Chief Justice Jean Hoefer Toal of South Carolina: voting patterns in divided criminal cases.

• Author: Khan, Nisa
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium - Testimonial

1. INTRODUCTION

   Former United States Circuit Judge Karen J. Williams of the Fourth Circuit once stated, "Jean Toal has to be recognized as the most important female in the last century in the State of South Carolina. "(1) From being the first woman in many fields (2) to witnessing social changes occurring in South Carolina during her career path, (3) Chief Justice Jean Hoefer Toal has not only served as a role model for women lawyers, but has become an influential and productive member of South Carolina's Supreme Court. While addressing issues in "virtually every area of the law," Chief Justice Toal has written many opinions that have become precedential in South Carolina regarding both civil and criminal matters. (4)

   Over a decade ago, when facing re-election as a justice on South Carolina's Supreme Court, Chief Justice Toal was attacked as being a judge who was too "soft on crime." (5) This study illustrates Chief Justice Toal's voting approach in divided criminal cases, during her eleven year tenure as Chief Justice, in which she sided with the prosecution. The study also examines the rate at which her colleagues have agreed with her in these cases, and the rate at which trends exists in Chief Justice Toal's agreement with her colleagues as well. Although there have been changes to the composition of the court in the last decade, the cases analyzed in this study are inclusive of those in which justices no longer on the bench, and those who served as acting justices, participated.

   The breakdown of this study is as follows: Part II provides general background information on South Carolina's Supreme Court. It briefly explains the selection process of the justices for the court, the jurisdiction of the court, the court's remaining functions, and the current composition of the court--with the focus on Chief Justice Toal's background and responsibilities as Chief Justice. Part III explains the particular methodology used in this study, and the reasoning behind using such a methodology. In accordance with various analyses performed in this study, Part III also emphasizes the distinct selection of certain cases, and the method used in collecting data relevant to the various analyses. Part IV focuses on Chief Justice Toal's pro-prosecution voting approach seen in divided criminal cases in which she authored an opinion. Part V then examines the rate at which her colleagues, throughout her tenure as Chief Justice, have agreed with her, both overall and in relation to her pro-prosecution opinions, in divided criminal cases. Part VI of the study explores the rate at which this trend has extended to Chief Justice Toal's voting in divided criminal cases in which she has not authored an opinion. Part VII then shifts the study into exploring how Chief Justice Toal has sided with the prosecution in issues raised on appeal, and whether a trend exists specific to these issues. Part VIII offers some concluding remarks as to the overall data analyzed, voting patterns and trends observed, and their application to the court today. Appendix A provides a compendium of the cases used for analysis in Parts IV, V, and VII. Appendix B provides a deconstructed analysis of the agreement rate by year used for Part V. Appendix C contains a list of cases used for Part VI's analysis.

2. SOUTH CAROLINA'S SUPREME COURT

   1. Generally

      The South Carolina Supreme Court is the highest court in South Carolina, consisting of one chief justice and four associate justices. (6) The court is currently located in Columbia, South Carolina. (7) Justices of the court hear arguments, study case records, and review briefs filed by the parties. Each individual justice is assigned a number of cases for which he or she prepares an opinion, (8) The opinions are then considered by the remaining justices who will either agree or disagree. Those who disagree with the majority often file a dissenting opinion, which is published alongside the holding of the court. (9)

      The court maintains both original and appellate jurisdiction. (10) In its appellate capacity, the Supreme Court attends to cases on writ of certiorari from the court of appeals, and seven specific classes of appeals directly from the circuit and family courts within the exclusive jurisdiction of the court. (11) These cases cover a variety of issues: death sentences; appeals from circuit courts setting public utility rates; the constitutionality of state law or local ordinances; state or local bonds or other indebtedness; elections; the limiting of grand jury investigations; and appeals of family court orders related to abortion by a minor. (12) Furthermore, the Supreme Court is also responsible for promulgating rules governing all the courts of the state, bar admissions, and discipline of lawyers and judges, (13)

   2. Election Process

      Similar to states such as Connecticut and Virginia, the selection of the judiciary remains primarily a legislative function. (14) Justices of the South Carolina Supreme Court are each elected to ten-year terms by the General Assembly. (15) "Prior to 1997, the South Carolina General Assembly had statutory authority to elect and reelect the state's judges and justices." (16) The qualifications of all applicants were reviewed by a joint committee. (17) However, this approach raised many concerns and problems, such as the lack of guidance as to the qualifications required and the committee's inability to remove an applicant's name from further consideration. (18) Today, however, the candidates are first screened by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly. (19) The terms are staggered so that every two years, one member of the court is elected. (20) Moreover, there is no limit to the number of terms that a justice may be reelected. (21)

   3. Today's Court Membership

      Today's court membership includes Chief Justice Toal, Justice Costa M. Pleicones, Justice Donald W. Beatty, Justice John W. Kittredge, and Justice Kaye G. Hearn. (22) Chief Justice Toal began her career on the Supreme Court as an associate justice on March 17, 1988, and was installed as Chief Justice on March 23, 2000 for the remainder of her predecessor's term. (23) She was then reelected in February 2004, and was installed as Chief Justice in June 2004. (24) Justice Pleicones served as a circuit court judge from July 1991 to March 2000, and assumed his present position as an associate justice on March 23, 2000; he was elected to a second term in February 2006, which will expire on July 31, 2016. (25) Justice Beatty assumed his present position as an associate justice in 2007 following his election to the Circuit Court in 1995, and Court of Appeals in 2003. (26) Justice Kittredge was first elected to the South Carolina Family Court bench in 1991, to the Circuit Court bench in 1996, to the Court of Appeals in 2003, and to his current position on the Supreme Court in 2008. (27) Justice Hearn was elected to the South Carolina Court of Appeals in 1995; she became Chief Judge of the South Carolina Court of Appeals in 1999, and was elected to the Supreme Court in May 2009.(28)

   4. Chief Justice Jean H. Toal

      The road to the state supreme court was an eventful one. It began in her senior year as a philosophy major at Agnes Scott College in Atlanta. "When I was home for Thanksgiving, an old friend of my family's, Judge Louis Rosen, encouraged me to attend law school and become a lawyer." He had researched the course offerings at her college and found a reciprocal constitutional law class at neighboring Emory University being offered the following quarter. When Toal told her guidance counselor about her potential interest in law school and the course at Emory, "she discouraged me from the legal profession, stating that the profession was not open to women. I enrolled in the law course that winter, and the rest is history." (29)

      Chief Justice Toal earned a bachelor of arts in philosophy from Agnes Scott College (30) and juris doctor from the University of South Carolina School of Law. (31) Prior to her election to the Supreme Court, Chief Justice Toal was a litigator in private practice and was involved extensively in public service. (32) In 1975, Chief Justice Toal began her service in the South Carolina House of Representatives. (33) She ultimately served for thirteen years, (34) in which "[s]he was the first woman in South Carolina to chair a standing committee of the House of Representatives[;] [s]he [also] served as Chairman of the House Rules Committee and Chairman of the Constitutional Laws Subcommittee of the House Judiciary Committee." (35) Her twenty years as a practicing attorney included both plaintiff and defense work, criminal trial work, and constitutional litigation, as well as appearing in all levels of trial and appellate courts in South Carolina. (36) Her legislative service also addressed an assortment of "complex legislation," including fields of "constitutional law, utilities regulation, criminal law, structure of local government, budgetary matters, structure of the judicial system, banking and finance legislation, corporate law, torts claims, workers' compensation, freedom of inforination act[,] and environmental law." (37)

      During her initial years on the court, "Toal carried out a number of special projects assigned to her by the incumbent chief justices." (38) For example, from 1989 to 1991, she supervised the Supreme Court Building Renovation Project; (39) from 1992 to 1994 she chaired the state Juvenile Justice Task Force; and from 1993 to 1994, she served on the task force on rules of evidence "that resulted in South Carolina's becoming the 36th state to adopt a form of the Federal Rules of Evidence." (40) Furthermore, Chief Justice Toal has become chief advocate for South Carolina's Judicial Automation Project. (41)

      Chief Justice Toal is a member of the Richland County, South Carolina, and American Bar Associations, the South...