THE STATE OF SOUTH CAROLINA
In the Supreme Court
APPEAL FROM CHEROKEE COUNTY
Court of Common Pleas
J. Mark Hayes, II, Circuit Court Judge
Case No. 2005-CP-11-660
The State of South Carolina, .Respondent,
vs.
Charles Jordan Tillinghast, Appellant.
FINAL BRIEF OF RESPONDENT
RACHEL D. ERWIN Assistant General Counsel CHARLES H. SHEPPARD General Counsel S. C. Department of Public Safety Office of General Counsel Post Office Box 1993 Blythewood, SC 29016 (803) 896-9664
TABLE OF CONTENTS
TABLE OF CONTENTS . i TABLE OF AUTHORITIES . ii STATEMENT OF ISSUES ON APPEAL . 1 STATEMENT OF THE CASE . 2 ARGUMENT I. DID THE CIRCUIT COURT HAVE JURISDICTION TO HEAR THE APPEAL? ...............
3 II. DID THE TRIAL COURT ERR AS A MATTER OF LAW IN DECLARING SECTION 20-7-8920 AS UNCONSTITIONAL? ........ 8 CONCLUSION . 15 CERTIFICATE OF COUNSEL . 16
TABLE OF AUTHORITIES
CASES PAGE Arnold v. Association of Citadel Men,
337 S.C. 265, 523 S.E.2d 757 (1999) .9, 13 Beaufort County v. State,
353 S.C. 240, 577 S.E.2d 457 (2003) .8
City of Charleston v. Jenkins,
243 S.C. 205, 133 S.E.2d 242 (1963) .11
Collins Music Co. v. IGT,
365 S.C. 299, 618 S.E.2d 876 (2005) .4, 8
Denene, Inc. v. City of Charleston,
359 S.C. 85, 596 S.E.2d 917 (2004) .11, 13
Douan v. Charleston County Council,
631 S.E.2d 544 (2006) .........................4, 8
Fraternal Order of Police v. South Carolina Dept of Rev.,
352 S.C. 420, 430, 574 S.E.2d 717,722 (2002)11
Gary Concrete Products, Inc. v. Riley,
285 S.C. 498, 504, 331 S.E.2d 335, 339 (1985)11
Knotts v. South Carolina Department of Natural Resources,
348 S.C. 1, 558 S.E.2d 511(2002) ......................9, 13
Sloan v. Friends of the Hunley,
369 S.C. 20, 630 S.E.2d 474 (2006) .4, 8
Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005) .4, 8
State v. 192 Coin Operated Machines,
338 S.C. 176, 525 S.E. 2d 872 (2000) .11, 15
State v. Arnold, 361 S.C. 386, 605 S.E.2d 529 (2004)7 State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997) .. 8, 9
State v. Bowen, 4 McCord, 254 (1827) .5
State v. Cherry, 353 S.C. 263, 577 S.E.2d 719 (2001)7
State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004) ....8, 9
State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982) .7
State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002)9
State v. Gathers, 15 S.C. 370 (1881) ..5
State v. Holliday,
255 S.C. 142, 177 S.E.2d 541 (1970) .5, 6
State v. Ivey, 73 S.C. 282, 53 S.E. 428 (1906)5
State v. Jones, 344 S.C. 48, 58, 543 S.E.2d 541, 546 (2001)
(citing State v. Bouye) ............................9, 10 State v. Ludlam, 189 S.C.69, 200 S.E. 361 (1938) 5
State v. Lynn, 120 S.C. 258, 113 S.E. 74 (1922) ..5
State v. McKnight,
353 S.C. 238, 577 S.W.2d 456 (2003) ...........5
State v. McWaters,
246 S.C. 534, 144 S.E.2d 718 (1965)5
State v. Passmore, 611 S.E.2d 273, (2005) ..4, 8
State v. Pitman (Unpublished) (2005 WL 831970 (S.C. Gen. Sess.)8
State v. Rogers, 198 S.C. 273, 17 S.E.2d 563 (1941)4, 5
State v. Wright, 2 Tread. Const. 517 (1814) ...5
State ex rel Thompson v. Seigler,
230 S.C. 115, 94 S.E.2d 232 (1956) ...10
Sunset Cay, LLC v. City of Folly Beach,
357 S.C. 414, 593 S.E.2d 462 (2004) .8 OTHER AUTHORITIES
South Carolina Code of Laws, Section 20-7-8920,
as amended .1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 15
South Carolina Code of Laws, Section 22-2-170, as amended7
South Carolina Constitution, Article XVII, Section 142, 9, 10, 12, 13, 14, 15
16B Am.Jur.2d Constitutional Law § 812 (1998)11
Act 498 of 1973 .13
1973 House Journal, p. 227 ................13
1973 House Journal, p. 1188 ..............14
1973 Senate Journal, p. 717 ...............14
1975 House Journal pp. 143, 172, 173, 187, 191, 383 and 328614
1975 Senate Journal pp. 190, 206, 264, 280, 323 and 25714
H. 2226, R. 19, Act 15 of 1974 ................14
STATEMENT OF ISSUE ON APPEAL
I. DID THE CIRCUIT COURT HAVE JURISDICTION TO HEAR THE APPEAL?
II. DID THE TRIAL COURT ERR AS A MATTER OF LAW IN DECLARING SECTION 20-7-8920 AS UNCONSTITIONAL STATEMENT OF THE CASE
On February 2, 2005, Trooper J. L. Godfrey of the South Carolina Highway Patrol charged the Appellant with Minor in Possession of Alcohol, in violation of Code of Laws of South Carolina, Section 20-7-8920. (R. p. 24, lines 20-22) Appellant requested a jury trial and then withdrew his request when the case was called. (R. p.24, lines 22-25)
On December 5, 2005, when this case was called for trial, Appellant withdrew his request for a jury trial and asked for a bench trial. (R. p.1; R. p. 24, lines 22-25) After the State presented its case, the Appellant then made a Motion for a directed verdict on the charge, alleging that Section 20-7-8920 is unconstitutional because it violates Section 14 of Article XVII of the South Carolina Constitution. (R. p. 25, lines 2-4; R. p. 56, lines 24 to p.57, line 2) The Honorable Robert B. Howell, Magistrate Judge for Cherokee County, issued his Order declaring Section 20-7-8920 unconstitutional as applied to this defendant.[1] (R. p. 1-13) Appellant acknowledges in his brief that sufficient facts existed to establish all the elements of the offense. (R. p. 2)
On December 9, 2005, the State filed its appeal arguing that the lower court erred in dismissing this case based on the constitutionality of Section 20-7-8920. (R. p. 14-21)
This appeal was argued before the Honorable J. Mark Hayes, Presiding Circuit Court Judge for the Seventh Judicial Circuit, on July 31, 2006. (R. p. 22) The Appellant, State of South Carolina, was represented by Rachel D. Erwin, Assistant General Counsel for the South Carolina Department of Public Safety. (R. p. 24, lines 10-12; R. p. 56, lines 8-9) The Appellant was represented by Trent N. Pruett. (R. p. 24, line 3; R. p. 59, line 19) After oral argument, Judge Hayes requested that both parties brief the Court on the issue of whether the Court has jurisdiction to hear this appeal. (R. p. 31, lines 14-16) Upon reviewing the briefs submitted by both parties, the Court issued an order finding that the Court did have jurisdiction to hear the appeal and further ordered that the case be scheduled for a hearing on the merits of the appeal. (R. p. 49) The hearing on the merits of the appeal was heard on December 12, 2006, before the Honorable Mark Hayes. (R. p.54) The State was represented by Rachel D. Erwin and the Defendant was represented by Mr. Trent Pruett. (R. p. 54) Subsequent to the hearing, Judge Hayes issued an order finding that the trial court had erred in ruling that Section 20-7-8920 was unconstitutional. (R. p. 65-71) The Defendant then appealed that order. (R. p. 72)
ARGUMENT
Issue I: DID THE CIRCUIT COURT HAVE JURISDICTION TO HEAR THE APPEAL?
The court had jurisdiction to hear the appeal based on the following grounds: (1) the question of the constitutionality of a statute is an issue of public importance that must be addressed by the Court under the Public Importance Exception; (2) the issue is one that is capable of repetition but evading review and (3) the directed verdict ruling in this case was not based on the existence or non existence of evidence but on a purely legal ground.
The Appellant's motion is in actuality an attack on the "indictment" of the case since it challenges the statute on which the charge was made. As such, the directed verdict should be appealable by the State. See State v. Rogers, 198 S.C. 273, 17 S.E.2d 563 (1941). However, since the Appellant deliberately chose to make the motion after testimony had begun by the State and the State had rested its case, it triggers "double jeopardy" considerations thus indicating the State has no right to re-try this defendant, thus apparently making this appeal moot as to the charge against this one individual defendant. However, even if the Court finds that double jeopardy prevents this defendant from being retried, there is an important public purpose to be served by hearing the State's appeal. "In determining whether a moot issue should be reviewed under the public importance exception, the issue must present a question of imperative and manifest urgency requiring the establishment of a rule for future guidance in 'matters of important public interest.' " See Sloan v. Friends of the Hunley, 369 S.C. 20, 630 S.E.2d 474 (2006); See also Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005); Douan v. Charleston County Council, 631 S.E.2d 544 (2006); Collins Music Co. v. IGT, 365 S.C. 299, 618 S.E.2d 876 (2005); State v. Passmore, 611 S.E.2d 273, (2005) for the finding that a court has jurisdiction to hear a moot issue under the "public importance exception." The directed verdict in the underlying case was based on a finding that in Cherokee County Section 20-7-8920 was unconstitutional outright, or at a minimum as applied to individuals between the ages of 18 to 21.[2] In it's order, the trial Court specifically noted, " the defendant has shown the act is unconstitutional as applied to him in this particular case "Thus, if Section 20-7-8920 can be held to be unconstitutional only as to this Defendant when all the elements of the crime have been met, the court has created an equal protection issue since other individuals who are charged under circumstances where all the elements of Section 20-7-8920 are met can be charged in Cherokee County with a violation of this statute. The Appellant asserts the State has no right to appeal in this case since the ruling was made behind the shield of a "directed verdict"[3] after jeopardy had attached[4] citing State v. McKnight, 353 S.C. 238, 577 S.E.2d 456 (2003); State v. Holliday, 255 S.C. 142, 177 S.E.2d 541 (1970); State v. McWaters, 246 S.C. 534, 144 S.E.2d 718 (1965); State v. Rogers, 198 S.C. 273, 17 S.E.2d 563 (1941); State v. Ludlam, 189 S.C. 69, 200 S.E. 361 (1938); State v. Lynn, 120 S.C. 258, 113 S.E.74 (1922); State v. Ivey, 73 S.C. 282, 53 S.E. 428 (1906); State v. Gathers, 15 S.C. 370 (1881); State v. Bowen, 4 McCord, 254 (1827); State v. Wright, 2 Tread. Const. 517 (1814). These cases are distinguishable from the case at hand. In those cases, the Court was asked to consider an evidentiary ruling which would impact how certain criminal charges would be prosecuted in future cases. The decision in this case goes to the underlying validity of the statute which formed the basis of the charge. If the ruling of the trial court is not limited to just this one defendant, then it applies to all individuals in this county between the ages of 18 to 21. Thus, the ruling of the trial court in this case forever affects, more specifically, forever bars the State from prosecuting an individual between the ages of 18 to 21 in Cherokee County for a violation of 20-7-8920 since the ruling in this case apparently declares that law unconstitutional for individuals in that age range. Thus, unlike the cases cited by Appellant dealing with a directed verdict, the ruling in this case would not affect how Section 20-7-8920 will be prosecuted in Cherokee county for individuals between the ages of 18 and 21, but rather whether individuals in that group can be prosecuted at all in the future for a violation of Section 20-7-8920. Only one of the cases cited by the Appellant involve the situation where a case was dismissed by a Summary Court on a purely legal ground and which did not involving the existence of evidence of the elements of the offense. The instant case is more analogous to the facts of State v. Holliday, 255 S.C. 142, 177 S.E.2d 541 (1970). In Holliday, the Court was concerned with an appeal by the State from an order reversing the conviction of a defendant solely upon a legal ground. The Court in Holliday specifically stated, The order under appeal was not concerned with the weight or sufficiency of the evidence, but was based solely upon the wholly legal ground that the unlawful arrest, within itself, vitiated the conviction. Since the conviction was reversed on a purely legal ground, the State had the right to appeal from such judgment. Id. at 543. See also State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982).
Moreover, because a magistrate's jurisdiction is only county-wide,[5] the ruling in this case affects only one of the States 46 counties. Thus, the ruling in this case makes it possible for Section 20-7-8920 to still be enforced against similarly situated 18 to 21 year olds in the remaining 45 counties of this State. As noted on page 2 of the trial court's order, all the elements required to be proven to convict an individual of the offense provided for in Section 20-7-8920 were met in this case. There is no contention that an element of the offense of Section 20-7-8920 was not proven in this case.[6] If the issue of the constitutionality of Section 20-7-8920 in Cherokee County as applied to individuals between the ages of 18 to 21 is not addressed by the court in this case, it will never be able to be addressed again, since the State will be unable to prosecute for this charge again in that county. The declaration of a statute as unconstitutional by a Summary Court is therefore inherently a matter of public importance which presents a question of imperative and manifest urgency requiring the establishment of a rule from the appellate court for future guidance. Because the declaration of Section 20-7-2920 as unconstitutional affects the prosecution of such charges in future cases and creates an equal protection issue in the remaining 45 counties of this State, the ruling by the Summary Court presents a recurring dilemma requiring clarification of the law by the Supreme Court.
Additionally, "An appellate court can take jurisdiction, despite mootness, if the issue raised is capable of repetition but evading review." Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005); Sloan v. Friends of the Hunley, 369 S.C. 20, 630 S.E.2d 474 (2006); Douan v. Charleston County Council, 631 S.E.2d 544 (2006); Collins Music Co. v. IGT 365 S.C. 299, 618 S.E.2d 876 (2005); State v. Passmore, 611 S.E.2d 273, (2005). The State's right to appeal in criminal cases is limited and there is virtually no chance of getting the issue before the court when these rulings are made after jeopardy has attached. The same ruling issued by the Summary Court in this case is capable of being issued in Summary Courts in the remaining 45 counties which would have the impact of further compounding the equal protection issues created by such rulings. Therefore, the ruling by the Summary Court presents a recurring dilemma requiring clarification of the law by the Supreme Court in order to prevent any precedential effect of an erroneous ruling which could effectively invalidate a statute for a whole county.
ISSUE II: DID THE TRIAL COURT ERR AS A MATTER OF LAW IN DECLARING SECTION 20-7-8920 AS UNCONSTITIONAL? A party challenging the constitutionality of a statute has the burden of proving that the statute is unconstitutional. Sunset Cay, LLC v. City of Folly Beach, 357 S.C. 414, 593 S.E.2d 462 (2004); Beaufort County v. State, 353 S.C. 240, 577 S.E.2d 457 (2003); State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997). When the Court is considering the constitutionality of a statute, every presumption is in favor of its validity. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004); State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002); State v. Pitman, (Unpublished) (2005 WL 831970 (S.C. Gen. Sess.) Courts are reluctant to declare a statute unconstitutional. Knotts v. South Carolina Department of Natural Resources, 348 S.C. 1, 558 S.E.2d 511(2002).
A legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution. State v. Curtis, 356 S.C. 622, 591 S.E.2d 600 (2004). When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution. State v. Jones, 344 S.C. 48, 58, 543 S.E.2d 541, 546 (2001) (citing State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997)). A statute which classifies on the basis of age is valid under the equal protection clause, if the statute is rationally related to furthering a legitimate state interest. Arnold v. Association of Citadel Men, 337 S.C. 265, 523 S.E.2d 757 (1999).
Since the Appellant/Defendant alleges that Section 20-7-8920 is unconstitutional, the burden is on the Appellant/Defendant to prove the statute is unconstitutional. Appellant/Defendant has not met that burden. Appellant/Defendant has presented no case law to demonstrate how Section 20-7-8920 is unconstitutional. Moreover, Appellant/Defendant has failed to even demonstrate how Section 20-7-8920 violates his constitutional rights. Defendant argues that because Section 14 of Article XVII of the South Carolina Constitution does not specifically and explicitly authorize the General Assembly to restrict the possession of alcoholic beverages by persons until age twenty-one, Section 20-7-8920 is unconstitutional. In essence, what Appellant/Defendant is arguing is that unless the Constitution specifically authorizes the General Assembly to enact legislation on a specific matter, legislation enacted by the General Assembly on such matters is unconstitutional. Appellant/Defendant has applied the wrong analysis in determining whether or not Section 20-7-8920 is unconstitutional.
"When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution." State v. Jones, 344 S.C. 48, 58, 543 S.E.2d 541, 546 (2001) (citing State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997)). Section 14 of Article XVII of the South Carolina Constitution provides that individuals eighteen years of age or older are sui juris, but allows the General Assembly to restrict the sale of alcohol to individuals until age twenty-one. Section 20-7-8920 prohibits the possession of alcohol by individuals under the age of twenty-one. The provisions of Section 20-7-8920 are not inconsistent and irreconcilable with Section 14 of Article XVII of the South Carolina Constitution. See City of Charleston v. Jenkins, 243 S.C. 205, 133 S.E.2d 242 (1963). "Powers of the General Assembly are plenary and not acquired from the Constitution, and the Assembly may enact such legislation as is not expressly or by clear implication prohibited by the Constitution". State ex rel Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 232 (1956). It is clear by the language of Section 14 that the Constitution intends to allow restrictions on access to alcohol by individuals under the age of twenty-one. That includes the possession of alcohol by individuals under the age of twenty-one. A possible constitutional construction of a statute must prevail over an unconstitutional interpretation of a statute. State v. 192 Coin Operated Machines, 338 S.C. 176, 525 S.E.2d 872 (2000).
"Courts generally analyze equal protection challenges[7] under one of three standards: (1) rational basis; (2) intermediate scrutiny; or, (3) strict scrutiny. 16B Am.Jur.2d Constitutional Law § 812 (1998). If the classification does not implicate a suspect class or abridge a fundamental right, the rational basis test is used." Denene, Inc. v. City of Charleston, 359 S.C. 85, 596 S.E.2d 917 (2004). "Under the rational basis test, the requirements of equal protection are satisfied when: (1) the classification bears a reasonable relation to the legislative purpose sought to be affected; (2) the members of the class are treated alike under similar circumstances and conditions; and, (3) the classification rests on some reasonable basis." Id. citing: Fraternal Order of Police v. South Carolina Dep't of Rev., 352 S.C. 420, 430, 574 S.E.2d 717, 722 (2002); Gary Concrete Products, Inc. v. Riley, 285 S.C. 498, 504, 331 S.E.2d 335, 339 (1985). Appellant/Defendant has offered no evidence to demonstrate that classification in Section 20-7-8920 fails to bear a reasonable relation to the legislative purpose sought to be affected. Appellant/Defendant has failed to offer any evidence that the members of the class are not treated alike under similar circumstances and conditions. Finally, Appellant/Defendant has failed to demonstrate that the classification in Section 20-7-8920 fails to rests on some reasonable basis.
Section 20-7-8920 complies with the first prong of the test, as the legislative purpose is clearly to protect the public health, welfare, and safety of its citizens under the age of twenty-one by seeking to eliminate problems created by alcohol in individuals up to age 21. Section 20-7-8920 was enacted in an effort to curtail alcohol related health issues of individuals under the age of twenty-one. Appellant/Defendant's charge under Section 20-7-8920 also comports with the second prong of the test because all persons under the age of twenty-one who are in possession of alcohol are subject to such a charge. Finally, the State's action in enacting Section 20-7-8920 is reasonable because the purpose of the law is to protect the public welfare of individuals under the age of 21 by eliminating problems created by alcohol.
Section 14 of Article XVII of the South Carolina Constitution provides, "Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one." The Appellant/Defendant alleges Section 20-7-8920 is in conflict with Section 14 of Article XVII of the South Carolina Constitution because Section 20-7-8920 prohibits the "possession" of alcohol by an individual under the age of twenty-one, and asserts Section 14 of Article XVII of the South Carolina Constitution only addresses the ability of the General Assembly to pass legislation prohibiting the "sale" of alcohol to an individual under the age of twenty-one.[8] Thus Appellant asserts the proper analysis in this case is one of statutory construction rather than the constitutional analysis outlined by the Court in other cases. See Denene v. City of Charleston, 359 S.C. 85, 596 S.E.2d 917 (2004); Arnold v. Association of Citadel Men, 337 S.C. 265, 523 S.E.2d 757 (1999); Knotts v. S.C. Dept. of Natural Resources, 348 S.C. 1, 558 S .E.2d 511 (2002). A statutory analysis is not the proper analysis. Even if a statutory analysis is used, the courts have held that a statute cannot be interpreted in such a manner as to leave an absurd result. The interpretation offered by Appellant of Section 14 of Article XVII of the South Carolina Constitution would leave the language of Section 14 of Article XVII of the South Carolina Constitution meaningless. Respondent asserts that it would be pointless for the Constitution to prohibit the sale of alcohol to individuals under the age of twenty-one if they were legally capable of possessing it. Interpreting Section 14 of Article XVII of the Constitution as not providing for a prohibition of individuals between the ages of 18 to 21 from possessing alcohol would result in a situation where persons between the ages of 18 to 21 could be provided with alcohol, just not in exchange for money. The only result of that interpretation would be to deny an economic benefit to merchants who provide alcohol for sale. Such a result would be absurd. Interpreting Section 14 of Article XVII of the Constitution as also allowing the prohibition of individuals under the age of 21 from possessing alcohol is consistent with the General Assembly's actions in this case. Act 498 of 1973 proposing an amendment to Article XVII of the South Carolina Constitution was voted on by the members of the General Assembly in 1973. Act 498 of 1973, as originally introduced, placed no restrictions on the activities of an individual 18 years of age an older, but provided that they were "fully emancipated".[9] However, before the legislation received the necessary three readings and two-thirds vote in both bodies, the legislation had been amended to limit access to alcohol for individuals between the ages of 18 to 21. The broader intent of the General Assembly in respect to the change is referenced in the title of the bill as it appeared in the Journals after the change was adopted and the bill had been ratified which read as follows "A Joint Resolution proposing an amendment to Article XVII of the Constitution of South Carolina, 1895, which contains various miscellaneous provisions, so as to provide that persons eighteen years of age or older shall be endowed with full legal capacity except in relation to alcoholic beverages.[10](emphasis added) The Constitutional Amendment was approved by the citizens of South Carolina in the 1974 General Election. The constitutional amendment approved by the voters of South Carolina in 1974 became effective only after the General Assembly ratified that amendment the following legislative session in 1975.[11] The Legislative Journals capturing the legislation proposing to ratify the constitutional amendment caption the intent as A Bill to ratify an amendment to Article XVII of the Constitution of South Carolina, 1895, relating to miscellaneous matters, so as to provide that persons eighteen years of age or older shall be endowed with full legal capacity except in relation to alcoholic beverages"[12](emphasis added) and clearly reveal that the intent of the General Assembly was to limit access to individuals under the age of 21 to any alcohol and not just to restrict sales of alcohol to individuals under the age of 21.
Moreover, the General Assembly is deemed to be aware of court decisions and its own prior legislative actions when adopting new or amending existing State statutes. State v. 192 Coin Operated Machines, 338 S.C. 176, 525 S.E.2d 872 (2000). As such, the General Assembly which passed the legislation proposing the constitutional amendment and which subsequently ratified that constitutional amendment did so with knowledge of the language of the current minor in possession law and the history of its changes. Thus, it is evident the General Assembly intended Section 14 of Article XVII of the South Carolina Constitution to have a broader application than the application proposed by Appellant.
CONCLUSION
For the above stated reasons, State having stated its grounds and legal authority in support of said grounds, would request that the Circuit Courts ruling which found that the lower court erred in declaring Section 20-7-8920 as unconstitutional be upheld.
Date: May 17, 2007
Rachel D. Erwin Assistant General Counsel Charles H. Sheppard General Counsel S. C. Department of Public Safety Office of General Counsel Post Office Box 1993 Blythewood, SC 29016 Telephone: (803) 896-9664 Attorneys for Respondent
[1] It is unclear from Judge Howells order if he was seeking to declare the law unconstitutional only as applied to this one individual or as applied to all individuals between the ages of 18 to 21. Certainly the State is unaware of any case law that would support the proposition that a law can be found to be unconstitutional for one individual and subsequently be determined to be constitutional for an identically similarly situated individual.
[2] As stated earlier, it is unclear if the court was seeking to limits its ruling to this one individual or to all individuals between the ages of 18 to 21. It is the State's position that it has to be construed to apply to all individuals in that age classification.
[3] It is the States belief that the court improvidently dismissed the case by means of a directed verdict. Rule 19 (a) of the SCRCrimP provides, On motion of the defendant or on its own motion, the court shall direct a verdict in the defendant's favor on any offense charged in the indictment after the evidence on either side is closed, if there is a failure of competent evidence tending to prove the charge in the indictment. In ruling on the motion, the trial judge shall consider only the existence or nonexistence of the evidence and not its weight. (emphasis added)
[4] Respondent believes Appellant's motion should have been made pre-trial as the motion was not related to the existence of evidence but on a purely legal ground going to the validity of the underlying statute. A motion on a matter so fundamental as the validity of a criminal statute should be made pre-trial so as to leave no question regarding an appellate courts jurisdiction to review the trial courts final decision and should be served on the opposing party prior to the date of the trial. Such a practice is even more imperative in Summary Court where traffic cases are routinely prosecuted by the arresting officers who are not licensed attorneys.
[5] Section 22-2-170 provides that magistrates have county wide jurisdiction in criminal matters.
[6] Again, argument for why a directed verdict was an improper method for dismissing this case. See State v. Cherry, 353 S.C. 263, 577 S.E.2d 719 (2001) which holds that in considering a motion for a directed verdict, the court is concerned with the existence or non existence of evidence and State v. Arnold, 361 S.C. 386, 605 S.E.2d 529 (2004) which determined that unless there is a total failure of competent evidence as to the charges alleged, the case must be submitted to the jury. Appellant does not dispute that sufficient evidence existed to prove each element of the offense charged.
[7] While Appellant has not affirmatively stated an equal protection challenge, that is in essence what he has asserted. His claim is that emancipated individuals between the ages of 18 and 21 are treated differently than emancipated individuals 21 years of age and older.
[8] Appellant relies on a statutory analysis basing his motion on the meaning of the words sale and possess rather than on a constitutional analysis which would look to the purpose of Section 20-7-8920, whether Section 20-7-8920 achieves that purpose and finally, whether Section 20-7-8920 is enforced the same against all individuals affected by the Section.
[9] 1973 House Journal p. 227.
[10] 1973 House Journal p. 1188, 1973 Senate Journal p. 717.
[11] H.2226, R. 19, Act 15 of 1975.
[12] 1975 House Journal pages 143, 172, 173, 187, 191, 383 and 3286. 1975 Senate Journal pages, 190, 206, 264, 280, 323 and 257.
THE STATE OF SOUTH CAROLINA
In the Supreme Court
APPEAL FROM CHEROKEE COUNTY
Court of Common PleasJ. Mark Hayes, II, Circuit Court Judge
Case No. 2005-CP-11-660
The State of South Carolina, .Respondent,
vs.
Charles Jordan Tillinghast, Appellant.
CERTIFICATE OF COUNSEL
The undersigned certifies that this Final Brief of Respondent complies with
Rule 211(b), SCACR.
Dated: May 17, 2007
Rachel D. Erwin Assistant General Counsel Charles H. Sheppard General Counsel S. C. Department of Public Safety Office of General Counsel Post Office Box 1993 Blythewood, SC 29016 Telephone: (803) 896-9664 Attorneys for Respondent