Opposition Brief — Curtis v. South Carolina

Supreme Gert, U.S.

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No. 01-875

in The

Supreme Court of the United S

OFFICE OF THE CLERK

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Kenneth Curtis, Individually and d/b/a

Privacy Protection Services,

Petitioners.

VS.

The State of South Carolina, The South Carolina General

Assembly ex. rel., Charles M. Condon, as Attorney

General for the State of South Carolina

Respondents.

4

On Petition For A Writ Of Certiorari

To The South Carolina Supreme Court

¢

- Respondents’ Brief In Opposition

¢

_CHARLES M. CONDON

South Carolina Attorney General

NATHAN KAMINSKI, JR.

Counsel of Record

Senior Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3736

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i

QUESTIONS PRESENTED

WHETHER THE SOUTH CAROLINA

SUPREME COURT, CONSISTENT WITH THIS

COURT’S RELEVANT DECISIONS,

PROPERLY DETERMINED THAT S.C. CODE

ANN. § 16-13-470 DOES NOT VIOLATE

ARTICLE I, § 8 OF THE UNITED STATES

CONSTITUTION BY PROHIBITING THE

TRANSPORTATION OF URINE INTO SOUTH

CAROLINA WHEN SUCH URINE IS

INTENDED TO DEFRAUD A DRUG TEST.

WHETHER THE SOUTH CAROLINA

SUPREME COURT, CONSISTENT WITH THIS

COURT’S RELEVANT DECISIONS,

PROPERLY DETERMINED THAT S.C. CODE

ANN. § 16-13-470 DOES NOT VIOLATE

PETITIONERS’ SUBSTANTIVE DUE

PROCESS RIGHTS BY IMPACTING ON THE

FIRST AMENDMENT RIGHTS OF FREEDOM

OF EXPRESSION AND THAT, EVEN IF THIS

STATUTE DID IMPINGE ON THOSE FIRST

AMENDMENT RIGHTS, THE STATUTE

COMPORTS WITH THE FOURTEENTH

AMENDMENT.

WHETHER THE SOUTH CAROLINA

SUPREME COURT, CONSISTENT WITH THIS

COURT’S RELEVANT DECISIONS,

PROPERLY DETERMINED THAT S.C. CODE

ANN. § 16-13-470 DOES NOT VIOLATE

PETITIONERS’ CONSTITUTIONAL RIGHT OF

PROCEDURAL DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT BECAUSE IT

ii

IS NOT VAGUE AND OVERLY BROAD AND

DOES NOT VIOLATE THE EQUAL

PROTECTION CLAUSE BY DISPARATE

TREATMENT.

WHETHER THIS CASE PRESENTS ANY

COMPELLING REASON TO GRANT A

PETITION FOR WRIT OF CERTIORARI.

iii

TABLE OF CONTENTS

Questions Presented .........cccccceccceccccccesvcess i

DEE og cccccvccovsevccccencvceresveseees iii

Table Of AMMIOTMEES foe cite cccvcvcdvcctccccovccves v

Counter Statement of the Case..... pi cig Dicks hss, l

Reasons ior Denying the Writ ...........-00eeeeeeeeeee 4

I. The South Carolina Supreme Court

properly held that S.C. Code Ann. § 16-

13-470 does not violate article I, § 8 of the

United States Constitution by prohibiting

the transportation of urine into south

carolina when such urine is intended to

Gate BEFMB ION o.oo cccccvecccccscvcess 4

Il. The South Carolina Supreme Court

properly determined that S.C. Code Ann.

§ 16-14-370 does not violate Petitioners’

substantive due process rights by

impacting on the First Amendment rights

of freedom of expression. Further, the

South Carolina Supreme Court properly

held that, even if this statute did impinge

on those First Amendment rights, the

statute comports with the Fourteenth

IE cine cede tb eeeceeveexeceses 6

Il. The South Carolina Supreme Court

properly determined that S.C. Code Ann.

iV

§ 16-14-370 does not violate Petitioners’

constitutional right of procedural due

process under the Fourteenth Amendment

because it is not vague and overly broad

and does not violate the equal protection

clause by disparate treatment .............

IV. This case does not present any compelling

reason to grant a petition for writ of

GOREN 65 66 Feb 15 eae ea ces

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Vv

TABLE OF AUTHORITIES

CASES:

A.B. Small Co. v. American Sugar Refining Co. ‘

267 GE TIS CTR Kh oe Set dik oe a awiice OR 11

American Communications Ass'n v. Douds,

Be ER, SORE ob ch bdo aod 6 eueaeN Sewn ES 11

Board of Trustees of State University of New York v. Fox,

BEI TE. SEP POO 3 nbn wh be bic d bdals sheds ve 10

Breard v. Alexandria, 341 U.S. 622, 636 (1951) ........... 5

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432

CIGD ii kas 0X5 sense van ne CORY DAOC SR RE eile 13

Connally v. General Construction Co., 269 U.S. 385

Pc dos ce esbckeaer thew ences cabeesdeees 11

Curtis v. State, 345 S.C. 557, 549 S.E.2d 591

OES i as HO RAS 1, 3, 4, 5, 8, 9, 12, 13, 14

Giboney v. Empire Storage & Ice Co., 336 U.S. 490

COE eae Scere peace wath i adebadv nese cute 10 -

Lewis v. BT Investment Managers, Inc., 447 U.S. 27

CRUE Ss oc boo is hws Ch NEN ie Rees hae eueee tres 5

Loder v. City of Glendale, 14 Cal.4th 846, 927 P.2d 1200

os svc ce Adak evemk Gch + 7

Massachusetts Bd. Of Ret. v. Murgia, 427 U.S. 307 (1976) . 14

vi

National Treasury Employees Union v. Von Raab,

FP US TOOT < cc este BTC E I be dns 7

Nippert v. Richmond, 327 U.S. 416 (1946) ............... 5

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) ..... 10

Parker v. Levy, 417 U.S. 733 (1974) ......ccceccecceeee 12

POtar v. Dot, FEF CB. B08 GES) cccccccvccsceceseecs 13

Rete v. £4008, 423 US. GB CGTS) «0 she eso ch i eo os I]

Sandstrom v. Montana, 442 U.S. 510 (1979) ........... 3,9

Skinner v. Railway Labor Executives’ Association,

GaP Eis AOE 0 bc oo b bbb odwancndetunesi«ss 7

Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997) ..8

United States v. Harris, 347 U.S. 612 (1954) ............ 11

United States v. Perilla, 208 Ue BEGET) c coreciisebas 12

Vacco v. Quill, $21 U.S. 793 (1997) ...... cece eee eeee 13

Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) ...7

UNITED STATES CONSTITUTION:

VS COM, 38S ee ccddcacwesdesnds (ebb ecn 4

Vii

STATUTES:

STATE:

S.C. Code Ann. § 16-13-470 (West Supp. 2000)

1, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14

S.C. Code Ann. § 38-73-500 (West Supp. 2000) .... . 7

S.C. Code Ann. § 41-1-15 (West Supp. 1998)....... 7

i pa iia Rieti selgirh Bab

I BO ons ihc dcoeheccsiacinseeins 7,8

COURT RULES:

Eee RRA elicit and et lgeshinaie Bored, ol 15

NP ROE AA REND Pn GA tA LIE Bt ek 15

altel lise ny hla Mion te Buk a Ee 16

l

COUNTER STATEMENT OF THE CASE

This case involves the constitutionality of a statute which

prohibits the selling of urine with the intent to defraud a drug

screening test, a statute passed pursuant to the police powers of

the State of South Carolina. Petitioners have operated for three

years under the business name of Privacy Protection Services with

the principal place of business in Greenville, South Carolina.

This business involves the sale of “unadulterated and certified

drug free human urine in interstate commerce.” Pet. App. 48a.

Petitioners also include with the sale of the urine a pouch, tube

and chemical hand warmer type device. Curtis v. State, 345 S.C.

557, 565, 549 S.E.2d 591, 595 (2001).

On June 11, 1999, the Governor of the State of South

Carolina signed into law Senate Bill 277, which amends S.C.

Code Ann. § 16-13-470 (hereinafter, the “Statute”) “to provide

that selling urine with the intent to defraud a drug screening test

is a felony. ...” 1999 S.C. Acts 65. Section 16-13-470 provides

a penalty for the first offense of a fine of not more than five

thousand dollars and imprisonment of not more than three years

or both and a penalty for the second or subsequent offense of a

fine of not more than ten thousand dollars or imprisonment of not

more than five years, or both. S.C. Code Ann. § 16-13-470 (West

Supp. 2000). Before the South Carolina Supreme Court struck

such language, the Statute provided that “[i]ntent is presumed if

a heating element or any other device used to thwart a drug-

screening test accompanies the sale .. ..” Jd.

In their Complaint, Petitioners allege that this Statute

“constitutes a wrongful and unconstitutional interference and

deprivation of the Petitioners’s property rights to do business, his

privacy rights, liberty to contract and freedom of speech in

violation of the First, Fourth, Fifth, Sixth and Fourteenth

Amendments of the Constituti » of the United States and Article

I, Sections 2, 3 and 13 of the Constitution of the State of South

2

Carolina and the statutory and decisional laws of the State of

South Carolina.” Pet. App. 50a. The Complaint sets forth three

causes of action seeking an Order (1) declaring the statute

unconstitutional; (2) enjoining the enforcement of the statute; and

(3) granting a judgment for damages, based upon the theory of

inverse condemnation, attorneys fees and costs. Pet. App. 47a -

52a.

On March 18, 1999, the Honorable Charles B. Simmons

issued an Order Granting Ex Parte Temporary Restraining Order

restraining the enforcement of 1999 S.C. Sen. Bill 277 pending a

hearing on the Motion for temporary restraining order. A hearing

was conducted on June 25, 1999, before the Honorable Tom J.

Ervin, Circuit Court Judge, in the Greenville County Court of

Common Pleas, on the Petitioners’ Motion for Temporary

Restraining Order and/or Temporary Injunction. Judge Ervin

denied the Petitioners’ Motion for temporary injunction and

issued a formal order on July 8, 1999. Petitioners filed a Motion

for Reconsideration which was denied. An appeal of the denial

of the temporary injunction followed.

On September 1, 1999, the Honorable Henry Floyd

conducted a hearing and ordered the proceedings bifurcated with

regard to the damages issues and the constitutional issues.

Pending the appeal of the denial of the temporary injunction, on

May 2, 2000, the Honorable Alison R. Lee heard the merits of the

case and ruled that the Statute was constitutional in an order filed

August 18, 2000. Judge Lee denied a motion to reconsider on

September 27, 2000, and an appeal followed.

Thus, these issues came before the South Carolina

Supreme Court on separate appeals, first on the denial of a

temporary injunction and then on the appeal of the hearing on the

merits. At a hearing on October 4, 2000, the South Carolina

Supreme Court, in response to a motion by the Respondents that

the appeal of the denial of the temporary injunction was rendered

3

moot by the issuance of an order on the merits, consolidated the

merits appeal with the temporary injunction appeal. Curtis, 345

S.C. at 569, 549 S.E2d at 597.

The South Carolina Supreme Court found that the Statute

unconstitutionally shifts the burden of proof to the criminal

defendant by stating that “intent is presumed” under certain

conditions, thereby violating this Court’s holding in Sandstrom v.

Montana, 442 U.S. 510 (1979), because it acts as a conclusive

presumption. Curtis, 345 S.C. at 570, 549 S.E. 2d at 597-98. The

South Carolina Supreme Court severed the unconstitutional

presumption language from the remainder of Section 16-13-470.

The South Carolina Supreme Court rejected Petitioners’

other constitutional attacks of the Statute and found (1) Section

16-13-470 is not unconstitutionally vague and overbroad; (2)

“Section 16-13-470 is a legitimate exercise of the State’s police

powers in regulating public safety and welfare” and that this

“public purpose of creating safety in the workplace outweighs any

legitimate interest, if any, of [Petitioners] in doing business|;}’~

(3) Section 16-13-470 does not violate Petitioners’ right to free

speech, particularly in light of the fact that the presumed intent

language with regard to the inclusion of literature with the urine

kit sales was severed; (4) Petitioners’ “equal protection claims fail

because all individuals who engage in conduct prohibited by

section 16-13-470 are treated alike, regardless of whether they

adulterate urine samples with herbal supplements or chemicals[;]”

(5) the Statute does not violate the Eighth Amendment

prohibition against cruel and unusual punishment; (6) this case

does not involve the Commerce Clause and “does not unduly

burden interstate commerce because it does not ban the sale of

urine and other bodily fluids[;}”(7) the Statute does not involve

an act of surveillance by the State and does not violate the right

to privacy particularly when Petitioners do not have standing to

assert the privacy rights of those subject to urine testing; (8)

- Petitioners do not have standing to assert the constitutional rights

4

of his customers, and the Statute does not violate the Fourth

Amendment because it “does not mandate drug testing but simply

makes it a crime to sell urine or other adulterants with the intent

to defraud a drug test.” Curtis, 345 S.C. 557, 549 S.E.2d 591

(2001).

REASONS FOR DENYING THE WRIT

The decision of the South Carolina Supreme Court is

correct and does not conflict with the decisions of this Court, any

federal court of appeals, or any other state court of last resort.

Moreover, this case does not present any issue of broad

importance. Further review is therefore not warranted.

THE SOUTH CAROLINA SUPREME COURT PROPERLY

HELD THAT S.C. CODE ANN. § 16-13-470 DOES NOT

VIOLATE ARTICLE I, § 8 OF THE UNITED STATES

CONSTITUTION BY PROHIBITING THE

TRANSPORTATION OF URINE INTO SOUTH

CAROLINA WHEN SUCH URINE IS INTENDED TO

DEFRAUD A DRUG TEST.

Petitioners argue that S.C. Code Ann. § 16-13-470

impermissibly interferes with interstate commerce in that it

prohibits the flow of interstate goods and burdens interstate

commerce. The Commerce Clause, U.S. Const. art 1, § 8,

however, is not invoked by the Statute, and the South Carolina

Supreme Court properly rejected Petitioners’ arguments finding

that “this case does not involve the commerce clause, [sic] it

involves the legislature’s exercise of its police powers to prohibit

commerce that is intended to defraud South Carolina employers

and create an unsafe work environment.” Curtis, 345 S.C. 557,

575, 549 S.E. 2d 591, 600 (2001).

5

The United States Supreme Court has recognized that the

Commerce Clause “limits the powers of the States to erect

barriers against interstate trade.” Lewis v. BT Investment

Managers, Inc., 447 U.S. 27, 35 (1980). Section 16-13-470,

however, does not erect barriers against interstate trade with

regard to the selling, transporting, or distributing urine; it simply

prohibits such activities when those activities are intended to

defraud a drug screening test. Thus, the South Carolina Supreme

Court properly found that “section 16-13-470 does not unduly

burden interstate commerce because it does not ban the sale of

urine or other bodily fluids [but] simply makes it unlawful for

someone to sell, give away, distribute, or market urine with the

intent to use the urine to defraud a drug or alcohol screening test.”

Curtis, 345 S.C. 557, 575, 549 S.E. 2d 591, 600 (2001). Thus,

this Statute does not invoke the protections of the Commerce

Clause.

Moreover, even if the Commerce Clause were invoked,

this Court has constantly repeated, “not all burdens upon

commerce, but only undue or discriminatory ones, are forbidden.”

Breard v. Alexandria, 341 U.S. 622, 636 (1951), citing Nippert v.

Richmond, 327 U.S. 416, 425-26 (1946) (“Where no

discrimination existed, in a somewhat similar situation, we

upheld the state regulation as a permissible burden on

commerce”). Section 16-13-470 does not discriminate against

non-residents of South Carolina but prohibits anyone from

selling, wransporting, or distributing urine with the purpose of

defrauding a drug test. Thus, any burden which may fall upon

interstate commerce is not discriminatory and, therefore, does not

violate the Commerce Clause.

Further, this Court has determined that “[t]his limitation

upon state power, of course, is by no means absolute” and “the

States retain authority under their general police powers to

regulate matters of ‘legitimate local concern,’ even though

interstate commerce may be affected.’” As outlined more fully

6

below, the exercise of South Carolina’s police powers in securing

public safety and safety in the workplace by prohibiting an

activity which purports to defraud drug screening is not limited by

the powers of the Commerce Clause.

Il,

THE SOUTH CAROLINA SUPREME COURT PROPERLY

DETERMINED THAT S.C. CODE ANN. § 16-13-470 DOES

NOT VIOLATE PETITIONERS’ SUBSTANTIVE DUE

PROCESS RIGHTS BY IMPACTING ON THE FIRST

AMENDMENT RIGHTS OF FREEDOM OF EXPRESSION.

FURTHER, THE SOUTH CAROLINA SUPREME COURT

PROPERLY HELD THAT, EVEN IF THIS STATUTE DID

IMPINGE ON THOSE FIRST AMENDMENT RIGHTS,

THE STATUTE COMPORTS WITH THE FOURTEENTH

AMENDMENT.

Petitioners use a lot of space within their Petition to argue

a political position with regard to the use of drug-screening tests

and include similar arguments in literature packaged with the sale

of the urine kits. Petitioners argue that the substantive right to

free expression of ideas has been unconstitutionally prohibited in

violation of the First Amendment by Section 16-13-470. This

argument is without merit because (1) the Statute does not violate

the substantive right to freedom of expression, and (2) even if this

Court were to find that the Statute affects the First Amendment

right to freedom of expression, this expression involves

commercial speech, and the State of South Carolina has

demonstrated a “reasonable fit” between the Legislature’s ends

and the means chosen to accomplish those ends. If this Court

finds a stricter analysis is required, the State of South Carolina

has certainly shown a compelling state interest and demonstrated

that the statute is the least restrictive means of insuring its stated

interest.

7

With regard to substantive due process rights, this case is

reminiscent of the drug paraphernalia cases which have been

subjected to numerous constitutional challenges. _As stated by

the South Carolina Supreme Court in its decision “the United

States Supreme Court has held drug testing of employees through

urinalysis is lawful and constitutional.” See, e.g., Skinner v.

Railway Labor Executives’ Association, 489 U.S. 602 (1989)

(testing railroad employees in a safety-sensitive position for drugs

and alcohol after a serious accident was constitutional); National

Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)

(drug testing employees carrying firearms involved in the

interdiction of illegal drugs involved a compelling government

interest in self-protection and public safety); Vernonia School

Dist. 47J v. Acton, 515 U.S. 646 (1995) (random drug testing of

students involved in school athletic programs does not violate a

student athlete’s “expectation of privacy”). See also Loder v. City

of Glendale, 14 Cal.4th 846, 927 P.2d 1200 (1997) (city’s

suspicionless drug testing of all job applicants who were offered

positions was reasonable under Fourth Amendment).

Thus, drug testing utilizing urinalysis is lawful,

constitutional, and in no way unreasonably violates an employee’s

privacy interest if the tests are conducted pursuant to the

parameters discussed by the courts.

In the Petition, Petitioners argue that the Statute protects

no legitimate public purpose, and Petitioners use the opportunity

once again to further the political position in opposition to drug

testing in the workplace. Many states, including South Carolina,

have passed laws which permit random drug testing as one

component to further the goals of achieving drug-free workplaces.

See S.C. Code Ann. § 38-73-500 (West Supp. 2000) (workers’

compensation credit for random drug testing “to provide incentive

for employers to prevent drug use and the tragedies associated

with work related accidents” Preamble of 1997 S.C. Act 92); as

well as S.C. Code Ann. § 41-1-15 (West Supp. 2000) (authorizing

8

establishment of drug prevention program in workplace in order

to give private sector employers the opportunity “to maximize

their levels of productivity, enhance their competitive positions

in the marketplace, and reach their desired levels of success

without experiencing the costs, delays and tragedies associated

with work related accidents resulting from substance abuse by

employees” Preamble of 1997 S.C. Act 92).

By making illegal the sale of bodily fluids or other acts

with the intent to defraud a drug screening test, the Legislature

has added another important element to South Carolina’s

workplace drug prevention legislation. Stein v. Davidson Hotel

Co., 945 $.W.2d 714 (Tenn. 1997) (in light of state legislation

promoting drug-free workplaces, no public policy is violated by

a private employer discharging an at-will employee who tests

positive for drug use on a random drug test). Not only has the

Legislature tried to secure the safety of the workplace against

those who use drugs, but also against those who provide the

means to conceal the use of drugs.

As found by the South Carolina Supreme Court in its

opinion in this case, “[a] statute making it unlawful to defraud a

drug test furthers the public purpose of ensuring a drug-free

workplace.” Curtis, 345 S.C. at 573, 549 S.E.2d at 599. Thus,

the South Carolina Supreme Court determined that “Section 16-

13-470 is a legitimate exercise of the State’s police powers in

regulating public safety and welfare[,]” and that “public purpose

of creating safety in the workplace outweighs any legitimate

interest, if any, of [Petitioner] in doing business.” Jd.

Any substantive due process challenge against this Statute

fails because South Carolina has passed this Statute pursuant to

its police powers and shown a compelling governmental necd to

restrict this conduct of selling urine to defeat a drug-screening

test.

9

Specifically, Petitioners’ First Amendment challenge fails

because the Statute does not prohibit Petitioners from expressing

their beliefs about drug-screening tests. As originally enacted,

section 16-13-470 provided as follows:

Intent is presumed if a heating element or any

other device used to a thwart a drug-screening test

accompanies the sale, giving, distribution, or

marketing of urine or ifinstructions which provide

a method for thwarting a drug-screening test

accompany the sale, giving, distribution, or

marketing of urine.

S.C. Code Ann. § 16-13-470(A) (West Supp. 2000) (emphasis

added). The South Carolina Supreme Court, however, in its

opinion in this case severed this “intent” section as

unconstitutionally shifting the burden of proof to the criminal

defendant pursuant to the previous opinion of this Court in

Sandstrom v. Montana, 442 U.S. 510 (1979). Curtis, 345 S.C. at

570, 549 S.E.2d at 597. Thus, the language regarding the

inclusion of literature with the urine kits has been removed from

the Statute.

The South Carolina Supreme Court rejected Petitioners’

arguments and found that “Section 16-13-470 does not prohibit

[Petitioner] from dispensing literature regarding his political

beliefs on urine testing.” Jd. Moreover, the South Carolina

Supreme Court had severed the portion of the Statute which

provided that intent to defraud the drug testing will be presumed

if “instructions which provide a method for thwarting a drug-

screening test” accompanies the sale of his urine. Jd Thus, the

portion of the Statute which mentioned the distribution of his

literature has been severed so that Petitioner’s facial attack on the

Statute is without merit.

10

Additionally, Petitioners are in the commercial endeavor

of selling urine to defraud drug testing, and such commercial

speech enjoys much less protection under the Constitution. In

Ohralik v. Ohio State Bar Ass'n, this Court held that “we instead

have afforded commercial speech a limited measure of protection,

commensurate with its subordinate position in the scale of First

Amendment values, while allowing modes of regulation that

might be impermissible in the realm of noncommercial

expression.” 436 U.S. 447, 456 (1978). Further, the State of

South Carolina in this case has met the burden of proof with

commercial speech established in Board of Trustees of State

University of New York v. Fox, 492 U.S. 469 (1989), in that the

State has demonstrated a “reasonable fit” between the

Legislature’s end in insuring public safety and safety in the

workplace and the means chosen to accomplish those ends, i.e.,

prohibiting the defrauding of these legitimate drug-screening tests

by prohibiting the sale, transport, or distribution of urine or other

adulterants intended to defraud these drug tests.

Moreover, this Court has held that “it has never been

deemed an abridgment of freedom of speech or press to make a

course of conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language, either

spoken, or written, or printed.” Giboney v. Empire Storage & Ice

Co., 336 U.S. 490, 502 (1949). Thus, “the State-does not lose its

power to regulate commercial activity deemed harmful to the

public whenever speech is a component of that activity.” Ohralik

v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978).

Section 16-13-470 does not even address, after severance

of certain language by the South Carolina Supreme Court, the

distribution of literature or the expression of ideas. This Statute

proscribes certain “conduct” with the intent to defraud a drug test

so that the Statute is not directed at Petitioners’ expression of

ideas regarding the validity or constitutionality of drug tests. See

1]

S.C. Code Ann. § 16-13-470 (West Supp. 2000). Thus, Petitioner

is free to express his ideas regarding drug-screening tests.

Il.

THE SOUTH CAROLINA SUPREME COURT PROPERLY

DETERMINED THAT S.C. CODE ANN. § 16-13-470 DOES

NOT VIOLATE PETITIONERS’ CONSTITUTIONAL

RIGHT OF PROCEDURAL DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT BECAUSE IT IS NOT

VAGUE AND OVERLY BROAD AND DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE BY

DISPARATE TREATMENT.

The Due Process Clause protects against “the exaction of

obedience to a rule or standard which [is] so vague and indefinite

as really to be no rule or standard at all.” A.B. Small Co. v.

American Sugar Refining Co., 267 U.S. 233 (1925). Further, a

law is unconstitutionally vague if it forbids or requires the doing

of an act in terms so vague that men of common intelligence must

necessarily guess as to its meaning and differ as to its application.

Connally v. General Construction Co., 269 U.S. 385 (1926).

Generally, a criminal statute will be held invalid for

vagueness when an individual could be held “criminally

responsible for conduct which he could not reasonably understand

to be proscribed.” United States v. Harris, 347 U.S. 612, 617

(1954).

The Due Process Clause requires only that the statute

' sufficiently warn potential actors so that they may conduct

themselves so as to avoid violating the law. Rose v. Locke, 423

U.S. 48, 50 (1975). See also American Communications Ass'n v.

Douds, 339 U.S. 382 (1950) (constitutional standard for

vagueness is the practical criterion of fair notice to those to whom

the law applies). Moreover, this Court has held that one to whose

12

conduct the statute clearly applies does not have standing to

challenge it for vagueness. Parker v. Levy, 417 U.S. 733 (1974).

Citing these well-settled principles of due process

analysis, the South Carolina Supreme Court properly rejected

Petitioners’ arguments that Section 16-13-470 is

unconstitutionally vague and overly broad. The South Carolina

Supreme Court found that “[a]ithough some of the terms in

section 16-13-470 are undefined, the intent of the statute is clear

on its face.” Curtis, 345 S.C. at 572, 549 S.E.2d at 598. The

Statute specifically makes it unlawful to “sell, give away,

distribute, or market urine... with the intent of using the urine to

defraud a drug or alcohol screening test.” In reviewing this

statutory language, the South Carolina Supreme Court specifically

found that “[a] person of ordinary intelligence seeking to obey the

law will know, and is sufficiently warned of, the conduct the

statute makes criminal.” /d Thus, the Act adequately warns

Petitioner Curtis how to conduct himself and his business in order

to avoid viclating the law.

The South Carolina Supreme Court also properly rejected

Petitioners’ argument that terms such as “foil,” “spike,”

“defraud,” “bodily fluids,” and “adulterate” are not defined by

concluding that “all of these terms have common, ordinary

meanings sufficient to proscribe conduct and do not need to be

specifically defined.” Curtis, 345 S.C. at 572, 549 S.E.2d ai 598-

99. The South Carolina Supreme Court further properly

concluded that “all the Constitution requires is that the language

convey sufficiently definite warnings as to the proscribed conduct

when measured by common understanding and practices.” /d.

See also United States v. Perilla, 332 U.S. 1 (1947) (“The

Constitution does not require impossible standards; all that is

required is that the language conveys sufficiently definite

warnings as to the proscribed conduct when measured by

common understanding and practices.”). These conclusions are

consistent with relevant opinions of this Court.

13

Therefore, the Petition for Writ of Certiorari should be

denied upon the grounds of procedural due process because the

South Carolina Supreme Court properly concluded that the

Statute is not unconstitutional as vague, overly broad, and

ambiguous and, further, that this Statute adequately and fully

warns Petitioners of what kind of activity is proscribed.

In this proceeding in support of its position that the Statute

is vague and overly broad, Petitioners also argue that the Statute

is subject to selective enforcement because it is so vague and

overly broad in that it allows officials to treat people differently.

Petitioners did not raise this specific issue with regard to selective

enforcement before the South Carolina Supreme Court. If these

arguments are instead Petitioners’ arguments that the Statute

violated the Equal Protection Clause because it “differentiates

urine sales from the sale of herbal supplements and other products

sold to mask drugs in one’s urine,” then the South Carolina

Supreme Court properly analyzed and rejected those arguments.

Curtis, 345 S.C. at 574, 549 $.E.2d at 599.

This Court has held that the Equal Protection Clause “is

essentially a direction that all persons similarly situated should be

treated alike.” Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.

432, 439 (1985). This Clause, however, creates no substantive

rights but instead “embodies a general rule that State must treat

like cases alike but may treat unlike cases accordingly.” Vacco v.

Quill, 521 U.S. 793, 799 (1997). See also Plyler v. Doe, 457 U.S.

202, 216 (1982) (““[T}he Constitution does not require things

which are different in fact or opinion to be treated in law as

though they were the same.””).

The Statute clearly prohibits the sale of any adulterant

which is intended to be used for the purpose of defrauding a drug

test. See S.C. Code Ann. § 16-13-470 (West Supp. 2000).

Further, any person who possesses, sells, transports, etc., urine or

14

adulterants with the purpose of defrauding a drug test is subject

to this Statute. Thus, all such persons similarly situated are

treated alike.

As properly found by the South Carolina Supreme Court,

“this case does not involve a suspect classification or a

fundamental right, so the question under equal protection analysis

is whether the legislation is rationally related to a legitimate state

purpose.” Curtis, 345 S.E. at 574, 549 S.E.2d at 600 (citing from

Massachusetts Bd. Of Ret. v. Murgia, 427 U.S. 307 (1976). The

South Carolina Supreme Court properly rejected Petitioners’

equal protection argument as follows:

We find the classification of an individual who

sells urine or an adulterant to defeat a drug test is

rationally related to the legitimate state purpose of

promoting a safe work environment. First, the

classification is reasonably related to the

legislative purpose of insuring the safety of the

workplace through the protection of drug testing

programs. Second, all people who constitute the

class are treated similariy. The classification rests

on a reasonable basis and includes any person who

sells a product intended to adulterate urine or

other bodily fluid sample for the purposes of

defrauding a drug or alcohol screening test.

Curtis, 345 S.C. at 574, 549 S.E.2d at 600. Thus, the South

Carolina Supreme Court properly found that Petitioners’ equal

protection claims fail because “all individuals who engage in

conduct prohibited by section 16-13-470 are treated alike,

regardless of whether they adulterate urine samples with herbal

supplements or chemicals.” /d.

Petitioners fail to establish an equal protection violation

because (1) the Statute is reasonably related to the legislative

15

purpose of insuring the safety of the workplace and the general

public through the protection of a drug testing program; (2) all

those who constitute the class by desiring to defeat such drug

testing through adulteration of the drug testing process are treated

similarly, and (3) the Legislature’s desire to protect the safety of

the workplace and the general public welfare is reasonable. The

fact that the classification of those who use urine to defeat drug

tests may not “completely accomplish the legislative purpose”

does not establish an equal protection violation.

Therefore, the Petition should be denied because the South

Carolina Supreme Court’s analysis and decision with regard to

Petitioners’ claims of violations of procedural due process claims,

including equal protection claims, are consistent with this Court’s

prior relevant decisions and does not differ with those of another

state or a federal court of appeals.

IV.

THIS CASE DOES NOT PRESENT ANY COMPELLING

REASON TO GRANT A PETITION FOR WRIT OF

CERTIORARI.

As provided, a “[rJeview on a writ of certiorari is not a

matter of right, but one of judicial discretion” and “[a] petition for

a writ of certiorari will be granted only for compelling reasons.”

Rule 10. This Petition presents no reasons favoring review of the

decision of the South Carolina Supreme Court. Specifically, the

South Carolina Supreme Court, this State’s court of last resort,

has not decided an important federal question in a way that

conflicts with the relevant decisions of a United States Court of

Appeals or another state court of last resort. Rule 10(b).

‘Additionally, the South Carolina Supreme Court has not decided

“an important question of federal law that has not been, but

should be, settled by this Court, or has decided an important

federal question in a way that conflicts with relevant decisions of

16

this Court.” Rule 10(c). Thus, review by this Court is not

warranted.

For these reasons, as more specifically outlined above, the

Petition for Writ of Certiorari should be denied.

CONCLUSION

Based upon the foregoing, Respondents respectfully

submit that the Petition for Writ of Certiorari in this case is

without merit and should be denied.

Respectfully submitted,

CHARLES M. CONDON

South Carolina Attorney General

NATHAN KAMINSKI, JR.

Counsel of Record

Senior Assistant Attorney General

CHRISTIE NEWMAN BARRETT

Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3736

February 12, 2002