THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT
Appeal from Richland County
Honorable Larry R. Patterson, Circuit Court Judge
Case No. 2003-CP-40-05079
The State of South Carolina, ........................................... Respondent,
v.
Colie G. Martin, Jr. and Colie G. Martin, III, ................... Appellants.
FINAL BRIEF
HAMILTON & ASSOCIATES, LLC
Brian C. Gambrell
1531 Laurel Street
Columbia, South Carolina 29201
Telephone (803) 779-0700
Facsimile (803) 779-7006
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
Table of Contents............................................................................................................................. i
Table of Authorities......................................................................................................................... ii
Questions Presented...................................................................................................................... 1
Statement of the Case.................................................................................................................... 2
Statement of the Facts................................................................................................................... 4
Argument......................................................................................................................................... 5
I. The
Circuit Court erred when it reversed the magistrate’s
holding
that the Appellants’ horses were improperly seized
pursuant
to S.C. Code Ann. § 47-1-150, et seq.................................................. 5
II. The Circuit Court and
Magistrate erred by refusing to order the
immediate
return of Appellants’ horses............................................................. 11
III. Appellants did not “decline” or
“refuse” to have a hearing pursuant
to
S.C. Code Ann. § 47-1-150, et. seq, by filing an appeal in
the
instant case.................................................................................................... 13
Conclusion................................................................................................................................... 15
TABLE OF AUTHORITIES
South Carolina Cases:
City of Sumter Police
Dep’t v. One (1) 1992 Blue Mazda Truck,
330 S.C. 371, 375,
498 S.E.2d 894, 898 (Ct. App.
1998).............................................................................................. 8
Fort Sumter Hotel V. South
Carolina Tax Commission et al.,
201 S.C. 50, 21 S.E.2d 393
(1942)................................................................................................ 13
Gattis v. Murrells Inlet VFW # 10420, 353 S.C. 100, 576 S.E.2d 191 (Ct. App. 2003)............. 14
Hadfield v. Gilchrist, 343, S. C. 88, 538 S.E.2d 268 (Ct. App. 2000)........................................... 5
Henderson v. Evans, 268 S.C. 127, 132, 232 S.E.2d 331 (1977)............................................... 11
Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992)................................................ 8
Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992)......... 8
I’On, LLC v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000) ................. 5
Jackson v. Speed, 326 S.C. 289, 311, 486 S.E.2d 750, 761 (1997).......................................... 14
Kiriakides v. United
Artists Communications, Inc.,
312 S.C. 271, 275, 440
S.E.2d 365, 366 (1994)........................................................................... 9
Last v. MSI Construction Co., 305 S.C. 349, 409 S.E.2d 334 (1991)........................................ 11
Long v. McMillan, 226 S.C. 598, 86 S.E.2d 477 (1955)............................................................... 12
Mims Amusement Co. v.
South Carolina Law Enforcement Div.,
366 S.C. 141, 621 S.E.2d 344
(2005)..................................................................................... 11,
12
Mitchell v. Owens, 304 S.C. 23, 402 S.E.2d 888 (1991).............................................................. 11
Multi-Cinema, Ltd. v. S. C. Tax Comm’n, 292 S.C. 411, 413, 357 S.E.2d 6, 7 (1987)................. 8
N.C. Fed. Sav. & Loan
Ass'n v. Twin States Dev. Corp.,
289 S.C. 480, 481, 347 S.E.2d
97, 97 (1986)................................................................................ 14
Parks v. Characters Night Club, 345 S.C. 484, 548 S.E.2d 605 (Ct. App. 2001)........................ 5
Rowe v. Hyatt, 321 S.C. 366, 369, 468 S.E.2d 649, 650 (1996).................................................... 8
Sloan v. South Carolina
Bd. of Physical Therapy Examiners,
370 S.C. 452, 636 S.E.2d
598 (2006)........................................................................................................................................... 11
S. Mut. Church Ins. Co. v.
South Carolina Windstorm & Hail Underwriting Ass’n, 306 S.C.
39, 342, 412 S.E.2d 377, 379
(1991)................................................................................................ 8
Stackhouse v. Rowland, 86 S.C. 419, 422, 68 S.E. 561, 5623 (1910).......................................... 9
State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000)... 11,12
State v. Fletcher, 322 S.C. 256, 471 S.E.2d 702 (Ct. App. 1996)................................................ 14
State v. Graves, 269 S.C. 356, 237 S.E.2d 584 (1977)................................................................... 8
State v. Higgenbottom, 344 S.C. 11, 542 S.E.2d 718 (2001)....................................................... 14
State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 582 (Ct.App. 1999).................................. 8
State v. McCord, 258 S.C. 163, 187 S.E.2d 654 (1972)............................................................. 7, 8
State v. Morgan, 352 S.C. 359, 365, 374 S.E.2d 203, 206 (Ct. App. 2002)............................. 8, 9
Whitner v. State, 328 S.C. 1, 16, 492 S.E.2d 777, 779 (1997)....................................................... 8
Wright v. Dickey, 370 S.C. 517, 636 S.E.2d 1 (Ct. App. 2006)................................................... 14
Cases from Other Jurisdictions
United States Supreme Court
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978)........... 14
United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982).... 14
Other Sources:
South Carolina Code Ann. § 47-1-140........................................................................................ 2, 4
South Carolina Code Ann. § 47-1-150, et seq. ................................................... 2, 5, 6, 7, 9, 10, 13
South Carolina Code Ann. § 47-1-150(A).................................................................................. 3, 9
South Carolina Code Ann. § 47-1-150(B) ...................................................................................... 9
South Carolina Code Ann. § 47-1-150(C) .................................................................................... 10
South Carolina Code Ann. § 47-1-150(C)(1).................................................................. 3, 9, 10, 11
South Carolina Code Ann. § 47-1-150(C)(2)............................................................................ 9, 10
South Carolina Code Ann. § 47-1-150(F)..................................................................................... 10
South Carolina Code Ann. § 47-1-150(G).................................................................................... 11
South Carolina Code Ann. § 47-1-170.................................................................................... 10, 12
SCACR 205................................................................................................................................... 13
SCACR 225(a).............................................................................................................................. 13
SCRCP 59(e)................................................................................................................................... 3
QUESTIONS PRESENTED
| I. | Did the Circuit Court err when it reversed the trial
court’s holding the Appellants’ horses were improperly seized pursuant
to S.C. Code Ann. § 47-1-150, et seq.? |
| II. | Did the trial court err when it refused to order the
return of Appellants’ horses? |
| III. | Did Appellants “decline” or “refuse” to have a hearing pursuant to S.C. Code Ann. § 47-1-150, et. seq.? |
STATEMENT OF THE CASE
The instant case is an appeal from the Magistrate’s Court regarding the signature and execution of a search warrant for allegations of animal cruelty pursuant to S.C. Code Ann. § 47-1-150, et. seq. On August 21, 2003, officers of the Richland County Sheriff’s Department, in conjunction with a member of the South Carolina Awareness and Rescue for Equines, Inc. (hereinafter “SCARE”)1, applied for a search warrant before the Honorable Michael Davis pursuant to S.C. Code Ann. § 47-1-140.2 (R. pp. 24-29). The search warrant was then executed on or about August 30, 2003 and August 31, 2003. A total of 61 horses were ultimately seized by the State and SCARE.3 (R. p. 30).
On September 4, 2003, Appellants’ counsel4 filed the instant action before Judge Davis to challenge seizure of the Appellants’ horses and the absence of a hearing as required by due process and S.C. Code Ann. § 47-1-150. (R. pp. 8-23). Judge Davis then scheduled a hearing on September 16, 2003; however, the Appellants were arrested on September 15, 2003. (R. pp. 31-149). Appellants then attended court before Judge Davis as previously scheduled on September 16, 2003 with approximately thirty witnesses. However, no one from the State or SCARE appeared at the September 16, 2003 hearing and the hearing was rescheduled for October 1, 2003.
The Appellants’ counsel at the hearing on October 1, 2003 withdrew its motion to challenge the sufficiency of the warrant and proceeded only with the challenge to State and/or SCARE’s failure to hold a hearing. Judge Davis issued a written order on October 7, 2003 which held that the State was required to hold a hearing within twenty-four hours after the seizure of Appellants’ horses. (R. pp. 2-4). However, Judge Davis denied Appellants’ request to return Appellants’ horses but instead ordered SCARE to request a hearing to determine whether Appellants’ horses were being abused. (R. pp. 2-4). Appellants’ counsel thereafter filed a timely appeal of Judge Davis’s refusal to order the immediate return of Appellants’ horses. (R. pp. 610-611).
Appellants’ appeal in the instant action was heard by the Honorable Larry R. Patterson on February 17, 2005. Judge Patterson then issued a Form 4 order on February 18, 2005 which simply states “The horses were properly removed pursuant to § 47-1-150(A) or § 47-1-150(C)(1) Motion to vacate seizure order is denied.” (R. p. 5). Appellants’ counsel then filed a Motion for Reconsideration pursuant to Rule 59(e), SCRCP on March 10, 20055. (R. pp. 175-193). Thereafter, Judge Patterson issued an order denying Appellants’ Rule 59(e), SCRCP, on March 9, 2007. (R. pp. 6-7). This appeal follows.
STATEMENT OF THE FACTS
The Appellants owned 61 brood mares,6 stallions,7 and juvenile horses. On August 21, 2003, officers of the Richland County Sheriff’s Department, in conjunction with a member of SCARE, applied for a search warrant before the Honorable Michael Davis pursuant to S.C. Code Ann. § 47-1-140. (R. pp. 24-29). The search warrant was then executed on or about August 30, 2003 and August 31, 2003. A total of 61 horses were ultimately seized by the State and SCARE. (R. p. 30). horses were then released by the State into the custody and control of SCARE and were distributed by SCARE to “foster farms” for care. (R. pp. 2-4). Thereafter, neither the State nor SCARE noticed a hearing within twenty-four hours of the seizure of Appellants’ horses before the later hearing before Judge Davis. (R. pp. 2-4). The Appellants have been continuously denied possession of their horses since the date of seizure.
During the pendency of the appeal in the instant action, the Appellants were jointly tried on 60 counts of animal cruelty, second offense, against Colie B. Martin, III and 60 counts of conspiracy to commit animal cruelty against Colie B. Martin, Jr. Colie B. Martin, III was found not guilty on 56 counts and guilty of four counts of animal cruelty on June 16, 2004 after a week long trial.8 Likewise, Colie B. Martin, Jr. was found not guilty on 56 counts and guilty of four counts of conspiracy to commit animal cruelty. The 56 horses upon which the non-guilty findings were based have not been returned to the Appellants.9
ARGUMENT
| I. | The Circuit Court erred when it reversed the Magistrate’s holding that the Appellants’ horses were improperly seized pursuant to S.C. Code Ann. § 47-1-150, et seq. |
1. Standard of Review
The scope of review by the appellate court of a decision of the Circuit Court reviewing magistrate’s court extends to correction of errors of law. Hadfield v. Gilchrist, 343 S.C. 88, 538 S.E.2d 268 (Ct. App. 2000); Parks v. Characters Night Club, 345 S.C. 484, 548 S.E.2d 605 (Ct. App. 2001). Further, this Court is free to decide a novel question of law with no particular deference to the lower court. I‘On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 411, 526 S.E.2d 716, 719 (2000).
2. The Circuit Court’s interpretation of S.C. Code Ann. § 47-1-150 is clearly erroneous.
The Circuit Court clearly erred when it reversed the magistrate courts’ ruling that S.C. Code Ann. § 47-1-150 required a hearing within twenty-four hours of seizure. The State argued and the Circuit Court agreed that S.C. Code Ann. § 47-1-150 authorizes hearings under three different sections. However, this erroneous interpretation of S.C. Code Ann. § 47-1-150 violates the rules of statutory construction and would lead to absurd results.
S.C. Code Ann. § 47-1-150 provides in full:
(A) When complaint is made on oath or affirmation to any magistrate authorized to issue warrants in criminal cases that the complainant believes and has reasonable cause to believe that the laws in relation to cruelty to animals have been or are being violated in any particular building or place, such magistrate, if satisfied that there is reasonable cause for such belief, shall issue a search warrant authorizing any sheriff, deputy sheriff, deputy state constable, constable or police officer to search such building or place; but no search shall be made after sunset, unless specially authorized by the magistrate upon satisfactory cause shown. If an animal is seized pursuant to this section and the South Carolina Society for the Prevention of Cruelty of Animals, or other society incorporated for that purpose is involved with the seizure, the animal may be held pending criminal disposition of the case at a facility maintained or contracted by that agency.
(B) The purpose of this section is to provide a means by which a neglected or mistreated animal can be:
(1) removed from its present custody, or
(2) made the subject of an order to provide care, issued to its owner by the magistrate or municipal judge, any law enforcement officer, or any agent of the county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose and given protection and an appropriate and humane disposition made.
(C) Any law enforcement officer or any agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or any society incorporated for that purpose may move before a magistrate for an order to:
(1) lawfully take custody of any animal found neglected or cruelly treated by removing the animal from its present location if deemed by the court that removal is necessary to prevent further suffering or ill-treatment, or
(2) order the owner of any animal found neglected or cruelly treated to provide certain care to the animal at the owner's expense without removal of the animal from its present location, and shall forthwith petition the magistrate or municipal judge of the county or municipality wherein the animal is found for a hearing, to be set within twenty-four hours after the date of seizure of the animal or issuance of the order to provide care and held not more than two days after the setting of such date, to determine whether the owner, if known, is able to provide adequately for the animal and is fit to have custody of the animal. The hearing shall be concluded, and the court order entered the date the hearing is commenced. No fee shall be charged for the filing of the petition. Nothing herein is intended to require court action for the taking into custody and making proper disposition of stray or abandoned animals as lawfully performed by animal control agents.
(D) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of any animal pursuant to the provisions of this section shall have written notice served prior to the hearing set forth in subsection (C)(2), upon the owner of the animal, if he is known and is residing in the county where the animal was taken. The sheriff of the county shall not charge a fee for service of such notice. If the owner of the animal is known but is residing outside of the county wherein the animal was taken, notice of the hearing shall be by publication.
(E) If any seized animal held by court order at the owner's premises is removed without notification to the investigating agency, or if an animal becomes sick or dies, and the owner or custodian fails to immediately notify the investigating agency, the owner must be held in contempt of court and fined up to the penalties provided by law.
(F) The officer or agent of any county or of the South Carolina Society for the Prevention of Cruelty to Animals, or of any society incorporated for that purpose, taking charge of an animal as provided for in this section shall provide for the animal until either:
(1) The owner is adjudged by the court to be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner upon payment for the care and provision of the animal while in the agent's or officer's custody; or
(2) The animal is turned over to the officer or agent as provided in Section 47-1-170 and a humane disposition of the animal is made.
(G) If the court determines that the owner is able to provide adequately for, and have custody of the animal, the order shall provide that the animal in possession of the officer or agent be claimed and removed by the owner within seven days after the date of the order.
S.C. Code Ann. § 47-1-150 is clearly a penal statute, and a penal statute is strictly construed to resolve any uncertainty or ambiguity against the State and in favor of a criminal defendant. State v. McCord, 258 S.C. 163, 187 S.E.2d 654 (1972); State v. Graves, 269 S.C. 356, 237 S.E.2d 584 (1977). “The cardinal rule of statutory construction is that words used therein must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation.” Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992). The terms must be construed in context and their meaning determined by looking at the other terms used in the statute. S. Mut. Church Ins. Co. v. South Carolina Windstorm & Hail Underwriting Ass'n, 306 S.C. 339, 342, 412 S.E.2d 377, 379 (1991). Courts should consider not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. Whitner v. State, 328 S.C. 1, 16, 492 S.E.2d 777, 779 (1997).
In interpreting a statute, the language of the statute must be construed in a sense which harmonizes with its subject matter and accords with its general purpose. Hitachi, supra.; Multi-Cinema, Ltd. v. S.C. Tax Comm'n, 292 S.C. 411, 413, 357 S.E.2d 6, 7 (1987); State v. Hudson, 336 S.C. 237, 246, 519 S.E.2d 577, 582 (Ct. App. 1999). Statutes must be read as a whole and sections which are part of the same general statutory scheme must be construed together and each given effect, if it can be done by any reasonable construction. Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992). Words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limits or expands the statute's operation. Rowe v. Hyatt, 321 S.C. 366, 369, 468 S.E.2d 649, 650 (1996); City of Sumter Police Dep't v. One (1) 1992 Blue Mazda Truck, 330 S.C. 371, 375, 498 S.E.2d 894, 898 (Ct. App.1998).
When faced with an undefined statutory term, the court must interpret the term in accord with its usual and customary meaning. State v. Morgan, 352 S.C. 359, 365, 574 S.E.2d 203, 206 (Ct. App. 2002). If the language of an act gives rise to doubt or uncertainty as to legislative intent, the construing court may search for that intent beyond the borders of the act itself. Morgan, 352 S.C. at 367, 574 S.E.2d at 207; Hudson, 336 S.C. at 247, 519 S.E.2d at 582. “However plain the ordinary meaning of the words used in a statute may be, the courts will reject that meaning when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the Legislature or would defeat the plain legislative intention.... If possible, the court will construe the statute so as to escape the absurdity and carry the intention into effect.” Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994)(citing Stackhouse v. Rowland, 86 S.C. 419, 422, 68 S.E. 561, 562 (1910)).
S.C. Code Ann. § 47-1-150 does not establish three different types of seizures of animals for animal cruelty as held by the Circuit Court, but rather one hearing under two separate circumstances. S.C. Code Ann. § 47-1-150(A) provides initial authorization for magistrates to issue search warrants to investigate claims of animal abuse. S.C. Code Ann. § 47-1-150(A) plainly does not authorize the seizure of any animal. Instead, the only mention of seizure under S.C. Code Ann. § 47-1-150(A) is “if an animal is seized pursuant to this section....” (Emphasis added.) This provision in S.C. Code Ann. § 47-1-150(A) clearly references the rest of S.C. Code Ann. § 47-1-150 because of the absence of any other reference to “seizure” under S.C. Code Ann. § 47-1-150(A). This meaning is clearly understood because “this section” is used several times in the rest of S.C. Code Ann. § 47-1-150 to refer to S.C. Code Ann. § 47-1-150 as a whole. For example, S.C. Code Ann. § 47-1-150(B) discusses the purpose of “this section” is to provide a means to either remove animals from harmful situations or require owners to provide care under court supervision. The “seizure” referenced in S.C. Code Ann. § 47-1-150(A) is further explained in S.C. Code Ann. § 47-1-150(C)(1) and S.C. Code Ann. § 47-1-150(C)(2). The magistrate under S.C. Code Ann. § 47-1-150(C) may either order the immediate seizure of the animal pursuant to S.C. Code Ann. § 47-1-150(C)(1) or order the owner of any neglected animal to provide certain care at the owner’s expense without removal pursuant to S.C. Code Ann. § 47-1-150(C)(2).
The Circuit Court erroneously held the “or” separating S.C. Code Ann. § 47-1-150(C)(1) from S.C. Code Ann. § 47-1-150(C)(2) meant that no hearing was required if the seizure was effectuated under S.C. Code Ann. § 47-1-150(C)(1). However, this result was not intended by the statute. The remaining language of S.C. Code Ann. § 47-1-150(C)(2) required the State or SCARE to petition the magistrate for a hearing to be set within twenty-four hours after the date of “seizure of the animal or issuance of the order to provide care and held not more than two days after the setting of such date.” (Emphasis added). Thus, the Circuit Court’s reading of the statute would make this particular phrase in S.C. Code Ann. § 47-1-150(C)(2) superfluous. The main portion of S.C. Code Ann. § 47-1-150(C)(2) grants magistrates the power to order “certain care” to be provided; the first part of S.C. Code Ann. § 47-1-150(C)(2) does not authorize a seizure. Therefore, the only “seizure” authorized anywhere under S.C. Code Ann. § 47-1-150 is found only under S.C. Code Ann. § 47-1-150(C)(1). Therefore, the emphasized portion of S.C. Code Ann. § 47-1-150(C)(2) most logically refers to seizures pursuant to S.C. Code Ann. § 47-1-150(C)(1). Additionally, S.C. Code Ann. § 47-1-150(F) provides that law enforcement or an agent of a humane society like SCARE shall care for the animal until either “the owner adjudged by the court to be able to provide adequately for, and have custody of, the animal, in which case the animal shall be returned to the owner” or a forfeiture occurs pursuant to S.C. Code Ann. § 47-1-170. Logically, the animal in question can only be “returned” if the animal was removed from the possession of the owner. Finally, S.C. Code Ann. § 47-1-150(G) provides that an animal seized shall be claimed and returned within seven days if the court determines “the owner is able to provide adequately for, and have custody of the animal.” The only logical reading of these later provisions is that there must be a hearing after a seizure.
The reading of S.C. Code Ann. § 47-1-150(C)(1) suggested by the State and Circuit Court would render S.C. Code Ann. § 47-1-150(C)(1) suspect under a due process claim. The State cannot deprive a person of property without due process of law. Sloan v. South Carolina Bd. of Physical Therapy Examiners, 370 S.C. 452, 636 S.E.2d 598 (2006); Mims Amusement Co. v. South Carolina Law Enforcement Div., 366 S.C. 141, 621 S.E.2d 344 (2005). Due process can be satisfied with either a hearing before or after the seizure. State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000). The reading suggested by the Circuit Court would allow the State and/or organizations to seize animals by simple probable cause and then force the rightful owner to file a civil action at the owner’s expense to recover their property. This result is plainly absurd and unconstitutional. Courts cannot construe an act to do that which is unconstitutional. Last v. MSI Construction Co., 305 S.C. 349, 409 S.E.2d 334 (1991). Statutes are presumed to be constitutional and will be construed so as to render them valid. Mitchell v. Owens, 304 S.C. 23, 402 S.E.2d 888 (1991). A possible constitutional construction of a statute must prevail over an unconstitutional interpretation. Henderson v. Evans, 268 S.C. 127, 132, 232 S.E.2d 331 (1977)
II. The Circuit Court and Magistrate erred by refusing to order the immediate return of Appellants’ horses The Circuit Court and Magistrate Court erred when it refused to order the immediate return of Appellants’ illegally seized horses. The law recognizes two categories of contraband subject to seizure and forfeiture. The first category are items which are “contraband per se”, and the items themselves are illegal to own or possess. This class includes illegal gambling devices such as roulette wheels, craps tables, “moonshine” liquor, illegal narcotic drugs, and unregistered guns. 192 Coin-Operated Video Game Machines; supra; Mims, supra. The second category are items which are “derivative contraband” which are things that may be forfeited because they are instrumentalities of a crime, but which ordinarily are not illegal to possess. This class includes items such as currency, vehicles, or real property used in the commission of a crime or traceable to the proceeds of criminal activity. 192 Coin-Operated Video Game Machines; supra; Mims, supra.
In order for items to be seized through forfeiture, derivative contraband must be the instrumentality of a crime. However, there has already been an adjudication by the Court of General Sessions that Appellants’ 56 horses were not the subject of illegal action as evidenced by the Appellants’ acquittal on 56 counts linked to 56 separate animals10. Thus, Appellants’ remaining horses are not subject to forfeiture as derivative contraband. The remedy for illegally seized items is the return of those items, unless those items are contraband per se. 192 Coin-Operated Video Game Machines; supra. “A pistol of and by itself is not contraband and the owner may force its return when no longer required for the purposes of justice, unless such has been confiscated.” Long v. McMillan, 226 S.C. 598, 86 S.E.2d 477 (1955). “The contention of counsel for the appellants that to require the return of the liquors in question to the appellee would have the effect of giving it a supply of contraband liquor to continue an ‘illicit and unlawful business,’ is wholly untenable, because the possession of such stamped liquor at a proper place and for proper purposes is not unlawful, and certainly the re-delivery of these liquors to the appellee pending the determination of a proper legal proceeding for the confiscation of the same would by no means authorize or excuse the unlawful possession or use thereof.” Fort Sumter Hotel V. South Carolina Tax Commission et al., 201 S.C. 50, 21 S.E.2d 393 (1942).
Therefore, the Magistrate’s Court and Circuit Court erred when they failed to order the return of Appellants’ 56 illegally seized horses.
III. Appellants did not “decline” or “refuse” to have a hearing pursuant to S.C. Code Ann. § 47-1-150, et. seq, by filing an appeal in the instant case. The Circuit Court also erred when it ruled that Appellant had “declined” or “refused” their opportunity for a hearing pursuant to S.C. Code Ann. § 47-1-150. This ruling by the Circuit Court amounts to an attempt to penalize Appellants for exercising their right to appeal the Magistrate’s and Circuit Court’s rulings. Rule 205, SCACR , provides the appellate court with exclusive jurisdiction over matters on appeal. The lower court may only proceed with matters not affected by the appeal. Rule 225(a), SCACR, in governing matters which are stayed while on appeal, provides:
As a general rule, the service of a notice of appeal in a civil matter acts to automatically stay matters decided in the order on appeal, and to automatically stay the relief ordered in the appealed order, judgment, or decree. This automatic stay continues in effect for the duration of the appeal unless lifted by order of the trial judge, appellate court, or judge or justice thereof. The lower court retains jurisdiction over matters not affected by the appeal including the authority to enforce any matters not stayed by the appeal.
The trial court erred when it ruled Appellants “refused” or “declined” to have a hearing because the magistrate was divested of jurisdiction upon the service on the notice of appeal. The question of whether a hearing could be held after the expiration of the statutory deadline was the subject matter of the Appellants’ appeal, and the ability of the court to hold a hearing was the clearly the subject of the appeal. Jackson v. Speed, 326 S.C. 289, 311, 486 S.E.2d 750, 761 (1997); Gattis v. Murrells Inlet VFW # 10420, 353 S.C. 100, 576 S.E.2d 191 (Ct. App. 2003). Therefore, the trial court lacked the ability to hold a hearing even if the Appellant had desired one.
Additionally, the trial court’s ruling unfairly penalizes the Appellants for exercising their right to file an appeal. It is a due process violation to punish a person for exercising a protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978); State v. Higgenbottom, 344 S.C. 11, 542 S.E.2d 718 (2001); State v. Fletcher, 322 S.C. 256, 471 S.E.2d 702 (Ct. App. 1996). “The right of appeal arises from and is controlled by statutory law.” Wright v. Dickey, 370 S.C. 517, 636 S.E.2d 1 (Ct. App. 2006); N.C. Fed. Sav. & Loan Ass'n v. Twin States Dev. Corp., 289 S.C. 480, 481, 347 S.E.2d 97, 97 (1986). In the instant case, the Circuit Court did not find any defects in the manner or form of the appeal, but only held that Appellant had waived their opportunity to have a hearing. This ruling attempts to punish Appellants for exercising their right to an appeal. Therefore, this Court should reject any argument that Appellants have waived their right to the hearing by filing an appeal.
CONCLUSION
For the foregoing reasons, the Appellants respectfully request that the Court should REVERSE the Circuit Court and order the immediate return of Appellants’ 56 seized horses and their progeny without delay.
Respectfully submitted,
HAMILTON & ASSOCIATES, LLC
Brian C. Gambrell
1531 Laurel Street
Columbia, South Carolina 29201
Telephone (803) 779-0700
Facsimile (803) 779-7006Columbia, South Carolina
, 2008
ATTORNEYS FOR APPELLANTS
1SCARE was not a party to the instant action or the appeal thereof.
2S.C. Code Ann. § 47-1-140 is cited throughout the warrants and affidavits submitted to and signed by Judge Davis. (R. pp. 24-29). However, S.C. Code Ann. § 47-1-140 only provides for the care of animals incident to an arrest on the charge of animal cruelty. It is undisputed that the Appellants were not arrested on the date of the execution of the search warrant. Therefore, the seizure of Appellants’ horses was necessarily effectuated pursuant to S.C. Code Ann. § 47-1-150, et seq.
3One horse developed a condition called “colic” or severe abdominal pain during the process of seizure. This horse was ultimately euthanized by a veterinarian on behalf of the State and never removed from Appellants’ farm.
4Appellants’ trial counsel is different from their appellant counsel.
5The Form 4 indicated that it was not mailed until February 25, 2005. Further, Appellant’s former counsel filed an affidavit with Judge Patterson that indicated that Appellant’s former counsel did not receive the Form 4 until March 2, 2005.
6A brood mare is a female horse old enough to become impregnated and bear young.
7A stallion is a male horse old enough to impregnate a mare. A male horse that has been neutered is called a gelding.
8The Appellants’ criminal trials bear case numbers 2003-GS-40-7321 and 2003-GS-40-9623. The instant appeal does not challenge those convictions.
9The Appellants have filed a new, separate action against the State of South Carolina, SCARE, and Janice K. Carter (2006-CP-40-4064) for the return of the 56 horses and their progeny. This action is still pending before the Richland County Court of Common Pleas.
10The Appellants do not challenge the forfeiture of the four horses which form the basis of Appellants’ four convictions pursuant to S.C. Code Ann. § 47-1-170.