# Opposition Brief — Curtis v. South Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 926

## Text

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

sd

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0897%3A3. Public record. Not legal advice.