South Carolina Lawyers Weekly January 3, 2022

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Family hurt in fire settles suit for $4.1M

MOST IMPORTANT OPINIONS OF 2021

■ BY DAVID BAUGHER A family that suffered injuries while escaping from a residential fire has obtained a $4.1 million settlement from the condominium association for the building in which they lived and its management company, the family’s attorneys report.

Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach report that mother and daughter Elaine and Khrysta Boulavsky of Myrtle Beach were at home when fire broke out at their complex in 2018. Monica Yates said the pair was forced to leap from a third-floor balcony to evade the flames.

The firm said that Elaine suffered fractures to her ribs, spine, pelvis, hips, and ankles that required multiple surgeries and ten weeks of rehabilitation. Khrysta suffered a hip fracture, a collapsed lung, and problems from smoke inhalation. Additionally, Elaine is scheduled to undergo hip replacement surgery, and the family’s puppy died in the fire.

The Boulavskys sued the Windsor Green Owners Association and Benchmark/CAMS LLC, which oversaw the development, in Horry Count Circuit Court. They alleged that negligence played a role in the blaze, particularly in relation to a birds’ nest said to be inside a light fixture on the floor below their unit. The complaint said that Horry County investiga-

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Self-serving testimony didn’t confer stand your ground immunity ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com A woman who sought immunity from prosecution under South Carolina’s “stand your ground” law was properly denied that immunity because the only evidence supporting her claim that she shot and killed a man in self-defense was her own inconsistent and self-serving testimony, the South Carolina Court of Appeals has ruled.

Gregg Pickrell had sought immunity under the state’s Persons and Property Protection Act, commonly known as the stand-your-ground law. But in its Dec. 8 opinion, the appeals court unanimously upheld her murder con-

viction, finding that she’d failed to prove beyond the preponderance of the evidence that she feared for her life or serious bodily harm when she shot Monty Demary, with whom she was having a romantic relationship, in the back.

According to court documents, Pickrell testified that she’d been battered by Demary for years and that on Sept. 11, 2014, she believed that he was going to kill her when he threatened to do so and lunged at her inside her bedroom.

But authorities said that Pickrell initially offered con-

Send us your top Verdicts & Settlements of 2021!

South Carolina Lawyers Weekly will be publishing its annual Top Verdicts & Settlements list for 2021 in March.

If you or your firm obtained a verdict or settlement that you believe might qualify for our list, please report it to Lawyers Weekly so it can be included for consideration. You can submit your reports, or send any questions, to editor in chief David Donovan at ddonovan@sclawyersweekly.com. The deadline for submitting verdicts and settlements in time to be included in our list is Tuesday, Feb 1. Thanks!

See Self-serving Page 5 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

Leaking radiator fluid leads to $4M settlement

Injured cyclist settles dram shop suit for $1.1M

And the most notable legal terms of 2021 are...

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2 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Janu ar y 3, 2022

NEWS BRIEFS Sheriff gets $25K bond in assault case over shocked inmate ■ BY JEFFREY COLLINS ASSOCIATED PRESS COLUMBIA (AP) — A sheriff charged with ordering the stun gun shocking of an inmate at his county’s jail was trying to help his officers deal with a combative, out-of-control man who had just beat his father with a baseball bat, the sheriff’s lawyer said at his bond hearing Tuesday.

But a lawyer for the inmate’s family said he was mentally ill and wasn’t given a chance to comply.

A judge set bond for suspended Marlboro County Sheriff Charles Lemon at $25,000 on assault and battery and misconduct in office charges. The deputy who shocked the inmate with the Taser was given the same bond.

Prosecutors showed the judge police body camera video of the incident inside the Marlboro County jail in May 2020 after the man was arrested. Police had said his mother told them he attacked his preacher father with a baseball bat and threw his Bible in the trash.

Lemon asks the deputy holding the Taser “is it hot?” on the body camera footage that a Marlboro County investigator gave to Charlotte, North Carolina, FOX affiliate WJZY-TV and to state investigators “Ain’t nobody playing with you. It’s Sunday morning, man, I’ve got to go to church — you acting the fool. I know your whole family,” Lemon told the inmate, still handcuffed. “If he turns around, pop it to him. Give him what he asked for.”

A jailer unlocked the handcuffs.

The inmate lunged at Lemon and the deputy shocked him. After about 15 seconds of yelling, where the inmate is barely seen on the body camera footage, the deputy shocks him again. This time he uses the prongs of the Taser, which can provide a more debilitating shock.

“Pop it to him,” Lemon was heard repeating as the clicks of the Taser are heard, according to the body camera footage, which was also released publicly by a lawyer for the inmate’s family last week.

The inmate’s shorts ended up around his ankles and he is shocked at least one more time as he struggled to get into a holding cell.

“This is arguably one of the most disgusting acts we’ve seen on video, your honor, perpetrated by law enforcement of an individual who is still alive,” said Bakari Sellers, a lawyer for the inmate’s family.

Lemon’s lawyer said the sheriff was faced with an inmate who was “out of control, disorderly, combative, not following instructions.” In a jail setting, attorney Morgan Martin said, someone has to be in control.

“It’s clear that we believe Sheriff Lemon and the other deputy involved were doing the best they could to get hum into the cell without any violence, without anybody getting hurt,” Martin said at the bond hearing, held in Florence County and livestreamed by news outlets.

Sellers said the inmate was mentally ill and has been receiving treatment. His family supports him and was stunned to see the way he was treated by the sheriff, who is a family friend, Sellers said.

The original news release on the man’s arrest said he assaulted the

sheriff, but the body camera footage is unclear whether he ever touched Lemon. The statement also said the inmate was not injured and didn’t say if his father was hospitalized.

The charges of assaulting a police officer and assault and battery of a high and aggravated nature against the man are still pending, according to state court records.

Lemon and the deputy were indicted last week on charges of assault and battery of a high and aggravated nature and misconduct in office. If convicted of the felony assault charge, they could each spend up to 20 years in prison.

The deputy no longer works in law enforcement. Lemon, 57, is a lifelong law officer and has been suspended while he awaits trial.

Lemon joins a long line of South Carolina sheriffs charged with misconduct. Since 2010, 13 sheriffs in the state’s 46 counties have been convicted of crimes ranging from stealing money through expense reports to running a drug ring to getting inmates to do personal work or creating false police reports to get people out of credit card debt.

Along with $25,000 bond, the judge ordered Lemon to not contact anyone in the Marlboro County Sheriff’s Office where he was chief deputy for 12 years and was serving his second four-year term as sheriff.

Sellers said the inmate’s family wants people to remember how Lemon treated someone in his care and custody.

“You can’t be sheriff and jury and executioner at the same time,” Sellers said. “And Mr. Lemon thought he was.”

Man gets over 2 years in prison for Pelosi threat after riot ■ BY JACQUES BILLEAUD ASSOCIATED PRESS A North Carolina man who came to Washington armed with guns and threatened to shoot House Speaker Nancy Pelosi the day after the Jan. 6 riot was sentenced Tuesday to more than two years and four months in prison. Cleveland Meredith Jr. had planned to attend President Donald Trump’s rally in Washington on Jan. 6, but a vehicle breakdown caused him to arrive after the riot had ended. He remained in Washington at a hotel and sent his uncle a text the day after the insurrection using a misogynistic term to describe the House Speaker and saying he was thinking of heading to her speech and “putting a bullet in her noggin on Live TV.” The comments concerned his uncle, who contacted Meredith’s mother. His mother, who was alarmed by her son’s extremist social media postings and knew he had been experiencing mental health difficulties, called the FBI. U.S. District Judge Amy Berman Jackson said the text threatening to shoot Pelosi wasn’t the only alarming comment he made and rejected a suggestion that Meredith’s statements were in jest. “They cannot be erased by adding LOL on the end,” Jackson said.

Meredith, who has been jailed for the last 11 months, tearfully said he was out of control the day after the riot, expressed embarrassment over his arrest and offered an apology to Pelosi.

“I know what I did was wrong,” said the 53-year-old Meredith, who lives in Hayesville, North Carolina.

Approximately 700 people have been charged with federal crimes related to the riot at the U.S. Capitol. About 150 of them have pleaded guilty. More than 20 defendants have been sentenced to jail or prison terms or to time already served behind bars.

Over a dozen others received home confinement sentences.

Meredith brought a handgun and a military style rifle to Washington, bragged in a text about having thousands of rounds of armor-piercing bullets, profanely said “Burn DC” to the ground when a friend told him the Capitol had been breached and sent a text saying he was going to collect the heads of traitors.

The day after the riot, Meredith used misogynistic language when referring to Washington Mayor Muriel Bowser and said he may go to her office to shoot her. He is accused of head-

butting and punching a person who was in a vehicle that was blocking his truck. And he said he thought he was going to run over Pelosi, Jackson said.

Meredith’s lawyers argued there was no serious intent for Meredith to follow through on the threats, noting he sent the messages to family and friends.

Family members say Meredith was immersed in the QAnon movement, which is centered on the baseless belief that former President Donald Trump was fighting a cabal of Satan-worshipping, child sex trafficking cannibals.

The judge said the mental health problems in Meredith’s life were present before Joe Biden won office or QAnon emerged. She said Meredith previously had been involved in assaults and a road rage incident.

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BAR DISCIPLINE

ROUNDUP Attorney: George Constantine Holmes Location: Charleston Bar membership: Member since 1987 Disciplinary action: Disbarred on Dec. 15 Background: Holmes was placed on interim suspension in 2016 following his 2003 guilty plea in federal court to one count of conspiracy and one count of possession with intent to distribute five kilograms or more of cocaine. Although Holmes’s conviction occurred in 2003, it wasn’t reported to the Of fice of Disciplinary Counsel for over thirteen years because his guilty plea was based on a sealed indictment, and at the time of the plea, Rule 8.3 of the Rules of Professional Conduct (Rule 407, SCACR) didn’t contain a mandatory requirement for lawyers to self-report serious crimes.

The ODC wasn’t aware of the conviction until it was anonymously reported in September 2016, at which point the ODC began an investigation and sought interim suspension. After Holmes was placed on interim suspension, he failed to respond to a notice of investigation or file a required affidavit. Formal charges were filed against Holmes in January 2018. He failed to answer, and an order of default was entered against him. Holmes failed to appear at a March 2021 hearing at which the ODC presented evidence that Holmes had been arrested for trafficking marijuana just four months after ODC began investigating the cocaine charges.

Previous discipline: Holmes had been on interim suspension since Oct. 24, 2016.

He had no discipline prior to the interim suspension.

Attorney: Brian Austin Katonak Location: Aiken Bar membership: Member since 1992 Disciplinary action: Suspended from the practice of law for one year on Dec. 15.

Bac kground: Eight discip linar y complaints were filed against Katonak between 2014 and 2020, of which the court found that misconduct had occurred in seven of them. Among them, Katonak ceased working on a client’s appeal because he believed SCCID had assumed representation of the appeal even though he was never provided anything in writing indicating that SCCID had assumed actual representation or that Katonak was no longer counsel of

record, failed to promptly deliver funds to a health care provider who had performed work on a client and agreed to accept a reduced fee to satisfy the client’s payment obligations, failed to properly conduct a thorough title search prior to issuing preliminary and final title opinions, failed to timely respond to a notice of investigation into a matter in which it was ultimately determined there was no clear and convincing evidence of misconduct, failed to timely deliver good title to clients who had purchased a mobile home, failed to adequately communicate with or timely respond to requests for information from two different clients he represented in separate domestic matters, and failed to tim e l y resp o nd to a notice of investigation into one of those matters.

Previous discipline: Katonak was publicly reprimanded in June 2012 for failing to act with reasonable diligence and promptness in representing a client and failing to keep the client reasonably informed about the status of a matter or promptly comply with reasonable requests for information.

Attorney: John Keith Blincow Jr. Location: Charleston Bar membership: Member since 1984 Disciplinary action: Suspended from the practice of law until further order on Dec. 21.

Background: The Office of Disciplinary Counsel asked the Supreme Court to place Blincow on interim suspension pursuant to Rule 17 of the Rules for Lawyer Disciplinary Enforcement, and the court ordered that Blincow’s license to practice law in the state be suspended until further order and that a special receiver be appointed to assume responsibility for Blincow’s client files and law office accounts to protect the interests of his clients. The court did not provide any further detail, but WCBD-TV reported that Blincow was arrested and charged with one count of felony breach of trust with fraudulent intent after allegedly using a client’s money for personal use.

Previous discipline: None All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor in chief David Donovan. He can be reached at david. donovan@sclawyersweekly.com.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ja nuary 3, 2022

VERDICTS & SETTLEMENTS / 3

Leaking radiator fluid leads to $4M settlement ■ BY DAVID BAUGHER A man who sustained severe burns from radiator fluid that leaked onto his leg after he was involved in a car crash has reached a $4 million settlement in a product liability lawsuit, his attorneys report.

J. Taylor Powell and Ellis Lesemann of Lesemann & Associates in Charleston and Ronnie Crosby and Austin Crosby of Peters, Murdaugh, Parker, Eltzroth & Detrick in Hampton report that their client sued the dealership that sold him the late-model vehicle.

Many of the details of the case, inJ. Taylor cluding the identities of the parties, Powell were withheld pursuant to a confidentiality agreement.

Powell said that the client was involved in a T-bone collision that occurred when he pulled out in front of a commercial van. Although the client sustained little injury from the impact itself, the crash left him trapped in the car as the contents Ellis Lesemann of its cooling system leaked into the vehicle.

“He was pinned in the driver’s cabin until they could separate the vehicles and free him,” Powell said.

“While that’s happening, scalding hot radiator fluid is spewing into the cabin on his legs.”

Powell said that the man suffered deep burns, some of which penetrated all the way to the bone. He still has scarring and mobility issues, and his gait has been impacted.

“He was hospitalized for Ronnie Crosby months,” Powell said. “Even [during outpatient treatment], he was still receiving semi-regular treatment for the scar tissue and the tissues that had been damaged a year after the accident.”

The suit alleged negligent design under a theory of strict liability.

“If the product fails and you’ve put it into the stream of commerce, Austin Crosby either as a maker or seller or secondary seller, you are ultimately responsible under warranty theories,” Powell said.

Powell said that although his client was at fault in the collision, that fact was irrelevant since comparative fault isn’t admissible in product liability crashworthiness cases.

“It doesn’t matter who caused the wreck if the defect in the vehicle is what ultimately caused his injuries.”

SETTLEMENT REPORT – PRODUCT LIABILITY

Amount: $4 million Injuries alleged: Third-degree burns to the legs and feet Case name: Confidential Court: Confidential Special damages: $581,302.39 in past medical expenses Attorneys for plaintiff: J. Taylor Powell and Ellis Lesemann of Lesemann & Associates in Charleston and Ronnie Crosby and Austin Crosby of Peters, Murdaugh, Parker, Eltzroth & Detrick in Hampton Attorneys for defendant: Confidential Powell said that errors by the defendant’s insurance adjuster in failing to file a timely answer resulted in a default judgment which established liability.

A settlement was reached before the court could rule on damages.

Powell said that the defect which injured his client could have been foreseen.

“The driver and passenger cabin should be designed as such that if there is an impact, scalding hot fluid shouldn’t be pouring in on people.”

Injured cyclist settles dram shop suit for $1.1M ■ BY DAVID BAUGHER A bicyclist who was injured by a motorist who had allegedly been drinking at her place of employment has negotiated a $1.1 million settlement, his attorneys report.

David Lail and Reynolds Blankenship of Yarborough Applegate in Charleston report that their client, John Schmidt, was cycling in Hanahan on the afternoon of Nov. 5, 2020 when he was hit by MeDavid Lail gan Thomas after she left her job at LG’s by the Creek, a restaurant and bar in the same town.

LG’s wasn’t named as a defendant in the lawsuit filed in Berkeley County Circuit Court, but its insurer, Admiral Insurance Company, ultimately contributed $1 million to the settlement.

“We sued only Thomas,” Lail said. “We did that strategically to Reynolds get subpoena power to then serve Blankenship a subpoena on the bar and the

C o nt inu e d f r o m 1 ►

tors traced the probable origin of the fire to an area at or near the fixture, although the official cause was “undetermined.”

The complaint also alleged that the structure had no fire alarm or sprinkler system and no secondary means of escape.

Yates said that the Boulavskys had no idea the conflagration was happening until they smelled smoke.

Monica “When they went Wooten Yates to reach for the front door, they could feel the heat coming off that side of the condo [and] knew that they couldn’t open the door,” Yates said.

“When they looked out the window, the only ingress and egress opBradley Yates tion that they had was the outdoor stairwell

restaurant to determine if there was a dram shop case.”

Lail said that his firm’s investigation was “able to connect the dots and figure out that she was drinking on the job” and that video surveillance footage supported their contentions that management was present and aware that Thomas was drinking.

Lail said there was no dispute over the extent of Schmidt’s injuries, which included a broken leg, 15 broken ribs and a thoracic compression fracture.

He said that Thomas left the scene of the incident, and so her blood alcohol level couldn’t be measured.

The remaining $100,000 was provided by GEICO, which was both Thomas’s liability carrier and Schmidt’s underinsured motorist carrier. Lail said that all the insurers paid their policy limits.

“In a dram shop case, video evidence is rare, but when you get it like this, it was pretty powerful,” he said.

Amy McLaren of Willson Jones Carter & Baxley in Mount Pleasant represented Thomas. Zachary Stohr of Milligan & Herns in Mount Pleasant represented GEICO. Jennifer Nutter of Hood Law Firm in Charleston represented LG’s by the Creek.

None returned a request for comment.

on the side of the building, and it was completely engulfed in flames.”

Yates said that the Boulavskys didn’t allege any violations of building codes, but the complaint alleged a “history of fires” at the complex and noted a blaze five years earlier that it said damaged 30 buildings, most of which were renovated with new safety features. The Boulavskys’ structure wasn’t among them.

Their suit was part of a global $10 million settlement and was one of several claims consolidated in the matter, Yates said. Husband and father Greg Boulavsky was also a party to the suit via a loss of consortium claim, the destruction of his possessions, and mental anguish.

Jay Seibels of the Seibels Law Firm in Charleston represented Windsor Green. K. Michael Barfield of Barnwell Whaley Patterson & Helms in Charleston represented Benchmark/ CAMS, LLC. Neither attorney returned a request for comment.

Sam Clawson mediated the settlement, which was agreed to on Sept.

10.

SETTLEMENT REPORT – DRAM SHOP

Amount: $1.1 million Injuries alleged: Thoracic compression fracture, broken leg, 15 broken ribs Case name: Sonya Esclavon, as Limited Conservator for John W. Schmidt v. Megan Renee Thomas Court: Berkeley County Circuit Court Case No.: 2020-CP-08-02498 Date of settlement: October 2021 Insurance carrier: GEICO (at-fault driver and UIM) and Admiral Insurance Company (dram shop liability) Attorneys for plaintiff: David Lail and Reynolds Blankenship of Yarborough Applegate in Charleston Attorneys for defendant: Amy McLaren of Willson Jones Carter & Baxley in Mount Pleasant for at-fault driver, Zachary Stohr of Milligan & Herns in Mount Pleasant for UIM carrier, and Jennifer Nutter of Hood Law Firm in Charleston for restaurant/bar

SETTLEMENT REPORT – PERSONAL INJURY

Amount: $4.1 million Injuries alleged: Rib, spine, pelvis, hips, and ankle fractures; hip fracture, collapsed lung, and problems from smoke inhalation; and loss of consortium, destruction of possessions, and mental anguish Case name: Greg Boulavsky; Elaine Boulavsky; Khrysta Boulavsky v.

Windsor Green Owners Association, Inc. dba Windsor Green Homeowners Association; Benchmark/CAMS, LLC Court: Horry Count Circuit Court Case No.: 2019-CP-26-00090 Mediator: Sam Clawson Date of settlement: Sept. 10 Special damages: $1.875 million in past medicals, projected future medical costs, lost wages and property loss Most helpful experts: Frank E. Hagan of Buford, Georgia (mechanical engineer) Insurance carriers: Scottsdale Insurance Company, Greenwich Insurance Company, and Cincinnati Insurance Company Attorneys for plaintiffs: Monica Wooten Yates and Bradley Yates of the Yates Firm in Myrtle Beach Attorneys for defendants: Jay Seibels of the Seibels Law Firm in Charleston for Windsor Green and K. Michael Barfield of Barnwell Whaley Patterson & Helms in Charleston for Benchmark/CAMS, LLC

4 / NEWS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Janu ar y 3, 2022

And the most notable legal terms of 2021 are …

■ BY KEN BRESLER The most notable legal phrases of 2021 weren’t coined in 2021. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity and usefulness. Nonetheless, these notable legal phrases are fairly new, did make news, and are not in Black’s Law Dictionary. Here are my picks and definitions.

6. Blank check company. noun.

A company that has no specific business plan or purpose or whose business plan is to conduct a merger or acquisition with an unidentified company, companies, entity or person.

A blank check company encompasses a …

5. Special purpose acquisition company (SPAC). noun. A blank check company created to finance, within a set time, a merger or acquisition, which usually has yet to be identified.

Although the terms “blank check company” and “special purpose acquisition company” are used as synonyms, a SPAC is a kind of blank check company, according to the Securities and Exchange Commission.

SPACs and other blank check companies are an alternative to traditional initial public offerings. They have been around for years, so they’re not the new hot thing, but they did become a newly hot thing. Do you remember 23AndMe, the genetic testing company, and Buzzfeed, the digital media company, going public in 2021?

Whether you remember or not, they went public through SPACs. As of this writing, the SEC and Financial Industry Regulatory Authority are investigating a SPAC that was supposed to take public the new media venture of ex-President Donald Trump.

Still don’t understand SPACs? Don’t worry. On March 31, the SEC issued a staff statement advising companies to carefully consider “certain accounting, financial reporting and governance issues” before merging with a SPAC. In response, the number of SPACs plummeted. A commentator, Tom Tibbs, predicted that the number of SPACs in 2022 will fall far short of 2021’s number. That means that “blank check company,” “special purpose acquisition company,” and “SPAC”—among 2021’s hottest legal terms—might be lukewarm or even coolish in 2022.

Be on the lookout for “de-SPAC.” Tibbs, the senior product marketing manager for M&A at SS&C Intralinks, writes that “de-SPAC” means “merging a publicly traded SPAC with a private operating company, resulting in an operating company that then itself becomes publicly traded.” Who

knows? This could become a notable legal phrase of 2022.

4. Shadow docket. noun. The U.S. Supreme Court’s list of orders and summary decisions that lack typical procedure and transparency. 9 N.Y.U. J.L. & Liberty 1 (2015).

The legal controversy over abortion just won’t end and won’t stop generating new legal terms—or at least bringing them to our attention. In 2015, I called “fetal assault law” the most notable legal term of the year. (Tennessee’s law expired the next year.) I added “targeted regulation of abortion providers (TRAP)” to my online legal dictionary in 2016, and “fetal heartbeat bill” in 2019. (My online dictionary is at www.ClearWriting.com/dictionary.)

A law review article coined “shadow docket” six years ago. The term hit the news after the U.S. Supreme Court on Sept. 1 allowed the new Texas Heartbeat Act, illegalizing most abortions, to remain in effect while the case was fully briefed and argued. (Yes, the Texas legislation is a fetal heartbeat bill.)

On Dec. 1 the U.S. Supreme Court heard oral argument on a Mississippi law that could be a vehicle to overturn or curtail Roe v. Wade. That leads me to define “trigger law,” which has nothing to do with guns or emotional triggers. I’m not naming this as a notable legal term of 2021, but this is a good place to discuss another abortion-related phrase.

Trigger law. noun. A contingent state law generally banning abortions that will become effective—be triggered—if the Supreme Court overturns or curtails Roe v. Wade, which protects a woman’s constitutional right to decide whether to abort a pregnancy.

The following states, as of this writing, have trigger laws: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah. Most trigger laws were enacted during the Trump administration, when opponents of abortion rights became heartened with the appointment of conservatives Neil Gorsuch and Brett Kavanaugh as Supreme Court justices.

Who knows? The most notable legal phrase of 2022 could be “trigger law.”

As for 2021, the pandemic generated the last three notable legal terms, which, unlike “trigger law,” are fairly self-explanatory and don’t need definitions.

3. Mask mandate. noun.

Most reported legal cases in 2021 using “mask mandate” involved individual litigants challenging such mandates. On Sept. 30, the South Carolina Supreme Court upheld what is in effect a state legislative ban on

"Helping lawyers practice better, more efficiently, and more profitably."

public schools imposing mask mandates on students and staff. Call it a mask anti-mandate.

2. Vaccine passport. noun.

This legal term emerged in three scenarios: jurisdictions creating a verified documentation system of people’s vaccination status; jurisdictions requiring people to have and show vaccine passports for certain activities; and jurisdictions banning vaccine passports.

On Nov. 29, Gov. Charlie Baker announced that Massachusetts would be part of a consortium of 15 to 20 states to introduce a vaccine passport based on a QR code. As of this writing, further details have not been announced.

On Sept. 13, New York City became the first city in the U.S. to require people to show proof of vaccination to enter indoor public spaces, such as restaurants, gyms, cinemas, sports arenas and museums. The requirement continued to expand through December, including by lowering the age of people who needed proof of vaccination.

Various states have banned vaccine passports by legislation or executive order. Florida did so early on by executive order on April 2, barring state government entities from issuing “vaccine passports, vaccine passes, or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccination record…” Florida businesses are barred from requiring vaccine passports.

1. Vaccine mandate, also called vaccination mandate. noun.

The term existed before the COVID-19 pandemic. It referred to required vaccines against other diseases. Reported legal cases using the term proliferated in mid-2021. A recent and prominent use of the term happened on Dec. 13, when the U.S. Supreme Court denied an application to block New York’s regulation requiring health care workers to be vaccinated against COVID-19. Justice Gorsuch dissented from the denial, used the term “vaccine mandate,” and quoted a New York news release that used “vaccination mandate.”

Almost 117 years earlier, on Feb. 20, 1905, the U.S. Supreme Court upheld the constitutionality of Cambridge’s smallpox vaccine mandate for all inhabitants, authorized under a Massachusetts statute. Did the case, Jacobson v. Massachusetts, use the term “vaccine mandate”? No, it used “compulsory vaccination law.”

Legal terminology keeps on evolving. Unfortunately, so does COVID-19.

Ken Bresler is a lawyer, writer and legal writing coach. His website is ClearWriting.com. He tweets on legal writing at @LawWritingCoach.

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Instead of the dreaded review, try ‘quarterly conversations’ ■ BY CHRISTOPHER F. EARLEY BridgeTower Media Newswires “To listen well is as powerful a means of communication and influence as to talk well.” – John Marshall Open and honest communication with team members is crucial when running a law firm. Whether it be a group meeting or a one-on-one meeting,

effective communication is critical.

When I have one-on-one meetings with team members, I do quarterly conversations as opposed to the dreaded review. Reviews are uncomfortable and awkward for everyone. No one ever likes administering them—or being subjected to them.

Instead, the quarterly conversation is something I have been doing for

nearly a year, and I find them to be productive and rewarding for both myself and my team. I was inspired to start doing them after reading the fantastic book “How to Be a Great Boss” by Gino Wickman.

Quarterly conversations are a casual and relaxed back-and-forth dialogue See Page 5 ►

POSTMASTER: Electronic Service Requested, send address changes to South Carolina Lawyers Weekly, Subscription Services, P.O. Box 1051 Williamsport, PA, 17703-9940 service@bridgetowermedia.com The South Carolina Lawyers Weekly is a publication of BridgeTower Media 222 South Ninth Street Suite 900, Minneapolis, MN 55402.

NEWS / 5

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ja nuary 3, 2022

Charleston School of Law sues city for breach of contract ■ BY HEATH HAMACHER hhamacher@sclawyersweekly.com The Charleston School of Law is suing the city of Charleston for allegedly going back on its word to allow the law school to sell a property at the school’s first location on Meeting Street.

The city acquired the property in 2005 from the U.S. Army School of Engineers and sold it to the law school for $875,000 to “attract and induce” the plaintiff to open a new law school, according to the 46-page complaint, and the deed included a possibility of reverter to ensure that the property would be used for law school purposes for at least six years.

CSOL claims that in 2017 the parties agreed to modify the contract to remove the reverter clause from the title of the property, which the school has contracted to sell to OmShera Hotel Group for $12.85 million.

But now the school is accusing the city of refusing to execute and file a quit-claim deed, apparently because some city council members, despite unanimously approving the 2017 modification agreement, now believe that the city should have negotiated a better deal.

The law school contends that in 2018, before it contracted the sale with OmShera, the city confirmed in a letter that the proposed contract complies with the school’s agreements with the city and that the school has the right to close the sale of the property.

Lawyers Weekly was unable to speak with the city’s attorneys before press time.

Charleston Law President Edward Bell called the issue a “straightforward legal matter” in which the city has failed to complete its portion of a transaction it agreed to years ago, a “textbook case of breach of contract.”

Bell said that the sale would be a win-win for all parties and Charlestonians.

“The City will gain millions to cover its budget shortfall this coming year which will assist in funding affordable housing” Bell wrote in a Dec. 17 press release. “Residents will benefit from the development of Meeting Street, jobs and tax revenues will be added, and the Law School will be able to move forward with its plans to convert to a nonprofit.”

Under the terms of the revised 2017 agreement, the law school asserts that the city would receive 25 percent of the net purchase price, including the original purchase price of the lot. The city would receive more than $4 million, $3 million of which is designated for affordable housing.

Of the $12.85 million sales price, the school said that OmShera has paid $700,000 in nonrefundable

SELF-SERVING C o nt inu e d f r o m 1 ►

flicting statements, claiming that she’d pointed her pistol at Demary not to protect herself from harm, but only to persuade him to leave her home before her mother arrived.

Under the statute, deadly force is justified in certain situations where a person reasonably believes that only a fatal blow can prevent death or great bodily harm or the commission of a violent crime.

Judge John Huff, writing for the appeals court, agreed with Circuit Court Judge Alison Lee’s finding that holes in Pickrell’s statements and forensic evidence created a question of fact for a jury to resolve.

“According to the evidence, the trial judge correctly weighed the evidence and applied the proper standard in determining that Pickrell had not met her burden of proof to prove immunity from prosecution,” Huff wrote.

First words

Shortly after the shooting, Pickrell told two investigators that the night before the shooting Demary had taken a cab to her house because he needed money. The two argued, and Demary pushed her into a desk, Pickrell said, before later having sex.

The next morning, Pickrell rejected Demary’s sexual advances because her mother, who didn’t approve of Demary, was coming over, she said.

Pickrell said that Demary became angry after being told to leave and discovering that he was missing an earring.

Pickrell said that she retrieved her pistol after Demary said that he was going to kill her, but that she didn’t intend to harm him, only motivate him to leave. But when he threatened her again and moved, she just “shot the damn gun.”

Pickrell also recounted several incidents of abuse by Demary over six years, saying that she took action this time because she couldn’t take any more beatings and that she thought it was the end for her.

In her motion for immunity, Pickrell relied solely on a provision of the “castle doctrine” which states that an individual may stand his or her ground and meet force with force, including deadly force, where he or she

earnest money. According to the press release, the city has been paid in full for the lot and received part of the proceeds of the sale.

CSOL contends that it has made multiple attempts over several years to resolve the matter with the city, which has failed to respond to numerous written requests and deadlines, leaving the law school with no recourse other than to seek help from the court.

“We are confident that an objective and honest review of the facts and law will result in a finding that the Law School has upheld its end of the bargain struck years ago and that the City has not,” Bell wrote.

The complaint includes a demand for attorneys’ fees and other costs against the city.

Brew Hagood and Frank Blanchard of Rosen Hagood and William Craver of the Craver Law Firm represent CSOL in its suit.

C o nt inu e d f r o m 4 ►

reasonably believes it is necessary to prevent death or serious bodily injury or the commission of a violent crime.

Pickrell testified, despite earlier statements to the contrary, that Demary had forced himself on her for hours even though she refused sex, and that she shot him because he was going to kill her and her mother. She further testified that when Demary couldn’t find his earring, he threw her face-first into a trunk, kicked her in the back, and began dragging her by her legs. Pickrell said she shot Demary as she sat scared, disoriented, and crying in her doorway.

Pickrell admitted that she hadn’t told investigators that she’d said no to sex, that Demary assaulted her the previous night and just before the shooting, or that he lunged at her.

Don’t take their word for it

Testimony from a forensic pathologist offered various possible scenarios regarding the shooting but showed two crucial facts: Demary was shot in the back from at least two feet away. This testimony indicated to the court, Lee wrote, that Demary was shot as he was bent over, looking for his earring.

In denying the motion, Lee cited 2013’s State v. Curry holding that when reviewing immunity, the court must consider the elements of selfdefense, except for the usual duty to retreat. She found that Pickrell had brought a loaded weapon into a situation where she hadn’t proven that she was being assaulted (or that Demary was even facing her), that she was in actual imminent danger, or that a “reasonably prudent person of ordinary firmness and courage” would’ve believed such.

Pickrell also argued on appeal that during her trial the court improperly allowed certain testimony from two law enforcement officers.

In one instance, defense counsel asked an investigator who said that he was unable to get a clear answer from Pickrell about why she pulled the trigger if it was the investigator’s contention that Demary must be charging at Pickrell for her to shoot him. The investigator replied that he found it hard to believe that he was told that Demary was lunging

at Pickrell, but that he was shot in the back.

Pickrell contended that the investigator wasn’t qualified to give opinion testimony that requires special knowledge, skill, experience, or training, and that the opinion about how the shooting occurred attacked the self-defense case.

But the court held that the investigator’s answer didn’t offer a conclusion about how or why Pickrell may have shot Demary but rather answered the state’s question of why Pickrell’s interview statements raised concern for the investigator.

“The investigator simply conveyed his perception that defendant was indicating in her statement that the victim was coming toward her when he was shot, which caused the investigator concern based upon his knowledge that the victim was shot in the back,” Huff wrote. “This did not require specialized knowledge, skill, experience or training.”

A South Carolina Law Enforcement Division agent also gave testimony that seemed to indicate that the shot couldn’t have been fired from the within the bedroom, as Pickrell claimed it did, but the testimony resulted from the agent misunderstanding the question. The court noted that the lay testimony was harmless because it was refuted by expert testimony by another SLED agent who said that because of all the variables involved here there was no way to tell where the ejected cartridge would go. Further, the location of the shooter wasn’t an issue in the case.

Chief Judge James Lockemy and Judge Stephanie McDonald concurred in the decision.

Chief Appellate Defender Robert Dudek of Columbia represented Pickrell. Dudek said that he plans to petition the appeals court for rehearing.

Attorney General Alan Wilson, Assistant Attorney General Mark Farthing, and Solicitor Byron Gipson, all of Columbia, represented the state.

The 30-page decision is State v.

Pickrell (Lawyers Weekly No. 011096-21). The full text of the opinion is available online at sclawyersweekly. com.

between a manager and team member.

They are a great opportunity to truly listen to the team member and to gain insight on how you can be a better leader, and how the team member can be further challenged and utilized.

Here are some things to keep in mind when doing quarterly conversations: Ask team members prior to the conversation to perform a written self-evaluation, scoring themselves in different categories on a scale of 1 to 5. The categories I use are work quality, productivity, enthusiasm, dependability and communication.

You might be surprised at how team members score themselves within these categories.

Reviews are uncomfortable and awkward for everyone.

I, too, perform my own written evaluation of the team member and score them using the same categories and scale. We then compare one another’s evaluation and discuss them at the quarterly conversation.

After we review the evaluations, I ask the team member a series of questions that aim to drill down to how they truly feel about their role, and how they are doing.

These questions yield so much interesting information. Really and truly listening to the answers you get in this context is so important.

Some of the questions I typically ask are: Do you feel your work makes a difference? Do you feel challenged in your current role? How can we better utilize your skill set? What is a personal goal you want to accomplish in the next six to 12 months?

I guarantee you that other employers do not take the time to do this, and it will make you stand out. The team member will appreciate you for taking the time to ask questions that show you truly care. Retaining great team members is crucial, and this is a great way of reducing the likelihood of someone leaving.

Having an actual back-and-forth conversation instead of a review, for me, is very helpful to help improve a team member’s performance while reminding them that I care about their success.

If you are not already doing quarterly conversations, give them a try. They can be a true win-win for everyone.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

6 / MOST IMPORTANT OPINIONS

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Janu ar y 3, 2022

Most Important Opinions of 2021 Administrative Attorney’s Fees – ‘Civil Action’ – Sanctions – Development Permit Where the State Action Statute, S.C. Code Ann. § 15-77-300, authorizes an award of attorney’s fees “In any civil action brought by ... any political subdivision of the State,” the statute does not encompass contested administrative cases.

We reverse the Administrative Law Court’s award of attorney’s fees and sanctions against the petitionertown.

We note that the General Assembly rewrote the Frivolous Civil Proceedings Sanctions Act in 2005 and specified that it applies to any “civil or administrative action.” S.C. Code Ann. § 15-36-10. However, there was no similar revision to the State Action Statute when the General Assembly amended the statute in 2010.

The ALC sanctioned the petitioner-town $200,000 after finding the town brought its contested case for the purpose of delaying the challenged construction project. Rule 72, SCALC, allows the ALC to award sanctions if it determines “that a contested case . . . is frivolous or taken solely for the purposes of delay.”

There is an abundance of evidence that the town brought or continued its challenge to the development permits because the town was concerned about the project’s impact on the local ecosystem, the water quality of surrounding lakes, and whether the project might worsen existing flooding problems. Therefore, we reverse the award of sanctions.

Town of Arcadia Lakes v.

South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-017-21, 9 pp.) (Blake Hewitt, J.) Appealed from the Administrative Law Court (John McLeod, ALJ) Amy Elizabeth Armstrong, Michael Gary Corley and Terry Richardson for appellant/ respondent; Stephen Philip Hightower for respondent; Joan Wash Hartley and Thomas Lavender for respondent/appellant. S.C. App.

Arbitration Nursing Home – Powers of Attorney – Not Admission Requirement – Wrongful Death Given the language of the durable and health-care powers of attorney in question, since the principal (the attorney-in-fact’s father) did not then have a cause of action against defendants, and since signing an arbitration agreement was not required to admit her father into defendants’ nursing home, the plaintiff attorney-in-fact did not have the authority to sign the arbitration agreement for her father.

We reverse the Court of Appeals’ decision, which reversed the circuit court’s denial of defendants’ motion to compel arbitration in this wrongful death action.

GDPOA

A general durable power of attorney authorized plaintiff to “make, sign, execute, issue, assign, transfer, endorse, release, satisfy and deliver any and all instruments or writing of every kind and description whatsoever, whether sealed or unsealed, of, in or concerning any or all of my business affairs, property or other assets whatsoever, including all property, real, personal or mixed, stocks, securities and choses in action, and wheresoever situated, including, without limiting the generality hereof thereto, notes, bonds, mortgages, leases, deeds, conveyances, bills of sale, and assignments, endorsements, releases, satisfactions, pledges or any agreements concerning any transfers of the above or of any other property, right or thing.”

The Court of Appeals relied on plaintiff’s authority to execute instruments concerning “choses in action” to find she had authority to sign the arbitration agreement. The parties agree “chose in action” generally means “cause of action.” Plaintiff’s father did not have a cause of action against defendants at the time the arbitration agreement was signed.

The GDPOA did not authorize plaintiff to sign the arbitration agreement because the arbitration agreement did not concern a chose in action or any other property right her father possessed at the time plaintiff signed it.

The Court of Appeals also concluded that plaintiff’s authority extended to “any other property, right or thing.” However, the Court of Appeals took this phrase out of context.

The GDPOA authorized plaintiff to execute “any agreements concerning any transfers of the above or of any other property, right or thing.”

By signing the arbitration agreement, plaintiff (for herself, for her father, and for his heirs and executors) waived the right to a jury trial, waived any claim to punitive damages, agreed to limited discovery, and waived the right to appeal the arbitration decision. These acts were not “transfers” of anything to anyone. Thus, the provision of the GDPOA authorizing plaintiff to enter into any agreements concerning transfers of any property, right, or thing did not grant her the authority to sign the arbitration agreement.

HCPOA

The HCPOA authorized plaintiff to “take any other action necessary to making, documenting, and assuring implementation of decisions concerning my health care, including, but not limited to, granting any waiver or release from liability required by any hospital, physician, nursing care provider, or other health care provider; signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in my name, and at the expense of my estate to force compliance with my wishes as determined by my agent, or to seek actual or punitive damages for the

failure to comply.”

Plaintiff clearly had no authority to take any action under the first clause unless the action was “necessary to making, documenting, and assuring implementation” of a decision concerning her father’s health care. The only health care decision in play when plaintiff signed the arbitration agreement was her decision to seek her father’s admission into defendants’ facility.

When arguing against plaintiff’s contention that the arbitration agreement was unconscionable, defendants consistently maintained that plaintiff was not required to sign the arbitration agreement as a condition of her father’s admission to the facility. Since plaintiff was not required to sign the arbitration agreement, it follows that any waivers contained in the agreement were not required by the facility. Consequently, the HCPOA did not give plaintiff the authority to grant the waivers recited in the arbitration agreement.

The HCPOA authorized plaintiff to pursue legal action in her father’s name, but only to “force compliance with [her father’s] wishes as determined by [his] agent, or to seek actual or punitive damages for the failure to comply.” This provision of the HCPOA is thus of no significance to this case.

Even if this provision authorized plaintiff to pursue legal action unrelated to forcing compliance with her father’s health care wishes, this provision still did not authorize plaintiff to sign a pre-dispute arbitration agreement. The act of executing a pre-dispute arbitration agreement upon admission to a nursing home has nothing at all to do with instituting legal proceedings.

Plaintiff did not execute the arbitration agreement in connection with an existing claim her father had against the facility. Plaintiff’s execution of the pre-dispute arbitration agreement did not constitute the pursuit of legal action.

Reversed.

Concurrence

(Few, J.): I write only to address defendants’ and the Court of Appeals’ reliance on the obsolete phrase “chose in action.” The majority unnecessarily defines the phrase. In doing so, the majority brings a new and undeserved life to a phrase that has no precise meaning in modern law. It is time for attorneys and courts to stop using such antiquated phrases, not to resuscitate them.

Arredondo v. SNH SE Ashley River Tenant, LLC (Lawyers Weekly No. 010-006-21, 16 pp.)

(George James, J.) (John Few, J., concurring) Appealed from the Circuit Court in Charleston County (J. C. Nicholson, J.) On writ of certiorari to the Court of Appeals. Kenneth Luke Connor, Christopher Caleb Connor and Laura Jordan for petitioner; Mark Phillips and Robert William Whelan for respondents.

S.C. S. Ct.

Attorneys Discipline – Definite Suspension – Facebook Comments – Intent to Incite The respondent-attorney’s public Facebook comments about George Floyd tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitute grounds for discipline.

We accept the agreement for discipline by consent and suspend respondent from the practice of law in this state for six months, retroactive to his interim suspension on June 12, 2020. Respondent shall also complete at least one hour of diversity education, undergo a comprehensive anger management assessment, undergo an evaluation through the Lawyers Helping Lawyers program, comply with all recommendations from these assessments, and file a final report from any treatment provider 13 months from the date of this opinion.

The Office of Disciplinary Counsel received complaints from 46 separate individuals regarding public statements respondent made on his Facebook page. ODC identified 12 troubling statements. We focus on two of them.

Respondent does not raise a First Amendment challenge to discipline, so we will not analyze the impact of the First Amendment.

On April 5, 2020, respondent posted an offense comment regarding tattoos, using foul language and targeting “females.”

On June 3, 2020, at the height of the racially-charged intensity following George Floyd’s murder, respondent posted, “Here’s how much that s***stain’s [referring to Floyd] life actually mattered: Stock futures up.

Markets move higher Monday and Tuesday. F*** you. Unfriend me.”

These comments are not expressive; they are expressly incendiary.

Both are statements by a lawyer on his social media account identifying him as such and listing the name of his law firm. The statement regarding Floyd in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer’s Oath, and constitutes grounds for discipline under Rule 7(a)(5) and (6), RLDE, Rule 413, SCACR. Definite suspension.

In re Traywick (Lawyers Weekly No. 010-034-21, 4 pp.) (Per curiam) John Nichols and Kelly Arnold for the Office of Disciplinary Counsel; Allyson Haynes Stuart and Nathan Crystal for respondent. S.C. S. Ct.

Civil Rights Public Records Act – No Private Right of Action – FOIA Even though the defendant-county’s failure to maintain its emails vi-

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ja nuary 3, 2022

olated the Public Records Act, there is no private right to enforce the PRA. Furthermore, a public body’s failure to retain public records is not a violation of the Freedom of Information Act. We affirm the circuit court’s ruling that there is no civil cause of action for violating the PRA. We reverse the circuit court’ ruling that defendant violated FOIA by failing to maintain public records.

Thanks to a computer crash and inadequate policies, the defendantcounty was unable to produce public records requested by plaintiff.

Plaintiff sought relief under the PRA and FOIA. The circuit court found there was no private case of action under the PRA, but found for plaintiff on her FOIA claim.

The PRA was not enacted for anyone’s particular benefit. There is a virtually unbroken string of precedents refusing to recognize implied rights of action in statutes that—like the PRA—describe the government’s basic structure and operation. We are not at liberty to add to the statutory law or subtract from it.

If a public body violates the requirement to implement a program for archiving and maintaining public records, it violates the PRA—not FOIA. These are separate statutory regimes, and the plain text of FOIA’s civil remedy instructs that it is not a tool for enforcing statutes that are not a part of FOIA. We highly doubt our holding will in any way encourage public bodies to violate the PRA. For one, doing so would expose the participating individuals to criminal liability.

See S.C. Code Ann. §§ 30-1-20, -50.

Concerns about increased sunlight in government, while undeniably legitimate, cannot overcome the statutory limitation that a private right of action under FOIA must be tied to enforcing FOIA. We will not recognize a civil right to enforce the PRA when the General Assembly did not include such a right in the South Carolina Code.

Affirmed in part; reversed in part.

Ballard v. Newberry County (Lawyers Weekly No. 011-001-20, 7 pp.) (Blake Hewitt, J.) Appealed from the Circuit Court in Newberry County (Thomas Russo, J.) Desa Ballard, pro se; Boyd Nicholson and Sarah Spruill for respondent/appellant. S.C. App.

Constitutional

naming of other monuments. The act also said it could be amended or repealed only by a supermajority of the General Assembly.

Supermajority Requirement

Respondents argue that petitioners’ challenge to the supermajority requirement is not ripe for judicial review because the General Assembly has not voted on any attempt to amend or repeal the Heritage Act since its enactment in 2000.

We disagree. The supermajority requirement has significant potential to dissuade members of the General Assembly from attempting to amend or repeal S.C. Code Ann. § 10-1-165. Petitioners’ challenge is ripe.

This court has not specifically addressed whether one legislature can restrict a future legislature’s authority to enact, amend or repeal legislation. However, in Manigault v. Springs, 199 U.S. 473 (1905), the U.S. Supreme Court addressed legislation which required a signed petition before the General Assembly could enact legislation providing for any private purpose.

The Supreme Court summarily rejected the argument that the 1885 General Assembly could restrict the plenary power of the 1903 General Assembly. Similarly, we hold the supermajority requirement is unconstitutional. Absent a constitutional provision to the contrary, the legislature acts and conducts business through majority vote.

Severability

We have no doubt that the supermajority requirement was an essential part of the compromise of the Heritage Act. However, members of the General Assembly and its legal counsel recognized the risk this court would hold the procedural supermajority requirement invalid upon a proper challenge. Recognizing this risk, the General Assembly included a clear and effective severability clause.

Thus, it is apparent that while the entirety of § 10-1-165 was essential to reach the compromise necessary to achieve the primary purpose of the Heritage Act—removal of the Confederate flag from the dome of the state house—the General Assembly intended that if the supermajority requirement were found invalid, then the rest of the act—including the section which removed the flag from the dome—would stand.

Renaming Prohibition Heritage Act – Supermajority Requirement – First Impression – Flag & Monument Removal Provisions Absent a constitutional provision to the contrary, the General Assembly acts and conducts business through majority vote. Therefore, the requirement of S.C. Code An. § 10-1-165(B)—that the Heritage Act could only be amended or repealed by a supermajority—is unconstitutional.

However, we uphold the constitutionality of the Heritage Act’s substantive provisions.

Section 10-1-165(B) is unconstitutional but severable from the constitutionally sound remainder of the Heritage Act. The Heritage Act of 2000 represented a compromise that allowed the Confederate battle flag to be removed from atop the state house but prohibited the removal or re-

Section 10-1-165(A) prohibits the removal or renaming of monuments or memorials, erected on public property, when those monuments or memorials relate to 10 specified military conflicts and two ethnic heritages: Native American and African-American.

Although S.C. Const. art. III, § 34(IX) prohibits much special legislation, when a classification created by a statute is a reasonable and rational way to further the goal of the statute, the classification does not mean the statute is unconstitutional special legislation.

Removal of the Confederate flag from the dome of the state house was one of the most important, and difficult, political achievements in the state’s history. The “pro-flag” legislators agreed to remove the flag, but in anticipation of further efforts to rename or remove other memorials, agreed to do so only

MOST IMPORTANT OPINIONS / 7 if those memorials would be protected. The “anti-flag” legislators agreed to such protection, but only in exchange for removal of the flag from the dome of the capitol. Thus, the inclusion of restrictions on future renaming and removal was essential, and reasonable, to achieve the compromise and primary purpose of the Heritage Act. We also find a rational and reasonable basis for the protection of the listed wars and ethnic groups.

The wars included are the principal wars in which South Carolinians had participated on behalf of the United States as of the year 2000.

The ethnic groups, African Americans and Native Americans, are the groups that have suffered most from discrimination and other mistreatment at the hands of the state, its businesses and its citizens. In a compromise centered on the removal of what many view as a symbol of racism, we hold the protection of monuments and memorials dedicated to these two heritages is reasonable.

Subsection 10-1-165(A) is not unconstitutional special legislation.

Nor does § 10-1-165(A) violate Home Rule. It does not apply to a specific county or geographic area; thus, it is a general law with respect to territorial classifications. Importantly, the subject matter of the legislation is not peculiar to any political subdivision.

Declaratory judgment issued.

Pinckney v. Peeler (Lawyers Weekly No. 010-059-21, 22 pp) (John Few, J.) Matthew Terry Richardson and Gerald Malloy for

petitioners; Kenneth Moffitt, John Potter Hazzard, James Keith Gilliam and Bradley Scott Wright for respondents; Alan McCrory Wilson, Robert Cook, Emery Smith and Robert Merting for amici curiae.

S.C. S. Ct.

Contract Venue – Forum Selection Clause – Permissive Language – Choice of Law In the parties’ employment contract, the forum selection clause provides, “The parties agree to the jurisdiction of the state and federal courts located in Harris County Texas, and waive any right available to a trial by jury.” Under Texas law, this language is permissive rather than mandatory because the language does not expressly provide for Texas to have exclusive jurisdiction.

We reverse the circuit court’s dismissal of this action on the ground that venue is improper. Remanded.

The appellant-employee argues that the contract’s choice of law provision will preempt application of the Payment of Wages Act, S.C. Code Ann. § 41-10-100, or the entirety of this action. We disagree.

The choice of law provision says, “Interpretation of this agreement shall be governed by and construed in accordance with the local, internal laws of the State of Texas, United States of America.” The plain language of this provision requires the application of Texas law to con-

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8 / MOST IMPORTANT OPINIONS tract interpretation only.

Howell v. Covalent Chemical, LLC (Lawyers Weekly No 011-08721, 7 pp.) (John Geathers, J.) Appealed from the Circuit Court in Greenville County (Letitia Verdin, J.) David Eliot Rothstein for appellant; Joseph Owen Smith for respondents. S.C. App.

Criminal Practice Due Process – Defendant’s Silence – No Miranda Warnings The state presented evidence that, because the arresting officers learned that defendant had outstanding warrants, they did not Mirandize him; therefore, the prosecutor could impeach defendant’s explanation of the kidnapping and robbery – the victim owed defendant money for drugs and only claimed he had been kidnapped and robbed so his girlfriend wouldn’t find out he had spent his paycheck on drugs – with defendant’s postarrest silence.

We affirm defendant’s convictions for armed robbery, kidnapping and possession of a weapon during the commission of a violent crime.

Under Doyle v. Ohio, 1 426 U.S. 610 (1976), and its progeny, the Due Process Clause prohibits the prosecution from commenting on an accused’s post-Miranda silence.

However, the state may point out a defendant’s silence prior to arrest or his silence after arrest but prior to the giving of the Miranda warnings in order to impeach the defendant’s testimony at trial. Additionally, our courts have found no due process violation from cross-examination on a defendant’s silence for impeachment purposes when the record was devoid of evidence that the defendant received Miranda warnings.

Although defendant testified that he was given Miranda warnings at the scene of his arrest, and although one responding officer was unable to say with certainty that no other officers ever talked to defendant at the scene, there was nevertheless evidence to support the trial court’s finding that defendant was not Mirandized. Defendant claimed a white, stocky bald male officer Mirandized him. However, the only officer matching that description denied giving Miranda warnings to defendant and said he did not hear anyone else do so. Thus, contrary evidence was submitted by defendant and the state as to whether defendant was read his Miranda rights at the scene.

We further disagree with defendant’s contention that the trial court committed legal error in allowing the state to impeach him with his pre-trial silence because there was evidence in the record that he was provided with Miranda warnings.

The question is not whether any evidence has been presented that a defendant received Miranda warnings when determining whether a Doyle violation has occurred. Rather, the question is whether the trial judge, who saw and heard testimony on the matter and is in a better position to judge credibility, has the authority to make a factual determination on whether Miranda warnings have been given for purposes of determining a Doyle violation issue when contrary evidence is presented, and the standard of review to be applied to the trial court’s determination in such a matter.

We are persuaded by the reasoning of Mattox v. State, 395 S.E.2d 288 (Ga. Ct. App. 1990), that the burden falls upon the defendant to show a Doyle violation.

Even assuming the burden shifted to the state to show Doyle was inapplicable once defendant proffered evidence that Miranda warnings were provided to him, we find no error. In this case, the issue boiled down to a factual determination.

As with other issues that arise during trial when determinations concerning competing evidence must be resolved by the trial court, this court should not reevaluate the facts based on our own view of the preponderance of the evidence but must simply determine whether the trial court’s ruling is supported by any evidence. As previously noted, there is evidence to support the trial court’s finding that defendant was not given Miranda warnings.

Because there is evidence to support the trial court’s finding that defendant was not given Miranda warnings at the scene as he claimed, the solicitor’s questioning concerning defendant’s post-arrest silence was permissible, and no due process violation occurred.

A detective testified that the victim appeared more fearful than the average victims. Defense counsel objected to the detective’s testimony solely on the basis of relevance.

Whether the victim’s story was believable was clearly relevant.

Whether the detective’s testimony was improper because it invaded the jury’s province or improperly vouched for the victim was neither raised to nor ruled upon by the trial court and, therefore, is not preserved for our review on appeal. Moreover, a responding police officer testified without objection that the victim and his girlfriend were cooperative and their credibility continued to be established throughout the investigation. Accordingly, any error in the admission of the detective’s testimony is harmless.

While the trial court was considering declaring a mistrial because of a juror’s physical discomfort, the jury returned a verdict. Defendant waived any possible error in the trial court’s failure to declare a mistrial by waiting until the verdict was announced to move for a mistrial based upon the juror’s situation.

Affirmed.

State v. Green (Lawyers Weekly No. 011-012-22, 20 pp.) (Thomas Huff, J.) (Stephanie McDonald, J., concurring in the result only without separate opinion) Appealed from the Circuit Court in Charleston County (Roger Couch, J.) Joanna Katherine Delany for appellant; Alan McCrory Wilson, William Frederick Schumacher and Scarlett Anne Wilson for respondent. S.C. App.

Criminal Practice Sentencing – Constitutional – Minor Defendant – Aiken Hearing Even though defendant’s youth was considered at his 2006 resentencing hearing, the degree to which youth was considered in this case could not satisfy the requirements of Miller v. Alabama, 567 U.S. 460 (2012), or Aiken v.

Byars, 410 S.C. 534, 765 S.E.2d 572 (2014), because the “constitutional meaning” afforded to youth and its attendant characteristics requires

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Janu ar y 3, 2022

a sentencing hearing tailored to those characteristics.

We reverse the circuit court’s order denying defendant’s request for an Aiken resentencing hearing, and we remand for further proceedings.

Background

At age 17, defendant committed a senseless murder. In 2004, he was sentenced to death.

In 2006, our Supreme Court vacated defendant’s death sentence pursuant to Roper v. Simmons, 543 U.S. 551 (2005). After a 2006 resentencing hearing, defendant was sentenced to life without the possibility of parole (LWOP).

Shortly after our Supreme Court’s decision in Aiken, defendant sought a second resentencing hearing. However, the circuit ruled that defendant’s 2006 resentencing hearing had sufficiently considered the factors related to his youth and therefore satisfied Aiken’s requirements.

Discussion

There is no question that defendant’s youth was considered at his 2006 resentencing hearing. Still, it was not possible for the court in 2006 to fully consider the factors identified in Miller and Aiken.

Those cases did not exist yet.

Aiken added new things for the sentencing court to consider. For example, although the sentencing court was free to consider the possibility of rehabilitation prior to Aiken, it did so without the analytical framework from Aiken. And nothing before Aiken put extra weight on the opposite side of the scale from LWOP—Aiken requires the sentencing court to consider how the differences between youth and adults counsel against an irrevocable lifetime sentence. Even if we pretended these differences did not exist, a sentencing hearing where youth is but one of many considerations is different than conducting a sentencing proceeding where youth is a special consideration and where specific factors related to youth are mandatory guideposts.

Finally, the degree to which youth was considered in this case could not satisfy the requirements of Miller or Aiken because the “constitutional meaning” afforded to youth and its attendant characteristics require a sentencing hearing tailored to those characteristics.

Reversed and remanded.

State v. Morgan (Lawyers Weekly No. 011-034-21, 8 pp.)

(Blake Hewitt, J.) Appealed from the Circuit Court in Spartanburg County (Edward Miller, J.) Lindsey Sterling Vann and Hannah Lyon Freedman for appellant; Alan McCrory Wilson, Donald Zelenka, Melody Jane Brown, Sherrie Butterbaugh, Michael Douglas Ross and Barry Joe Barnette for respondent. S.C. App.

Criminal Practice Drug Possession – Jury Instructions – Inference of Knowledge & Possession – Adams Overruled Although a jury may infer a defendant’s knowledge and possession when a controlled substance is found on property under his control, and although lawyers may argue such an inference to the jury, the trial court may not instruct the jury that a “defendant’s knowledge

and possession may be inferred when a substance is found on the property under the defendant’s control.”

We reverse defendant’s convictions of trafficking in heroin and simple possession of oxycodone, and we remand for a new trial. We affirm defendant’s conviction of distribution of heroin.

After a confidential informant bought heroin from defendant, law enforcement officers obtained and executed a search warrant for defendant’s home. There, they found heroin and oxycodone in containers on top of the home’s refrigerator.

Defendant challenges two of the jury instructions given at his trial.

Constructive Possession

First, defendant challenges part of the constructive possession charge: “Constructive possession means that the defendant had dominance and control or the right to exercise dominion and control over either the drugs itself or the property upon which the drugs were found.”

This instruction in isolation is problematic. The mere existence of evidence that a defendant had control over the property in question does not equate to a finding of constructive possession. It remains the burden of the state to convince the jury that the defendant had knowledge of the drugs and the intent to control their disposition or use.

However, we do not consider jury instructions in isolation, but as a whole. Immediately after the potentially problematic statement, the trial court instructed the jury that “mere presence at the scene where the drugs were found is not enough to prove possession.” When considered as a whole, the trial court’s definition of constructive possession adequately conveyed the elements of knowledge and intent to the jury.

Inference of Knowledge & Intent

Secondly, defendant argues the trial court erred when it instructed the jury, “The defendant’s knowledge and possession may be inferred when a substance is found on the property under the defendant’s control.” We agree.

In State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987), this court misinterpreted our prior precedent and directed trial courts to explain the inference of knowledge and possession to a jury. The challenged charge in this case was taken almost verbatim from Adams, in which we stated, “The proper charge on constructive possession is to instruct the jury that the defendant’s knowledge and possession may be inferred if the substance was found on premises under his control.” Adams’ reliance on State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981), and State v. Brown, 267 S.C. 311, 227 S.E.2d 674 (1976), was misplaced because neither case approves of the trial court explaining the inference of knowledge and possession to the jury.

The inference is a valid one for the jury to draw, and the trial attorneys may argue to the jury whether the inference should be drawn. The jury instruction explaining the inference, however, is improper.

We overrule Adams on that

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MOST IMPORTANT OPINIONS / 9

10 / MOST IMPORTANT OPINIONS point. The jury charge instructing a jury it may infer knowledge or possession when a substance is found on property under the defendant’s control should no longer be given.

Prejudice

The trial court’s definition of constructive possession—including the requirement the state prove knowledge and intent—was followed almost immediately with the opposite statement, permitting the jury to infer the defendant’s knowledge from the simple fact the drugs were on his property. To the extent the trial court earlier explained the knowledge and intent requirement, the inference of knowledge instruction negated that explanation. The improper explanation of the inference of knowledge and possession permitted the jury to find defendant guilty of simple possession and trafficking without the state proving knowledge and intent, a scenario not permitted under the legal principle of possession as we explained it in State v.

Ellis, 263 S.C. 12, 207 S.E.2d 408 (1974), Brown, State v. Lane, 271 S.C. 68, 245 S.E.2d 114 (1978), and Hudson.

We cannot say the error did not prejudice defendant as to the trafficking and simple possession charges. As to the distribution of heroin charge, however, we find the erroneous jury instructions could not have contributed to the verdict. Proof of distribution does not require separate proof of possession.

Affirmed in part; reversed and remanded for a new trial in part.

State v. Stewart (Lawyers Weekly No. 010-025-21, 9 pp.)

(John Few, J.) Appealed from the Circuit Court in Laurens County (Frank Addy, J.) On writ of certiorari to the Court of Appeals. Clarence Rauch Wise for petitioner; Alan McCrory Wilson, William Blitch and David Matthew Stumbo for respondent. S.C. S. Ct.

Criminal Practice Constitutional – SORA – Lifetime Registration – Due Process – Internet Publication Where the South Carolina Sex Offender Registry Act (SORA) requires any person who has been convicted of an enumerated crime to register as a sex offender, generally for life, but where SORA does not provide any judicial review for registrants to demonstrate their individual risk of recidivism and seek removal from the registry, SORA’s lifetime registration requirement cannot be deemed rationally related to the legislature’s stated purpose of protecting the public from those with a high risk of re-offending. SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending.

We modify and affirm the circuit court’s holding that SORA’s lifetime registration requirement violated respondent’s rights to due process and equal protection. We reserve the effective date of this opinion for 12 months to allow the General Assembly to correct the deficiency in the statute regarding judicial review. Nonetheless, because the circuit court has al-

ready held a hearing in this case and determined respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, appellants shall immediately remove respondent from the sex offender registry. We reverse the circuit court’s ruling that SORA does not permit publication of the sex offender registry on the internet.

Background

In 2009, respondent pleaded guilty to criminal solicitation of a minor after engaging in graphically sexual conversations in an internet chat room with someone he believed to be a 12-year-old girl, but who was actually an undercover police officer. Respondent was arrested when he drove by the place where he had arranged to meet the “girl.”

Respondent was required to register as a sex offender under SORA. Respondent filed a petition for a declaratory judgment, claiming (1) SORA does not permit publication of the state’s sex offender registry on the internet and (2) the lifetime duration of his sex offender registration violates his constitutional rights. A licensed professional counselor and a licensed psychologist have both determined that respondent has a low risk of recidivism. The circuit court ruled in favor of respondent on his claims.

Lifetime Registration

SORA requires any person who has been convicted of an enumerated crime, including criminal solicitation of a minor, to register as a sex offender. S.C. Code Ann. § 233-430(A), (C)(21). Subsection 23-3460(A) generally mandates that a person required to register as a sex offender must do so biannually for life.

SORA does not provide any judicial review for registrants to demonstrate their individual risk of recidivism and seek removal from the registry. The complete absence of judicial review under South Carolina’s legislative scheme is the most stringent in the country.

Although the initial mandatory imposition of sex offender registration bears a rational relationship to the General Assembly’s stated purpose of protecting the public from those with a high risk of reoffending, SORA’s lifetime registration requirement—without any opportunity for judicial review to assess the risk of re-offending—is arbitrary and cannot be deemed rationally related to the legislature’s stated purpose. The lifetime inclusion of individuals who have a low risk of re-offending renders the registry over-inclusive and dilutes its utility by creating an ever-growing list of registrants that is less effective at protecting the public and meeting the needs of law enforcement.

The registry fails to promote the state’s legitimate interest. We therefore hold SORA’s lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of re-offending.

We are confident in the General Assembly’s ability to fulfill our request to fashion the particulars of the hearing process. Nevertheless, we require the hearings at which sex offenders may demonstrate they no longer pose a risk sufficient to justify continued registration be conducted with reasonable prompt-

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ness and meet standards of fundamental fairness.

In this case, respondent was afforded a hearing, during which the circuit court assessed respondent’s risk of re-offending and determined he no longer poses a risk sufficient to justify his continued registration as a sex offender. As a result, the court ordered respondent’s removal from the sex offender registry. After more than ten years of registration, we find respondent was provided an opportunity for judicial review sufficient to satisfy due process.

We note, however, that the hearing afforded to respondent is by no means the only acceptable process.

Accordingly, we affirm the circuit court’s decision ordering appellants to immediately remove respondent from the sex offender registry.

Internet Publication

S.C. Code Ann. § 23-3-490 provides for public inspection of the sex offender registry by allowing the public to request and receive a list of all registered sex offenders in the state, a list of those in a particular geographic area, or information regarding a specific registrant.

Subsection (E) of the statute provides, “For purposes of this section, use of computerized or electronic transmission of data or other electronic means or similar means is permitted.” The parties dispute whether the language of subsection (E) allows appellants to publish the sex offender registry on an internet website.

The statutory language is ambiguous, so we review the legislative history. Amendments to SORA have broadened electronic dissemination of registry information to the public. We hold that § 23-3-490(E) permits the use of the internet to disseminate sex offender registration information to the public.

Affirmed as modified in part; reversed in part.

Powell v. Keel (Lawyers Weekly No. 010-029-21, 13 pp.) (Donald Beatty, C.J.) Appealed from the Circuit Court in Richland County (Thomas Cooper, J.) Adam Whitsett, Paul Thomas Ahearn, Alan McCrory Wilson and Harley Little-

ton Kirkland for appellants; Jonathan Edward Ozmint and Elise Freeman Crosby for respondent; Blake Terence Williams, Amber Modestine Steele Hendrick and Daniel Westbrook for amicus curiae. S.C. S. Ct.

Criminal Practice CSC with a Minor – Expert/Treating Therapist – No Bolstering – Abuse of Discretion Standard We review this case under an abuse of discretion standard. The fact that the minor complainant’s therapist testified first as an expert, laying out the characteristics of abuse, did not render her subsequent testimony as a treating therapist improper bolstering of the minor’s credibility.

We reverse our Court of Appeals’ opinion, which overturned defendant’s conviction for third-degree criminal sexual conduct with a minor.

Whether childhood trauma therapist Kristin Rich’s testimony constituted improper bolstering is a close question. As a result of the limitations the trial court placed on her testimony, Rich never testified she advised the minor complainant (Minor) about the importance of being truthful, never testified directly as to Minor’s truthfulness, and never opined Minor’s behavior indicated truthfulness. While Rich was allowed to confirm she treated Minor, she was not allowed to explain why she was treating Minor, detail her treatment of Minor, or testify as to her diagnosis of Minor. Rich only addressed the circumstances of Minor’s disclosure of abuse and a drawing Minor produced in therapy.

The Court of Appeals referenced the timing and manner in which Rich affirmed she treated Minor, noting Rich’s opinion testimony on the “various manifestations of child sexual abuse” was “followed immediately” by her response that she treated Minor, therefore implying Rich believed Minor’s allegations.

While we do not reject outright the notion that circumstances, such as

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timing and manner, could possibly contribute to improper bolstering, this court has typically focused on the content of the expert’s testimony. We see no reason to abandon our prior approach based upon the facts of this case. To suggest Rich’s simple affirmation that she provided therapy to Minor can constitute improper bolstering is a bridge too far.

The Court of Appeals’ holding on bolstering is too broad. The Court of Appeals concluded, “If Rich believed [Minor] had not been telling the truth, Rich would not have needed to treat her.”

In practical terms, the Court of Appeals’ ruling would require the exclusion of treating experts’ testimony in general—a result defendant acknowledged he is seeking but one he struggled to defend during oral argument. We have generally allowed the testimony of treating experts in this context.

Furthermore, the Court of Appeals erred in appearing to create a bright line rule where this court has refused to do so. While State v. Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015), cautioned the better practice is to use separate witnesses for general characteristics testimony and treatment testimony, it did not forbid the practice of calling a dual expert. The Court of Appeals appears to leave no room for the treat-

ing individual to do both.

The mere fact that Rich testified as a dual expert is not improper bolstering per se. Rich’s testimony served valid evidentiary purposes.

Rich’s testimony as Minor’s treating therapist was required to lay the foundation for introducing Minor’s graphic drawing into evidence. Minor’s drawing and her disclosure to Rich were the basis of the most serious charge against defendant—first-degree CSC with a minor. Therefore, Rich’s testimony served a purpose other than to vouch for Minor’s credibility.

The trial court’s limitations on Rich’s testimony achieved their purpose—her testimony contained no direct or indirect bolstering discernible to this court. We find no abuse of discretion in the trial court’s decisions to deny defendant’s motion for mistrial or to admit Rich’s limited testimony.

Using one witness as both a characteristics expert and the treatment witness is a risky undertaking. This issue might have been avoided completely had the state called a blind characteristics expert, a path the trial court repeatedly encouraged the state to follow.

Instead, the state chose to proceed with Rich acting as a dual expert.

While we rule in the state’s favor on these facts, this opinion should not be construed as a retreat from our

MOST IMPORTANT OPINIONS / 11 warning in Anderson.

Reversed.

State v. Makins (Lawyers Weekly No. 010-036-21, 10 pp.) (George James, J.) Appealed from the Circuit Court in Greenville County (Robin Stilwell, J.) On writ of certiorari to the Court of Appeals. Alan McCrory Wilson, David Spencer and William Wilkins for petitioner; Taylor Davis Gilliam for respondent. S.C. S. Ct.

Criminal Practice Evidence – Prior Bad Acts – Gang Affiliation – First Impression Although gang membership is generally irrelevant, in this case it was admissible to prove motive and intent. Defendant’s leadership of the Sumter chapter of the 135 Piru gang and his ordering of a random hit was probative, if not essential, to establish the reason why a gang member killed the victim and that he did so intentionally and maliciously.

We affirm defendant’s convictions of pointing and presenting a firearm, unlawfully carrying a pistol, criminal conspiracy and accessory before the fact of murder.

After members of another gang gathered at an apartment complex that the 135 Piru gang considered to be its territory, defendant or-

dered one of his gang members to knock on the door of Apartment 7 and shoot whomever answered the door (but not to shoot any females). If no one answered the door, the member was to proceed to Apartment 50 with the same instructions.

No one answered the door at Apartment 7. At Apartment 50, a woman answered the door but the gang member shot and killed her boyfriend, who was sitting at a desk just inside the door.

No previous South Carolina case has squarely addressed whether evidence of a defendant’s gang affiliation is admissible in a criminal trial.

Evidence of a person’s “other crimes, wrongs, or acts” is generally inadmissible “to prove the character of a person in order to show action in conformity therewith.”

Rule 404(b), SCRE. Such “prior bad act” evidence is inadmissible unless its proponent can demonstrate it has a legitimate purpose, i.e., the evidence does something more than prove a person has a propensity to commit crimes. Rule 404(b), SCRE, recognizes only five legitimate purposes for prior bad act evidence: to prove “motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.”

Proof that a defendant was a

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12 / MOST IMPORTANT OPINIONS member of a gang, without more, generally proves nothing of consequence at a criminal trial and may even implicate First Amendment rights.

In this case, however, evidence of 135 Piru’s structure, defendant’s command and 135 Piru’s rivalry with Folk Nation was essential to explain the motive and intent behind the otherwise senseless shooting of the innocent victim. Much of the gang evidence admitted demonstrated defendant’s iron grip on his gang underlings, enforced by physical intimidation, and how gang members Brandon, Bradley, and Stamps were beholden to him and 135 Piru.

The trial court was well within its discretion in finding this evidence was logically relevant to prove criminal conspiracy and accessory before the fact of murder.

The evidence of defendant’s leadership of Sumter 135 Piru and his ordering of the random hit was probative—if not essential—to establish the reason why Brandon killed the victim and that he did so intentionally and maliciously.

While motive is not an element of any of the crimes defendant was charged with, the gang evidence was probative to the conspiracy and accessory charges, both of which invite proof of planning and agreement. This evidence therefore cleared, with room to spare, the requirement of State v. Perry, 430 S.C. 24, 842 S.E.2d 654 (2020), that prior bad act proof serve some purpose other than parading defendant’s propensity for criminal conduct.

We caution that cases where prior bad act evidence of gang affiliation may be admitted to prove “motive” or “identity” will be uncommon, and these terms are not magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in their names.

The trial court’s admission of defendant’s gang affiliation was not unduly prejudicial under Rule 403, SCRE. However, the state came close to overplaying its hand with cumulative evidence and certain explosive facts about other gang members and about defendant’s past.

To sum up, we hold the trial court did not abuse its discretion in admitting the gang evidence as it was logically relevant to show motive and identity as authorized

by Rule 404(b) and not unduly prejudicial within the meaning of Rule 403. We emphasize that even when gang evidence passes the Rule 404 and Rule 403 tests, trial courts must be vigilant in limiting its scope to the essential. In appropriate cases and upon appropriate request, a trial court may need to address the gang evidence issue in voir dire; control its presentation with measures authorized by Rule 611, SCRE; and deliver limiting instructions consistent with Rule 105, SCRE, that tell the jury the purpose for which they may use the gang-related evidence and for what purposes they may not.

Affirmed.

Johnson v. State (Lawyers Weekly No. 011-043-21, 8 pp.)

(Garrison Hill, J.) Appealed from the Circuit Court in Sumter County (William Seals, J.) David Alexander for petitioner; Alan Wilson and Megan Harrigan Jameson for

respondent. S.C. App.

Criminal Practice Attempted Murder – Transferred Intent Doctrine – Specific Intent Crime The offense of attempted murder requires a specific intent to commit murder. In this case, the state failed to present any evidence that defendant had the specific intent to kill anyone, so the circuit court erroneously applied the doctrine of transferred intent.

We reverse defendant’s conviction for attempted murder. We reverse and remand defendant’s conviction for possession of a weapon during the commission of a violent crime.

The state argued that, in an attempt to kill Malik Myers, defendant shot at Myers and also shot minor Ashley R. The jury acquitted defendant of attempting to kill Myers but convicted him of attempting to kill Ashley R. In State v. King, 422 S.C. 47, 810 S.E.2d 18 (2017), our Supreme Court affirmed this court’s opinion that “the Legislature intended to require the State to prove specific intent to commit murder as an element of attempted murder.”

Considering recent decisions concerning attempted murder and the doctrine of transferred intent, along with defendant’s acquittal of the attempted murder of Myers, we find the doctrine of transferred intent inapplicable in the context of the current indictment charging defendant with the attempt “to kill another person, Ashley R., with malice aforethought, either express or implied, by firing a gun numerous times at Malik Raekwon Myers, and striking Ashley R. with a bullet in her thigh.” While it is undisputed that defendant was armed and fired his weapon in a nightclub parking lot, we cannot reconcile the jury’s acquittal of defendant on the attempted murder charge for the shooting of Myers with its guilty verdict for an attempted murder of Ashley R. The language of the indictment and the state’s contention that it was “proceeding under transferred intent and we do believe that [defendant] was firing his gun with malice and the bullet struck Ashley R.” are incongruous with such a result. At oral argument, the state reiterated it was proceeding under the doctrine of transferred intent and admitted defendant did not possess a specific attempt to kill Ashley R. with malice aforethought. This was a reasonable position in light of our case law at the time of trial; however, we do not understand how the specific intent for an attempted murder for which defendant was acquitted (shooting at Myers) could be transferred for purposes of establishing a specific intent to kill Ashley R.—even if the doctrine of transferred intent were applicable to South Carolina’s codification of attempted murder, a specific-intent crime.

Reversed in part; reversed and remanded in part.

Dissent

(Huff, J.): First, and most importantly, whether the doctrine of transferred intent was properly applied in this attempted murder case was never an issue raised to the

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trial court, and was certainly not a basis of defendant’s motions for directed verdict before the trial court.

Accordingly, this argument is not preserved for our review.

The only preserved issue is whether the state presented sufficient evidence that defendant shot Ashley R. Because, viewing the evidence in a light most favorable to the state, I find the trial court properly submitted this case to the jury and denied defendant’s directed verdict motions, the inquiry should end here.

Even if there were no error preservation problem, based upon the evidence presented at trial, as well as the argument of defense counsel, the jury could have concluded that defendant fired the bullet that struck Ashley R. but that a third person fired the bullet that struck Myers.

Finally, I disagree with the majority’s conclusion that—based upon our Supreme Court’s recent pronouncements in this area of law—the doctrine of transferred intent is inapplicable in this attempted murder case. Undoubtedly, State v. King, 422 S.C. 47, 810 S.E.2d 18 (2017), provides the crime of attempted murder is a specific-intent crime which requires proof of specific intent to commit murder. However, what remains to be resolved by our Supreme Court is whether the doctrine of transferred intent applies to attempted murder. This court, however, has twice addressed the issue, and on both occasions has answered the question in the affirmative.

Although I do not believe we should reach the issue, I can discern nothing in our case law or in the majority’s analysis as to why transferred intent should not apply in this case.

State v. Williams (Lawyers Weekly No. 011-050-21, 28 pp.)

(Stephanie McDonald, J.) (Thomas Huff, J., dissenting) Appealed from the Circuit Court in Sumter County (Howard King, J.) Robert Michael Dudek for appellant; Alan McCrory Wilson, William Frederick Schumacher and Ernest Adolphus Finney for respondent. S.C. App.

Criminal Practice SVP Commitment – Competency Evaluation – No Statutory Right – First Impression The Sexually Violent Predator Act includes numerous safeguards to ensure an individual’s constitutional right to procedural due process; however, a competency hearing is not one of those safeguards.

The trial court did not err in denying appellant’s motion for a competency evaluation prior to his sexually violent predator (SVP) commitment proceeding. We affirm appellant’s commitment.

In 1999, appellant pled guilty but mentally ill to assault with intent to commit criminal sexual conduct with a minor in the second degree. He was sentenced to 20 years’ imprisonment.

Prior to his release, the state filed a petition for appellant’s civil commitment to the Department of Mental Health pursuant to the Sexually Violent Predator Act (the Act).

Prior to trial, appellant moved for a competency evaluation. The trial court denied the motion, finding the Act does not require a prisoner to be competent for SVP proceedings.

The jury found beyond a reasonable doubt that appellant posed a danger to society, and the trial court filed an order of commitment.

Our appellate courts have not yet addressed the issue raised by appellant: does a potential SVP’s right to counsel naturally encompass the right to be competent to assist counsel in his or her defense during the civil commitment trial? We find it does not.

In construing the Act in its entirety, we can find no statutory requirement of competence for proceedings arising under the Act. Rather, it appears the General Assembly contemplated the likelihood of a potential SVP to be incompetent to adequately assist in his or her own defense. This is apparent from the numerous safeguards the Legislature included to ensure an individual’s constitutional right to procedural due process is not violated, such as the opportunity for appointed counsel, the requisite probable cause hearing, the appointment of qualified experts for psychological examinations, the right to a jury trial in which a unanimous verdict is required, the imposition on the state of the highest burden of proof of beyond a reasonable doubt, the ability to appeal, the ability to petition for release, annual examinations, etc.

Such protections satisfy the requirements of procedural due process. Thus, a prisoner need not be competent to stand trial under the Act. Affirmed.

In re Griffin (Lawyers Weekly No. 011-054-21, 4 pp.) (Bruce Williams, J.) Appealed from the Circuit Court in Horry County (William Seals & Craig Brown, JJ.) Joanna Katherine Delany for appellant; Alan McCrory Wilson and Deborah Shupe for respondent. S.C. App.

Criminal Practice Constitutional – Vagueness Challenge – Public Corruption – Clear Application Where the defendant-sheriff hired a 22-year-old assistant at a salary more than double that of an entrylevel deputy, provided her with perks unrelated to her job responsibilities, and threatened “changes” when she declined to continue a sexual relationship, our public corruption statute, S.C. Code Ann. § 8-1-80, clearly applies to his conduct.

We affirm defendant’s conviction for misconduct in office.

Section 8-1-80 provides for the criminal liability of any public officer who is guilty of official misconduct, habitual negligence, habitual drunkenness, corruption, fraud, or oppression and authorizes the imposition of a fine of up to $1,000 and imprisonment of no more than one year, exactly as it did when enacted in 1829.

Section 8-1-80 contains terms with settled legal meanings, and the statute clearly applies to the conduct at issue here. The state theorized that defendant hired Savannah Nabors at an excessive salary and groomed her in order to pursue an affair.

The linchpin of the state’s case was that defendant used the public fisc to curry sexual favors with Nabors and then threatened consequences when his advances were rejected. To prove this, the state relied on defendant’s own recorded words, where, upon learning Nabors would not continue a sexual relationship with him, he

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replied: “I mean we’ll have to make some changes.”

Defendant’s argument concerning other, innocuous conduct which could come within the sweep of the statute is unavailing where the conduct here clearly falls within that prohibited by section 8-1-80.

We also reject defendant’s argument that the trial court should have quashed the indictment against him.

The indictment identified defendant as the sheriff, listed the timeframe (“from the day he took office through April 24, 2017”), and narrowed the allegations (“misuse [of] public resources and abuse [of] the power and authority of his office for the corrupt purpose of pursuing or facilitating an adulterous relationship”).

While defendant argues any set of facts could qualify as the “misuse of public resources,” this term was connected to those impermissible acts that served the “corrupt purpose” of advancing his illicit affair with an employee.

The state was not required to go so far as to list the specific theory as to how defendant committed statutory misconduct. It is clear from the record that defendant was not surprised and certainly not ambushed at trial by the allegations against him. Additionally, even if the indictment was questionable, further specificity was available by reviewing the discovery materials. Accordingly, the trial court did not err in declining to quash the indictment.

Affirmed.

Concurrence

(Few, J.): The majority applies the rule of procedural default to avoid addressing defendant’s argument regarding the trial court’s failure to properly instruct the jury on fraud.

The rule of procedural default has never been applied in a criminal case in this state, and this is not the time to start.

In his summation, the solicitor argued defendant was guilty of “fraud in that he has this money that’s given to him for one purpose and then he’s using it for another, not wanting to tell anybody about it.” These arguments correctly paint defendant as a fraud, in the term’s colloquial sense, but they do not satisfy the legal definition of criminal fraud.

If the trial court had defined fraud for the jury, in my opinion, the jury could not have convicted defendant of misconduct in office on the basis of the state’s fraud argument.

What the state argues here might be breach of trust, but it is not fraud.

To prove fraud under a proper legal definition, the state was required to prove numerous additional facts, such as that defendant made a false representation to get the money, the county relied on the falsity in giving him the money, and defendant did it all with criminal intent.

Nevertheless, even prejudicial error is not reversible, however, if it is harmless beyond a reasonable doubt. In other sections of his closing argument, the solicitor laid out the state’s case in compelling terms without relying on his argument that defendant committed fraud.

The irrefutable facts that defendant hired the inexperienced Nabors at an absurdly high salary, showered her with perks and favors that bore no relationship to her workrelated responsibilities (particularly a new Ford Explorer with “police package”), aggressively used those undeserved benefits to pressure her into a sexual relationship, openly

threatened to withdraw the benefits if she did not give in to his sexual advances, and did all this at the expense of taxpayers, leaves no doubt whatsoever defendant is guilty of misconduct in office.

State v. Lewis (Lawyers Weekly No. 010-048-21, 18 pp.) (Kaye Hearn, J.) (John Few, J., concurring in result) Appealed from the Circuit Court in Greenville County (Thomas Cooper, J.) Clarence Rauch Wise for appellant; Alan McCrory Wilson, Mark Reynolds Farthing and Kevin Scott Brackett for respondent. S.C. S. Ct.

Criminal Practice Attempted Murder – Intent to Kill – Inference of Malice – Discarded Newborn Where defendant hid her pregnancy from her husband, did not seek prenatal care, gave birth in secret, and then placed her newborn in a trash bag and left it in a dumpster, the trial court properly instructed the jury that it could infer malice from defendant’s actions.

We affirm defendant’s conviction for attempted murder.

In 2010, the General Assembly abolished assault and battery with intent to kill and replaced it with the crime of attempted murder: “A person who, with intent to kill, attempts to kill another person with malice aforethought, either express or implied, commits the offense of attempted murder.” S.C. Code Ann. § 16-3-29.

In a footnote in State v. King, 422 S.C. 47, 810 S.E.2d 18 (2017), our Supreme Court suggested that the General Assembly re-evaluate the language of § 16-3-29 because “the inclusion of the word ‘implied’ in section 16-3-29 is arguably inconsistent with a specific-intent crime.”

Defendant argues this language makes implied malice out of bounds in an attempted murder case. We disagree.

When our Supreme Court spoke of implied malice in King, it was speaking of malice implied by operation of law, not of the jury’s ability to infer malice based on its view of certain facts. Nothing in our caselaw prevents a jury from being charged that it can look at a defendant’s actions and infer from those actions that the defendant “in fact” had the specific intent to kill. Abundant authorities support using inferences to find specific intent.

Here, the jury charge repeatedly emphasized that the jury could not convict defendant without finding she specifically intended to kill the child.

To be fair, the first section of the general malice charge included language common in malice charges that malice includes intentionally doing a wrongful act without just cause or excuse, with an intent to inflict an injury, or “under circumstances that the law will infer an evil intent.” Even so, there were no charges regarding the circumstances under which the law may imply malice. This was the only reference to malice implied by operation of law.

The judge gave the jury multiple instructions that it could not find defendant guilty unless it found she intended to kill the child. Thus, when taken in its entirety, the charge was correct.

Affirmed.

MOST IMPORTANT OPINIONS / 13 State v. Taylor (Lawyers Weekly No. 011-070-21, 6 pp.) (Blake Hewitt, J.) Appealed from the Circuit Court in Horry County (Robert Hood, J.) John Blume and Emily Paavola for appellant; Alan McCrory Wilson, Mark Reynolds Farthing and Jimmy Richardson for respondent. S.C. App.

Criminal Practice Constitutional – Confession – Voluntariness – First Impression After law enforcement agents informed defendant of his Miranda rights and obtained his waiver of those rights, the agents told defendant that anything he said would be confidential. Although interrogating officers may sometimes make false representations concerning the facts surrounding the crime without rendering an ensuing confession coerced, they cannot make false promises, whether direct or implied, that induce a confession from the individual.

The trial court abused its discretion when it admitted defendant’s confession into evidence. We reverse defendant’s convictions for arson and conspiracy, and we remand for a new trial.

Background

A 12-year-old boy died in a fire.

The state’s theory of the case was that the child’s mother (1) rented a mobile home; (2) obtained renter’s insurance to cover the home’s contents; (3) paid defendant and James Miller to burn the home; and (4) moved herself, her children and her belongings out of the home; and that her 12-year-old son returned to the home after a birthday party and was present when defendant and Miller set fire to the home.

Defendant’s confession, which he contends was involuntarily given, was a significant component of the state’s evidence.

Voluntariness

Both parties agree that the voluntariness of a statement, following law enforcement assurance of the statement’s confidentiality, has not been addressed in South Carolina.

We conclude that, if a defendant receives Miranda warnings and it is thereafter conveyed to him during the interview that his statement, whether in whole or in part, would not be used against him and/ or is being obtained for some other purpose, such may render the statement inadmissible.

Here, Sled Agent Scott Hardee assured defendant— before any inculpatory statement made by defendant—“Whatever you tell me, it ain’t gonna leave this room. This, um, tape is going into my file … And we’ll have a copy of this tape. And it ain’t gonna go any further than this room. That’s why we got the door shut, the blinds pulled, there’s no sound device in here.”

The clear thrust of this statement by Agent Hardee was that defendant was being told his statement was not going to be told to others to be used against him but was recorded simply for their own files.

The agent indisputably conveyed to defendant that his statement would not be used against him, and the focus of attention was not on defendant but was on another—the mother. Further, at no point during

the interview did the officers here communicate that this promise to defendant was no longer effective.

Though interrogating officers may sometimes make false representations concerning the facts surrounding the crime without rendering an ensuing confession coerced, they cannot make false promises, whether direct or implied, that induce a confession from the individual.

Further, even if Agent Hardee’s assurance of the confidentiality of defendant’s statement, on its own, is not sufficient to render defendant’s statement involuntary, various other factors unquestionably pushed his statement over the line into one in which defendant’s will was overborne. The officers repeatedly informed defendant that they would speak to the solicitor on his behalf.

We acknowledge that the officers’ assurances that they would speak on defendant’s behalf are not, alone, sufficient to constitute promises of leniency that induced defendant’s statement. Nevertheless, the officers conveyed this to defendant in conjunction with various coercive tactics.

In particular, the officers pushed for the information they sought while simultaneously indicating to defendant the following: they sought the information for the purpose of prosecuting the mother; they did not care who started the fire; they were there to help defendant; and no matter what he told them, defendant was going to get to go home after the interview.

They also made a promise to speak up for defendant while threatening defendant that if he did not give them the information they sought, they would go after defendant and “put [him] there” with the mother. They informed defendant that, while they wanted the mother to serve 34 years for the crime, if it was not her, it would be someone else—implicitly defendant—and suggested at his current age and health condition, defendant was “not built” for such a prison sentence and would not survive it.

We acknowledge the evidence does not disclose defendant’s IQ or the degree of any intellectual impairment. Nonetheless, there is evidence that defendant suffered from a mental deficiency as evidenced by (1) his low level of education and the fact that while in school he was enrolled in special education classes and (2) his physical health issues that may have additionally impaired his cognitive abilities.

We find defendant’s statement to be the product of (1) promises that no matter what he told them, he would be allowed to go home; (2) consistent assurances that he was not the person officers sought to hold culpable of the crime; (3) suggestions that if they did not get information from him implicating the mother, they would come after him; (4) threats that defendant could go to jail for 34 years and, given his age and poor health, he likely would never come home from incarceration; (5) promises to “speak up” for defendant and “talk” for him if he gave them the information they wanted; and (6) most importantly, assurances that whatever defendant told them would not leave that room. Further, we note, while defendant may not suffer from an “intellectual disability”—as defined in our statutes—it is undisputed that

14 / MOST IMPORTANT OPINIONS he does suffer from an intellectual deficit or impairment.

Our review of the record demonstrates the officers’ coercive and deceptive tactics during the interview caused defendant’s will to be overborne, inducing him to make the inculpatory statement.

Based upon the record before us, we come to the inescapable conclusion that defendant’s confession can fairly be characterized only as involuntary.

Reversed and remanded.

State v. Collins (Lawyers Weekly No. 011-078-21, 18 pp.) (Thomas Huff, J.) Appealed from the Circuit Court in Georgetown County (Larry Hyman, J.) Brandon Gaskins and Robert Michael Dudek for appellant; Alan McCrory Wilson, Jonathan Scott Matthews and Jimmy Richardson for respondent. S.C. App.

to raise a reasonable doubt regarding his guilt had he also presented evidence of an alibi.

Had even one of petitioner’s alibi witnesses testified, there is a reasonable probability the result at trial would have been different.

Reversed and remanded.

Weldon v. State (Lawyers Weekly No. 011-085-21, 13 pp.)

(Stephanie McDonald, J.) Appealed from the Circuit Court in Clarendon County (Jocelyn Newman, J.) Taylor Davis Gilliam for petitioner; Alan McCrory Wilson, Megan Harrigan Jameson and Brianna Lynn Schill for respondent.

S.C. App.

Criminal Practice

Our Alternative Dispute Resolution Rules contemplate both mediation and arbitration of family court matters, but the drafters of Rule 4(d), SCADR, expressly included arbitration of property and alimony but only addressed custody and visitation in the context of early mediation. It can be fairly inferred that the rule does not permit binding arbitration of children’s issues.

To the extent that the Court of Appeals’ opinion in this case suggests our ADR rules do not prohibit arbitration of children’s issues, we modify that portion accordingly. As modified, we affirm the Court of Appeals’ decision vacating the arbitration award, which grants custody to the plaintiff-Father, and the underlying orders approving the parties’ right to arbitrate issues involving their children. Custody will remain with Father until otherwise ordered by the family court.

The jurisprudence of this state has also consistently recognized the authority of the family courts over issues regarding children.

Moreover, apart from the ADR rules and our case law, children’s fundamental constitutional rights are at stake here. As the Court of Appeals so aptly stated, “Longstanding tradition of this state places the responsibility of protecting a child’s fundamental rights on the court system.”

We agree with the Court of Appeals that the family court cannot delegate its authority to determine the best interests of the children based on the parens patriae doctrine. Parents may not attempt to circumvent children’s rights to the protection of the state by agreeing to binding arbitration with no right of judicial review. This has never been the law in South Carolina, and our decision today unequivocally holds arbitration of children’s issues is not permitted.

Affirmed as modified.

Singh v. Singh (Lawyers Weekly No. 010-054-21, 8 pp.) (Kaye Hearn, J.) Appealed from the Family Court in Charleston County (Gordon Jenkinson, Judy McMahon, Jocelyn Cate, Jack Landis & Daniel Martin, JJ.) Robert Rosen, Sheila McNair Robinson and Katherine Carruth Goode for petitioner; Grady Query, Michael Sautter, Michael Holland Ellis and Alexander Woods Tesoriero for respondent. S.C. S. Ct.

PCR – Alibi Witnesses – DNA Match Where petitioner’s trial counsel testified repeatedly that he did not know why he chose not to call petitioner’s alibi witnesses, we see no support in the record for the post-conviction relief court’s finding that, because trial counsel “articulated, both at the PCR hearing and at the time of trial, a strategic reason for choosing not to call alibi witnesses, [i.e., having the final closing argument], his performance cannot be found ineffective.”

We reverse the PCR court’s finding that petitioner received effective assistance of counsel, and we remand for a new trial.

The victim was attacked between 6:00 and 6:30 a.m. on May 15, 2010. While there are minor discrepancies among the alibi witnesses’ testimonies regarding exactly what time petitioner woke up on May 15 and whether his mother worked the night of May 14, these discrepancies did not involve credibility issues, nor were they necessarily contradictory. Petitioner’s sister’s testimony could have provided petitioner with an alibi because she testified that she saw him at their Sumter home around 5:00 a.m., he was at the house between 6:00 a.m. and 7:00 a.m., and she did not see him leave his room until 9:00 a.m. when he let his cats outside. Thus, we can conceive of no valid trial strategy supporting trial counsel’s failure to call at least one of the alibi witnesses.

The state presented evidence that petitioner’s DNA was found on one of the pieces of duct tape that the attackers used to bind the victim. This does not constitute “overwhelming evidence” such that it precludes a finding of prejudice.

Other than his possible acquaintance with the victim (about a year and a half before the attack, both men worked in a vocational rehabilitation wood shop for three days), the DNA match from the duct tape was the only evidence presented at trial linking petitioner to the crime, and there could be other reasonable explanations for its presence. Petitioner was not a person of interest in the investigation until the DNA hit. Petitioner challenged the strength of the DNA evidence, and the testimony he elicited from the state’s forensic scientist may have been sufficient

Domestic Relations Arbitration – Parent & Child – Custody & Visitation – ADR Rules

Domestic Relations Common-Law Marriage – Same-Sex Couple – Pre-Obergefell Separation Obergefell v. Hodges, 576 U.S.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Janu ar y 3, 2022

644 (2015), requires that we treat S.C. Code Ann. § 20-1-15, which prohibited same-sex marriage, as though the statute never existed.

We vacate our Court of Appeals’ ruling that § 20-1-15 constituted a basis for finding that the parties did not establish a common-law marriage. However, we affirm in result the Court of Appeals’ decision, which also held that the parties lacked the requisite intent and mutual agreement to enter a legally binding common-law marriage as a matter of law.

Swicegood v. Thompson (Lawyers Weekly No. 010-066-21, 2 pp.)

(Per curiam) Appealed from the Family Court in Greenville County (Marsh Robertson, J.) On writ of certiorari to the Court of Appeals.

John Reckenbeil and Falkner Wilkes for petitioner; Margaret Chamberlain and Melissa Hope Moore for respondent. S.C. S. Ct.

to limit or reduce the coverage afforded by the provisions required by this section is void.”

S.C. Code Ann. § 38-77-142(A) and (B) provide required provisions for liability insurance policies, and once the insurer places the required provisions in the policy with the agreed-upon limits of coverage, any attempt by the insurer to reduce the coverage afforded by the provisions is void pursuant to subsection (C).

We have previously rejected the argument that S.C. Code Ann. § 56-9-20(5)(d) allows limitations on excess coverage so as to render § 38-77-142(C) inapplicable. Section 38-77-142(C) makes no distinction between mandatory minimum limits and excess coverage. Significantly, the General Assembly has not amended § 38-77-142 since this court decided Williams in 2014.

Reversed.

Insurance

(Kittredge, J.): I would affirm the Court of Appeals, which correctly held that the step-down provision violates neither our state’s statutes nor its public policy.

Williams acknowledged the general rule that insurers have the right to limit their liability and to impose conditions on their obligations provided they are not in contravention of public policy or some statutory inhibition.

The key language in § 38-77142(C)—any provision that purports “to limit or reduce the coverage afforded by the provisions required by this section is void”—addresses the mandatory requirement of minimum coverage. Beyond the required mandatory coverage, when addressing voluntary coverages and policy provisions, I would not void policy provisions based on a misguided and myopic view of § 38-77-142.

Nationwide Mutual Fire Insurance Co. v. Walls (Lawyers Weekly No. 010-007-21, 18 pp.)

(Kaye Hearn, J.) (John Kittredge, J., joined by George James, J., dissenting) Appealed from the Circuit Court in Anderson County (Cordell Maddox, J.) Michael Mullinax and John Kirkman Moorhead for petitioners; John Robert Murphy and Wesley Brian Sawyer for respondent; Roy Willey, Eric Poulin, Frank Eppes, Bert Utsey and Joe Brewer for amici curiae. S.C. S. Ct.

Auto – Step-Down Provision – Fleeing Police S.C. Code Ann. § 38-77-142(C), as interpreted in Williams v. Government Employees Insurance Co., 409 S.C. 586, 762 S.E.2d 705 (2014), prohibits any step-down provisions in an auto liability policy’s coverage, including a provision, like the one at issue, that reduces coverage for damages caused by committing a felony or fleeing police.

We overturn the Court of Appeals’ reversal of the circuit court’s ruling that the step-down provision was void.

Facts

In this declaratory judgment action, plaintiff provided auto insurance to defendant Sharmin Walls with limits of $100,000 per person and $300,000 per occurrence. A step-down provision in the policy said only the statutory minimum coverage would apply to damages caused by anyone operating the insured’s vehicle “(1) while committing a felony; or (2) while fleeing a law enforcement officer.”

Korey Mayfield drove Walls’ insured vehicle with Walls and two others as passengers. Because Mayfield was speeding and swerved over the center line, a state trooper activated his blue lights.

Despite the pleas of the passengers, Mayfield refused to pull over; instead, he led the trooper on a high-speed chase. After the trooper terminated the pursuit, Mayfield continued speeding and lost control of the vehicle. One of the passengers died in the single-car accident; Mayfield and the remaining passengers were seriously injured.

Mayfield was charged with reckless homicide and entered an Alford plea.

Plaintiff relied on its step-down provision to pay the passengers only the statutory minimum of $50,000.

The circuit court found the stepdown provision void, and the Court of Appeals reversed.

Discussion

Section 38-77-142(C), as interpreted by this court in Williams, prohibits any step-down provisions in a liability policy’s coverage. The subsection states, “Any endorsement, provision, or rider attached to or included in any policy of insurance which purports or seeks

Dissent

Insurance Homeowners – ‘Actual Cash Value’ – Depreciation – ‘Embedded Labor Components’ – Certified Question A federal court asks, “When a homeowner’s insurance policy does not define the term ‘actual cash value,’ may an insurer depreciate the cost of labor in determining the ‘actual cash value’ of a covered loss when the estimated cost to repair or replace the damaged property includes both materials and embedded labor components?” Our answer, referring to embedded labor components, is “yes.”

Because the plaintiff-insureds elected not to immediately repair or replace parts of their homes that were damaged, their homeowners’ insurance policies entitled them to payment of actual cash value (ACV) rather than replacement cost value (RCV). As far as we can tell, plaintiffs’ policies do not require the insurer to use a specific method for calculating its settlement offer.

S O U T H C A R O L I N A L A W Y E R S W E E K LY I Ja nuary 3, 2022

One well-established method for estimating ACV involves estimating the RCV of the damage and then subtracting depreciation. To calculate ACV in these two consolidated cases, the insurer chose to use this method. According to plaintiffs, the insurer “did not and has not calculated any portion of Plaintiffs’ losses by appraisal or fair market value.”

RCV is simply the amount of money it would take to pay a contractor to repair or replace the damaged structure, including cost for materials and labor. ACV is what the structure was worth at the time it was damaged.

There is normally no market for aged and partially deteriorated portions of homes. Thus, the ACV of damage to a portion of a home, in most instances, is a fiction, and it is not possible to precisely ascertain ACV. In the context of insurance, “depreciation” is the amount an item has lessened in value since it was purchased, taking into account age, wear and tear, market conditions, and obsolescence. Therefore, to calculate ACV, one would ascertain the original value of the damaged property, probably using the actual cost incurred to build or purchase it, and then estimate the extent to which the original value has declined over the years. It may be necessary to account for inflation, demand, or any other variable that has affected value. With these definitions of depreciation, the starting point for the calculation of ACV is the original value of the structure.

That, however, is not what the insurer did to calculate ACV in these cases. Rather, the insurer began by estimating the RCV of the damaged property, and from that number it subtracted a separate estimate of lost value, which the insurer calls “depreciation.” There is no indication in the limited materials before us exactly how the insurer goes about determining the appropriate amount for depreciation. It is clear only that the insurer calculated depreciation for both materials and labor, and subtracted both those amounts from RCV to determine what it would offer for ACV. Plaintiffs agree that starting with RCV and subtracting depreciation is a proper method and do not challenge the specific amount of depreciation the insurer attributed to labor.

Their only disagreement is whether it was proper for the insurer to include labor costs in the depreciation calculation.

The district court drafted the certified question with reference only to “embedded labor components.”

The term “embedded” in this sense means that the labor costs are no longer separable from the cost of materials. For instance, the nails that go into a home repair required the nail manufacturer to pay for both labor and materials. However, once the nails are sold, there is no differentiation between the cost of materials and the cost of the labor used to make them.

When the labor cost associated with an item of property is embedded, the value of the item is necessarily calculated as to the unit, not as to the individual parts. Nobody bargains for the purchase of nails by separating out how much the nail manufacturer spent on labor, as opposed to materials.

The same may be said for repairs.

When a typical homeowner replaces a roof, she pays for the roof as one

unit.

The fact the labor cost is embedded makes it impractical, if not impossible, to include depreciation for materials and not for labor to determine ACV of the damaged property.

Rather, the value of the damaged property is reasonably calculated as a unit. Therefore, we answer the certified question “yes,” because it makes no sense for an insurer to include depreciation for materials and not for embedded labor.

Whether the insurer made a sufficient offer is not a question of law for a court to resolve. Rather, whether the insurer correctly, or even reasonably, made the calculation on which it based an offer to its insured is evidence the fact-finder should consider in determining ACV. ACV is a question of fact. ACV will vary according to numerous variables, including how the insurer goes about choosing the amount to estimate for depreciation of labor. To the extent an insured believes its insurer made the calculation incorrectly or unreasonably, and made an insufficient offer on that basis, the disagreement relates to a question of fact as to which both parties enjoy the right to a trial by jury.

We hold simply that South Carolina law does not prohibit the insurer from including an estimate of the depreciation of embedded labor costs in its calculation of ACV for purposes of making an offer to its insured.

Certified question answered.

Butler v. Travelers Home & Marine Insurance Co. (Lawyers Weekly No. 010-022-21, 8 pp.) (John Few, J.) (Donald Beatty, C.J., concurring in the result only without separate opinion) On certification from the U.S. District Court for the District of South Carolina. Joseph Snodgrass, David Eugene Massey, Summer Tompkins, Erik Peterson and Brandon McWherter for plaintiffs; Stephen Goldman, Wystan Ackerman and William Davis for defendants; Reynolds Blakenship, Christopher Roberts, Thomas Salane and Hawthorne Barrett for amici curiae. S.C. S. Ct.

Insurance Municipal – Risk Financing Fund – ‘Occurrence’ – Police Shooting Under a coverage contract between the Town of Cottageville and the Municipal Insurance and Risk Financing Fund, the town’s commission of four wrongful acts constituted four occurrences, allowing the plaintiff to recover more than the liability limit of $1,000,000.

In this declaratory judgment action, we reverse the Court of Appeals’ decision as to the amount of indemnity coverage available. We vacate the Court of Appeals’ ruling as to whether the Tort Claims Act applies to a bad faith action against the Municipal Insurance and Risk Financing Fund (Fund), and we decline to answer the parties’ question about this issue.

Background

Plaintiff’s decedent, the former mayor of Cottageville, was shot by a Cottageville police officer. The police chief, a trained paramedic, was present but did not attempt to render aid. Plaintiff’s decedent died from the gunshot wound.

Plaintiff sued the town and the

MOST IMPORTANT OPINIONS / 15 police officer. A jury found that the police officer was negligent, his negligence proximately caused the decedent’s death, and the officer violated the decedent’s civil rights by using excessive force and unlawfully seizing the decedent. The jury found the town negligently hired, retained and supervised the officer and violated the decedent’s constitutional rights. The jury awarded the decedent’s estate $7,500,000 in actual damages and $90,000,000 in punitive damages.

Plaintiff also sued the police chief for violating the decedent’s civil rights by failing to supervise the officer, failing to intervene to stop the officer, and failing to give medical care after the officer shot the decedent. The parties entered into a settlement agreement prior to the trial of plaintiff’s claims against the police chief.

The Fund paid plaintiff $10,000,000 and agreed to pay her an additional $1,000,000 for each favorable answer she received in this declaratory judgment action. Plaintiff asks (1) whether the amount of indemnity coverage under the coverage contract is more than $1,000,000 and (2) whether the Tort Claims Act applies to a bad faith action against the Fund.

We answer the first question “yes”; we decline to answer the second question.

Coverage Available

The parties agree that the coverage contract provides coverage.

At issue is the “Liability Limit” of “$1,000,000” “Per Occurrence.”

“Occurrence” is defined in three ways: (1) some act or failure to act that causes an injury, (2) a continuing exposure to harmful conditions (not applicable here), and (3) a wrongful act that results in bodily injury.

Plaintiff argues, and the jury found, that the decedent’s death was the result of at least four wrongful acts: the town’s negligent hiring, retention and supervision of the officer, and the officer’s use of deadly force.

We note that, even under the Fund’s interpretation of the coverage contract, there were at least two wrongful acts: the shooting and the chief’s failure to render medical aid.

In any event, the coverage contract provides coverage for each of the four occurrences the jury found occurred. The liability limit is the number of occurrences/wrongful acts times $1,000,000. Unless some other limitation in the contract applies, the four occurrences require the Fund to pay more than $1,000,000 in indemnity coverage.

The Fund points to three limitations in the contract. However, we read each limitation to provide a liability limit of $1,000,000 per occurrence. The town’s negligent acts of hiring, retaining and supervising the officer and the officer’s use of deadly force are four separate occurrences under the terms of the coverage contract. No limitation applies; therefore, there is more than $1,000,000 in indemnity coverage available.

Bad Faith Claim

Plaintiff’s declaratory judgment claim says the town intends to assign to plaintiff any bad faith claims that the town may have against the Fund. Until we decide whether such a claim may be assigned, we are hesitant to answer the par-

ties’ second question (whether a bad faith claim against the Fund is subject to the Tort Claims Act).

Furthermore, we do not condone the idea that an insurer may incur bad faith liability for simply taking a case to the jury, when the insurer satisfied the judgment after trial without exposing its insured to excess liability.

For these reasons, we decline to answer the second question.

Reversed in part; vacated in part.

Concurrence

(Kittredge, J.): I would reach the same result as the majority.

However, under the terms of the question presented by the parties, it matters only whether there was more than one occurrence, not precisely how many occurrences there were. Rather than ruling that the shooting itself involved four separate occurrences, I would hold that the shooting constituted one wrongful act and the police chief’s refusal to render aid constituted a second wrongful act.

My review of the policy persuades me that coverage is activated only when the wrongful act or wrongful acts result in injury— that is the occurrence. Here, there were two occurrences, one which resulted from the wrongful acts of the officer and the town, and the second stemming from the police chief’s willful failure to render aid to the decedent. Therefore, as far as determining there was more than one occurrence, I concur in result. I fully concur in the balance of the majority opinion.

Reeves v. South Carolina Municipal Insurance & Risk Financing Fund (Lawyers Weekly No. 010-031-21, 19 pp.) (John Few, J.) (John Kittredge, J., concurring in result) Appealed from the Circuit Court in Colleton County (Perry Buckner, J.) On writ of certiorari to the Court of Appeals. William Mullins McLeod and Colin Ram for petitioner; Mitchell Brown and Brian Patrick Crotty for respondent. S.C. S. Ct.

Public Utilities Electricity – Ratemaking – Cost Recovery – Coal Ash Remediation – N.C. Law Where the Public Service Commission (PSC) determined that North Carolina’s Coal Ash Management Act of 2014 (CAMA) did not confer any benefits to South Carolina ratepayers, nor did the ratepayers have any opportunity to influence the North Carolina General Assembly’s actions since those legislators did not represent South Carolina ratepayers, we cannot say the PSC acted arbitrarily in declining to allow appellants Duke Energy Carolinas, LLC, and Duke Energy Progress, LLC (Duke) to recover coal ash remediation costs that were solely attributable to CAMA. We affirm the decision of the PSC to disallow, in part, Duke’s application to increase its rates so as to recover coal ash remediation costs, litigation expenses, and carrying costs for deferred accounts.

We also affirm the PSC’s decision to allow Duke to increase its rates so as to recover prudent construction costs for a project that Duke ultimately abandoned.

16 / MOST IMPORTANT OPINIONS In November 2018, Duke sought to increase its rates so as to compensate it for (1) expenditures related to coal ash remediation in North and South Carolina (including both CAMA-compliance costs and costs associated with consent agreements Duke entered into with DHEC); (2) litigation expenses related to defending itself in various coal ash lawsuits; (3) carrying costs on certain deferred accounting expenses; and (4) construction costs actually incurred in pursuing the Lee Nuclear Project.

As to the coal ash remediation expenses, the PSC granted Duke slightly less than 50 percent of the amount requested. The amount allowed corresponded to the costs associated with complying with the EPA’s Coal Combustion Residuals rule (CCR Rule) and the DHEC consent agreements; the amount disallowed corresponded to costs that were solely attributable to CAMA. As to the litigation expenses, the PSC denied recovery entirely, finding Duke failed to provide sufficient evidence to substantiate its claimed legal fees.

As to the carrying costs, the PSC ruled Duke could recover any money spent on operations and maintenance costs, but could not receive a profit for having delayed recovery of those expenses by placing them into deferral accounts.

Finally, as to the recovery of costs associated with Duke’s nowabandoned Lee Nuclear Project, the PSC allowed the expenses, finding they were prudently incurred, and that the General Assembly’s repeal of the Base Load Review Act (BLRA) did not foreclose Duke from recovering its actual expenses in a general ratemaking proceeding.

Coal Ash Remediation

Reasoning that the 2014 coal ash spill in North Carolina’s Dan River was the impetus behind the North Carolina General Assembly’s enactment of CAMA, the PSC concluded it would be unreasonable to require South Carolina customers to pay costs incurred as a result of Duke’s admitted criminal negligence and the resulting unilateral action of the North Carolina General Assembly. The PSC also noted CAMA did not confer any benefits to South Carolina ratepayers, nor did the ratepayers have any opportunity to influence the North Carolina General Assembly’s actions since those legislators did not represent South Carolina ratepayers. Nonetheless, the PSC emphasized that the disallowance of CAMA costs was only its decision “at this time,” and future developments could change its position.

The PSC made the factual determination that the CAMA costs sought here neither directly benefitted Duke’s South Carolina customers, nor were they intended to do so. There is evidence in support of this factual determination.

We thus conclude the PSC did not commit an error of law in disallowing CAMA costs.

Much of the dissent consists of arguments Duke has never made.

Appellate courts do not reverse based on issues and arguments never made by an appellant.

Litigation Expenses

In its application to recover litigation expenses, Duke made no

attempt to calculate the number of hours billed or total amount sought for each case, instead leaving that task to the PSC or Office of Regulatory Staff (ORS). It may have been technically possible for the PSC or ORS to sort through the 1,500-page spreadsheet and parse the data themselves. However, we decline to impose a requirement that they do so, particularly since Duke had the burden of proof.

Accordingly, we affirm the PSC’s decisions as to the litigation expenses issue.

Carrying Costs for Deferred Accounts

With the PSC’s permission, Duke created deferred accounts for several expenses, all of which involved operations and maintenance costs. As with all deferred accounts, Duke paid the expenses on behalf of its customers but did not seek immediate recovery via a new ratemaking application.

Although Duke acknowledged that operations and maintenance costs generally were not subject to carrying costs, it nonetheless believed carrying costs were required in this instance in order to make the shareholders’—and the time-value of their money—whole.

Ultimately, the PSC allowed Duke full, dollar-for-dollar recovery of the amounts deferred—the standard practice for non-deferred operations and maintenance costs. However, the PSC disallowed Duke the requested carrying costs. The PSC concluded that to rule in favor of Duke’s position would encourage the utility to seek more accounting deferrals in the future, which would “greatly inflate costs in future years, which [would] be passed on to customers through rates.”

The PSC was faced with a policy decision and made a choice. There is evidence in the record to support its conclusion, so we decline to reverse the PSC’s decision.

Construction Costs for Abandoned Project

When it repealed the BLRA, the General Assembly specifically prohibited a general ratemaking application related to post-construction costs for the V.C. Summer project. Therefore, impliedly, Duke was permitted to recover its actual, out-of-pocket costs related to its now-abandoned Lee Nuclear Project—but only if Duke could prove its expenditures were prudent.

ORS agreed with Duke that the expenses were prudently incurred in pursuit of the Lee Nuclear Project before various factors changed and made abandonment of the project the most beneficial option for ratepayers, and the PSC accepted that view of the facts. As the PSC noted in its initial order, no party presented evidence to the contrary. We therefore affirm.

Dissent

(Few, J.): I disagree with the majority’s rationale with respect to Duke’s claim for environmental compliance costs associated with North Carolina law.

If Duke acted reasonably in not taking extra precautions to control the environmental consequences of its coal ash, then, when the state and federal governments came along later and required

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remediation, Duke should be allowed to have the new expenses included in its rate base.

Duke Energy Carolinas, LLC v. South Carolina Office of Regulatory Staff (Lawyers Weekly No. 010-063-21, 44 pp.) (John Kittredge, Acting Chief Justice) (John Few, J., concurring in part & dissenting in part) Appealed from the Public Service Commission. Robert Stepp, Frank Ellerbe, Sarah Spruill, Heather Shirley Smith and Thomas Mullikin for appellants; Jeffrey Nelson, Jenny Rebecca Pittman, Lessie Hammonds, Andrew Bateman, Alexander Knowles, Christopher Michael Huber, Steven Hamm, Wallace Lightsey, Scott Elliott, Carolyn Grube Lybarker, Laura Rebecca Dover, Alexander George Shissias, Richard Whitt, Stephanie Underwood Eaton, Carrie Grundmann, Derick Williamson, Bess Jones DuRant, Thadeus Culley, Robert Guild, Bridget Lee, Katherine Lee Mixson, Gudrun Thompson and David Neal for respondents; Wm. Grayson Lambert and Bradley Wright for amicus curiae. S.C. S. Ct.

Real Property Joint Tenancy – Tenant’s Transfer – First Impression – Alabama Conservatorship On a matter of first impression, we reject defendant’s argument that S.C. Code Ann. § 27-7-40 prohibits a joint cotenant from conveying her undivided interest in jointly owned real property to a third party.

We affirm the master-in-equity’s order compelling the partition and sale of the property at issue.

Background

Plaintiff’s decedent and defendant lived together but did not marry. They owned real property (the property) together “jointly with right of survivorship, and not as tenants in common.”

Plaintiff’s decedent began to suffer from advanced dementia.

Plaintiff, decedent’s only child, took decedent back to Alabama to live with her.

In Alabama, plaintiff successfully petitioned the Alabama Probate Court to become decedent’s conservator and guardian. In her capacity as decedent’s conservator, plaintiff executed a deed transferring decedent’s one-half interest in the property to plaintiff in order to preserve decedent’s interest in the property. Thereafter, plaintiff filed this action seeking the partition and sale of the property. Decedent passed away during the pendency of the action.

Discussion

First, where plaintiff, who resided in Alabama, held decedent’s durable and health-care powers of attorney, and where decedent possessed assets that were held in an account at a brokerage firm in Foley, Alabama, decedent had a significant connection to Alabama.

There was no guardianship or conservatorship petition pending in South Carolina, and no objections to the Alabama court’s jurisdiction were filed. Since defendant was not a spouse or relative of decedent, there was no requirement

that he be notified of the Alabama proceedings. The Alabama Probate Court had subject matter jurisdiction to appoint plaintiff as decedent’s conservator and guardian under the Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Defendant argues that S.C. Code Ann. § 27-7-40 does not allow for one joint cotenant to convey his or her undivided interest in the property to a third party.

As our jurisprudence has not addressed this inquiry specifically, this is a matter of first impression.

However, our precedent on related issues sufficiently informs our determination.

In South Carolina, parties may establish a joint tenancy through either common law or statute. Although South Carolina now construes deeds conveying a shared interest in property in favor of tenancies in common rather than joint tenancies, our jurisprudence still allows for the creation of common law joint tenancies.

Under the common law, a conveyance must possess the unities of interest, title, time, and possession to create a joint tenancy with a right of survivorship. Possession of all four unities is essential to the existence of the joint tenancy; therefore, any act that destroys one of the four unities severs the joint tenancy and extinguishes the accompanying right of survivorship possessed by the cotenants.

Thus, under the common law, a cotenant’s conveyance of his or her interest in the property to a third party severs the joint tenancy resulting in a tenancy in common between the remaining cotenant and third party. Defendant asserts § 27-7-40 prohibits common law severance of joint tenancies in South Carolina.

Prior to the enactment of this statute, parties solely in possession of a property had to make an intervening conveyance to a “strawman” to effectively create a joint tenancy between themselves and additional cotenants in the previously owned property. Over the years, states have enacted statutes to allow for the creation of such joint tenancies without the need for an intervening transfer. We find such was the purpose and intent behind § 27-7-40.

Although the statute contains the limiting language “this joint tenancy includes, and is limited to, the following incidents of ownership,” we find this does not prohibit common law methods of severance but rather addresses the statutory language detailing a cotenant’s rights in the property upon a cotenant’s death and subsequent to any conveyances between the cotenants themselves.

Thus, we disagree with defendant’s assertion that § 27-7-40 rendered the conveyance of decedent’s interest to plaintiff void.

Accordingly, we hold the master properly found plaintiff’s conveyance of decedent’s one-half interest in the property to herself, in her capacity as decedent’s guardian and conservator, severed the joint tenancy between decedent and defendant and extinguished defendant’s right of survivorship.

Therefore, defendant’s rights to the property never vested as the conveyance to plaintiff occurred prior to decedent’s passing. Thus,

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the master did not err in granting plaintiff’s motion for summary judgment and in compelling the partition and sale of the property.

Affirmed.

Williams v. Jeffcoat (Lawyers Weekly No. 011-049-21, 14 pp.)

(Bruce Williams, J.) Appealed from Charleston County (Mikell Scarborough, Master-in-Equity) Jason Scott Luck for appellant; Timothy Alan Domin and John Andrew Wenzel for respondent.

S.C. App.

Schools & School Boards University Mask Mandate – Universal – Vaccination Status In Proviso 117.190 of the 20212022 Appropriations Act, entitled “Masks at Higher Education Facilities,” the General Assembly said, “A public institution of higher learning, including a technical college, may not use any funds appropriated or authorized pursuant to this act to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask.”

The proviso clearly prevents statesupported institutions of higher education from using funds from the 2021-2022 appropriations to fund efforts requiring only unvaccinated individuals to wear facemasks. Nothing in the title or text of the proviso prohibits a universal mask mandate at a public institution of higher learning that applies to all students, faculty, and staff equally, whether vaccinated or unvaccinated.

In our original jurisdiction, we declare the terms of Proviso 117190 clearly and unambiguously prohibit a state-supported institution of higher education from discriminating against unvaccinated students, faculty and staff by requiring them to wear masks. The proviso does not prohibit a universal mask mandate.

Even though the defendant-university has withdrawn its mask mandate, since it did so based on a letter from the Attorney General, this controversy is clearly justiciable.

Contrary to the Attorney General’s position that this matter presents a political question, we hold this action involves solely a question of statutory interpretation.

The General Assembly was clearly capable of prohibiting all mask mandates: “No school district, or any of its schools may use any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.” Proviso 1.108. The fact that Proviso 117.190 uses different language than Proviso 1.108 leaves little doubt that Proviso 117.190 was not intended to prohibit all mask mandates at public institutions of higher education, but only, as its terms specifically provide, mask mandates for the unvaccinated.

Creswick v. University of South Carolina (Lawyers Weekly No. 010-050-21, 6 pp.) (Per curiam) Richard Harpootlian and Christopher Phillip Kenney for

petitioner; Vordman Carlisle Trawick, Robert Stepp, Alan McCrory Wilson, Robert Cook and Emory Smith for respondents. S.C. S. Ct.

Taxation County ‘Fees’ – Real Property – Value Enhancement – Insufficient Showing The respondent-county has failed to show that its “road maintenance fee” or its “telecommunications fee” benefits the fee-payers in any manner different from members of the general public.

Therefore, the “fees” are actually taxes, which the county was not permitted to impose absent authorization by the General Assembly.

We reverse the determination by the lower court that the ordinances do not violate the law. The ordinances are invalid.

Appellants challenge two Greenville County ordinances. In order to keep up with increased costs of road maintenance, Ordinance 4906 increased the road maintenance fee imposed on the owner of every vehicle registered in Greenville County from $15 to $25 a year. Ordinance 4907 requires the owner of every parcel of real property in Greenville County to pay $14.95 a year for ten years to the Greenville County Tax Collector in order to fund the modernization of the county’s public safety telecommunications infrastructure.

Counties may levy ad valorem property taxes and uniform service charges. Except for valuebased property taxes, a county “may not impose a new tax unless specifically authorized by the General Assembly.” S.C. Code Ann. § 6-1-310.

S.C. Code Ann. § 6-1-300(6) defines “service or user fee”— including a uniform service charge—as “a charge required to be paid in return for a particular government service or program made available to the payer that benefits the payer in some manner different from the members of the general public not paying the fee.”

The fact that funds raised under Ordinance 4906 are allocated to road maintenance says nothing of any benefit peculiar to the payer of the fee. Every driver on any road in Greenville County, regardless of what county or state their vehicles are registered in, benefits from the fact that the funds are allocated for road maintenance. While Greenville County residents, who use the roads every day, may derive more benefit from having the roads maintained in good condition, it is still the same benefit every driver gets, no matter where their car is registered.

In Ordinance 4907, the county council described the aged equipment previously used in multiple public safety telecommunication networks, and it stated the new single network would improve the delivery of emergency and public safety communications in multiple ways. But the ordinance says nothing of whether property owners would see any benefits from the new network.

Even if property owners will see benefits, this court has no idea whether the impact is sig-

MOST IMPORTANT OPINIONOPINIONS DIGESTS / 17 nificant enough to affect property value. Simply declaring a fee will enhance property value does not make the property owner paying the fee the beneficiary of some unique benefit, as required by § 6-1-300(6).

Greenville County Ordinances 4906 and 4907 purport to impose a “uniform service charge” on those who are required to pay it. We find the charges are taxes. State law prohibits local government from imposing taxes unless they are value-based property taxes or are specifically authorized by the General Assembly. Neither is true for these two ordinances. Therefore, the ordinances are invalid.

Concurrence

(Kittredge, J.): I write separately to offer two points: (1) Although Brown v. Cty. of Horry, 308 S.C. 180, 182, 417 S.E.2d 565 (1992), may inform the analysis, § 6-1300(6) is controlling for determining what constitutes a “service or user fee”; and (2) I am hopeful that today’s decision will deter the politically expedient penchant for imposing taxes disguised as “service or user fees.”

Burns v. Greenville County Council (Lawyers Weekly No. 010038-21, 7 pp.) (John Few, J.) (John Kittredge, J., joined by Donald Beatty, C.J., concurring) Appealed from the Circuit Court in Greenville County (Charles Simmons, J.) Robert Childs and Falkner Wilkes for appellants; Sarah Spruill and Boyd Benjamin Nicholson for respondents. S.C. S. Ct.

Tort/Negligence Civil Conspiracy – Special Damages – Todd Rule Abolished The requirement that a plaintiff plead special damages in order to state a claim for civil conspiracy resulted from a misreading of our caselaw. Plaintiffs need no longer plead special damages. A plaintiff asserting a civil conspiracy claim must establish (1) the combination or agreement of two or more persons (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.

We reverse the circuit court’s dismissal of petitioner’s civil conspiracy claim. Remanded.

The petitioner-teacher alleged defamation and civil conspiracy against her principal and assistant principal. The civil conspiracy claim was dismissed because the teacher failed to allege any damages specific to that claim.

Although Todd v. S.C. Farm Bureau Mut. Ins. Co., 276 S.C. 284, 278 S.E.2d 607 (1981), said Todd had failed to state a claim for civil conspiracy because he failed to plead overt acts in furtherance of the conspiracy, Todd and its progeny have been interpreted as adding new element: special damages.

The essential principle that Todd intended to address was the need to plead an overt act in furtherance of the agreement, not special damages. As a result, we overrule Todd and cases relying on Todd or other precedent, such

as Lee v. Chesterfield Gen. Hosp., Inc., 289 S.C. 6, 344 S.E.2d 379 (Ct. App. 1986), to the extent they impose or appear to impose a requirement of pleading (and proving) special damages.

In light of our decision today, we are returning to our longstanding precedent pre-Todd and for clarification specifically state a plaintiff asserting a civil conspiracy claim must establish (1) the combination or agreement of two or more persons, (2) to commit an unlawful act or a lawful act by unlawful means, (3) together with the commission of an overt act in furtherance of the agreement, and (4) damages proximately resulting to the plaintiff.

We disagree with the concurring/dissenting opinion to the extent it goes beyond the sole question accepted by this court— which asks, “Should the Court reverse the special damages pleading requirement on civil conspiracy claims arising from Todd v. S.C. Farm Bureau Mut. Ins. Co.?”— and appears to consider a point raised by respondents in their brief. Namely, whether civil conspiracy itself should be “abolished” as an independent claim in this state and should, instead, always be dependent on an underlying actionable wrong or tort.

Respondents have not crossappealed in this matter, and we reject respondents’ attempt to advance this issue for the first time on appeal. Any further arguments potentially affecting the viability of petitioner’s claim, whether they arise from this court’s decision or otherwise, are properly raised upon remand to the circuit court, in the first instance, particularly where the case was halted at the pleadings stage.

Any other cases on appeal that have already been tried under the Todd framework shall be decided using the Todd analysis.

Reversed and remanded.

Concurrence

(Kittredge, J.): I concur in result. The majority opinion properly restores the elements of a civil conspiracy to its original understanding. This restoration returns us to a proper approach to the election of remedies, preventing a double recovery for a single wrong.

I also support Justice Few’s opinion, which correctly observes that the post-Todd sanctioned civil conspiracy claim permitted the imposition of liability for lawful, non-tortious conduct based on a court or juror’s sense of fairness or responsibility. I do not read Justice Few’s opinion as “abolishing” civil conspiracy.

Concurrence/Dissent

(Few, J.): I agree with the majority that the requirement of pleading and proving special damages in a civil conspiracy action is based on a misunderstanding of law, and the requirement must be eliminated.

However, the undefined theory of civil conspiracy leaves courts and juries free to determine civil liability—both of the alleged tortfeasor and the supposed conspirator—not based on the law, but by using the individual judge or juror’s sense of fairness or responsibility. Civil conspiracy—as the majority “return[s] ... to our his-

18 / MOST OPINION IMPORTANT DIGESTS OPINIONS torical roots”—permits the court and jury to impose liability for lawful, non-tortious conduct.

I disagree with the majority that we should unleash this stillundefined and now-unrestrained menace on the public as an independent tort. To that extent, I respectfully dissent.

Paradis v. Charleston County School District (Lawyers Weekly No. 010-026-21, 20 pp.) (Donald Beatty, C.J.) (John Kittredge, J., concurring in result) (Few, J., concurring in part and dissenting in part) Appealed from the Circuit Court in Charleston County (J.C. Nicholson, J.) On writ of certiorari to the Court of Appeals. Lewis Cromer and Paul Porter for petitioner; Rene Stuhr Dukes, Carolina Cleveland, Bob Conley and Emmanuel Joseph Ferguson for respondents. S.C. S. Ct.

Tort/Negligence Wrongful Death – Protection of Persons & Property Act – First Impression – Pretrial Motion Required The Protection of Persons and Property Act (the Act) was intended to extend immunity from both criminal prosecution and civil actions to law-abiding citizens who were justified in their use of deadly force.

Based on our Supreme Court’s interpretation of the Act in criminal proceedings, the only way immunity under the Act can be meaningfully enforced in a civil action is to require individuals seeking immunity to file a pretrial motion.

The master-in-equity correctly held that defendant was required to seek a pretrial determination of his immunity under the Act. We affirm the master’s $1,600,000 judgment for plaintiff.

The master did not err in concluding that decedent’s estate met its burden in proving its claim for wrongful death. The record shows that, at a cookout at defendant Shuler’s home, Shuler and decedent had a physical altercation caused by Shuler slapping decedent several times.

Testimony also revealed that decedent was attempting to leave Shuler’s home when Shuler exited the house, walked towards the front of his house, and fired his handgun at an “image coming towards [him],” striking decedent in the abdomen. Shuler admitted he was unaware of who or what he was shooting, and it is undisputed that decedent’s gunshot wound was the proximate cause of his death.

As to the issue of wrongful-death damages, the plaintiff-widow testified that decedent earned $90,000 per year as a bail bondsman and longshoreman, but she acknowledged decedent was often paid in cash. The widow stated she was personally aware of decedent’s income because she often made cash deposits of decedent’s earnings into his bank account. In addition, she was aware of his caseload at the time of his death.

Ultimately, the master awarded decedent’s estate $203,251.25 in medical expenses (the amount billed by the Medical University of South Carolina) and found “the decedent would have earned $50,000 per year for the remainder of his work life which would amount to $1,250,000 before reducing to present value.”

The master’s award of $50,000 per

year falls within the range of evidence presented by decedent’s estate.

In support of the estate’s survival claim, an eyewitness testified that, immediately following the shooting, she saw decedent lying on the ground in severe pain yelling “help me” before seeing his eyes roll back into his head. Because the record contains sufficient evidence to reasonably support the master’s finding of conscious pain and suffering, we affirm as to the estate’s survival claim.

Affirmed.

Singletary v. Shuler (Lawyers Weekly No. 011-038-21, 9 pp.)

(Bruce Williams, J.) Appealed from Charleston County (Mikell Scarborough, Master-in-Equity) Eduardo Kelvin Curry for appellant; Thaddeus James Doughty for respondent. S.C. App.

Tort/Negligence Gross Negligence Standard – DSS – Abused Child When 12-week-old Owen came to a hospital with two subdural hematomas, the Department of Social Services not only failed to notify law enforcement within the statutorily mandated 24 hours, but also downplayed the potential peril to Owen during communications with law enforcement. Given this and other evidence, such as DSS’s failure to facilitate an appropriate discharge plan, a jury could find that DSS failed to exercise slight care for Owen, who was being abused by his father.

We reverse summary judgment for DSS. We also vacate the circuit court’s ruling that DSS’s failure to timely act was not the proximate cause of the subsequent injury to Owen, which left him with severe, permanent brain damage and vision problems. The circuit court said, “While DSS failed to carry out [its 24-hour notice] mandate, law enforcement was notified and had an opportunity to investigate the case. Law enforcement took no action on the case prior to the severe injury of Owen by his father. Thus, while DSS did not act within the prescribed time to notify law enforcement, that failure was not the proximate cause of the tragic injury to Owen.”

However, given DSS’s downplaying of the danger to Owen, a reasonable jury could find that the late law enforcement referral and the tenor of DSS supervisors’ conversations with law enforcement influenced the sheriff’s department’s investigation – specifically, its consideration of the risk Owen faced once the hospital released him to his parents.

Rainey v. South Carolina Department of Social Services (Lawyers Weekly No. 011-053-21, 13 pp.) (Stephanie McDonald, J.) Appealed from the Circuit Court in York County (Jackson Kimball, J.) Duane Michael Shaw, Randall Hood, Jordan Christopher Calloway, Whitney Boykin Harrison, Nathan James Sheldon and Lara Pettis Harrill for appellant; Patrick John Frawley for respondent. S.C. App.

Tort/Negligence

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school athletic director, football coach and teacher, he was a public official or a limited public figure.

Garrard v. Charleston Cnty. Sch. Dist., 429 S.C. 170, 838 S.E.2d 698 (Ct. App. 2019), petition for cert. filed. As a result, an element of his defamation claim is actual malice.

Under the Tort Claims Act, the defendant-school district, as a governmental entity, is not liable for a loss resulting from employee conduct that constitutes actual malice. Therefore, the Tort Claims Act bars plaintiff’s defamation action because, as a public official or limited public figure, he has to prove the district’s employee’s conduct (sending out an email implying that plaintiff had improperly maintained player eligibility files) constituted actual malice.

We reverse the circuit court’s denial of the school district’s motion for directed verdict and judgment notwithstanding the verdict on plaintiff’s defamation claim.

Cruce v. Berkeley County School District (Lawyers Weekly No. 011-071-21, 12 pp.) (Aphrodite Konduros, J.) Appealed from the Circuit Court in Berkeley County (Kristi Lea Harrington, J.) Brandon Gaskins, Joshua Steven Whitley, Andrew Lindemann and Richard Morgan for appellant; Lucy Clark Sanders and Nancy Bloodgood for respondent. S.C. App.

Workers’ Compensation Statutory Employee Doctrine – Asbestos Exposure – Contractor’s Employee – Tort/Negligence Where the owner of a manufacturing facility made a legitimate business decision to outsource its maintenance and repair work, with no intention of avoiding the cost of workers’ compensation insurance for the contractor’s employees, the facility’s owner is not the statutory employer of the contractor’s employee.

We affirm judgment for the employee’s personal representative and widow.

Facts

When the defendant’s predecessor began operating its Spartanburg polyester fiber plant in 1967, the predecessor retained Daniel Construction Co. to provide all maintenance and repair workers at the plant. The contracts with Daniel required the plant owner to reimburse Daniel for workers’ compensation insurance premiums for Daniel’s employees.

Plaintiffs’ decedent was employed by Daniel to work at the plant. From 1971 until 1980, decedent’s day-to-day tasks exposed him to asbestos. He eventually developed mesothelioma.

Plaintiffs sued defendant for negligence in its use of asbestos and its failure to warn of its dangers. A jury awarded plaintiffs $14 million in actual damages and $2 million in punitive damages. Our Court of Appeals affirmed.

Discussion Defamation – Football Coach – Public Official or Limited Public Figure – Malice – STCA – Sovereign Immunity Because plaintiff was a high

Defendant contends it was decedent’s statutory employer, so plaintiffs’ recovery was limited to benefits under the Workers’ Compensation Law. We disagree.

The purpose of the statutory

employee doctrine is to prevent owners and contractors from subcontracting out their work to avoid liability for injuries incurred in the course of employment. In the early years of interpreting the predecessor statutes to S.C. Code Ann. §§ 42-1-400 and -410, this court viewed the scope of an employee’s “trade, business or occupation” quite broadly.

The Court of Appeals’ decision in this case cannot be reconciled with the broad view we took in our early cases. However, in recent jurisprudence, we began a series of cases in which we narrowed our original view. Things have changed since the time of Marchbanks v. Duke Power Co., 190 S.C. 336, 2 S.E.2d 825 (1939), and Boseman v. Pacific Mills, 193 S.C. 479, 8 S.E.2d 878 (1940).

In Wilson v. Daniel Int’l Corp., 260 S.C. 548, 197 S.E.2d 686 (1973), we honored Daniel’s decision to remove the provision of concrete from the scope of its business even though Daniel’s own employees did the same work on other jobsites. In Glass v. Dow Chem. Co., 325 S.C. 198, 482 S.E.2d 49 (1997), we recognized that “major” repairs, “specialized” work, and jobs “of the sort which the employer is not equipped to handle with its own work force” are “not [necessarily] part of the business” of the owner.

In Abbott v. The Limited, Inc., 338 S.C. 161, 526 S.E.2d 513 (2000), we held that just because work is important to a business does not mean the work is part of the business. In Olmstead v. Shakespeare, 354 S.C. 421, 581 S.E.2d 483 (2003), we clarified that “Abbott represents a change in this state’s jurisprudence on what activity constitutes ‘part of [the owner’s] trade, business or occupation’ under section 42-1-400,” and we “[overruled] all prior cases to the extent they are in conflict with our holding in Abbott.”

The trend away from Marchbanks and Boseman was firmly established by the time this case reached the Court of Appeals.

The public policy favoring inclusion under the Workers’ Compensation Law is to ensure that workers are covered under the Workers’ Compensation Law. It does not matter who provides the coverage.

Here, defendant’s predecessor contracted out the maintenance and repair work to a sophisticated construction company. Moreover, the predecessor mandated through contract that the maintenance workers would be insured. The decisions in this case in no way frustrate the policy of the statutory employee doctrine.

When the public policy behind the statutory employee doctrine leads to a finding that a worker is a statutory employee, the collateral consequence of that finding is that the owner enjoys immunity from tort liability. However, when the public policy favoring coverage is satisfied—as it was here—that policy has nothing to say about providing immunity to the owner.

For these reasons, defendant’s argument that public policy supports its position is misplaced.

What is or is not “part of” the owner’s business is a question of business judgment, not law. If a business manager reasonably believes her workforce is not equipped to handle a certain job, or the financial or other business interests of her

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company are served by outsourcing the work, and if the decision to do so is not driven by a desire to avoid the cost of insuring workers, then the business manager has legitimately defined the scope of her company’s business to not include that particular work.

Defendant’s predecessor made a legitimate business decision to outsource its maintenance and repair work. The predecessor clearly had no intention of avoiding the cost of insuring the workers who did the work against work-related injuries. Its business managers considered the economic interests of the company and determined maintenance and repair was not “work which is a part of [its] trade,

business or occupation.”

The original purposes of the statutory employee doctrine are not served by making defendant an additional provider of workers’ compensation benefits; Daniel provided those benefits. The original purposes are certainly not served by granting defendant immunity for its wrongful conduct.

Affirmed.

C o nt inu e d f r o m 2 ►

and Means Chairman Murrell Smith’s district, as well as areas in Richland County; Orangeburg County; Florence and Williamsburg counties; and in Dillion and Horry counties.

Leaders in the state’s Republicandominated Legislature pointed out they didn’t make significant changes to the districts drawn after the 2010 U.S. Census. Those maps were approved both by judges and under the federal Voting Rights Act — a requirement not needed this time because it was thrown out eight years ago by the US. Supreme Court.

They also said the maps kept more districts where minorities were the majority of voters than plans by the NAACP and other groups.

The NAACP said their plan had more districts where Black voters were 40% to 50% of the population and could influence more elections.

The House maps also were roundly criticized by groups like the South Carolina League of Women Voters, which said the number of general election races where the winning margin is projected to be within 5 percentage points was cut in half to just eight seats — or only 6% of the House.

The group ran a computer program that generated nearly 12 billion possible House maps and found just over 400 had more bias than the one proposed by the chamber.

Still unresolved are maps for the U.S. House. Both chambers have their own proposals. The state Senate’s idea kept the districts similar to the 2010 map, but made the 1st District, which is the only thing approaching a competitive district, more Republican.

The House had a more radical change that would have kept the Charleston area more whole. but backtracked on the proposal before a public meeting scheduled for next Wednesday.

South Carolina added nearly 500,000 people in the 2020 U.S. Census, but that growth was lopsided both geographically toward the coast and the South Carolina suburbs of Charlotte, North Carolina, and racially as the number of people who identified themselves only as African American fell by more than 10,000 people.

South Carolina sued over newly drawn state House districts ■ BY JEFFREY COLLINS ASSOCIATED PRESS COLUMBIA (AP) — Two civil rights groups are suing South Carolina, saying the newly drawn state House maps discriminate against Black people by diluting their voting power and again saying lawmakers are taking too long to approve U.S. House maps.

The groups amended an October lawsuit that said the General Assembly was taking too long to pass the maps, preventing potential candidates from researching the new districts and not giving enough time for lawsuits to be considered before the two-week filing period starts March 16.

“Defendants traded one constitutional violation — malapportionment — for two others: racial gerrymandering and intentional racial discrimination,” said court documents filed Thursday by the National Association for the Advancement of Colored People with assistance from the American Civil Liberties Union.

The lawsuit was anticipated. South Carolina’s maps have been challenged in courts, sometimes successfully, for the past 50 years.

The suit asks a federal judge to find the new House districts passed the General Assembly and signed into law by the governor earlier this month to be unconstitutional and if necessary to delay March filings and June primaries for the 124 seats until fairer districts can be drawn. It also asks the court to set a Feb. 15 deadline for the U.S. House maps to be finished.

The groups said they reserve their right to sue later over the 46 South Carolina Senate districts, which don’t come up for election until 2024.

The lawsuit cites 28 of the 124 House districts where race was used to either exclude or concentrate Black voters in districts to dilute their overall political power.

There are lines that split Anderson into four districts “like a shattered mirror” to prevent Blacks from having enough clout to influence the result in any of the districts, the lawsuit said.

There is the bunny ear that extended into Chester to put Black voters in the city into a Fairfield County district that is already overwhelmingly minority instead of surrounding areas, the NAACP said.

The lawsuit also cites districts in Sumter where it said Black voters were shunted out of Republican Ways

Dissent

(James, J.): Where decedent’s daily work activities were an important part of defendant’s predecessor’s business, and where they were a necessary, essential and integral part of that business—the production of synthetic fibers—decedent

SC prison has to pay $920,000 water and sewer bill RIDGELAND (AP) — A Jasper County town is being paid nearly $920,000 by the South Carolina prison system to end a four-year dispute over a facility’s water and sewer bill.

Corrections Director Bryan Stirling told the State Fiscal Accountability Authority earlier this month that

MOST IMPORTANT OPINIONOPINIONS DIGESTS / 19 was the predecessor’s statutory employee. An analysis that considers “the ever-increasing competitive challenges businesses face” in the Amazon and Uber economy is misplaced.

In Olmstead, we rejected the Court of Appeals’ conclusion that the underlying rationale of favoring workers’ compensation coverage for employees “is not as pertinent where the statutory employee definition and exclusive remedy provision are used as a shield to prevent recovery under another theory.” Despite the majority’s assertion that it still declines to adopt the Court of Appeals’ Olmstead position, the majority’s comment that “the original purposes [of the statutory employee

doctrine] are certainly not served by granting [defendant] immunity for its wrongful conduct” will be taken to heart.

Keene v. CNA Holdings, LLC (Lawyers Weekly No. 010-04921, 20 pp.) (John Few, J.) (George James, J., joined by John Kittredge, J., dissenting) Appealed from the Circuit Court in Spartanburg County (Garrison Hill, J.) On writ of certiorari to the Court of Appeals. Richard Godfrey, Mitchell Brown, Allen Mattison Bogan and Blake Terence Williams for petitioner; Bert Glen Utsey, Theile Branham McVey, John Kassel, Kevin Paul and Chris Panatier for respondents. S.C. S. Ct.

he didn’t want to pay the bill, but he felt like he had no choice because state law allows the increase.

“They literally came to us and said they’d shut the water off,” Stirling said, a move that would cause chaotic and dangerous conditions behind bars.

Stirling asked the five-member authority that oversees agency spending, made up of the governor, treasurer, comptroller general, House Ways and Means Chairman and Senate Finance Chairman, to put pressure on legislators to do something to prevent another town from taking advantage of the state.

“We ask you to vote yes, but we ask you to look at this,” Stirling told the board, according to The Post and Courier. “There’s nothing to stop other water and sewer districts from doing this to other institutions.”

Ridgeland Town administrator Dennis Averkin declined to comment, telling the newspaper the lawsuit over the water rates was still pending.

The dispute started in 2017 when Ridgeland raised water rates by 400% and sewer rates by 300% for the Ridgeland Correctional Institution after saying the prison was exceeding maximum water usage under an expired contract. It was the first rate increase in 25 years after the state agreed to help pay for the town’s water plant, Stirling said.

State law didn’t allow the prison system to protest the hike like a regular user might be able to, the prison director said.

The new rates also charge for a minimum amount of water and sewer that the prison likely will never reach after it installs a new toilet system, Stirling said.

The hikes were expected to cost taxpayers more than $200,000 extra yearly on top of a one-time, $1 million fee.

could testify against his former employee Jeff Benjamin, a fired Westinghouse vice president who is facing multiple federal felony charges tied to the 2017 debacle that cost ratepayers and investors billions and left nearly 6,000 people jobless.

Westinghouse was the lead contractor in the project to build the reactors at the V.C. Summer site in Fairfield County. South Carolina Electric & Gas Co. parent company SCANA Corp. and state-owned utility company Santee Cooper spent nearly $10 billion on the project before halting construction in 2017 following Westinghouse’s bankruptcy.

In the aftermath, prosecutors have targeted top officials at the companies, saying they lied to investors, regulators and ratepayers as they sought rate hikes, insisting the expensive project was on schedule even as it fell hopelessly behind.

Three executives have already pleaded guilty in the multi-year federal fraud investigation so far. Benjamin, the fourth, has maintained his innocence and could go to trial next year.

He could face up to 20 years in prison and a $5,000,000 fine if convicted.

Roderick gave the FBI incriminating information about Benjamin in two interviews earlier this year, prosecutors said in court filings. Roderick said Benjamin lied to him about the project schedule and had created a “culture of fear” with an “unbearable” management style.

The documents outlining Roderick’s cooperation are part an effort by prosecutors to disqualify Roderick’s previous attorney from representing Benjamin.

William Sullivan was representing both men at the same time when prosecutors first tried to get him removed last year, arguing it was a conflict of interest as either defendant might turn on the other. Roderick eventually obtained a new lawyer before sitting down with investigators.

Prosecutors still want Sullivan disqualified from the case, noting that Sullivan “cannot properly expect to cross-examine his own former client in defense of his current one,” they wrote.

Sullivan has produced documents showing that both Roderick and Benjamin have approved the arrangement.

Roderick “has explicitly acknowledged that he is unaware of any criminal culpability of Mr. Benjamin,” Sullivan wrote in an emailed statement to The Post and Courier.

Roderick’s new attorney, Whit Ellerman, declined to comment to the newspaper.

The nuclear project failure also spurred multiple lawsuits and a probe by state lawmakers.

Records: Ex-CEO won’t face charges in nuclear fraud case COLUMBIA (AP) — The former top executive for the contractor hired to build two South Carolina nuclear reactors that were never finished won’t face criminal charges, new court documents show.

Former Westinghouse CEO Danny Roderick was previously a subject of the federal investigation into the failed multibillion project and is now a government witness, according to the records unsealed last week that were first reported by The Post and Courier.

The documents indicate Roderick

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