Privacy Rights in South Carolina After Singleton v. State (March 1994)
Published in South Carolina Lawyer, March 1994
The South Carolina Supreme Court’s recent decision Singleton v. State, 313 S.C. 75, 437 S.E. 2d 53 (1993) 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, discuss the 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.
There are three components to the right to privacy: a protection against unreasonable searches and seizures; an interest in personal bodily autonomy and protection from public disclosure of private information. The primary focus here will not be on search and seizure law, but instead 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 to privacy 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 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.
II. THE SINGLETON DECISION’S FOCUS ON PRIVACY RIGHT
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, 437 S.E.2d at 55-58. 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 Court determined the State could not. The decision to base its holding on the right to privacy was hardly compelled.
The Court noted, and could have solely relied upon, United States Supreme Court decisions interpreting the United States Constitution’s Due Process Clause. Singleton, 437 S.E.2d at 60, 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 the inmate is dangerous to himself 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. Singleton, 437 S.E.2d at 61.
Prior to Singleton, there was an argument that South Carolina’s right to privacy did not protect personal autonomy interests. Singleton clearly rejects this argument.
III. OTHER STATES’CONSTITUTIONAL RIGHT TO PRIVACY
Ten states, including South Carolina, have explicit provisions regarding the right to privacy within their Constitutions. Five of these states explicitly enumerate privacy as an individual right, and place it separately from related protections against unreasonable searches and seizures: Alaska (Art. I, § 22); California (Art. I, § 1); Florida (Art. I, § 23); Hawaii (Art. I, § 6) and Montana (Art. II, § 10). Six states protect against invasions of privacy in their constitutional provision regarding searches and seizures: Arizona (Art. II, § 8); Hawaii (Art. I, § 7); Illinois (Art. I, § 6); Louisiana (Art. I, § 5); South Carolina (Art. 1, § 10) and Washington (Art. I, § 7). Hawaii protects privacy rights under both provisions.
With the exception of Montana, the states that have made privacy an explicit individual right have generally developed a more expansive notion of privacy rights. Washington State, in contrast, has the narrowest constitutional right to privacy of these ten states, providing that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington courts have interpreted this provision as having no greater protection of privacy in non search and seizure cases than under federal law. Ramm v. City of Seattle, 66 Wash. App. 15, 830 P.2d 395 (1992). But see, In Re Welfare of Colyer, 660 P.2d 783 (Wash. 1983) (terminally-ill, competent adult has privacy right to refuse medical treatment which only serves to prolong the dying process). However other states that place the right to privacy within the search and seizure clause have applied the right to privacy in non search and seizure cases. See e.g., State v. Bateman, 113 Ariz. 107, 547 P.2d 6, cert. denied, 429 U.S. 864 (1976) (upholding a sodomy statute but noting a right to privacy for consensual sexual acts). Certainly the decision is Singleton does not fit within traditional search and seizure jurisprudence. As such it appears the South Carolina Supreme Court is willing to apply the right to privacy outside search and seizure contexts.
IV. EXPANDING THE RIGHT TO PRIVACY POST SINGLETON
A. Search & Seizure Law Obviously, a prohibition against “unreasonable invasions of privacy” implies searches and seizures that do not offend the United States Constitution may offend the South Carolina Constitution. For example, Illinois has held that privacy expectations in financial records may deserve greater protection under that State’s right to privacy. People v. Jackson, 72 Ill. Dec. 153, 116 Ill.App.3d 430, 452 N.E.2d 85, 88 (1983). State v. Church, 538 So.2d 993 (La. 1989), rehearing denied, involved a question of the constitutionality of roadblocks to check for drunk drivers. The Louisiana Supreme Court determined that the roadblock in question met federal constitutional standards. The Court disallowed the roadblock, however, determining that it was an unreasonable invasion of privacy under the Louisiana Constitution. Id. at 996-97. Montana and Alaska prohibit the admission of surreptitiously-taped conversations made by a private individual, even though such tapes would be admissible under federal standards. State v. Brackman, 582 P.2d 1216 (Mont. 1978); State v. Glass, supra. These decisions show how a state constitutional right to privacy may prohibit searches and seizures that do not offend federal constitutional standards.
B. Public Disclosure Protection Privacy rights have an even greater application outside search and seizure jurisprudence. A Hawaii Supreme Court decision presents a suitable definition of what the right to privacy entails in non search and seizure contexts: 1) a right to prevent disclosure of personal matters; and 2) a right to be free of state interference in important personal decisions. McCloskey v. Honolulu Police Dep’t, 71 Haw. 568, 799 P.2d 953, 957 (1990). California is at the forefront of public disclosure protection, which has applications outside of criminal law. Four decisions show the tremendous scope of the protection against disclosure of personal matters.
Vinson v. Superior Court, 43 Cal.3d 833, 239 Cal. Rptr. 292, 740 P.2d 404 (1987) used the constitutional right to privacy to protect litigants from intrusive discovery. Vinson involved a sexual harassment suit against the plaintiff’s employer. Her employer moved for an order compelling her to undergo a medical and psychological evaluation and plaintiff moved for a protective order prohibiting the defendant from inquiring into her sexual history or practices. The Superior Court granted defendant’s motion but denied plaintiff’s motion. Plaintiff petitioned the Court of Appeals for a writ of prohibition. That Court denied her petition, whereupon she petitioned the Supreme Court. The Supreme Court granted her writ, holding:
[W]hile the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of associational privacy, the scope of such “waiver” must be narrowly, rather than expansively construed, so that plaintiffs will not be unduly deterred from instituting lawsuits by the fear of exposure of their private associational affiliations and activities. Id., 740 P.2d at 410-11.
Luck v. Southern Pacific Transp. Co., 218 Cal. App.3d 1, 267 Cal. Rptr. 618, cert. denied, 111 S.Ct. 344 (1990) indicates how the right to privacy can protect an employee’s privacy in employment matters. Luck involved the discharge of an employee who refused to submit to random urine testing for drugs. She was fired and in turn sued for wrongful discharge. The Court determined her job, a computer operator and programmer, did not effect railroad safety. The Court then found her employer’s testing was unconstitutional. Id., 267 Cal. Rptr. at 632. The firing thus gave rise to a wrongful discharge cause of action.
Diaz v. Oakland Tribune, Inc., 139 Cal. App.3d 118, 188 Cal. Rptr. 762 (1983) created a constitutionally-based tort remedy for violations of privacy rights. The plaintiff in Diaz, the first female student body president at a local college, had been involved in a number of controversies. Diaz was also a transsexual but had kept the fact of her sex change private. The defendant, a newspaper, discovered information about the Diaz’s sex change, considered it newsworthy, and printed a story about it. The Court determined the newspaper’s actions gave rise to a cause of action in tort for public disclosure of a private fact. Id., 188 Cal. Rptr. at 767. The Court further concluded that, under these facts, it was a jury question whether this story fell outside the newsworthy privilege, which allows for such public disclosure. Id. at 772. See also, Gill v. Curtis Publishing Co., 38 Cal.2d 273, 239 P.2d 630, 632 (1952) (one has a “right to live one’s life in seclusion without being subject to unwarranted and undesired publicity.”)
In Planned Parenthood Affiliates of California v. Van de Kamp, 181 Cal. App.3d 245, 226 Cal. Rptr. 361 (1986), the Court protected the sexual privacy of minors. State health care professionals challenged a requirement that they report any information regarding sexual activity involving under-14-year-old minors to the child abuse agency. The Court struck down the requirement, holding it was an invasion of a mature under-14-year-old’s right to sexual privacy. Id., 181 Cal. App.3d at 278, 226 Cal. Rptr. at 379. See also, Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d 252, 172 Cal. Rptr. 866, 625 P.2d 779, 789 (1981) (because abortion is a constitutionally protected right, State violates right to sexual privacy when it refuses to fund abortions for poor women, when it funds health care for poor in general).
The public disclosure protection imbedded in the right to privacy can have application in almost every area of law, including civil procedure, employment law, tort law, public funding and administrative agency decision making. The South Carolina Courts have not determined whether the prohibition against “unreasonable invasions” protects against privacy invasions by private individuals. However, the language of Art. I, § 10 does not limit the prohibition against “unreasonable invasions of privacy” to state actions. There is no logically compelling reason why this provision cannot be applied to situations in which the state is not involved.
C. Personal Autonomy Interest Protection The final branch of the right to privacy is even more far reaching. This privacy interest has its basis in the personal autonomy interests expressed by John Stuart Mill in his essay “On Liberty.” Mill wrote, “that the sole end for which mankind are warranted, individual or collectively, in interfering with the liberty of action of any of their number is self-protection… His own good, either physical or moral, is not a sufficient warrant.”
Crimes lacking a basis in society’s self-protection resemble society’s coercive action toward a non-conforming, but non-threatening, individual. Such coercion arguably violates an individual’s right to privacy. A libertarian interpretation of this constitutional right to privacy would invalidate most “morals” laws, especially those dealing with private, consensual sexual practices or the possession of controlled substances for at-home, personal use.
No state has fully accepted Mill’s approach to liberty interests. However, states have invalidated criminal laws or prohibited state actions based on personal autonomy interests embedded in the right to privacy. In Smith v. State, 510 P.2d 793 (Alaska 1973), the Alaska Supreme Court developed a test for determining where privacy interests exist. Privacy interests exist where: 1) a person has exhibited an actual (subjective) expectation of privacy; and 2) that expectation is one that society is prepared to recognize as reasonable. Id. at 796-97, adopting rationale from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d. 576 (1967) (J. Harlin, concurring).
Using this test and finding that there was no evidence that marijuana was more dangerous than alcohol, the Alaska Court prohibited application of the State’s drug laws to home use of marijuana by adults. Ravin v. State, 537 P.2d 494, 511 (Alaska 1975). The Court noted “The state cannot impose its own notions of morality, propriety or fashion on individuals when the public has no legitimate interest in the affairs of those individuals.” Id. at 503. Alaska, however, did not adopt a purely libertarian approach. Confronted with evidence that cocaine presented a great danger to public health, the Supreme Court refused to limit application of the State law prohibiting its use. State v. Erickson, 74 P.2d 1, 22 (Alaska 1978). However, before intruding upon a citizen’s privacy right the Alaska government must establish a legitimate and compelling interest. Messerli v. State, 626 P.2d 81 (Alaska 1980). Similarly, Hawaii, finding a constitutional right to consume pornography, invalidated, as applied, the State law prohibiting the sale of pornography. State v. Kam, 69 Haw. 483, 748 P.2d 372, 380 (1988). Arizona and California located a right to sexual privacy in their State Constitutions. Bateman, supra.; Morales v. Superior Court of Kern County, 99 Cal. App.3d 283; 160 Cal. Rptr. 194 (1979).
A California Appellate Court upheld an injunction preventing the application of a State law requiring unemancipated minors to get the consent of a parent, guardian or juvenile court before receiving an abortion. American Academy of Pediatrics v. Van de Kamp, 214 Cal. App.3d 831, 263 Cal. Rptr. 46 (1989). Relying on the earlier Myers decision, supra., the Court held: The right of privacy … may not be intruded upon absent a compelling state interest, and the benefits which flow from the state action must “manifestly outweigh” the burden placed upon privacy rights. Id., 263 Cal. Rptr. at 52.
Finally, states have considered their constitutional right to privacy in so-called “right to die” cases. A Florida Court determined that parents had the right to make a decision to terminate use of a life support system on their ten-month-old child, who was without any cognitive brain function. In re Guardianship of Barry, 445 So.2d 365 (Fla. App. 2 Dist. 1984). The Court determined that the child’s right to privacy, exercised through the parents’ reasonable judgment, outweighed the State’s interest in preserving life. Id. at 371. The Court further held: A decision by parents [to terminate life support] supported by competent medical advice that their young child suffers from a permanent, incurable and irreversible physical or mental defect likely to soon result in the child’s death should ordinarily be sufficient without court approval. Id. at 372. When a patient is incompetent and his or her own interests are unknown, state courts, citing a greater privacy interest within their constitutions, which can outweigh a state’s interest in preserving life, have a applied a “best interests” standard to a conservator’s decisions. See, Rasmussen by Mitchell v. Fleming, 154 Ariz. 207, 741 P.2d 674, 682 (1987); Conservatorship of Drabick, 200 Cal. App.3d 185, 245 Cal. Rptr. 840, cert. denied, 488 U.S. 958 (1988). Citing the right to privacy, state courts have also granted terminally-ill, competent adults the right to refuse medical treatment which only serves to prolong the dying process. See, Bartling v. Superior Court, 163 Cal. App.3d 186, 209 Cal. Rptr. 220 (1984); Colyer, supra.
Chapter two of Jennifer Friesen’s “State Constitutional Law” (Matthew Bender & Co., Inc. 1992) provides useful authority on the application of privacy rights to individual cases. It can be of enormous guidance to practitioners attempting to base claims under a right of privacy.
Because a right to privacy can be so far-reaching, state courts exhibit caution before beginning to develop a right to privacy jurisprudence. However, once a state court begins to develop this jurisprudence, it can develop rapidly. Florida added a constitutional right to privacy in 1980. The first decision by Florida Courts based on this right came down in 1982. By 1992 over twenty decisions were based on this right. In the hands of a creative practitioner, the right to privacy can be applied to almost any case involving public disclosure of private information or state intrusions on bodily integrity. With the Singleton decision, development of a substantial privacy rights jurisprudence in South Carolina is possible. If this occurs, privacy rights analysis may permeate almost every area of South Carolina law.