Burns, 062520 SCAGO, AGO 3243

Case DateJune 25, 2020
CourtSouth Carolina
The Honorable Mike Burns, Member
AGO 3243
No. 3243
South Carolina Attorney General Opinion
State of South Carolina Office of the Attorney General
June 25, 2020
         The Honorable Mike Burns, Member          South Carolina House of Representatives          326-B Blatt Building          Columbia, SC 29201          Alan Wilson, Attorney General          Dear Representative Burns:          You have requested an opinion regarding the Heritage Act. Your letter states:
[a]s questions have once again surfaced regarding the Heritage Act and its applicability statewide, I ask that your office opine on the constitutionality of the Act, with the understanding that the Act contains multiple provisions and sections.
         The short answer is the Heritage Act is constitutional. The General Assembly possesses paramount authority over public property, public places or public areas of the State and its political subdivisions, and thus may protect monuments and memorials dedicated to past wars or to honor its citizens as it deems appropriate. As Judge Addy has stated, "[c]learly the General Assembly possess the power to regulate monuments and memorials which are owned by the State or its political subdivisions." Waller et al. v. State, 2015-CP-24-00514 (May 18, 2018), (vacated as moot November 14, 2018). If a particular monument or memorial is encompassed within the Heritage Act's protections - a fact-specific inquiry - there can be no removal or alteration thereof without the Legislature's consent through an act of the General Assembly, as explained more fully below. Of course, the General Assembly is free to amend or repeal the Heritage Act should it so desire, and may do so as it would any other legislation - by majority of each house.          Law/Analysis          The Heritage Act was enacted in 2000 pursuant to Act No. 292, §§ 3 and 4. The pertinent portions of the Act are as follows:
SECTION 3. (A) No Revolutionary War, War of 1812, Mexican War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, Native American, or African-American History monuments or memorials erected on public property of the State or any of its political subdivisions may be relocated, removed, disturbed, or altered. No street, bridge, structure, park, preserve, reserve, or other public area of the State or any of its political subdivisions dedicated in memory of or named for any historic figure or historic event may be renamed or rededicated. No person may prevent the public body responsible for the monument or memorial from taking proper measures and exercising proper means for the protection, preservation, and care of these monuments, memorials, or nameplates.
(B) The provisions of this section may only be amended or repealed upon passage of an act which has received a two-thirds vote on the third reading of the bill in each branch of the General Assembly.
Severability clause
SECTION 4. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words thereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
         In addition, Act No. 292 of 2000 contains Section 6, codified at Section 10-11-315 which makes it "unlawful for a person to willfully and maliciously deface, vandalize, damage, or destroy or attempt to deface, vandalize, damage or destroy any monument, plaque, flag support, memorial, fence, or structure located on the capitol grounds and a person convicted of violations of this section shall be punished pursuant to the provisions of Section 10-11-360." The title of the Act expresses the legislative purpose, which is to "provide for the protection of memorials, monuments, streets, parks, and any other public areas." In short, the Act sought, in essence, to "freeze" monuments as of the date of the Act's passage, meaning additional monuments could be added for protection, but existing ones, together with new ones, could not be removed or altered where the Act is applicable, except by legislative approval.          It is well recognized that "[e]very legislative act must be presumed constitutional and should be declared unconstitutional only when its invalidity is manifest beyond a reasonable doubt. . . '[T]he Constitution of the State is a restraint of power, and the Legislature may enact any law not prohibited thereby.'" Nichols v. South Carolina Research Authority, 290 S.C. 415, 424, 351 S.E.2d 155, 160 (1986). In addition, we have consistently advised that a statute "must continue to be enforced unless set aside by a court or repealed by the General Assembly." Op. S.C. Att'y Gen., 2017 WL 4464415 (September 26, 2017). "This office, in its Opinion, may only comment upon potential constitutional issues which we see as possibly arising in a judicial proceeding." Id.          It is important to remember that The Heritage Act was part of a legislative compromise to remove the Confederate battle flag from atop the Statehouse Dome. As we stated in Op. S.C. Att'y Gen., 2014 WL 2757536 (June 10,2014),
We have previously issued several opinions regarding interpretation and application of the Heritage Act. See, Op. S.C. Arty. Gen., September 7, 2012 (2012 WL 4283911); Op. S.C. Arty. Gen., December 13, 2004 (2004 WL 3058237); Op. S.C. Atty. Gen.. July 18, 2001 (2001 WL 957759). In the 2004 opinion, we addressed the question of whether the City of North Augusta could,
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT