Vol. 5, No. 5, Pg. 24. Privacy Rights in South Carolina after Singleton v. State.

• Author: By Gregory S. Forman

South Carolina Lawyer

1994.

Vol. 5, No. 5, Pg. 24.

Privacy Rights in South Carolina after Singleton v. State

24Privacy Rights in South Carolina after Singleton v. StateBy Gregory S. Forman"Before Singleton there was an argument that South Carolina's right to privacy did not protect personal autonomy interests. Singleton clearly rejects this argument."

The South Carolina Supreme Court's recent decision in Singleton v. State, Op. No. 23929 (S.C. Sup. Ct. filed August 30, 1993) (Davis Adv. Sh. No. 23 at 8) is the first step in the development of right to privacy jurisprudence under the state's constitution. The decision may signal the beginning of significant privacy rights litigation by South Carolina lawyers.

Singleton marks the first time the Court has based its holding on this right to privacy. This article will discuss the Singleton decision, consider other states that have an explicit privacy right in their constitutions, and analyze the various interpretations other state courts have given to their constitutional privacy rights.

The right to privacy encompasses three rights: a right to be free of unreasonable searches and seizures; a right to personal bodily autonomy; and a right to be free of public disclosure of private matters. The primary focus here will not be on search and seizure law but rather on rights that would not be recognized absent a right to privacy.

Privacy rights under the United States Constitution, located in "penumbras, formed by emanations" (See, Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 210 (1965)), are subject to constant attack. In contrast, South Carolina's right to privacy is explicit. In 1971, South Carolina added the right toprivacy to its constitutional provision regarding search and seizure. See, Acts and Joint Resolutions South Carolina 1971, Vol. 57, page 315, 316-317 (May 13, 1971). S.C. Const. art. I, §10 now reads in part: "The right of the people to be secure in their persons, houses, papers and effects against searches and seizures and unreasonable invasions of privacy shall not be violated. . " (emphasis added).

Other state courts have determined that the explicit privacy rights located in their state constitutions are broader than the United States Constitution's penumbral rights. See e.g., State v. Glass 583 P.2d 872, 874-75 (Alaska 1978). Singleton indicates the South Carolina Supreme Court is willing to follow this reasoning.

The SingletonDecision's Focus on Privacy

Fred Singleton was convicted and sentenced to death for murder. In March 1990, he filed a second application for post conviction relief, alleging he was not competent to be executed. The circuit court determined Singleton was indeed incompetent to be executed, a conclusion the Supreme Court affirmed. Singleton at 10-15.

At this point the Court confronted whether the state could force Singleton to take medication that would treat his incompetence in preparation for execution. The Courtdetermined the state could not. The Court's decision to base its holding on the right to privacy was hardly compelled. The Court noted, and could have solely relied on, United States Supreme Court decisions interpreting the United States Constitution's due process clause. Singleton at 18, citing, Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) and Riggins v. Nevada, 504 U.S.____, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). Those two cases hold that forced medication of inmates is allowed only when an inmate is dangerous to self or others and when the treatment is in the inmate's medical interest.

Instead, the Court found independent authority to prohibit Singleton's forced medication in the state constitution's right to privacy. Citing a recent Louisiana decision interpreting that state's constitutional right to privacy, Louisiana v. Perry, 610 So.2d 746 (La. 1992), the Court held:

that the South Carolina Constitutional right of privacy would be violated if the State were to sanction forced medication solely to facilitate execution. An inmate in South Carolina has a very limited privacy interest when weighed against the State's penological interest; however the inmate must be free from unwarranted medical intrusions.

25Singleton at 19. Before Singleton there was an argument that South Carolina's right to privacy does not protect personal autonomy interests. Singleton clearly rejects this argument.

Right to Privacy in Other States

Ten states, including South Carolina, have explicit provisions regarding the right to privacy in their constitutions. Five of these states...