Baddourah v. McMaster ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Mohsen A. Baddourah, as a member of the City Council
of the City of Columbia, Appellant,
v.
Henry McMaster, in his capacity as Governor for the
State of South Carolina, Respondent.
Appellate Case No. 2017-002576
Appeal from Richland County
G. Thomas Cooper Jr., Circuit Court Judge
Opinion No. 28013
Heard October 14, 2020 – Filed March 10, 2021
AFFIRMED AS MODIFIED
Tobias G. Ward Jr. and J. Derrick Jackson, of Tobias G.
Ward, Jr., PA, Joseph M. McCulloch Jr., and Kathy R.
Schillaci, all of Columbia, for Appellant.
Thomas A. Limehouse Jr., of Office of the Governor, of
Columbia, for Respondent.
CHIEF JUSTICE BEATTY: Governor Henry McMaster issued an order
suspending Mohsen Baddourah from his position as a member of the Columbia City
Council after Baddourah was indicted for second-degree domestic violence.
Baddourah initiated this declaratory judgment action in the circuit court, seeking a
determination that (1) he is a member of the Legislative Branch and is, therefore,
excepted from the Governor's suspension power under the South Carolina
Constitution; and (2) second-degree domestic violence is not a crime involving
moral turpitude, so it is not an act that is within the scope of the Governor's
suspension power. The circuit court dismissed Baddourah's complaint on the ground
the court lacked subject matter jurisdiction and, alternatively, for failure to state a
cause of action. We affirm as modified.
I. FACTS
Baddourah was elected to his second term representing District 3 on the
Columbia City Council, for the period of January 1, 2016 to December 31, 2019.
On July 2, 2016, Baddourah was in the midst of a divorce and custody battle when
he was arrested for an alleged altercation involving his estranged wife. He was
subsequently indicted on a charge of second-degree domestic violence.
On March 13, 2017, the Governor issued Executive Order 2017-05, finding
second-degree domestic violence is a crime of moral turpitude1 and suspending
Baddourah from his position as a member of the Columbia City Council pursuant to
article VI, section 8 of the South Carolina Constitution "until . . . the above-
referenced charge is resolved, at which time further appropriate action will be taken
by the undersigned."
After this Court declined to hear Baddourah's challenge to the Executive
Order in our original jurisdiction, Baddourah filed a declaratory judgment action in
the circuit court in July 2017. Baddourah asserted that, while the Governor may
suspend any officer of the state or its political subdivisions who has been indicted
for a crime involving moral turpitude, South Carolina's Constitution includes an
exception for "members and officers of the Legislative and Judicial Branches," citing
S.C. Const. art. VI, § 8. Baddourah sought a determination that (1) he is excepted
from the Governor's suspension power under article VI, section 8 because he is a
member of the Legislative Branch in his position on the Columbia City Council, and
(2) the Executive Order is not enforceable because second-degree domestic violence
is not a crime involving moral turpitude. In addition, Baddourah sought a mandatory
1
Prior to the suspension, the Governor sought an opinion from the South Carolina
Attorney General's Office as to whether second-degree domestic violence is a crime
involving moral turpitude for purposes of the Governor's suspension power under
article VI, section 8. The opinion of the Attorney General was "that a court would
most likely conclude that domestic violence 2nd degree is a crime of moral turpitude"
for this purpose. See S.C. Att'y Gen. Op. (Mar. 9, 2017), 2017 WL 1095385, at *1.
injunction staying enforcement of the Executive Order and an award of attorney's
fees.
By order filed November 9, 2017, the circuit court granted the Governor's
motion to dismiss Baddourah's complaint. The court first ruled dismissal was proper
under Rule 12(b)(1), SCRCP, based on a lack of subject matter jurisdiction. The
circuit court found the Governor's suspension power is discretionary and under the
separation of powers doctrine of the South Carolina Constitution, courts may not
review discretionary acts by the Executive Branch, so the Executive Order was not
subject to court review.
The circuit court alternatively found that, even accepting Baddourah's factual
allegations as true, his complaint failed to state sufficient facts to constitute a cause
of action or claim for relief and should, therefore, be dismissed under Rule 12(b)(6),
SCRCP. The circuit court found Baddourah's argument that he is a member of the
Legislative Branch by virtue of his position on the Columbia City Council was
without merit, as the text of the state constitution indicated that "Legislative Branch"
was meant to refer to members of the South Carolina General Assembly. The circuit
court further found that it "need not reach or decide the question of whether
Domestic Violence, Second Degree, constitutes a 'crime involving moral turpitude'
for purposes of article VI, section 8," as this phrase is not defined in the text of the
state constitution and, therefore, its meaning must be determined by the Governor in
his sole discretion.
Baddourah appealed to the court of appeals, and this Court certified the appeal
for review pursuant to Rule 204(b), SCACR. See Baddourah v. McMaster,
Appellate Case No. 2017-002576, S.C. Sup. Ct. Order dated June 16, 2020.
II. DISCUSSION
On appeal, Baddourah argues the circuit court erred in (1) dismissing his
complaint based on a lack of subject matter jurisdiction; (2) alternatively, dismissing
the action for failing to state a cause of action, after finding he was not a member of
the Legislative Branch; and (3) failing to address whether second-degree domestic
violence is a crime of moral turpitude. Baddourah asserts this appeal concerns novel
issues that should not have been decided on a motion to dismiss.
As an initial matter, we note that, a few days before oral argument, the
Governor submitted supplemental filings indicating both Baddourah's suspension
and term of office have ended and suggesting the appeal should be dismissed for
mootness.2 We decline to dismiss the appeal under the circumstances present here.
Baddourah promptly challenged the Executive Order when he was first suspended
in 2017, but the litigation continued over an extended period, before this Court's
certification of the appeal. Moreover, the appeal concerns issues that are capable of
repetition, yet evading review, so they are appropriate for our consideration. The
suspension of Baddourah, even if appropriate, resulted in a period of approximately
1.5 years where the residents of District 3 had no representation on the Columbia
City Council, so bringing clarity to the questions before the Court is highly desirable
for all concerned. Cf., e.g., Byrd v. Irmo High Sch., 321 S.C. 426, 431–32, 468
S.E.2d 861, 864 (1996) (recognizing that a court may take appellate jurisdiction,
despite the mootness of a specific case, if the issue raised is a matter that is capable
of repetition yet evades review); id. at 432, 468 S.E.2d at 864 (observing "[s]hort-
term student suspensions, by their very nature, are completed long before an
appellate court can review the issues they implicate" and concluding such cases
"clearly fit[] into the evading review exception of the mootness doctrine").
A. Subject Matter Jurisdiction
Baddourah contends the circuit court erred in dismissing his complaint under
Rule 12(b)(1), SCRCP after finding it lacked subject matter jurisdiction to review
discretionary acts by the Governor. We agree.
"A court's subject matter jurisdiction is determined by whether it has the
authority to hear the type of case in question." Allison v. W.L. Gore & Assocs., 394
S.C. 185, 188, 714 S.E.2d 547, 549 (2011). A judgment is void and without legal
effect if a court does not have jurisdiction. Thomas & Howard Co. v. T.W. Graham
& Co., 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995). "The question of subject
matter jurisdiction is a question of law for the court." Capital City Ins. Co. v. BP
Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App. 2009) (citation omitted).
The subject matter of this declaratory judgment action concerns the
Governor's suspension power under the South Carolina Constitution. In particular,
2
In his supplemental filings, the Governor stated Baddourah's indictment was nolle
prossed in 2018, after Baddourah completed a pretrial intervention program, and by
Executive Order 2018-51, the Governor ended Baddourah's suspension from the
Columbia City Council on October 17, 2018. Baddourah served on the Columbia
City Council until his term ended on December 31, 2019. This Court certified the
appeal in June 2020, but the issue of mootness was not raised until just prior to oral
argument in October 2020.
article VI, section 8 states the Governor has the power to suspend officers of the
state and its political subdivisions under the following specified conditions:
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 a crime 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.
S.C. Const. art. VI, § 8 (emphasis added).
The circuit court found that, "[b]y using the word 'may,' this provision
represents a textual commitment of the question to the Governor, in the exercise of
his discretion, and makes clear that the Governor's suspension authority is neither
automatic nor ministerial." The circuit court noted courts have jurisdiction to review
ministerial acts of the Governor; however, where the Governor's authority is
discretionary in nature, courts may not substitute their judicial discretion for that of
the executive without violating the separation of powers provision of the South
Carolina Constitution. Accordingly, the circuit court found dismissal was proper
because it lacked subject matter jurisdiction to consider Baddourah's complaint. See
S.C. Const. art. I, § 8 ("In the government of this State, the legislative, executive,
and judicial powers of the government shall be forever separate and distinct from
each other, and no person or persons exercising the functions of one of said
departments shall assume or discharge the duties of any other.").
We hold the circuit court erred in finding it lacked subject matter jurisdiction
in this case. Baddourah alleged the Governor did not have the power to suspend him
under article VI, section 8 of the South Carolina Constitution because (1) this
provision expressly excepts members of the Legislative Branch, and (2) it only
authorizes suspension for a crime of moral turpitude. The circuit court was asked to
make legal determinations—whether Baddourah qualifies as a member of the
Legislative Branch and whether the offense qualifies as a crime involving moral
turpitude. These legal questions involve interpretation of the constitution to
determine the extent of the Governor's suspension power, a subject that is
appropriate for judicial determination. See Segars-Andrews v. Judicial Merit
Selection Comm'n, 387 S.C. 109, 123, 691 S.E.2d 453, 461 (2010) ("It is the duty of
this Court to interpret and declare the meaning of the constitution."); Rose v.
Beasley, 327 S.C. 197, 206, 489 S.E.2d 625, 629 (1997) ("Under South Carolina
law, the Governor can neither appoint to office nor suspend or remove from office
unless the power to do so is conferred upon him by the Constitution or statute.").
The determination of these legal questions does not implicate the separation
of powers clause. Consequently, we hold the circuit court erred in dismissing
Baddourah's complaint based on its finding that it lacked subject matter jurisdiction.
B. Failure to State a Cause of Action
Baddourah further argues the circuit court erred in alternatively dismissing his
action under Rule 12(b)(6), SCRCP, for failing to state a cause of action. The circuit
court based this conclusion on two subsidiary findings: (1) Baddourah was not a
member of the Legislative Branch and, thus, was not excepted from the Governor's
suspension power, and (2) whether second-degree domestic violence qualifies as a
crime of moral turpitude was solely within the Governor's discretion and need not
be addressed by the courts. We shall address each point in turn.
1. Legislative Branch Exception
Baddourah first asserts the circuit court erred in finding he was not excepted
from the Governor's suspension power as a member of the "Legislative Branch." We
disagree.
The circuit court found "[t]he exclusion of 'members and officers of the
Legislative and Judicial Branches' from section 8 of article VI is derived from the
separation of powers prescribed in the Constitution of 1895." The court stated, "This
separate, tripartite structure is expressly memorialized in article I, section 8, which
mandates that . . . the legislative, executive, and judicial powers" of state government
"shall be forever separate and distinct from each other, and no person or persons
exercising the functions of one of said departments shall assume or discharge the
duties of any other." See S.C. Const. art. I, § 8.
The circuit court explained that, by referring to "the legislative, executive, and
judicial powers" as the functions "of one of said departments," the constitution's
framers were directly referring to the three distinct "Departments" of state
government addressed in three separate articles of the constitution. See S.C. Const.
art. III (entitled, "Legislative Department"); S.C. Const. art. IV (entitled, "Executive
Department"); S.C. Const. art. V (entitled, "Judicial Department"). By capitalizing
"Legislative and Judicial Branches" in article VI, section 8, the circuit court found,
the framers essentially employed defined terms, craving reference to their use
elsewhere in the constitution, namely, articles III and V, which address, respectively,
the Legislative and Judicial Departments.
The circuit court highlighted the language employed in article III, governing
the Legislative Department, which confirms South Carolina's legislative power is
vested in "two distinct branches" of state government:
The legislative power of this State shall be vested
in two distinct branches, the one to be styled the "Senate"
and the other the "House of Representatives," and both
together the "General Assembly of the State of South
Carolina."
S.C. Const. art. III, § 1 (emphasis added). The circuit court stated: "[T]he relevant
text is unambiguous and does not mention municipal officials or contemplate that
they will be viewed as members of the Legislative Branch. Indeed, municipal
government is separately addressed elsewhere in the constitution," citing S.C. Const.
art. VIII (entitled, "Local Government").
The circuit court found further support for the conclusion that the term
"Legislative Branch" does not include members of municipal councils because the
text of other, unrelated constitutional provisions, such as a section addressing the
adoption of the constitution and the terms of elected officials, shows the drafters
were capable of distinguishing "legislative" officers from other types of officers.
See, e.g., S.C. Const. art. XVII, § 11 ("All officers, State, executive, legislative,
judicial, circuit, district, County, township and municipal, who may be in office at
the adoption of this Constitution . . . shall hold their respective offices until their
terms have expired and until their successors are elected or appointed and qualified
as provided in this Constitution . . . .").
We find Baddourah, as a member of the Columbia City Council, is a member
of a local "legislative body," which has been delegated authority by the state's
highest legislative body, the General Assembly. See generally Noble v. Ternyik,
539 P.2d 658, 660 (Or. 1975) (referencing the highest legislative body of a state
and "lesser" or "subordinate" legislative bodies to which a state has delegated
some legislative power); Issa v. Benson, 420 S.W.3d 23, 26–27 (Tenn. Ct. App.
2013) (discussing "subordinate legislative bodies like city councils" that perform
some legislative functions).
Baddourah's membership in a local or subordinate "legislative body,"
however, does not make him a member of the "Legislative Branch" as that term
is used in our constitution, nor confer on him all of its attendant functions. Rather,
the meaning must be discerned from the context in which it is used and an
examination of other constitutional provisions. See generally Carroll v. Town of
York, 109 S.C. 1, 10, 95 S.E. 121, 124 (1918) (holding under the Constitution of
1895, "the legislative branch of the government has the exclusive power of
taxation, but may delegate it to towns for municipal purposes, and may therefore
restrict the towns in that respect").
The constitutional provisions cited by the circuit court, including the
directive governing the separation of powers in article I, section 8 (providing a
separation of the legislative, executive, and judicial "powers" in the respective
"departments"), as well as our review of other portions of the constitution, leads
to the conclusion that the framers' reference to the "Legislative Branch" was
intended to refer to the Senate and the House of Representatives (which it
denominated the two legislative branches). In other words, the General Assembly.
See S.C. Const. art. III (governing the "Legislative Department"); art. III, § 1
(indicating the legislative power of the state is vested in two "branches" of state
government, the Senate and the House of Representatives, which together
comprise the General Assembly).
While Baddourah understandably takes issue with the fact that the
constitution did not just simply refer to the "General Assembly" in the exception
to the Governor's suspension power, we agree with the circuit court that the
genesis for the distinction was respect for the separation of powers provision of
article I, section 8. The purpose of the exception in the provision outlining the
Governor's suspension power was to prevent the Governor, part of the Executive
Branch, from intruding on or removing officers in the Legislative and Judicial
Branches,3 and article VI, section 8 (concerning the Governor's suspension power)
echoes the language used in article I.
Various terms have been used to describe the divisions of government. The
most common descriptions, however, refer to the executive, legislative, and
judicial "branches" of government. See Sloan v. Sanford, 357 S.C. 431, 436, 593
S.E.2d 470, 473 (2004) (discussing "the separation of powers of the three branches
of government, that is, [the need] to keep the executive, judicial,
and legislative branches of government separate" (emphasis added)). This Court,
recognizing the importance of the separation of the three co-equal branches of
government, recently changed its public denomination from the Judicial
3
For example, the General Assembly has its own procedures for the punishment and
expulsion of officers. See S.C. Const. art. III, § 12 ("Each house shall . . . punish its
members for disorderly behavior, and, with the concurrence of two-thirds, expel a
member . . . .").
Department to the Judicial Branch to better conform with this prevailing
terminology and to disabuse the public of the notion that the Judicial
Department/Branch is a department within the Executive Department/Branch.
For all the foregoing reasons, we hold the circuit court did not err in finding
Baddourah was not a member of the Legislative Branch and, thus, was not
excepted from the Governor's suspension power.
2. Crimes Involving Moral Turpitude
Baddourah next argues the circuit court erred in dismissing his complaint
under Rule 12(b)(6), SCRCP for failing to state a cause of action, after finding the
question of whether the offense charged was a crime involving moral turpitude need
not be addressed by the courts. We agree.
In dismissing Baddourah's complaint for a declaratory judgment, the circuit
court found that it "need not reach or decide the question of whether" second-degree
domestic violence constitutes a crime involving moral turpitude for purposes of
article VI, section 8. The court reasoned that, because this phrase is not defined in
the text of the South Carolina Constitution, its application must be left solely to the
determination of the Governor in the exercise of his discretion, citing McConnell v.
Haley, 393 S.C. 136, 138, 711 S.E.2d 886, 887 (2011) ("Because there is no
indication in the Constitution as to what constitutes an 'extraordinary occasion' to
justify an extra session of the General Assembly, this matter must be left to the
discretion of the Governor and this Court may not review that decision."). The
circuit court found this was particularly true where the Governor had requested and
obtained an Attorney General opinion, which had confirmed the Governor's
conclusion that second-degree domestic violence qualified as a crime of moral
turpitude for purposes of article VI, section 8. See supra note 1. As a result, the
circuit court stated, "it cannot be said that [the Governor's] exercise of his discretion
to temporarily suspend [Baddourah] was arbitrary."
(a) Propriety of Court Ruling on Offense
Baddourah first asserts the circuit court erred in failing to address his
contention that second-degree domestic violence is not a crime of moral turpitude.
Baddourah states that, although the circuit court refused to address the question, the
Governor argued in his motion to dismiss that the offense is a crime of moral
turpitude, yet did "not cite a single case where a South Carolina court has determined
this." Baddourah also asserts the circuit court erred in relying on McConnell to rule
that a term addressing the Governor's authority is discretionary where it is not
defined in the constitution, as the circumstances here are distinguishable. We agree.
Baddourah maintains that, while it is not defined in the constitution, the
concept of "a crime of moral turpitude," in contrast to the situation in McConnell, is
a recognized term of art that has been ruled on by numerous jurisdictions. He opines
that "it would be an absurd result if the Governor and the [AG] can review and
interpret the case law on what constitutes a crime of moral turpitude, but the court
whose primary job it is to interpret the law cannot."
In response, the Governor contends "the circuit court properly rejected
[Baddourah's] latest attempt to litigate the underlying criminal charge against him
by declining to address specifically whether [Baddourah's] indictment for Domestic
Violence, Second Degree charges a 'crime involving moral turpitude.'" The
Governor maintains the circuit court correctly found the term was undefined in the
constitution, so its definition must be left solely to his discretion. We disagree.
We find the circuit court erred in failing to address whether second-degree
domestic violence is a crime involving moral turpitude. Baddourah is not attempting
to litigate his criminal charge (which the Governor acknowledges has been
dismissed, see supra note 2). We do agree that the Governor's exercise of his
suspension power is a matter left to his sole discretion. However, defining terms
used in the state's constitution is not. It is well settled that the interpretation of the
state's constitution is a matter for the courts. The interpretation of the constitution
necessarily requires defining the meaning of its terms.
The Governor's exercise of his suspension power is predicated on the
constitution, which provides the Governor can suspend any officer of the state or its
political subdivisions who has been indicted for a crime of moral turpitude, unless
the individual is a member or officer of the Legislative or Judicial Branches.
Because we have concluded Baddourah is not a member of the Legislative Branch,
the only question remaining is whether the offense is one involving moral turpitude.
This point is dispositive because it determines if the Governor had the requisite
authority to issue the suspension order.
A crime of moral turpitude is a term of art that has been defined by South
Carolina law, and whether an offense qualifies as a crime of moral turpitude is a
question that is appropriate for the courts, contrary to the ruling of the circuit court.4
4
To the extent the circuit court relied on McConnell in finding the issue was not
appropriate for determination by the courts, we find McConnell involved a
distinguishable situation that ultimately did not turn on the point for which it was
cited by the circuit court. McConnell focused on a constitutional provision stating
"[t]he Governor may on extraordinary occasions convene the General Assembly
See State v. Yates, 280 S.C. 29, 37, 310 S.E.2d 805, 810 (1982) ("Whether a
particular offense constitutes a crime of moral turpitude has been developed in South
Carolina on a case by case basis as a matter of common law."), overruled on other
grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); see also State v.
Major, 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990) (stating "[i]n determining
whether a crime is one involving moral turpitude, the Court focuses primarily on the
duty to society and fellow men which is breached by the commission of the crime"
(alteration in original) (citation omitted)).
Because the circuit court did not rule on this novel question, Baddourah asks
the Court to address his argument that second-degree domestic violence is not a
crime involving moral turpitude. Due to the lengthy period of time this action has
been pending in the courts and the desirability of bringing closure to the parties, we
do so in the interest of judicial economy. We begin by reviewing, as a logical
starting point, the origins of the term "crimes involving moral turpitude."
(b) Development of "Crimes Involving Moral Turpitude"
"Moral turpitude" has been present in the law of the United States for well
over two centuries. Julia Ann Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev.
1001, 1002 (2012). The beginning of its development can be traced to social and
political discourse in the early nineteenth century, when recitations about the
"honor"—or lack thereof—of public figures shaped the political landscape. Id. at
1010–11. Because the government had not yet developed institutional routines,
reputation was a key factor used in the early Republic to judge individuals, and
"moral turpitude" became a term for characterizing their conduct. See id. at 1011.
The phrase "moral turpitude" appeared in the published letters, pamphlets, speeches,
and private correspondence of many notable political figures of the time; it was a
in extra session." McConnell, 393 S.C. at 138, 711 S.E.2d at 887 (emphasis added
by the Court). While the Court held the term "extraordinary occasion" must, of
necessity, be left to the Governor's discretion since it was undefined in the
constitution, the Court's decision actually turned on the meaning of an "extra"
session, which the Court recognized has a readily discernible meaning, i.e., the
Governor cannot convene an "extra" session when the General Assembly is already
in session and has not adjourned sine die. Id.term denoting "honor's opposite" and was a concept taken from classical thinkers
such as Cicero, a figure the nation's founders admired.5 Id. at 1010–11.
This concept naturally extended to the law of defamation because printed
statements of dishonor "could 'damn[] a man's reputation for all time.'" Id. at 1011(alteration in original) (citation omitted). English law had already established "the
rough principle" that spoken words implying a plaintiff was guilty of a crime
punishable by imprisonment was actionable per se, i.e., without proof of damages.
Id. at 1016. American courts struggled to define the boundaries of the English rule,
such as whether the line should be drawn between felonies and misdemeanors, or by
the term of punishment. Id. In these circumstances, the "nascent American legal
system" attempted "to invent a new rule for an old tort." Id. The New York Supreme
Court did so in 1809, in Brooker v. Coffin, 5 Johns. 188, 191–92 (N.Y. Sup. Ct.
1809), when it adopted the rule that a crime would be deemed actionable as slander
per se if the words, if true, would result in indictment for a crime involving moral
turpitude or subject a person to an infamous punishment. Id. at 1016–17. The New
York court noted a "contradiction of cases" then existed, and it believed its rule
would provide a suitable criterion; however, the court did not actually define moral
turpitude in its opinion. Brooker, 5 Johns. at 192.
Over forty-five years later, after numerous courts had failed to come to a
consensus and there was still no treatise or legal dictionary that defined moral
turpitude, the Supreme Court of Tennessee turned to the definition in Webster's
Dictionary, which stated "[m]oral turpitude is said to imply 'inherent baseness or
vileness of principle in the human heart; extreme depravity.'" See Simon-Kerr,
supra, at 1022 & 1022 n.155 (alteration in original) (quoting Smith v. Smith, 34 Tenn.
(2 Sneed) 473, 479 (1855)). The Tennessee court's definition from Webster's
"provided a lasting definition that could be and often was quoted in cases
necessitating a moral turpitude analysis," and "it was [eventually] incorporated
almost verbatim into law treatises." Id. at 1022 n.155.
5
In 45 B.C., the Roman philosopher Marcus Tullius Cicero, in his multi-volume
work, De Finibus Bonorum et Malorum (i.e., On the Ends of Good and Evil), equated
virtue with moral excellency and described moral turpitude as a most undesirable
trait: "[A]s virtue or moral excellency is for itself to be valued and desired, so vice
or moral turpitude is to be hated and avoided." Simon-Kerr, supra, at 1011 & n.75
(citing an 1812 translation, 3 Cicero, De Finibus Bonorum et Malorum 158 (Jeremy
Collier, ed., Samuel Parker, trans., 1812)).
The application of moral turpitude was also extended to the law of evidence,
where it was used to evaluate witness impeachment issues based on the reasoning
that "evidence of a person's reputation was relevant to his or her credibility." Id. at
1025–26. By the late nineteenth century, many courts "had endorsed formal rules
permitting evidence of crimes or acts involving moral turpitude for impeachment[.]"
Id. at 1026. However, in contrast to its use for the law of defamation, "moral
turpitude proved an uneasy fit as a standard for impeachment evidence." Id.
Observers have noted that the difficulty lies in the fact that there is a difference
between "character," which is what a person really is, and "reputation," which is
what a person seems to be. Id. As evidentiary rules matured, courts criticized the
moral turpitude standard as indeterminate, noting it "often did mire courts in a
definitional morass." Id. at 1027, 1033. After Congress's adoption of the Federal
Rules of Evidence in 1975, most, but not all, states abandoned moral turpitude as an
evidence standard and turned to an analysis based on (1) the length of the sentence
or (2) whether the offense involved dishonesty or a false statement, regardless of the
punishment.6 See id. at 1027, 1034.
Moral turpitude was also appropriated for use in other fields, such as voting
7
rights, juror disqualification, professional licensing, and immigration law. Id. at
1001; see also Note, Crimes Involving Moral Turpitude, 43 Harv. L. Rev. 117, 118
(1929) (stating that, in addition to defamation and the credibility of witnesses, the
phrase "crimes involving moral turpitude" is one that "has been widely employed[]
in legislation dealing with immigration, disbarment, [and the] revocation of
physicians' licenses" (footnotes omitted)). In these contexts, its function changed to
6
South Carolina echoes the federal rule. See Rule 609(a), SCRE (allowing
impeachment with evidence of (1) a conviction for a crime that is punishable by
death or imprisonment in excess of one year, or (2) a crime involving dishonesty or
false statement, regardless of the punishment).
7
"In 1877, Georgia passed the first constitutional amendment to overtly use the
moral turpitude standard as a disenfranchisement tool." Simon-Kerr, supra, at
1041–42. South Carolina and Alabama "also passed laws aimed at disenfranchising
black men by discriminating against certain offenses." Id. at 1041. However, the
United States Supreme Court held Alabama's constitutional provision violated the
Equal Protection Clause of the Fourteenth Amendment, where the particular
offenses selected for classification by state registrars as crimes of moral turpitude
disenfranchised approximately ten times more black voters than white. Id. at 1043
(citing Hunter v. Underwood, 471 U.S. 222, 226–33 (1985)).
being a standard "to judge character instead of reputational harm." Simon-Kerr,
supra, at 1002.
Despite this development across various fields, the term "moral turpitude" is
not without its detractors. Judge Richard Posner, formerly one of the leading
appellate judges in the nation and a legal professor, has observed that the words base,
vile, depraved, and turpitude have virtually disappeared from the modern American
vocabulary, leaving courts to grapple with antiquated "legalese." Arias v. Lynch,
834 F.3d 823, 831–32 (7th Cir. 2016) (Posner, J., concurring). While there are some
guidelines for its application, the moral turpitude standard lacks absolute precision
in American law.8
Ultimately, this lack of precision might be inherent in a concept based on
contemporary standards of community morality. Commentator Simon-Kerr has
compared the difficulty in applying the moral turpitude standard to the test for
obscenity, which also focuses on community morality standards and has likewise
eluded certainty. Simon-Kerr, supra, at 1003 n.15. "As framed in 1957, the
[obscenity] test asks 'whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole appeals
to the prurient interest.'" Id. (quoting Roth v. United States, 354 U.S. 476, 489
(1957)). Simon-Kerr stated this test "provoked Justice [Potter] Stewart's famous
comments about pornography":
I shall not today attempt further to define the kinds of
material I understand to be embraced within that shorthand
description; and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it . . . .
Id. (quoting Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring)).
We hasten to add, however, that while crimes involving moral turpitude have
continued to evolve over the last two centuries (there was, for example, no such thing
as trafficking in crack cocaine in the early days of the Republic), and there has been
some disagreement in the conclusions as to specific crimes among jurisdictions,
there is a recognized framework for its application.
8
Judge Posner remarked, "It is preposterous that that stale, antiquated, and, worse,
meaningless phrase [moral turpitude] should continue to be a part of American law."
Arias, 834 F.3d at 830 (Posner, J., concurring).
(c) Crimes Involving Moral Turpitude in South Carolina
With this backdrop, it is evident that moral turpitude has long been used, in
many contexts, as a legal term of art. South Carolina has applied a traditional
framework, defining moral turpitude as "an act of baseness, vileness, or depravity in
the private and social duties which 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." See State v. Horton, 271 S.C. 413, 414, 248 S.E.2d 263, 263 (1978)
(citation omitted).
Although descriptions have varied among jurisdictions since the nineteenth
century, this definition is currently the most common one appearing in court
opinions and law journals. Lindsay M. Kornegay & Evan Tsen Lee, Why Deporting
Immigrants for "Crimes Involving Moral Turpitude" Is Now Unconstitutional, 13
Duke J. Const. L. & Pub. Pol'y 47, 57 & n.56 (2017) (arguing moral turpitude is
impermissibly vague and noting this definition, is the most prevalent, however, and
appears in Moral turpitude, Black's Law Dictionary (9th ed. 2009)); see also Arias,
834 F.3d at 831 (Posner, J., concurring) (noting Congress had never defined "moral
turpitude," but courts and immigration agencies have tended to cite a variation of the
definition in Black's Law Dictionary).
South Carolina courts have not required that an offense be a felony to qualify
as a crime involving moral turpitude. See State v. Harris, 293 S.C. 75, 76, 358
S.E.2d 713, 714 (1987) ("While not determinative, it is also significant that the
legislature has categorized the crime as a felony." (emphasis added)). Further, we
have pointed out that, "[w]hile all crimes involve some degree of social
irresponsibility, all crimes do not involve moral turpitude." State v. LaBarge, 275
S.C. 168, 172, 268 S.E.2d 278, 280 (1980).
Making the issue somewhat more complex, South Carolina courts have held
that whether some offenses are a crime involving moral turpitude can depend on the
facts of the case. In those cases, determining whether an offense qualifies as a crime
involving moral turpitude involves consideration of the nature of the crime as
defined by law as well as the particularized facts contained in the indictment. See,
e.g., State v. Bailey, 275 S.C. 444, 446, 272 S.E.2d 439, 440 (1980) (observing
whether assault and battery of a high and aggravated nature is
a crime of moral turpitude depends upon the facts of the particular case as set forth
in the indictment); id. ("Proof of the nature of a prior conviction must necessarily be
confined to the inherent nature of the crime as defined by law and particularized by
the indictment."); see also In re Lee, 313 S.C. 142, 143–44, 437 S.E.2d 85, 86 (1993)
(stating "while the crimes of misconduct in office, assault of a high and aggravated
nature, and assault and battery of a high and aggravated nature are not always crimes
of moral turpitude, they may be depending on the facts as particularized in the
indictment"); State v. Hall, 306 S.C. 293, 295, 411 S.E.2d 441, 442 (Ct. App. 1991)
(holding whether resisting arrest "is a crime of moral turpitude depends upon the
facts of the case"; specifically, whether the resistance was violent).
This Court has also stated that crimes involving primarily self-destructive
behavior generally do not implicate moral turpitude; rather, "[i]n determining
whether a crime is one involving moral turpitude, the Court focuses primarily on the
duty to society and fellow man which is breached by the commission of the crime."
State v. Ball, 292 S.C. 71, 73–74, 354 S.E.2d 906, 908 (1987), overruled on other
grounds by State v. Major, 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990) (retaining
the test for moral turpitude stated in Ball but overruling Ball because of its holding
regarding cocaine possession and stating that, because "any involvement with
cocaine contributes to the destruction of ordered society," mere possession of
cocaine is a crime of moral turpitude).
In Ball, the Court outlined some offenses that have been deemed crimes
involving moral turpitude in South Carolina under the foregoing test: accessory to
bank robbery, arson, assault and battery with intent to kill, assault with intent to rape,
assault with intent to ravish, auto theft, breaking into a motor vehicle with intent to
steal, conspiracy to obtain property under false pretense, criminal sexual conduct
with a minor (any degree), failure to yield right of way, hit and run, housebreaking
and larceny, larceny, manufacture of marijuana, possession of marijuana with intent
to distribute, receiving stolen goods, robbery, sale of controlled substances, sale of
narcotics, and tax fraud. Id. In contrast, the Court noted the following had not been
deemed crimes involving moral turpitude: bookmaking, disorderly conduct, illegal
possession of prescription drugs, possession of an unlawful weapon, public
drunkenness, and simple possession of marijuana. Id. at 74, 354 S.E.2d at 908.
(d) Second-Degree Domestic Violence
We turn now to the particular offense with which Baddourah was charged,
second-degree domestic violence.
Domestic violence is generally defined in subsection 16-25-20(A) of the
South Carolina Code as follows:
(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.
S.C. Code Ann. § 16-25-20(A) (Supp. 2020). Subsection (C) provides a person
commits the offense of domestic violence in the second degree if the person violates
subsection (A) and any of several enumerated alternatives set forth in subsection (C).
Id. § 16-25-20(C). Alternative (1) states, "[M]oderate bodily injury to the person's
own household member results or the act is accomplished by means likely to result
in moderate bodily injury to the person's own household member."9 Id. § 16-25-
20(C)(1).
The indictment charging Baddourah with second-degree domestic violence
alleged, in relevant part, that he "did . . . cause physical harm or injury to a household
member, [his spouse], or did offer or attempt to cause physical harm or injury . . . ,
with apparent present ability under circumstances reasonably creating fear of
imminent peril by striking [his spouse] with a car door[,] an act likely to result in
moderate bodily injury." (Emphasis added.)
Baddourah argues his offense, allegedly striking his spouse with a car door,
did not involve "severe" injury,10 and he urges this Court to require offenses
9
Section 16-25-10 defines the term "moderate bodily injury" as follows:
"Moderate bodily injury" means physical injury that involves
prolonged loss of consciousness or that causes temporary or moderate
disfigurement or temporary loss of the function of a bodily member or
organ or injury that requires medical treatment when the treatment
requires the use of regional or general anesthesia or injury that results
in a fracture or dislocation. Moderate bodily injury does not include
one-time treatment and subsequent observation of scratches, cuts,
abrasions, bruises, burns, splinters, or any other minor injuries that do
not ordinarily require extensive medical care.
S.C. Code Ann. § 16-25-10(4) (Supp. 2020).
10
Baddourah maintains his wife grabbed his iPhone and was attempting to shut and
lock her car door and leave with his phone, so he grabbed the door to keep it from
involving moral turpitude to be limited to "extremely grave acts of violence and
depravity" or offenses that are malum in se. For support, Baddourah cites Tucker v.
Oklahoma, in which the Oklahoma court discussed various definitions of moral
turpitude and noted that it had previously "applied an Eighth Circuit definition which
restricted moral turpitude to 'the gravest offenses–felonies, infamous crimes, those
that are malum in se.'" 395 P.3d 1, 5 (Okla. Crim. App. 2016) (citation omitted).
The Oklahoma court reasoned, "It is difficult to characterize domestic violence as a
malum in se crime, or one recognized as inherently evil and immoral, given that for
centuries it was not recognized as a crime at all, and only recently has our Legislature
granted it felony status." Id. The Oklahoma Court noted the State had not presented
a compelling reason "to expand the definition of 'moral turpitude' and to separate
domestic assault and battery from the well-settled law that assault and battery is not
a crime of moral turpitude." Id.We decline Baddourah's suggestion to require a threshold of "extremely grave
acts of violence and depravity" or to restrict our analysis to malum in se offenses.
As discussed above, the measure of moral turpitude in South Carolina is not based
on the severity of physical injury, as even offenses that do not involve physical harm
or felonies have been designated as crimes of moral turpitude. See generally Ball,
292 S.C. at 73–74, 354 S.E.2d at 908 (summarizing offenses). Moreover, we reject
the Oklahoma court's reasoning that the past failure to recognize the significant
danger of domestic violence to household members, as well as its impact on children
and other societal harm, somehow justifies insulating it from classification under
contemporary standards as a crime involving moral turpitude.
Under South Carolina's moral turpitude framework, we focus "primarily on
the duty to society and fellow man [that] is breached by the commission of the
crime." Ball, 292 S.C. at 74, 354 S.E.2d at 908. According to the Centers for
Disease Control and Prevention ("CDC"), domestic violence affects millions of
people in the United States each year, ranging from one episode to severe, chronic
abuse over multiple years. CDC, Preventing Intimate Partner Violence (2020 Fact
Sheet), https://www.cdc.gov/violenceprevention/pdf/ipv/IPV-factsheet_2020_508.
pdf. About 1 in 4 women and nearly 1 in 10 men in the United States have
experienced physical or sexual violence and/or stalking by an intimate partner
during their lifetime, and over 43 million women and 38 million men have
experienced psychological aggression by a partner. Id. (citing data from the CDC's
shutting. Baddourah's wife, in contrast, maintained Baddourah shut the door,
causing her to sustain injuries.
National Intimate Partner and Sexual Violence Survey, 2015 Data Brief–Updated
Release).
In South Carolina, domestic violence occurs at rates far exceeding the national
average, as evidenced by annual statistics compiled by organizations such as the
National Coalition Against Domestic Violence ("NCADV"). See NCADV, State-
by-State Statistics on Domestic Violence, https://ncadv.org/state-by-state (last
visited Jan. 5, 2021). A fact sheet published by the NCADV indicates 41.5% of
South Carolina women and 17.4% of South Carolina men experience physical or
sexual violence and/or stalking by an intimate partner in their lifetimes. NCADV,
Domestic Violence in South Carolina, https://assets.speakcdn.com/assets/2497/
south_carolina_2019.pdf (last visited Jan. 5, 2021). In 2011, South Carolina had the
highest rate of women murdered by men in the United States, more than double the
national average. Id. In 2012, South Carolina had the second highest rate of women
murdered by men. Id.In its most recent annual report (its 23rd), the Violence Policy Center ("VPC")
notes that, nationwide, 92% of women murdered by men are killed by someone they
know, and it lists South Carolina as number 11 in a ranking of states for the killing
of women by men, based on 2018 FBI data. See VPC, When Men Murder Women,
An Analysis of 2018 Homicide Data (Sept. 2020),
https://vpc.org/studies/wmmw2020.pdf. For over two decades, South Carolina had
consistently ranked in the top 10 worst states in the United States in the VPC's annual
reports, and it topped the list in four of those years. See id.; see also South Carolina
Domestic Violence Advisory Committee, S.C. Domestic Violence Advisory
Committee 2018 Annual Report 1 (Mar. 27, 2019),
https://dc.statelibrary.sc.gov/handle/10827/29954.
In 2015, the South Carolina General Assembly passed the Domestic Violence
Reform Act, which increased penalties for domestic violence, with the aim of
curbing these alarming statistics. See generally Christina L. Myers, South Carolina
still near bottom in violence against women, A.P. News (Feb. 11, 2019),
https://apnews.com/article/af9c4ee9c722496398f20d6e234d172e.
In light of the prevalence of domestic violence nationally, and the
overwhelming statistics for South Carolina in particular, there can be no doubt that
domestic violence is an affront to the fundamental sanctity of the home and society.
Accordingly, we find the more persuasive view is that domestic violence, with its
inherent violation of a special relationship, can qualify as a crime of moral turpitude.
See California v. Burton, 196 Cal. Rptr. 3d 392, 397 & n.8 (Ct. App. 2015) (stating
where the assailant is in a special relationship with the victim, "for which society
rationally demands, and the victim may reasonably expect, stability and safety," and
then commits a willful act upon the victim in violation of that relationship, it
"necessarily connotes the general readiness to do evil that has been held to define
moral turpitude" (citation omitted)); cf. Major, 301 S.C. at 184, 391 S.E.2d at 237(holding that, because "cocaine contributes to the destruction of ordered society,"
mere possession of cocaine is a crime of moral turpitude).
Turning to the specific offense for which Baddourah was indicted, second-
degree domestic violence, we examine its statutory definition and consider the facts
alleged in the indictment, in which Baddourah was charged with "striking [his
spouse] with a car door[,] an act likely to result in moderate bodily injury."
Cf. Bailey, 275 S.C. at 446, 272 S.E.2d at 440 (observing some offenses are not
invariably crimes of moral turpitude, so a court must look to not only the statutory
definition of an offense, but also the particularized facts alleged in the indictment to
determine whether an offense qualifies as an offense involving moral turpitude); In
re Lee, 313 S.C. at 143–44, 437 S.E.2d at 86 (stating some crimes "may be [crimes
involving moral turpitude] depending on the facts as particularized in the
indictment"). Under the circumstances presented here, in which it is alleged that an
individual engaged in conduct that was "likely to result in moderate bodily injury,"
we conclude the charge of second-degree domestic violence qualifies as a crime
involving moral turpitude.11
Because we find Baddourah's indictment charged a crime involving moral
turpitude, we hold the Governor had the constitutional authority to issue the
Executive Order suspending Baddourah from his position as a member of the
Columbia City Council. Although Baddourah disputes whether the suspension was
warranted, where the Governor is constitutionally authorized to impose a
suspension, the decision whether to do so is a matter committed to the Governor's
discretion after considering all of the attendant circumstances. Consequently, the
circuit court's order dismissing Baddourah's challenge to the suspension order is
affirmed as modified.
III. CONCLUSION
We conclude the Governor acted within the scope of his authority in issuing
the Executive Order suspending Baddourah from the Columbia City Council. As a
11
Our holding today is limited to the issue before the Court, a charge of second-
degree domestic violence involving an allegation of physical violence "likely to
result in moderate bodily injury."
result, the order of the circuit court is affirmed as modified.
AFFIRMED AS MODIFIED.
KITTREDGE, HEARN, FEW, and JAMES, JJ., concur.