• Abstract and Figures
• Public Full-text

CASE LAW UPDATE: LATEST AND GREATEST AUGUST 16, 2013 AGENDA 8:30 AM: REGISTRATION 8:58 AM: INTRODUCTION Assistant Attorney General Nicole T. Wetherton, South Carolina Office of the Attorney General 9:00 - 9:30 AM: RECENT DEVELOPMENTS IN CIVIL LITIGATION Deputy Solicitor General Emory Smith, South Carolina Office of the Attorney General 9:30- 10:00 AM: RECENT DEVELOPMENTS IN PCR Senior Assistant Deputy Attorney General Salley Elliott, South Carolina Office of the Attorney General 10:00-10:15 AM: BREAK 10:15 -10:45 AM: RECENT DEVELOPMENTS IN SECURITIES Assistant Attorney General J. Louis Cote /II, South Carolina Office of the Attorney General 10:45-11:15 AM: RECENT DEVELOPMENTS IN CAPITAL LITIGATION Senior Assistant Deputy Attorney General Don Zelenka, South Carolina Office of the Attorney General 11:15 - 11:30 AM: BREAK 11:30- NOON: RECENT DEVELOPMENTS IN CRIMINAL APPEALS Assistant Attorney General William Blitch, South Carolina Office of the Attorney General NOON -12:30 PM: RECENT DEVELOPMENTS IN SVP/ICAC Assistant Attorney General Nicole T. Wetherton, South Carolina Office of the Attorney General EMORY SMITH BIOGRAPHICAL INFORMA T!ON He is a graduate of Furman University and the University of South Carolina Law School. He is currently the Deputy Solicitor General for the Office of the Attorney General and works on many major cases in civil litigation. RECENT DEVELOPMENTS IN CIVIL LITIGATION Emory Smith Deputy Solicitor General I. Bodman v. State, 403 S.C. 60, 742 S.E.2d 363 (2013). This suit in the original jurisdiction of the Supreme Court challenged the exemptions on the sales tax imposed by S.C. Code Ann. § 12-36-2120 and the caps on taxes on certain items imposed by §12-36-2110. The Court granted judgment to the defendanls and excerpts of its Opinion are set forth below: The argument [Mr. Bodman] advances instead [in his challenge to lhe sales tax exemptions and caps] is that the sheer number of exemptions and caps in sections 12-36-2110 and 12-36-2120 has rendered the statutes arbitrary and thus unconstitutional. Moreover, he points to the wide range of transactions which fall under these statutes as evidence of a lack of a "cohesive scheme," which accordingly makes the entire group arbitrary and presumably lacking in a rational basis. Yet, in no uncertain terms he argues that the scheme must stand or fall as a whole based solely on the number of "patchwork'' exclusions and caps. He even went so far as to explicitly decline the Defendants' invitation to examine whether individual exemptions and caps are supported by a rational basis. [footnote omitted] We rejected this very argument in Ed Robinson Laundry & Dry Cleaning. Inc. v. South Carolina Departmenl of Revenue, 356 S.C. 120, 588 S.E.2d 97 (2003). There, we considered an identical challenge to the same statutory scheme, where Ed Robinson Laundry contended that the number of exemptions alone rendered section 12-36-2120 arbitrary and therefore unconstitutional. Id. at 125-26, 588 S.E.2d at 100. We noted that while the exemptions may be arbitrary in the political or economic sense of the word, that does not mean they are arbitrary in the constitutional sense. Id. at 126, 588 S.E.2d at 100. We accordingly held "Robinson's argument that '[t]he sheer number of exemptions demonstrates the exemptions are arbitrary' is without merit. We are concerned not with size or volume but with content." Id. Because Bodman's challenge, like Ed Robinson Laundry's, deals only with size and volume and not content, it must fail. n. Disabato v. S. Carolina Ass'n of Sc/1. Adm'rs, 2011-198146, 2013 WL 3723502 (S.C. July 17, 2013): In this case, the court made the following ruling regarding the constitutionality of the application ofFOIA to the South Carolina Association of School Administrators: We hold the circuit court erred in finding the FOIA unconstitutional under the First Amendment when applied to SCASA. The FOIA is a content­ neutral statute that serves important governmental interests and does not burden substantially more speech than necessary to serve those interests, and therefore, it does not violate SCASA's First Amendment speech and association rights. However, we express no opinion as to whether SCASA is a public body subject to the FOIA and leave that issue for determination on remand. For the foregoing reasons, we reverse the circuit court's dismissal of this case and remand to the circuit court for further proceedings. III. Harleysville Mut. Ins. Co. v. State, 401 S.C. 15, 29, 736 S.E.2d 651, 658 (2012) This suit in the Court's original jurisdiction challenged the constitutionality of a law passed by the General Assembly in 2011 addressing the Commercial General Liability insurance policies for construction related work. The Court found the Act unconstitutional to the extent it applied retroactively. As stated by the Court: We hold that Act No. 26 substantially impairs the contractual relationship by mandating that all CGL policies be legislatively amended to include a new statutory definition of occurrence and by applying this mandate retroactively. While the dissent believes the new provision merely clarifies existing law, we find the statute fundamentally changes the definition of occurrence. The Court rejected the argument that the Act violated separation of powers by attempting to change legislatively the opinion of the Supreme Court in "Crossman I" while a petition for rehearing was pending as to that decision and before the Court withdrew that 2 opinion in its decision in Crossmann Cmties. of NC., Inc. v. Harley.~ville MUI. Ins. Co., 395 S.C. 40, 717 S.E.2d 589 (201 l) ( Crossmann fl). The Court reasoned as follows: ... a judicial [interpretation] of a statute is determinative of its meaning and effect, and any subsequent legislative amendment to the contrary will only be effective from the date of its enactment and cannot be applied retmactively." ... see Steinke v. S.C. Dep'1 of Labor, Licensing, & Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999) (concluding the General Assembly could not retroactively overrule this Court's interpretation of a statute, but noting that the General Assembly may resolve statutory conflict in future cases). We find that the General Assembly did not violate the doctrine of separation of powers by enacting Act No. 26. As evidenced by the procedural and legislative history, it is clear the General Assembly wrote and ratified Act No. 26 in direct response to this Court's decision in Crossmann 1. Had Crossmann I been this Court's final opinion, the doctrine might have been implicated. However, given that in Crossmann II we revised our initial decision in Crossmann I, we do not find that the General Assembly, in this instance, retroactively overruled this Court's interpretation of a statute. 736 S.E.2d at 656. The Court also rejected equal protection and special legislation challenges to the law. IV. S. Carolina Pub. Interest Found. v. S. Carolina Transp. Infrastructure Bank, 403 S.C. 640, 744 S.E.2d 521 (2013): This suit alleged the statutory composition of the Transportation Infrastructure Bank which, of the seven directors, included one member of the House of Representatives appointed by the Speaker, "ex officio" and one member of the Senate appointed by the President Pro Tempore "ex officio." The Speaker and the President each appoint one director each of the seven but they are not required to be from the legislature. Petitioners claimed that the legislative membership violated dual office 3 holding prohibitions in the Constitution and that the Legislative appointment authority over four of the seven positions violated separation of powers. The Court rejected both challenges as follows. including a lengthy discussion of the history of the interpretation and application of the separation of powers provision: This Court, however, has recognized an ·'ex officio'' or "incidental duties·• exception [to dual office holding] where "there is a constitutional nexus in terms of power and responsibilities between the first office and the 'ex officio' office:• Segars-Andrews, 387 S.C. at 126, 691 S.E.2d at 462. Ex officio is defined as "[b]y virtue or because of an office; by virtue of the authority implied by office." Black's Law Dictionary 267 (3d pocket ed.2006) .... there must be a '·constitutional nexus in terms of power and responsibilities" between the two offices..... Because it is within the province of the legislature to incur debt on behalf of the State, we find a sufficient constitutional nexus between the powers and responsibilities of the directors on the Board and members of the General Assembly. [note omitted] • *. The preservation of a separation of powers has been a basic tenet of democratic societies at least since Baron de Montesquieu warned that "(t]here would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting Jaws. that of executing the public resolutions, and of trying the causes of individuals." See Montesquieu, The Spirit of Lm.-s 152 (Thomas Nugent trans. 1949). Consistent with this notion, the South Carolina Constitution requires the branches of government be "forever separate and distinct from each other. and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other." S.C. Const. art. l, § 8. "One of the prime reasons for separation of powers is the desirability of spreading out the authority for the operation of the government.'' Staie ex rel. McLeod v. Yonce, 274 S.C. 81, 84, 261 S.E.2d 303, 304 ( 1979}.

Load more

  165

Copy Link