Must a South Carolina probate judge apply a statute the state Supreme Court struck down?

Plain-English summary

A South Carolina legislator asked whether a probate judge had to apply Section 15-1-290 because it remained printed in the code, even though the state Supreme Court had struck it down. In October 2001, the AG said the judge had to follow the Supreme Court’s decision in Ramey v. Ramey. Formal legislative repeal was unnecessary for lower courts to obey a ruling that the statute was unconstitutional.

The letter expressly declined to decide how the statute or ruling affected the constituent’s particular proceeding. Its answer was about the lower court’s duty to follow controlling constitutional decisions.

Currency note

This opinion was issued in 2001. 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.

Historical summary

Probate judges

The AG said lower courts must abide by the South Carolina Supreme Court’s declaration that Section 15-1-290 was unconstitutional, regardless of whether the section still appeared in the code.

Litigants

The opinion did not resolve the facts or legal result in the constituent’s probate case.

Common questions

Did the legislature have to repeal the section before a judge stopped applying it? A: No. The AG said the Supreme Court’s constitutional ruling controlled lower courts.

Did the AG decide the constituent’s case?
A: No. The letter withheld any view on the statute’s application to that proceeding.

Background and statutory framework

The letter cited Ramey v. Ramey as the South Carolina Supreme Court decision invalidating Section 15-1-290 on equal-protection grounds. It distinguished a prior AG statement requiring obedience to a statute until the state’s highest court declared it unconstitutional; that event had already happened here.

Citations and references

• Section 15-1-290: statute at issue.
• Ramey v. Ramey: Supreme Court decision cited for invalidation.

Official title

On South Carolina Code of Laws Section 15-1-290, asking whether a probate judge must apply Section 15-1-290 in a proceeding because it has not been repealed.

Requester

The Honorable Herb Kirsh, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-8-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01oct-8-kirsh.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

October 8, 2001
The Honorable Herb Kirsh
Member, House of Representatives
Box 31
Clover, South Carolina 29710

I

Dear Mr. Kirsh:
By your letter of October 5, 2001, you have requested an opinion on behalf of one of your constituents regarding South Carolina Code of Laws Section 15-1-290. As you are aware, the Supreme Court of South Carolina struck down as unconstitutional Section 15-1-290 for its violation of equal protection guarantees. See Ramey v. Ramey, 273 S.C. 680, 258 S.E.2d 883 (1979). However, the General Assembly has not yet repealed the statute. You ask whether a probate judge must apply Section 15-1-290 in a proceeding because it has not been repealed. In a prior opinion from then Attorney General Daniel McLeod, this Office advised a planning commission on its obligation to follow the Code of Laws, except under certain circumstances: "Since the statute is upon the books, it must be complied with, even though it may appear to be unconstitutional, until the Supreme Court ofthis State declares it to be unconstitutional." OP ATTY. GEN. Feb 11, 1959 (emphasis added). In Ramey, the highest court of the State declared Section 151-290 to be unconstitutional. As the final arbiter of the constitutionality of a statute, the order of the Supreme Court must be obliged by the lower courts, regardless of whether the General Assembly has repealed the statute. Thus, without comment on the applicability of Section 15-1-290 to your constituent's case, we would advise that a probate judge must abide by the ruling of the Supreme Court of South Carolina.

With kind regards, I remain
Very truly yours,

Susannah Cole
Assistant Attorney General

REMBERT C . DENNIS BUJLD!NG

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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