Supreme Court Enjoins Probate Judges From Issuing Same Sex Marriage Licenses Pending Decision From U.S. District Court

In State ex rel. Wilson v. Condon, No. 002121, 2014 WL 5038396 (S.C. Oct. 9, 2014), the supreme court enjoined probate judge Irvin G. Condon and all South Carolina probate judges from issuing same-sex marriage licenses pending a decision from United States District Court Judge J. Michelle Childs in Bradacs v. Haley, 3:13­–CV–02351–JMC. Id. at *1.

The supreme court ordered the injunction after Probate Judge Irvin G. Condon accepted a marriage application from a same-sex couple and indicated he would issue a marriage license following expiration of the twenty-four hour waiting period, id.; see also S.C. Code Ann. § 20–1–220 (2014), relying on the Fourth Circuit Court of Appeals decision in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014).

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Court of Appeals Gives DHEC and Chem-Nuclear Ninety Days to Submit Plan for Reducing Nuclear Contamination of Groundwater at Disposal Site

In Sierra Club v. South Carolina Department of Health and Environmetal Control, the South Carolina Court of Appeals gave the South Carolina Department of Health and Environmental Control (“DHEC”) ninety days to submit a plan to bring a nuclear waste disposal facility operated by Chem-Nuclear Systems, LLC (“Chem-Nuclear”) located in Barnwell County into compliance with South Carolina regulations aimed at the prevention of radioactive waste contamination of groundwater at nuclear waste disposal facilities. Sierra Club v. S.C. Dep’t of Health & Envtl. Control, No. 2012-212791, 2014 WL 3734366, at *21 (S.C. Ct. App. July 30, 2014).

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SCOTUS: Search Warrant Required for Cell Phone Search


This June, the Supreme Court finally admitted what the rest of us already knew: Cell phones aren’t wallets. They aren’t cigarette packages. And by themselves, they aren’t dangerous. Cell phones are, however, devices containing a treasure trove of personal information. Which is why the Court’s ruling in Riley v. California, 134 S. Ct. 2473 (2014), issued just in time for Independence Day, is a victory for civil liberties advocates.

Riley was a consolidation of two cases that raised the same question: can the police search the contents of an arrestee’s cell phone without a warrant? In the case of David Riley, the police accessed text, photographs, and videos from Riley’s cell phone that implicated him as a gang member, leading authorities to charge him with additional crimes. See Riley, 134 S. Ct. at 2480–81. In the other case, police used the contact information and call log on Brima Wurie’s cell phone to locate his apartment, where a subsequent search turned up drugs and a firearm. See id. at 2481. The evidence from Riley and Wurie’s cell phones helped convict the two men, earning them lengthy prison sentences. See id. at 2481–82.  Continue reading

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Supreme Court: Attorney General May Continue Grand Jury Investigation of House Speaker Robert (Bobby) Harrell, Jr

On July 9, 2014, the South Carolina Supreme Court held that the state grand jury has subject matter jurisdiction to investigate a violation of the Ethics, Government Accountability, and Campaign Reform Act. (Ethics Act). See Harrell v. Att’y Gen. of S.C. (In re State Grand Jury Investigation), No. 2014-001058, 2014 WL 3375730, at *1,*6 (S.C. July 9, 2014).

The supreme court reversed the circuit court’s order finding that the power to conduct legislative ethics investigations concerning members of the Legislature rests solely with the Legislature (in this case, the House Ethics Committee) to the exclusion of the courts. See id. at *1. Noting that “[t]he Attorney General as the State’s chief prosecutor may decide when and where to present an indictment,” the court stated that “the status of a House Ethics Committee investigation cannot affect the Attorney General’s decision regarding a criminal prosecution.” Id. at *4–5. (quoting State v. Thrift, 312 S.C. 282, 292, 440 S.E.2d 341, 346 (1994)).

The court held that “the Attorney General’s investigation is not circumscribed by the nature of the complaint that triggered the investigation, and whether or not it arises as an alleged violation of the Ethics Act is irrelevant.” Id. at *5. The court remanded the case to the circuit court for a determination of whether the Attorney General should be disqualified from the grand jury proceedings, an issue the circuit court failed to address when it wrongly dismissed the case. See id. at *1, *6.

The court’s ruling allows Attorney General Alan Wilson to continue the grand jury investigation against Speaker of the House Bobby Harrell for alleged ethics violations including misuse of campaign funds.

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County Council’s Practice of Amending Agenda During Regularly Scheduled Meetings Not a Violation of the Freedom of Information Act

In Lambries v. Saluda County Council, the Supreme Court of South Carolina held that a County Council’s practice of amending the agenda of regularly scheduled meetings during those meetings did not violate the notice requirements under § 30-4-80 of the Freedom of Information Act.

The Saluda County Council amended its agenda during a regularly scheduled meeting to take up a resolution that the public had not been previously informed of, and unanimously passed the resolution during the meeting. Lambries sued for injunctive relief in the Circuit Court of Saluda County to prevent the County Council from amending its agenda during regularly scheduled meetings.

The Circuit Court denied Lambries’ request for injunctive relief; holding that S.C. Code Ann. § 30-4-80 (2007) only requires an agenda for “called, special, or rescheduled meetings,” and not for “regularly scheduled meetings.” The Court of Appeals reversed, holding that “(1) an agenda is required for regularly scheduled meetings, and (2) [the] County Council’s amendment of an agenda less than twenty-four hours before the meeting violated the ‘spirit’ and ‘purpose’ of FOIA’s notice requirement.”

The Supreme Court sided with the Circuit Court, stating that “nowhere in FOIA is there a statement that an agenda is required for regularly scheduled meetings…we believe the legislative intent evidenced in the use of the phrase ‘if any’ is that the issuance of an agenda for regularly scheduled meetings lies within the discretion of County Counsel.” The Court continued: “[i]f the General Assembly wanted to require an agenda for regularly scheduled meetings, it could have done so with the simple use of the word “shall,” which generally signals a command.”

Thus, the Supreme Court held that the Freedom of Information Act does not contain a prohibition against amending an agenda for a regularly scheduled County Council meeting.

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Failure to Instruct a Lesser-Included Offense Is Subject to Harmless Error Review

In State v. Middleton, the supreme court held that (1) the offense of assault and battery in the first degree does not require physical harm; and (2) a judge’s failure to instruct a jury on a lesser-included offense is subject to harmless error review.

Middleton owned a moped and decided to use it for a drive-by shooting.  He pulled up to a vehicle driven by Mack and with Stephens in the passenger seat; Mack’s vehicle was stopped for a school bus stop sign.  Middleton unloaded five bullets into the vehicle.  Mack and Stephens, however, laid back in their seats and were not hit.  Stephens took control of the vehicle and rammed Middleton.  The only injuries that Mack and Stephens suffered were a few cuts from broken glass. Continue reading

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Not Feeling Ten White Jurors Were Right for the Jury Is Not a Sufficient Justification under Batson

In State v. Giles, the supreme court held that a race neutral explanation, although it may be implausible or fantastic, must be clear and reasonably specific to provide the movant an opportunity to prove the justification is pre-textual.

During jury selection, Giles, representing himself with standby counsel, used his peremptory challenges to strike eight white males and two white females.  The State requested an inquiry pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).  The trial court asked Giles why he excluded the jurors, and his standby counsel stated that Giles “did not feel the jurors were right for the jury.”  The trial court agreed that this was a race neutral reason, but did not provide any support for whether the decision was pre-textual.  The trail court granted the State’s motion and quashed the jury panel.  Thereafter, a jury convicted James A. Giles of first-degree burglary, strong arm robbery, and kidnapping.  Continue reading

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A Remand To the Workers’ Compensation Commission is not a Final Decision that Can be Appealed Pursuant to Bone v. United States Food Services

In Martinez v. Spartanburg County, the supreme court held that the court of appeals erred by hearing an appeal from a circuit court decision, and remanded the case to the Workers’ Compensation Committee.

Raquel Martinez was a master deputy forensic investigator.  She had investigated an accident where a police officer, and former coworker of Martinez, had driven a car over his daughter, killing her.  Thereafter, Martinez suffered a mental breakdown and filed a workers’ compensation claim.  Continue reading

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Occupy Columbia v. Haley and the First Amendment Right to “Protest” on State House Grounds

Written by John Tamasitis

On December 16, 2013, the Fourth Circuit issued its decision in Occupy Columbia v. Haley.  According to several media outlets friendly to the Occupy protests that sprung up in 2011, the Fourth Circuit delivered an early Christmas present to the populist, egalitarian movement and vindicated Occupy Columbia’s First Amendment challenge to Governor Nikki Haley’s decision to have them forcibly removed from the State House grounds.  However, the court’s preliminary decision only addressed the narrow threshold issue of whether Governor Haley and her codefendants were entitled to qualified immunity as a defense to Occupy Columbia’s  claims under 42 U.S.C. § 1983.  In finding that Occupy Columbia asserted two separate First Amendment violations—one of which, if true, violated a right that was clearly established and, thus, did not provide grounds for Governor Haley and her codefendants to cloak themselves in immunity—the Fourth Circuit denied the motion to dismiss and allowed the case to move forward.  Continue reading

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The Attorney General Can Prosecute Cases in Magistrate and Municipal Court

In State v. Long, the supreme court held that the Attorney General has the authority to prosecute cases in magistrate and municipal courts.

The supreme court consolidated two criminal domestic violence cases where the defendant raised the issue of the Attorney General prosecuting a case in municipal court.  One municipal court granted the motion, while the other did not.

The issue before the court was whether Article V, Section 24 of the South Carolina Constitution prohibits the Attorney General from prosecuting cases in summary courts. Continue reading

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