In Re Richland County Magistrate's Court

699 S.E.2d 161, 389 S.C. 408, 2010 S.C. LEXIS 312

• Court: Supreme Court of South Carolina
• Decided: September 7, 2010
• Docket: 26876
• Status: Published

Opinions

Justice PLEICONES.

Petitioner, Fifth Judicial Circuit Solicitor W. Barney Giese, filed this declaratory judgment action in the Court’s original jurisdiction seeking a determination whether it is the unauthorized practice of law for a non-lawyer to represent a business as prosecutor of a criminal misdemeanor charge, other than a traffic offense, in magistrate’s court. We hold that such action constitutes the unauthorized practice of law.

BACKGROUND

In May 2009, two cases involving the prosecution and recovery of worthless checks were called in Richland County magistrate’s court. In each case, a non-lawyer field agent from the local business purported to act as prosecutor and both defendants were represented by the Richland County Public Defender’s Office. At the call of each case, defense counsel moved to dismiss for lack of prosecution, arguing that the practice of representative agents proceeding against criminal defendants in magistrate’s court constitutes the unauthorized practice of law. Without proceeding to trial, the trial judge took the motions under advisement, and thereafter granted a continuance in order to notify Petitioner, who then filed this action. This Court granted Petitioner’s request to hear the matter in its original jurisdiction.

ISSUE

Is it the unauthorized practice of law for a non-lawyer representing a business to prosecute a criminal misdemeanor charge, other than a traffic offense, in magistrate’s court?

DISCUSSION

The unique nature of criminal law and the corresponding unique role of the prosecutor illustrate the danger in allowing private prosecutions. Black’s Law Dictionary defines “criminal law” as “[t]he body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders.” Black’s Law Dictionary 403 (8th ed.2004) (emphasis added). As the Supreme Court of the United States has noted, “ ‘The purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant.’” Standefer v. United States, 447 U.S. 10, 25, 100 S.Ct. 1999, 2008, 64 L.Ed.2d 689, 701 (1980), citing United States v. Standefer, 610 F.2d 1076, 1093 (3d Cir.1979) (emphasis added). Because a prosecutor is an attorney representing community, rather than private interests, the prosecutor’s role is very different from that of a civil attorney:

A solicitor should bear in mind that he is an officer of the court, who represents all the people, including [the] accused, and [he] occupies a quasi-judicial position, whose sanctions and traditions he should preserve. It is his duty to see that justice is done. He must see that no conviction takes place except in strict conformity with the law, and that [the] accused is not deprived of any constitutional rights or privileges. However strong the prosecuting attorney’s belief may be of the prisoner’s guilt, it is his duty to conduct the trial in such a manner as will be fair and impartial to the rights of the accused, ... and not say or do anything which might improperly affect or influence the jury or [the] accused’s counsel.¹

See State v. Rayfield, 369 S.C. 106, 114-15, 631 S.E.2d 244, 248-49 (2006), citing State v. King, 222 S.C. 108, 119, 71 S.E.2d 793, 798 (1952).

In carrying out his duty, the prosecutor independently decides whether to prosecute, decides what evidence to submit to the court, and negotiates the State’s position in plea bargaining. See Ex parte Littlefield, 343 S.C. 212, 218, 540 S.E.2d 81, 84 (2000). The South Carolina Constitution, South Carolina statutes and case law place the unfettered discretion to prosecute solely in the prosecutor’s hands. See State v. Thrift, 312 S.C. 282, 291-92, 440 S.E.2d 341, 346 (1994), citing S.C. Const, art. V, § 24; S.C.Code Ann. § 17-1-10 (2009). “The importance to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised ‘with the highest degree of integrity and impartiality, and with the appearance thereof cannot easily be overstated.” People v. Dehle, 166 Cal.App.4th 1380, 83 Cal.Rptr.3d 461, 465 (2008), citing People v. Superior Court, 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164 (1977).

If a private party is permitted to prosecute a criminal action, we can no longer be assured that the powers of the State are employed only for the interest of the community at large. In fact, we can be absolutely certain that the interests of the private party will influence the prosecution, whether the self-interest lies in encouraging payment of a corporation’s debt, influencing settlement in a civil suit, or merely seeking vengeance. Petitioner candidly acknowledges in its brief that the non-lawyers are authorized by the companies “to represent their interests” in the criminal proceedings.

We find that allowing prosecution decisions to be made by, or even influenced by, private interests would do irreparable harm to our criminal justice system. At the very least, there is “too much opportunity for abuse and too little motivation for detachment.”² See State v. Martineau, 148 N.H. 259, 808 A.2d 51, 55 (2002), Nadeau, J., concurring. Though we certainly understand the practical concerns raised by the dissent, we are confronted with a higher question here. The convenience and fiscal economy of private prosecution may be facially appealing, but we must not embrace them at the expense of fundamental fairness and justice.³

Petitioner contends that S.C.Code Ann. § 33-1-103 (2009) “clearly authorizes the conduct in Richland County magistrate’s court when companies authorize their employees or agents to represent their interests” in criminal magistrate’s court. Section 33-1-103 provides that a corporation or partnership may designate an employee or principal to represent it in magistrate’s court. S.C.Code Ann. § 33-1-103 (2009). We find this statute merely comports with our case law, which allows for a non-lawyer to represent a corporation in magistrate’s court in certain civil actions. See, e.g., State ex rel. Daniel v. Wells, 191 S.C. 468, 5 S.E.2d 181 (1939); In re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 309 S.C. 304, 422 S.E.2d 123 (1992). It does not, as Petitioner contends, authorize such representation in a criminal matter. Moreover, we note that our Constitution vests this Court with the sole authority to regulate the practice of law. S.C. Const. art. V, § 4; S.C.Code Ann. § 40-5-10 (2009).

Petitioner correctly notes that this Court has previously permitted persons other than solicitors to prosecute criminal cases in magistrate’s court. See, e.g., State v. Messervy, 258 S.C. 110, 187 S.E.2d 524 (1972); City of Easley v. Cartee, 309 S.C. 420, 424 S.E.2d 491 (1992). Though this Court sanctioned the practices of allowing the arresting South Carolina Highway Patrol officer to prosecute traffic-related offenses and licensed security officers to prosecute misdemeanor cases in magistrate’s court, such non-attorneys are law enforcement officers acting in the capacity of public officials and are sworn to uphold the law. See Messervy, 258 S.C. at 112, 187 S.E.2d at 525; Cartee, 309 S.C. at 422, 424 S.E.2d at 491; S.C.Code Ann. § 8-11-20 (2009). Consequently, they act on behalf of the State. See State v. Bridgers, 329 S.C. 11, 14, 495 S.E.2d 196, 198 (1997) (“[A]s law enforcement officers, they are charged with the discretionary exercise of the sovereign power. Specifically, they must enforce the ‘traffic and other related laws.’”). This classification was essential to the Court’s holding in Cartee. Cartee, 309 S.C. at 422, 424 S.E.2d at 491 (“Therefore, in light of the legislature’s extension of law enforcement authority to licensed security officers, we hold that licensed security officers may prosecute misdemean- or cases in magistrate’s or municipal court.”) (emphasis added). As a non-lawyer representing a corporation is not a law enforcement officer, we cannot assume that he will act in the interests of the community. Moreover, as a non-lawyer, the representative of the corporation is not bound by professional ethical restraints. Consequently, the non-lawyer prosecutor not only acts on interests other than those of the community but is also not bound by ethical rules, yet his prosecution may result in the imprisonment of the defendant. See S.C.Code Ann. § 22-3-550 (2007).⁴

The dissent contends that our decision today represents “a marked departure from prior jurisprudence of this Court....” We disagree. On the contrary, we rest our decision on centuries-old principles of law. See 1 W. Blackstone, Commentaries on the Laws of England, 200 (1851) (The king is “the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eye of the law.”); 1 F. Wharton, Criminal Law § 10, p. 11 (11th ed. 1912) (“Penal justice, therefore, is a distinctive prerogative of the State, to be exercised in the service and in the satisfaction of the duty of the State....”); J. Locke, Second Treatise of Civil Government, § 88, p. 55 (1905) (“[E]very man who has entered into civil society, and is become a member of any commonwealth, has thereby quitted his power to punish of-fences against the law of nature in prosecution of his own private judgment^] ... [H]e has given a right to the commonwealth to employ his force for the execution of the judgments of the commonwealth....”); Huntington v. Attrill, 146 U.S. 657, 669, 13 S.Ct. 224, 228, 36 L.Ed. 1123, 1128 (1892) (“Crimes and offenses against the laws of any State can only be defined, prosecuted and pardoned by the sovereign authority of that State.”).

CONCLUSION

The dignity and might of the State are brought to bear in decisions to prosecute. These decisions must not be made by interested parties. We therefore find that a non-lawyer’s representation of a business entity in criminal magistrate’s court runs afoul of South Carolina law, is repugnant to our system of justice and constitutes the unauthorized practice of law.

PRACTICE DECLARED UNAUTHORIZED.

BEATTY and KITTREDGE, JJ., concur. HEARN, J, dissenting in a separate opinion in which TOAL, C.J., concurs.

1 . See also Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935), for discussion of the role of the United States Attorney.

2 . If the business wishes to be party to the action, it may, through private counsel, seek to assist the solicitor. See State v. Nichols, 325 S.C. 111, 481 S.E.2d 118 (1997) ("Private counsel's participation in a trial to assist the solicitor has been sanctioned....”).

3 . As the dissent notes, then acting circuit judge John Kittredge in In re Lexington County Transfer Court acknowledged the limited resources and budgetary constraints faced by solicitors. 334 S.C. 47, 512 S.E.2d 791 (1999). However, Justice Kittredge ultimately concluded that no exception was warranted, despite such important practical considerations.

4 . We acknowledge the differences between magistrate’s court and general sessions court, as cited by the dissent, but the forum does not change the criminal nature of the action. The power of prosecution and the might of the criminal justice system must rest solely with the community as a whole.