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Time for South Carolina Chief Justice Jean Toal to Retire

I am a member of bar associations in two different states, so I get to compare and contrast how each state is run. I was shocked to learn today that South Carolina Supreme Court Justice Jean Toal is seeking re-election at the age of 70, even with her recent history of appearing in the news for matters other than court opinions. It's time for South Carolina Chief Justice Toal to retire and let air breathe into the South Carolina judiciary.

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Jean Toal is a former Democrat strong-arming legislator. Her legislative tendencies have from time to time carried over into her management of the bar and judiciary in South Carolina. She is not beyond calling a state trial-court judge on the phone to ride herd on a local nuisance which could impair her broader legislative agenda, even though she is no longer in the legislature. Some trial judges in the state who are not firmly in her camp have found themselves riding circuit to the far swampy corners of the state, many miles from their home base.

Simply, it's time for South Carolina to a have a Supreme Court chief who behaves more like Chief Justice John Roberts and less like Huey Long.

I get materials from two different state bar associations mailed to me regularly. Nearly every piece of mail from the South Carolina Bar Association is stamped prominently with the face of Jean Toal -- almost as if she is running a political campaign, which now, of course, she is. I reported on this phenomena in the local newspaper some years ago. Afterwards, bar mailings with her mug abated, for a time. But now they are back.

A typical South Carolina Bar direct mail piece. A typical South Carolina Bar direct mail piece.

The legislature in South Carolina elects judges. The legislature is overwhelmingly Republican. (The Myrtle Beach Sun News reports on a hot race between Jean Toal and sitting Justice Costa Pleicones.)

Toal is famous for being reversed by the United States Supreme Court. One famous reversal was delivered by Justice Antonin Scalia in Lucas v. South Carolina Coastal Council -- in that case, Toal ruled that South Carolina could prohibit a landowner from erecting an oceanfront house as long as a state deemed it improper to build, even if the landowner invested their life savings into the property for a home. Toal's opinion reasoned that the owner could still enjoy some use of the property -- like having picnics. 

Scalia had none of it:

The South Carolina Supreme Court's approach would essentially nullify Mahon's affirmation of limits to the noncompensable exercise of the police power. Our cases provide no support for this: none of them that employed the logic of "harmful use" prevention to sustain a regulation involved an allegation that the regulation wholly eliminated the value of the claimant's land.

While Toal engaged in rough treatment of landowners, she has been kind to others. Consider the bar exam fixing scandal of 2007:

Calls are increasing for an outside investigation into the state Supreme Court’s decision last month to reverse the grades of 20 people who flunked the latest bar exam -- including the children of two prominent officials.

...

The Supreme Court on Nov. 2 reversed the grades of 20 people who flunked the July exam -- including the daughters of state Rep. Jim Harrison, R-Richland, chairman of the House Judiciary Committee; and longtime Circuit Judge Paul Burch of Pageland. In doing so, the court apparently violated its own rule prohibiting such grade changes after they are posted publicly. "It’s not really about the bar exam," said Darren McGuinness, who graduated from the Charleston School of Law in May but who flunked the July exam. “It’s about the issue and why the legal community is so afraid to pick a fight."

Take note of the comment about the legal community being afraid. In the same State article I was quoted as saying:

Adams, the former lawyer for then-S.C. Secretary of State Jim Miles, said a 2001 hit-and-run accident involving Chief Justice Toal illustrates why an outside review panel is needed. Toal asked the state Office of Disciplinary Counsel -- an arm of the Supreme Court -- to investigate the accident in which she sideswiped an unoccupied parked car about a block from her Columbia home. Toal admitted she had been drinking before the accident, though she contended she was not drunk. About a year later, a hearing panel of the Commission on Judicial Conduct -- another branch of the Supreme Court -- unanimously said Toal violated no judicial ethics rules, and there was no further action. It was not clear whether Toal faced any disciplinary action stemming from another hit-and-run accident in March in which she didn’t immediately report backing into an unoccupied vehicle parked at Columbia Metropolitan Airport.

You read that right -- two hit-and-runs.

In the first incident, officers went to Toal's house -- where she admitted she was drinking. But she wasn't led away in wrist jewelry or treated to the overnight accommodations that often accompany Joe Six Pack when he is caught behind the wheel.

After I was quoted in this story, I received a flurry of emails and calls from lawyers who expressed thanks that I said things folks practicing in South Carolina are too afraid to say. Obviously the truth shouldn't cause anyone fear, and this is an election about who will be the chief justice of the South Carolina Supreme Court. These are public issues, and Toal's actions are public concerns.

Whether the GOP in South Carolina will endorse more of the same is the question before the legislature. One thing is for sure -- it's time for Jean Toal's long career, first as a Democrat in the legislature, then as a Supreme Court justice, to end in retirement.