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Constitutional Law

March - May 2014

Line item veto
A governor’s line item veto eliminates any authority to expend the vetoed funds for the objects and purposes specified on the line. The veto, however, destroys only the funding provided for in that line item; it does not give the governor authority to negate the effect of a long-standing permanent law.
Amisub v. SCDHEC, Op. No. 27382 (S.C. Sup. Ct. filed April 14, 2014) (Shearouse Adv. Sh. No. 15 at 38).


November 2013 - January 2014

Attorney General
The Attorney General, as the chief prosecuting officer for South Carolina, has the authority to prosecute cases in summary courts without violating Art. V, Section 24, of the state constitution.
State v. Long, Op. No. 27347 (S.C. Sup. Ct. filed January 8, 2014) (Shearouse Adv. Sh. No. 1 at 80).


September - November 2013

Due process
Electronic monitoring is not a punishment, but a civil obligation similar to other restrictions the state may lawfully place upon sex offenders.
In the Interest of Justin B., Op. No. 27306 (S.C. Sup. Ct. filed August 28, 2013) (Shearouse Adv. Sh. No. 38 at 80). 

Right to waive counsel
The higher standard of competency to waive the right to counsel articulated in Indiana v. Edwards, 554 U.S. 164 (2008), has not been adopted in South Carolina. Thus, a defendant competent to stand trial is competent to waive her right to counsel.
State v. Barnes, Op. No. 27322 (S.C. Sup. Ct. filed October 16, 2013) (Shearouse Adv. Sh. No. 44 at 16).


June - September 2013

First Amendment
The Freedom of Information Act is a content-neutral statute that serves important governmental interests and does not burden substantially more speech than necessary to serve those interests.
Disabato v. SCASA, Op. No. 27286 (S.C. Sup. Ct. filed July 17, 2013) (Shearouse Adv. Sh. No. 32 at 34).


April - June 2013

Dual office holding and separation of powers
The composition of the S.C. Transportation Infrastructure Bank’s Board of Directors is constitutional under both a dual office holding and a separation of powers challenge.
S.C. Public Interest Foundation v. S.C. Transportation Infrastructure Bank, Op. No. 27266 (S.C. Sup. Ct. filed June 12, 2013) (Shearouse Adv. Sh. No. 26 at 38).

Due process

The baseline requirement of S.C. Code Section 23-3-540(C), that individuals convicted of CSC-first or lewd act on a minor mandatorily submit to electronic monitoring upon their release from incarceration or violation of their probation or parole, passes the rational basis test and is constitutional.
State v. Dykes, Op. No. 27124 (S.C. Sup. Ct. filed May 22, 2013) (Shearouse Adv. Sh. No. 23 at 21).

Due process

The final sentence in S.C. Code Section 23-3-540(H) is unconstitutional, since it permits lifetime satellite monitoring with no opportunity for judicial review for persons convicted of CSC-first or lewd act on a minor.
State v. Dykes, Op. No. 27124 (S.C. Sup. Ct. filed May 22, 2013) (Shearouse Adv. Sh. No. 23 at 21).


Feb. - April 2013

Eighth Amendment
The penalty portion of Section 56-5-1210 of the S.C. Code does not offend the Eighth Amendment to the U.S. Constitution.
State v. Harrison, No. 27228 (S.C. Sup. Ct., Feb. 27, 2013) (Shearouse Adv. Sh. No. 10).

Eighth Amendment
In analyzing proportionality under the Eighth Amendment in non-capital cases, S.C. courts shall first determine whether a comparison between the sentence and the crime committed gives rise to an inference of gross disproportionality. If no such inference is present, the analysis ends. In the rare instance that this threshold comparison gives rise to such an inference, intrajurisdictional and interjurisdictional analysis is appropriate. Courts may then look to whether more serious crimes carry the same penalty, or more serious penalties, and the sentences imposed for commission of the same crime in other jurisdictions. Courts should use this comparative analysis to confirm the gross disproportionality inference and not to develop an inference when one did not initially exist.
State v. Harrison, No. 27228 (S.C. Sup. Ct., Feb. 27, 2013) (Shearouse Adv. Sh. No. 10).


Oct. - Dec. 2012

Contract clause
The retroactivity clause in Section 38-61-70 of the S.C. Code violates the contract clause of the state and federal constitutions. The statute may therefore only apply prospectively to commercial general liability insurance policies executed on or after its effective date of May 17, 2011.
Harleysville Mutual Insurance Co. v. State, No. 27189 (S.C. Sup. Ct., Nov. 21, 2012) (Shearouse Adv. Sh. No. 42).

Eighth Amendment
Sentencing a juvenile that did not commit homicide to life without parole for a conviction of burglary in the first degree violates the Eighth Amendment’s cruel and unusual punishment clause.
State v. Bonner, No. 5048 (S.C. Ct. App., Nov. 14, 2012) (Shearouse Adv. Sh. No. 41).

Separation of powers
S.C. Code Section 1-7-330 is unconstitutional because it exclusively vests within the circuit solicitor the responsibility of determining the order in which cases on the docket will be called for trial. Vesting a member of the executive branch with the exclusive authority to perform an inherently judicial function is unquestionably a violation of separation of powers.
State v. Langford, No. 27195 (S.C. Sup. Ct., Nov. 21, 2012) (Shearouse Adv. Sh. No. 42).


July - Oct. 2012

Due process
Allowing the state to comment on a defendant’s post-arrest silence is a prejudicial error and a violation of Doyle v. Ohio.
State v. Kevin J. Williams, No. 5015 (S.C. Ct. App., Aug. 1, 2012) (Shearouse Adv. Sh. No. 26)

Fourth Amendment
Traffic checkpoints do not violate the Fourth Amendment if these stops last less than a minute; are marked in advance so drivers can anticipate them; and their purpose is to prevent traffic offenses and people driving without a license.
State v. Vickery, No. 5025 (S.C. Ct. App., Aug. 22, 2012) (Shearouse Adv. Sh. No. 29)

Sixth Amendment
The neutral phrase “another person” inserted into a co-defendant’s written statement avoids any Bruton violation as it implicates only the statement’s maker and not the other defendants on trial.
State v. Derrick McDonald, No. 5033 (S.C. Ct. App., Sept. 12, 2012) (Shearouse Adv. Sh. No. 32)


May - June 2012

Due process
Procedural due process requires that the parties to a rehearing must be provided an opportunity to be heard and to confront and cross-examine witnesses.
Adams v. H.R. Allen, No. 4967 (S.C. Ct. App., May 2, 2012) (Shearouse Adv. Sh. No. 15)

Standing
Traditional standing principles do not apply to claims arising under South Carolina’s Freedom of Information Act.
Freemantle v. Preston, No. 27138 (S.C. Sup. Ct. June 27, 2012) (Shearouse Adv. Sh. No. 22)

Takings
Using a bulldozer to destruct part of a store and free a hostage is not an unconstitutional taking of private property because the property is not then physically appropriated for public use, and the actions are a legitimate exercise of police power.
Carolina Convenience Stores v. City of Spartanburg, No. 4970 (S.C. Ct. App., May 9, 2012) (Shearouse Adv. Sh. No. 16)


Jan. - March 2012

Commerce Clause
South Carolina’s income allocation statute, which allocates the interest expenses related to dividends excluded from South Carolina taxable income to a corporation’s principal place of business, does not constitute unconstitutional discrimination and does not violate the Commerce Clause.
Emerson Elec. Co. v. S.C. Dep’t of Revenue, No. 27073 (S.C. Sup. Ct., Dec. 12, 2011) (Shearouse Adv. Sh. No. 44) 

Due process
The City of Columbia Zoning Ordinance limiting the number of unrelated persons who may reside together as a single housekeeping unit to three does not violate the Due Process Clause of the S.C. Constitution because it is rationally related to a legitimate government purpose and is a valid exercise of the city’s police powers.
McMaster v. Columbia Bd. of Zoning Appeals, No. 27075 (S.C. Sup. Ct., Dec. 12, 2011) (Shearouse Adv. Sh. No. 44)

Takings
An employee may have a cognizable property interest in a percentage of his salary to allow assertion of a claim against his employer for an unconstitutional taking when that percentage is taken away.
Grimsley v. SLED, No. 27085 (S.C. Sup. Ct., Jan. 3, 2012) (Shearouse Adv. Sh. No. 1)


July - Oct. 2011

Due process
 

It is permissible for the State to call a previously unsequestered witness to give reply testimony because the admission of the testimony did not deprive the defendant of either fundamental fairness or due process of law. The testimony was offered by the State in reply to directly contradictory testimony by the defendant’s witnesses, and the defendant's counsel cross-examined the witness extensively regarding her presence in the courtroom during the other witnesses' testimony.
State v. Singleton, No. 4886 (S.C. Ct. App., Sept. 7, 2011) (Shearouse Adv. Sh. No. 31).

Sixth Amendment 
When incarceration is for a definite period of time and the contemnor may not purge the contempt by compliance with a court order, it is criminal incarceration and may trigger the protections of the Sixth Amendment. Ordering a definite 12-month incarceration if the petitioner failed to pay the court costs on time violates the petitioner's right to a jury trial.
DiMarco v. DiMarco, No. 27017 (S.C. Sup. Ct., Aug. 1, 2011) (Shearouse Adv. Sh. No. 25).

Quorum 
The two-thirds mandate in Article IV, Section 21, of the S.C. Constitution requires two-thirds of a quorum. In this case, the Court held the veto override to H. 4431 fell short of the constitutionally mandated two-thirds requirement. Accordingly, the Governor's veto of H. 4431 was sustained.
Bd. of Tr. of the Sch. Dist. of Fairfield Cnty. v. State of S.C., No. 27035 (S.C. Sup. Ct., Aug. 29, 2011) (Shearouse Adv. Sh. No. 29).

Taking 
A property owner who is deprived of immediate left turn access to an abutting highway, but retains a reasonable means of ingress and egress from that highway, does not suffer a material injury to its easement of access to that highway and therefore does not suffer a compensable taking.
Hilton Head Auto. v. S.C. Dep’t of Transp., No. 27026 (S.C. Sup. Ct., Aug. 15, 2011) (Shearouse Adv. Sh. No. 27).