debate within your ranks about what can be done to improve diversity in our judiciary.

But let me make some observations as to where we may need to concentrate. South Carolina’s latest census reveals that almost 30% of our citizens are African American and almost 52% of our citizens are women. At the present time, the profile of our currently sitting statewide judiciary is 112 judges, 16% of whom are women and 7% of whom are African American.

But let’s look for a moment at the pool from which these judges are selected. At the present, there are approximately 10,500 lawyers licensed to practice law in South Carolina. Of this number of licensed lawyers, approximately 6% are black and approximately 27% are women. We have only one law school in South Carolina, and it produces the vast majority of practicing lawyers and judges in our state. At the moment, the student body at the University of South Carolina Law School is approximately 9% African American and approximately 45% female..

So improving diversity on the bench of South Carolina begins with a strong effort to attract a broader base of high school and college students to consider a career in the law. South Carolina devotes less public resources to legal education for our people than all but a handful of states. But plans are now underway to construct a new law school and the search for a new dean is well underway. As an old baseball fan, I say, "if you build it, they will come." Increasing the law school’s resources is, in my belief, a key component for this entire picture.

Supporting the placement of a broader diversity of young lawyers on state boards and commissions might give them an opportunity to demonstrate their talents on a broader stage.

Public confidence in our judiciary is enhanced when the faces and backgrounds of our judges reflect those of all South Carolinians. But as you can see from these statistics, you are beginning to reflect fairly closely, the diversity of the available pool from which you select. If we continue to improve the size of the pool, diversity on the bench will surely follow.

There is a great deal of debate nationally about what effect the process of selecting judges has on the independence of the judges selected. Our South Carolina system of legislative election and rigorous public screening is one that ensures that our judges are accountable to the public but not subservient to the momentary public will. Judges, of course, must decide their cases without fear or favor. But just as importantly, you have the right and the duty to ask judicial candidates tough questions. You have been wise stewards of your authority to select capable judges and the result is a balanced selection system which produces a nationally recognized judiciary, men and women of great integrity and ability. I am proud to serve with every man and woman who wears the robe in South Carolina.

I proudly present to you at this time Justices Moore, Waller, Burnett and Pleicones from my court. Will you stand. Former Chief Justice Bruce Littlejohn, who, fifteen years ago, began the first of these State of the Judiciary speeches. Chief Judge Hearn and her colleagues: Judges Goolsby, Cureton, Howell, Stillwell, Huff, Anderson and Shuler; and, in spirit, Judge Connor, perhaps the bravest of us all, who is in Greenville receiving treatments today. And I ask that, in the gallery, all who wear the robe and all members of the Judicial Department stand for a moment so that these members of the General Assembly might acknowledge your presence, as I do, and thank you very much for coming today.

Interbranch Cooperation

Apart from judicial elections, over the years, the primary method of communicating between our branches has been legislative hearings over a specific bill. Judges have been able to provide their expertise to your debate on a variety of issues. The much needed legislation to reform the Guardian ad Litem system in South Carolina, which is close to passage, is an excellent example of this kind of communication. I have discussed recently with Speaker Wilkins and with President Pro Tempore McConnell the creation of a Legislative-Judicial Interbranch Forum as an opportunity for representatives of the judicial and legislative branches to exchange information and perspectives as we work together to promote public safety and the preservation of due process.

These Interbranch Forums exist in several of our sister states as a collaborative project of the Chief Justice, the President Pro Tempore of the Senate and the Speaker of the House. The forum would come together in the legislature’s off season. I hope the three of us will be in a position in the near future to announce the formation of this forum in South Carolina, with appointments by each of us, of members of our branch.

Management of our Court System

Last year, I identified the continuing backlog of cases in criminal court - the General Sessions court of South Carolina - as the top management project of my department. In the past, we have attempted to attack the backlog by increasing the number of circuit court and family court judges. We have not added any trial judges in South Carolina in the past six years, but our backlogs in all courts continue to soar. I believe we can best attack this problem on two fronts: first, by developing new ways of managing the way we try cases, and second, by using modern technology to manage more efficiently the cases we try.

General Sessions Docketing Pilot for the 5th Circuit

I support continued control by the solicitors of South Carolina of the management of criminal dockets in our state. Under the leadership of Justice Pleicones and retired Solicitor Dudley Saleeby, a task force of solicitors, public defenders, private lawyers and clerks of court have developed a pilot plan as a model for the management of general sessions court.

And I can’t say enough about the farsightedness and generosity of Fifth Circuit Solicitor Barney Giese who has graciously agreed to pilot this differential case management system in Richland County. The system aims to use fair, but very set, time schedules to streamline the process of criminal cases without spending additional dollars.

Many in the county and state have contributed to the implementation of this program. Thanks to Circuit Judge Henry Floyd, and the many others in Richland County, including Clerk Barbara Scott and her staff, for making this system work.

While it’s only in the beginning stages, early signs of cooperation are encouraging. And it’s just the sort of innovative problem-solving mechanism that I sought to implement without the expenditure of additional funds, but rather through bringing together all the players to effect positive change. What it really boils down to is fostering cooperation and getting everyone to agree to follow a fairly delineated set of rules.

But, a real positive outgrowth of the discussion about this pilot, which has gone on for more than a year, is that it has encouraged other solicitors, including Trey Gowdy in the Seventh Circuit, Ralph Hoisington in the Ninth, Greg Hembree in the Fifteenth, Bob Ariail in the Thirteenth, and Barbara Morgan in the Second, to investigate similar management programs. And of course, the grand daddies of this approach to streamlining our criminal docket are, Solicitors Tommy Pope of the Sixteenth and Donnie Myers of the Eleventh. They’ve been using their own case management models for many years, and provide a lot of leadership to us in this venture. In short, cooperation among the solicitors throughout the state, in the effort to reduce the backlog, has been very significant.

Court Automation

Last year, I also identified as our principal management goal the delivery of fair, compassionate, effective and timely justice through the use of technology. In an arena of severe budget cuts, greater efficiency in the use of existing personnel is the key to reducing backlog.

And although we have sustained some severe cuts to our recurring budget, resulting in restricted rotation and a reduction of many services, we have kept our courthouses open in South Carolina.

Our real success story has been to utilize existing, non recurring department funds and grant monies obtained in partnership with the criminal justice community to continue our effort to institute a statewide case management system. We have involved Clerks of Court, technology directors, and a lot of local officials in the design and award of a contract which will pilot a case management project in Greenville, Pickens and Richland Counties later this year. When that pilot is in effect, we will have automated cases in magistrate court, and in circuit court, criminal and civil, in 28% of the state.

And there’s a lot of credit that goes to Clerks of Court Barbara Scott of Richland, Beulah Roberts of Clarendon, Julie Armstrong of Charleston, Mary Brown of Berkeley, Barbara Wasson of Laurens, Paul Wickensimer of Greenville, LeJette Gatlin of Pickens, "P. D." Hiers of Bamberg, and Lisa Mizell of Orangeburg, who have really spearheaded this drive on the part of all of the Clerks.

But let me explain that the decisions that police officers, judges and juries make generate a lot of paperwork memorializing their decisions and declaring what ought to happen next in a case. These papers have power: the suspension of a license, commitment to jail, release from prison, the issuance of a protective order.

In our personal lives, we know what the information age is like, because we experience it in everyday life. We take that card with the magnetic stripe and we put it in the gas pump. And the machine knows whether it is okay to give us gas. And it charges our account before we even leave the pump. Unfortunately, our court world doesn’t work like the credit card industry.

If a judge in Sumter issues a protective order for a battered spouse, and the police in Conway find him waiting for her outside of a restaurant, they may have no way of knowing that something harmful is about to happen. And if they have access to a computer, the order probably doesn’t show up on their database.

All this occurs because there has never been any central coordination of the way local court data is collected, displayed, and conveyed, despite thousands of dollars spent at the local level. We are unable to transmit information effectively to the people who need it - in state government, or in local government, or in law enforcement, or even inside the court system itself. This cold reality, and its consequences for citizens and their government, have led us to devise a strategy to correct these problems.

As I say, these papers have power - but they could have even more if they could be accessed by everyone who needs to know what these court papers direct be done.

And there’s some real heroes in encouraging our beginning efforts at automation in South Carolina. Federal sources include significant Commerce-Justice-State appropriations secured under the leadership of Senator Ernest Hollings, and Byrne Grants and other grants secured through the assistance of SLED Chief Robert Stewart, and Director Boykin Rose and Burke Fitzpatrick of the Department of Public Safety.

We have used these funds to help create websites for each of the 46 Clerks of Court, and to provide basic hardware and connectivity for these clerks’ offices. These websites will, in the future, be the point of access for law enforcement, judges, attorneys, litigants and members of the public, for court records, court decisions and court information.

Our own Supreme Court website, which practically didn’t exist last year, is now a point of access for everything from Bar Examination results, to trial judges schedules (Yes, I can tell now where they’re all supposed to be, even on Fridays!), to court opinions, to court rules and manuals, and shortly, the forms provided by Court Administration will be capable of being filled out and downloaded from the site.

The internet based justice information and case management system that we are developing will be a national model, particularly for connecting information from rural jurisdictions.

Post September 11th, there is much national focus on access to state court records, state criminal information and other state records. There are crucial databases which can be used in our national antiterrorism and bioterrorism efforts.

Major encouragement for our management initiatives has also been given by Speaker Wilkins and Ways and Means Chairman Harrell. Times are very difficult financially for our beloved state, but the Speaker and the Chairman have treated the Judicial Department as a coequal branch of government. And the same is true for the President Pro Tempore of the Senate and Chairman Hugh Leatherman, of the Senate Finance Committee.

When the history of court modernization and the continued vitality of an independent and responsible judiciary in South Carolina is recorded, the names of our Judiciary Chairmen Glenn McConnell and Jim Harrison will be writ large as guardians of our independence and our accountability.

Indigent Defense

In South Carolina, as in the nation, your state court system handles better than 95% of all the criminal cases that are prosecuted. The vast majority of criminal defendants whose cases are processed through our state court system are represented by public defenders or other attorneys who are compensated through the Office of Indigent Defense, or attorneys who are not compensated at all.

Almost all of the defendants in Death Penalty cases in South Carolina are represented by public defenders or by attorneys paid by the Office of Indigent Defense.

This Office of Indigent Defense Fund currently expends $9.5 million a year. Of this fund, almost $3 million was spent last year on less than 20 Death Penalty cases. South Carolina Death Penalty statute requires that the Judicial Department issue a biennial report as to the average attorney fees and expert witness fees expended for these cases. I am in the process of assembling from Office of Indigent Defense and from court records, detailed information regarding the expense history of these cases. I hope to complete that study this summer. You may wish to defer any fee increases to this fund until you receive my report.

Court Fees

As resource allocation becomes tighter, South Carolina should examine its entire court fines and fee structure to determine whether the users of the system are contributing their fair share to its operation. Both the House and Ways and Means Committee and the Senate Finance Committee have under consideration various proposals. I support the efforts by our Clerks of Court to revise filing fees. But I urge that before any revisions are adopted, you take a comprehensive look at the entire fees and fines structure. I am committed to working with local government and with you to develop a modern court fees and fines structure in South Carolina.

The Future

The central theme of my approach to the management of your court system is partnership. In many states, the court system is administered by a large, centralized bureaucracy. In South Carolina, management of our system is centered in the 46 Clerks of Court. The Constitution requires the Chief Justice provide the administrative leadership.

In this time of scarce resources, the Clerks and I are using our combined talents and resources to keep our system going. Partnerships with law enforcement and with our solicitors are an additional way of squeezing the maximum from scarce financial resources. All these partnerships begin with you and with your support.

While current economic turbulence may make our present course somewhat uncertain, the future is as bright and solid and undaunted as is the bedrock optimism of our people. Shakespeare’s injunction that there is a tide in the affairs of men which must be taken at the flood is exactly the right course for your court system. We will be bold. We will do more with less, and for the safety and security of our nation, we will endure and prevail.

As judges, we must remember that we are, in the final analysis, problem solvers. All else must give way to the search for truth which is the core of the law.

The motto of my court is Nil Ultra, Latin words which mean no higher, but we abide in the certainty that there is a higher authority. "What doth thy God require of thee? Do justly, love mercy and walk humbly with your God."

Thank you.1

1The inspiration of my fellow Chief Justices is a source of great strength. Two of the brightest and best of our number head the high courts of Ohio and Indiana. My deep gratitude is acknowledged to Chief Justices Thomas J. Moyer of the Supreme Court of Ohio and Randall T. Shepherd of the Supreme Court of Indiana. With their permission, I have borrowed good ideas and text from their State of the Judiciary speeches. My introduction is patterned on Chief Justice Moyer’s January 16, 2002 Address to the Ohio Judicial Conference. Several passages from my discussion of court automation are patterned on Chief Justice Shephard’s January 22, 2001 Address to the Indiana General Assembly.