Lawyers for South Carolina Gov. Mark Sanford are due in federal court Monday in response to charges that executive orders he issued to the state Workers' Compensation Commission are unconstitutional.
Joel Sawyer, a spokesperson for the governor, said today it had not been determined yet whether Mr. Sanford would be defended by the State Attorney General's Office. "It may be one of the governor's staff attorneys," he said.
The governor's orders requiring commissioners to individually report on how much they were awarding in permanent disability cases and to use AMA guidelines have sparked outrage by plaintiffs' attorneys and cheers from the insurance and business community.
Due for argument before U.S. District Court Judge G. Ross Anderson Jr. in Anderson, S.C., the challenge to the governor's orders was brought by workers' comp attorney Kathryn Williams on behalf of her client Susan Monaco.
Ms. Williams on Dec. 27, 2007 secured a temporary injunction against the commissioners preventing them from following the Sanford orders.
After a hearing this past Monday, where the commission requested the governor be joined as a necessary party, Judge Anderson ordered that the governor be given the opportunity "to appear and be heard if he so desires."
The judge said the plaintiff had raised "substantial claims concerning whether the cited Executive Orders have violated her rights under the due process and equal protection clause of the 14th amendment of the United States Constitution."
Concerning the argument that the orders are unconstitutional, Mr. Sawyer said "We obviously disagree." The forms that the governor wants the commissioners to fill out are simply a "request for information to ensure the workers' compensation laws of our state are being followed, period. We will argue that [in court]."
Bob Herlong, a regional vice president for the Property Casualty Insurers Association of America said the governor's orders followed the passage last year of a workers' compensation measure that lacked some elements the business community had sought.
The Commission, he said, when it comes to injured workers has been "sympathetic to a fault" and has "historically been controlled by judges who issue liberal awards, often without regarding medical evidence, thus resulting in inconsistent and unpredictable awards being granted." Mr. Sanford, he said is attempting "simply to bring some reasonable sanity to the process."
While comp rates have fallen in other states, South Carolina is facing a request this year for another rate increase "on top of three others granted three years in a row," said Mr. Herlong.
Arguing against the orders in an article posted on the Internet, University of South Carolina Law School Professor John Freeman wrote that the governor's aim "was to reduce awards for injured workers, thereby saving money for his political base, namely the business community and insurance companies.
"What Gov. Sanford sought to orchestrate was a wealth transfer: Workers take less, his political base pays less. Make no mistake about it. Gov. Sanford, the executive branch's leader intended to change the law by manipulation of [workers' comp] judges he assumed he could control."
His piece also suggested that "implicit in the reporting requirement was the suggestion that failure to follow directions exposed a recalcitrant commissioner to punishment, either removal or the governor's failure to reappoint.
Mr. Sawyer in response said that Professor Freeman is a frequent expert witness for trial lawyers. "Consider the source," he suggested.
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