May 8, 2013 South Carolina Supreme Court published opinions

C-Sculptures v Brown

C-Sculptures bid to build a house in violation of the limits on its license. It won an award in arbitration which was affirmed by eh Court of Appeals. The Court, 4-1, reversed. The majority held that the governing statutes, 40-11-30 and 40-11-370, were plain in requiring that a contractor have a valid license meaning a license which authorizes the contractor to do the work bid on. S the arbitrator did not apply this plain rule, he acted in manifest disregard of the law and the award was reversed. The dissent argued that the statutes’ meaning was not plainly established at the time of the arbitration hearing and under the narrow standard of review the award should have been upheld.

In the Matter of Arthur Tuggle Bryngelson, Jr.

Bryngelson agreed to a public reprimand based on several counts of judicial misconduct including posting bond for a defendant, changing the disposition in a case tried before another judge, taking a guilty plea without notifying the prosecuting officials and applying a legally incorrect standard in a case seeking restraining order against a police officer. As Bryngelson had resigned his judicial office, the court publicly reprimanded him as that was the most sever sanction available under the circumstances.

Bodman v South Carolina Department of Revenue

Bodman sued in the Courts original jurisdiction seeking a declaration that the state sales tax statute is unconstitutional based on the caps and exemptions in it. The Court, with one justice concurring in judgment only, granted judgment to Department. The majority held that the equal protection challenge and the special legislation challenge were identical to challenges previously rejected and Bodman’s failure to challenge caps or exemptions individually left the court without a basis to rule on any cap or exemption. The majority emphasized this decision does not prevent others from challenging a cap or exemption in the future. It also reminded lower courts that “public importance” standing is limited to cases where future guidance is needed and no other way of finding standing exists. Chief Justice Toal added a concurrence arguing that the $300 cap on auto sales tax was irrational as tit rated similar sales differently and the North Carolina cap which the South Carolina cap was meant to match has been repealed. She noted other caps or exemptions may also be irrational and thus unconstitutional, but, Bodman’s pleadings did not allow rulings on those caps and exemptions. Justice Pleicones concurred in judgment arguing Bodman lacked standing as he did not seek an injunction as a taxpayer and “public importance” standing should not be used in tax cases where plaintiffs lack taxpayer standing.

Tourism Expenditure Review Commission v City of Myrtle Beach

Commission brought a declaratory judgment action seeking judicial construction of South Carolina Code 6-410 relating to tourism expenditures of accommodation taxes. The circuit court granted declaratory judgment to City. The Court, 3-2 with one justice concurring only in result, dismissed. The plurality argued that the accommodation tax statute provided one method of enforcement a noncompliance certification by commission to the State Treasurer who withholds future tax revenue from the city involved. As wanting a statutory construction is not enough to create a case or controversy and declaratory judgment actions require a case or controversy, the circuit court lacked subject matter jurisdiction d the case must be dismissed. The dissent argued that the commission had standing to pursue this action as it sought a declaration of its rights under a statute. The dissent also argued the circuit court correctly construed 6-4-10.

State v Herndon

Herndon entered an Alford plea to an assault charge and was ordered to successfully complete sex offender counseling. He refused to admit guilt during counseling and the trail court ordered him to register as sex offender for life as set out in his plea. The Court affirmed. It held that Alford pleas are guilty pleas in South Carolina and Herndon was entitled to special treatment because of his Alford plea. The Court also held that Herndon received sufficient notice of conditions of his counseling by being ordered to complete counseling. As he failed to do so, the registration requirement was properly imposed.

Broom v Jennifer J.

Broom filed a petition to terminate Jennifer’s parental rights so they could adopt the child in their foster care. The family court did not appoint counsel. Jennifer was represented at the final hearing. After the final hearing, the family court terminated Jennifer’s rights. The Court affirmed. It held that Jennifer was entitled to appointed counsel under South Carolina Code 63-7-2560(A) which applies to privately initiated termination hearings. However, because she was represented at the final hearing, the Court adopted a rule that only cases where failure to appoint counsel earlier actually prejudices the parent. Here, Mother failed to move for return of the child when represented and the statutory grounds would have been proved whether she was represented at all points in the process or not. The Court held the foster care ground was proved as the child was in foster care for at least 15 months prior to the hearing while Jennifer was represented and there were other periods where foster care remained necessary as Jennifer used cocaine, was incarcerated for several months and otherwise failed to complete her parenting plan. The Court did express surprise in its opinion that the Deportment of Social Services does not automatically set a hearing when a parenting plan is completed, but, noted there was no prejudice in this case. The Court also held that failure to visit was proven given Jennifer’s admission that she was incarcerated for several months, was “not in the right place” and made barely a third of the minimum visits allowed her. Thus, the order to terminate parental rights was affirmed.

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