Could a South Carolina mayor's third-degree domestic violence plea trigger an office vacancy after a second-degree indictment?

Plain-English summary

In 2018, counsel to South Carolina's governor asked whether a mayor's guilty plea to third-degree domestic violence, after an indictment for second-degree domestic violence arising from the same incident, triggered the state constitution's office vacancy provision for crimes involving moral turpitude. The Attorney General concluded that a court would likely treat the linked indictment and conviction as meeting the provision's conviction requirement. It reasoned that third-degree domestic violence could be a crime involving moral turpitude, considering the charged conduct and surrounding facts.

The office distinguished the lesser-offense conviction from a separate third-degree indictment that had been dismissed. Its conclusion was a prediction about how a court would apply article VI, § 8 to the described record, building on a 2017 opinion about second-degree domestic violence. It did not purport to adjudicate the mayor's office status itself.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG require the conviction to have the same degree as the indictment?
A: No. It predicted that a lesser-offense conviction tied to the same incident could meet the constitutional provision if both crimes involved moral turpitude.

Q: Did the opinion say every domestic violence conviction automatically vacated an office?
A: It said all degrees could involve moral turpitude and applied the rule to the described indictment, plea, and facts; it did not adjudicate every possible case.

Q: Did the dismissed third-degree indictment itself count as a conviction?
A: No. The office specifically said that dismissed indictment did not meet the conviction requirement.

Background and statutory framework

Article VI, § 8 allowed gubernatorial suspension after an indictment for a crime involving moral turpitude and directed that an office be declared vacant upon conviction. The opinion examined the same-incident relationship between an indictment for second-degree domestic violence and a negotiated plea to third-degree domestic violence. It used the office's 2017 view that second-degree domestic violence could involve moral turpitude and considered the facts of the plea in assessing the lesser offense.

Citations and references

• S.C. Const., art. VI, § 8: suspension and vacancy provision quoted in the opinion.
• S.C. Code Ann. § 16-25-20: domestic violence provision discussed in the opinion.
• 2017 WL 1095385: earlier AG opinion on second-degree domestic violence and moral turpitude.

Official title

On whether the Governor has the authority to remove an elected official from office who pled guilty to Domestic Violence, Third Degree, as a crime involving moral turpitude (Section 16-25-20, South Carolina Code of Laws).

Requester

Thomas A. Limehouse, Jr., Legal Counsel to the Governor.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-7-2018/
• Original PDF: https://www.scag.gov/wp-content/uploads/2018/11/Limehouse-T.-OS-10283-FINAL-Opinion-11-7-2018-01824288xD2C78-01826032xD2C78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON

ATTORNEY GENERAL

November 7, 2018

Thomas A. Limehouse, Jr., Esquire

Legal Counsel to Governor Henry McMaster
State House

1100 Gervais Street

Columbia, SC 29201

Dear Mr. Limehouse:

We received your letter dated July 24, 2018 for a response. The following is this Office’s understanding of your question and our opinion based on that understanding.

Issue:

Whether a Mayor who pleaded guilty to one count of Domestic Violence, Third Degree, as a lesser included offense to an indictment for Domestic Violence, Second Degree, pursuant to negotiated sentence prompts the Governor’s authority to in Article VI, section 8 of the South Carolina Constitution to remove the Mayor from his office.

Law/Analysis:

As you are aware, this Office-regularly advises, assists and represents the Governor, as authorized and required by law. S.C. Const. art IV, § 15; S.C. Code Ann. § 1-7-90. As you mention in your letter, this Office answered a similar question for you, as legal counsel to the Governor, in 2017 when you asked whether the crime of domestic violence second (2") degree was a “crime of moral turpitude.” See Op. S.C. Att’y Gen., 2017 WL 1095385 (S.C.A.G. March 9, 2017). In that opinion this Office concluded that “the crime of domestic violence 2" degree is a ‘crime of moral turpitude’ for purposes of the Governor’s suspension power provided in Article VI, § 8 of the South Carolina Constitution.” Id. However, that opinion limited its conclusion to domestic violence second (2™) degree. Id.

The South Carolina Constitution authorizes the Governor with discretion to suspend a State officer indicted for “a crime of moral turpitude” but mandates a vacancy in the office of a State official convicted of “a crime involving moral turpitude” when it states that:

Any officer of the State or its political subdivisions, except members and officers of the Legislative and Judicial Branches, who has been indicted by a grand jury for acrime involving moral turpitude or who has waived such indictment if permitted by law may be suspended by the Governor until he shall have been acquitted. In case of conviction the office shall be declared vacant and the vacancy filled as may be provided by law. (1972 (57) 3181; 1973 (58) 83.)

S.C. Const. art. VI, § 8. Certainly the Mayor you describe has been indicted by a grand jury for a crime involving moral turpitude according to the information you provided, as our March 9, 2017 opinion

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Thomas A. Limehouse, Jr., Esquire
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November 7, 2018

concluded that the crime of domestic violence second (2™’) degree is a crime of moral turpitude. Our understanding is your question is whether the Mayor’s guilty plea with a conviction of a lesser included offense would be considered a conviction for Section 8 purposes. S.C. Const. art. VI, § 8. To further complicate matters, it is this Office’s understanding the Mayor was also indicted for domestic violence third (3) degree on the same day as the indictment for domestic violence second (2™ ) degree. Since it is our understanding the indictment for domestic violence third (3) degree was nolle prossed on 6/7/18 (the same day as the conviction for domestic violence third (3) degree on the sentencing sheet), it would not satisfy Article VI, § 8’s requirement of a “conviction.” This Office believes a court would conclude that if the crime that the Defendant was convicted of was one “involving moral turpitude” and if the crime the Defendant was indicted on was also a “crime involving moral turpitude” based on the same incident or set of facts, then the Governor has authority pursuant to S.C. Const. art. VI, § 8 to declare the office vacant

“and the vacancy filled as may be provided by law.” S.C. Const. art. VI, § 8. Thus, since ithe indictment for domestic violence second (2") degree and the conviction for domestic violence third (3) degree were based on the same incident, it is likely a court would determine that they would satisfy the conviction requirement of Article VI, § 8. The facts from the transcript dated June 7, 2018 for the guilty plea of the Defendant to the crime of domestic violence third (3) degree pursuant to S.C. Code § 16-25-20 et seq. include that the Defendant and Victim were married at the time of September 19, 2016 when an incident occurred where the Victim was in reasonable fear for her safety due to the actions of the Defendant and had visible injuries from the incident, Guilty Plea Tr. (17-GS-24-1439, -1440 dated June 7, 2018). The facts from the transcript state, among other things, that the Defendant grabbed the Victim, slammed her against a wall and then onto a bed, and took the Victim’s cell phone from her. Id. The statement written by the Victim read at the plea include that she “was led to believe that no one would help [her] because of
[the Defendant’s] status as a public official” and that belief that the police within the Defendant’s public office’s jurisdiction would not help her. Id. at 8-10. It should also be noted that within the Code of Ordinances for the Town of Ware Shoals, South Carolina, the chain of the command for the police department reads as follows:

¢ Sec. 26-58. - Chain of command.

The chain of command and lines of authority for the department shall be as follows:

qd)

The council;

(2)

Police committee;

G)

The chief of police;

(4)

The assistant chief of police;
(6)

Officers; and

(6)

Patrol officers.

Code of Ord. for the Town of Ware Shoals Sec. 26-58 (Code 1988, § 2-1-32); https://library.municode.com/sc/ware_shoals/codes/code_of_ordinances?nodeld=COOR_CH2 6LAEN. The Town of Ware Shoals ordinances and list of council members, which includes

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the mayor, is found at www.wareshoals.org/forms. Code of Ord. for the Town of Ware Shoals Sec.2-1 (Code 1988, § 1-1-1; Ord. of 6-21-1976). Furthermore, the ordinances for the Town of Ware Shoals authorize the members of Town Council, which includes the mayor (according to Ord. No. ) to assist the police as follows:

¢ Sec. 26-57. - Authority of council and chief.

(a)

The council shall have full power to prescribe any and all such policies, rules and regulations for the police department as shall be recommended by the standing committee in charge thereof.

(b)

In cases of emergency, the members of council may assist the police and lend their presence to the authority of the town, but the chief of police shall have the sole authority to direct the operation of the department.

Code of Ord. for the Town of Ware Shoals Sec. 26-57 (Code 1973, § 17-40; Code 1988, § 2-I-31). Additionally, town council has authority to discharge “at-will” law enforcement officers. Code of Ord. for the Town of Ware Shoals Sec. 26-60 (Code 1988, § 2-1-34; Ord. No. 01-09, 2001).

Nevertheless, we must address now whether the crime of domestic violence (3) degree is a “crime involving moral turpitude.” S.C. Const. art. VI, § 8. The law reads regarding domestic violence third (3%) degree that:

(A) It is unlawful to:

(1) cause physical harm or injury to a person's own household member; or

(2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.

(D) A person commits the offense of domestic violence in the third degree if the person violates subsection (A).

(1) A person who violates this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than two thousand five hundred dollars or imprisoned not more than ninety days, or both. Notwithstanding the provisions of Sections 22-3-540, 22-3-545, and 22-3-550, an offense pursuant to the provisions of this subsection may be tried in summary court.

(2) Domestic violence in the third degree is a lesser-included offense of domestic violence in the second degree, as defined in subsection (C), domestic violence in the first degree, as defined in subsection (B), and domestic violence of a high and aggravated nature, as defined in Section 16-25-65.

(3) Assault and battery in the third degree pursuant to Section 16-3-600(E) is a lesser-included offense of domestic violence in the third degree as defined in this subsection.

(4) A person who violates this subsection is eligible for pretrial intervention pursuant to Chapter 22, Title 17.

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S.C. Code Ann. § 16-25-20. Please note that assault and battery in the third degree is a lesser-included offense of domestic violence third (3") degree. S.C. Code Ann. § 16-25- -20(D)(3). The South Carolina Administrative Law Court has opined that traditionally “the law is silent on whether obstruction of justice and criminal domestic violence are crimes of moral turpitude.” Robert D. Rice d/b/a Poverty Flats

Applicant, t, 94-ALJ-17-0280-CC, 1994 WL 925106, at *3 (Dec. 16, 1994). Accordingly, in the March 9, 2017 opinion, this Office examined how South Carolina and other jurisdictions have dealt with whether domestic violence second (2) degree constitutes a crime of moral turpitude and concluded that “there are strong indications the [South Carolina Supreme] Court would conclude that domestic violence 2™ degree constitutes a crime of moral turpitude.” Op. S.C. Att’y Gen., 2017 WL 1095385 (S.C.A.G. March 9, 2017) (citing In Re Laguiere; In Re Berry, 345 S.C. 463, 549 S.E.2d 254 (2001); In Re Courtney, 342 S.C. 617, 538 S.E.2d 652 (2000)). Some of the cases that opinion referenced were Morelli v. Ashcroft 100 Fed. Appx. 620, 621-22 (9" Cir. 2014), Grageda v. U.S. INS, 12 F.3d 919, 922 (9th Cir. 1993), People v. Rodriguez, 5 Cal. App. 4" 1398, 7 Cal. Reptr. 495 (1992), and People v. Burton, 243 Cal. App. Ath 129, 135, 136, 196 Cal. Reptr. 392, 398, 399 (2015).

The Supreme Court of South Carolina has defined moral turpitude as “an act of baseness, vileness or depravity in the private and social duties that a man owes to his fellow man or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Smith v. Smith, 194 S.C. 247, 259, 9 S.E.2d 584 (1940); see also State v. Horton, 271 S.C. 413, 238 S.E.2d 263 (1978); Ops. S.C. Att’y Gen., 2017 WL 3841519 (S.C.A.G. August 16, 2017); 2017 WL 1095385 (S.C.A.G. March 9, 2017). This Office previously opined regarding moral turpitude that one must look to whether the offender violates his or her “duty to society and fellow man” and that the issue of moral turpitude “depends not only on the nature of the offense, but also on the attendant circumstances.” Op. S.C. Att’y Gen., 1991 WL 474741 (February 12, 1991) (quoting State v. Ball, 292 S.C. 71, 73, 354 S.E.2d 908 (1987) (overruled by State v. Major, 301 S.C. 181, 391 S.E. 2d 235 (1990), which held that possession of cocaine is a crime of moral turpitude) and 21 Am.Jur.2d Criminal Law, § 23, p. 138)) (emphasis added). Our Supreme Court broadened moral turpitude to the point where it “implies something immoral in itself, regardless of whether it is punishable by law as a crime.” State v. Horton, 271 S.C. at 414, 248 S.E.2d at 263 (1978) (quoting 58 C.J.S. Moral p. 1203).

Regarding a “crime of moral turpitude” in the context of 8 U.S.C. § 1182(a)(2) of the Immigration and Nationality Act, and as mentioned above, certainly other courts have found domestic violence to be a crime of moral turpitude. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163-64 (9th Cir. 2006). The Ninth (9") Circuit Court of Appeals explains its review process in that:

To determine whether a specific crime falls within the category of “crimes involving moral turpitude,” we apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir.2005). Under the categorical approach, we must compare “the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the Arizona statute] is broader than, and so does not categorically fall within, this generic definition.” Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir.2003). Under this approach, “[t]he issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, whether the full

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Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163-64 (9th Cir. 2006). Thus the Ninth (9") Circuit looks

range of conduct encompassed by the statute constitutes a crime of moral turpitude.” Cuevas-Gaspar, 430 F.3d at 1017.

If the statute of conviction is not a categorical match because it criminalizes both conduct that does and does not involve moral turpitude, we apply a “modified” categorical approach “under which we may look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004) (internal quotation marks omitted). We may not, however, “look beyond the record of conviction itself to the particular facts underlying the conviction.” Jd.

to the State statute itself to determine whether it criminalizes only conduct involving moral turpitude or includes conduct that would not be involve moral turpitude. Id. The Court in Fernandez-Ruiz v. Gonzales states that the crime of simple assault is not considered moral turpitude under the Immigration and

Nationality Act. The Court goes on to clarify that:

[A]s we recently explained in Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 2006 WL 2846379, *5 (9th Cir.2006), Grageda stands only for the proposition that “when _a_person beats his or her spouse severely enough to cause ‘a traumatic condition,’ he or she has committed an_act of baseness or depravity contrary to accepted moral standards.” /d. (quoting Grageda, 12 F.3d at 922 (discussing Cal. Penal Code § 273.5(a))) (emphasis added). It does mot suggest that _a spousal contact that causes minor injury or a spousal threat that results in no physical

injury constitutes a crime of moral turpitude. Rather, the California spouse abuse

and child abuse statutes that we held to involve moral turpitude in Grageda and Guerrero de Nodahl both required the willful infliction of bodily “injury resulting in a traumatic condition,” Grageda, 12 F.3d at 921 (quoting Cal. Penal Code § 273.5(a)) (emphasis added); Guerrero de Nodahl, 407 F.2d at 1406 n. 1 (quoting Cal. Penal Code § 273d) (emphasis added).

Here, Arizona's class 2 misdemeanor assault merely requires “recklessly causing any physical injury to another person,” or “placing another person in reasonable apprehension of imminent physical injury.” Ariz. Rev. Stat. §§ 13-1203(A)(1), (2) (emphasis added).* Subsection (A)(2) contains absolutely no element of injury whatsoever, as it prohibits conduct that merely places another person “in reasonable apprehension of” physical injury. Jd. § 13-1203(A)(2). Accordingly, not only does a conviction under Arizona's Class 2 misdemeanor assault statute not require “beat[ing] [one's] spouse severely enough to cause a traumatic condition,” Grageda, 12 F.3d at 922 (emphasis added), it does not require inflicting bodily injury of any kind. The BIA thus overreads Grageda; our decision there does not suggest that physical contacts that result in the most minor of injuries or threats that cause no injury at all involve moral turpitude. A statute encompassing such conduct includes within it acts that are not necessarily base, vile or depraved.

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Femandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) (emphasis added). Certainly while the Ninth Circuit’s interpretation of Federal law is not binding on our advice to you today, it is helpful to consider. Conversely, this Office concurs with Judge Shedd’s dissent in Prudencio v. Holder where he reasons that:

In employing these approaches for purposes of the INA [Immigration and Nationality Act], we accord the Attorney General deference regarding the determination of what type of conduct involves moral turpitude. Yousefi, 260 F.3d at 326. The Attorney General has directed that, generally, a crime involves moral turpitude if it is “inherently base, vile, or depraved and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Matter of Olquin—Rufino, 23 |. & N. Dec. 896, 896 (B.1.A.2006). ...

Like the provision at issue in Nijhawan, the moral turpitude provisions have no analogue in federal or state criminal statutes and “moral turpitude” is not an element of any offense. In addition, the presence of the word “involving,” like the phrase “in which” at issue in Nijhawan, suggests a more individualized approach.’ In sum, “[t]he need to decide whether a crime is one of ‘moral turpitude’ does not have a parallel in criminal cases,” because “ ‘moral turpitude’ just isn't relevant to the criminal prosecution; it is not as if ‘turpitude’ were an element of an offense.” Ali, 521 F.3d at 741-425...

In light of these factors, and with due regard for the level of deference owed to the Attorney General in immigration matters, I believe that immigration judges have “the discretion to consider evidence beyond the charging papers and judgment of conviction” in determining if an alien was convicted of a crime involving moral turpitude, Ali, 521 F.3d at 743. ...

It is difficult to believe that Congress intended for courts to straitjacket immigration courts with a doctrine based on concerns peculiar to the federal judiciary to enable individuals who infect underage girls with sexually transmitted diseases to avoid removal by pleading guilty to an overbroad statute that includes both crimes involving moral turpitude and crimes that do not.

Prudencio v. Holder, 669 F.3d 472, 484-85, 491-92 (4th Cir. 2012) (citations omitted). The majority in that opinion concluded that the statutory inquiry regarding the Immigration and Nationality Act are not the “acts of moral turpitude themselves, but the admissions establishing the essential elements of a particular type of crime... [and the] focus of the inquiry directed by the statute is the alien's actual conviction, not the conduct underlying that conviction.” Prudencio v. Holder, 669 F.3d 472, 482 (4th Cir. 2012). Additionally, the dissent noted that the Fifth Circuit had previously used a “categorical approach to the moral turpitude provisions but nonetheless applying circumstance-specific approach to determine whether an alien had been ‘convicted of ... domestic violence.” Id. at 491 (quoting Bianco v. Holder, 624 F.3d 265, 272-73 (5" Cir. 2010).

Conclusion:
This Office believes that a court would determine that since the indictment for domestic violence second (2™) degree and the conviction for domestic violence third (3%) degree were based on the same

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incident, that they would satisfy the conviction requirement of Article VI, § 8 of the South Carolina Constitution. As to whether or not the domestic violence third (3) degree conviction is a crime “involving moral turpitude,” this Office disagrees with the Ninth Circuit Court of Appeal’s position that domestic violence is only a crime involving moral turpitude when one beats his or her spouse “severely enough to create a traumatic condition” but instead believes a court will conclude that all degrees of the crime of domestic violence can be crimes “involving moral turpitude,” both as incidents charged and as convictions. S.C. Const. art IV, § 15; art. V, § 24; S.C. Code Ann. §§ 1-7-50, 1-7-60, 1-7-90, 1-7-100; Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006). In this instance, the fact that the Mayor pled to the crime of domestic violence third (3%) degree on facts indicted for second (2) degree thus alleges conduct that is a “crime of moral turpitude” based on our March 9, 2017 opinion. See Op. S.C. Att’y Gen., 2017 WL 1095385 (S.C.A.G. March 9, 2017). We hope this assists you in answering your question. If it is later determined otherwise, or if you have any additional questions or issues, please let us know.

Sincerely, 3
Anita (Mardi) S. Fair
Assistant Attorney General

REVIEWED AND APPROVED BY:
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Robert D. Cook
Solicitor General