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SILVERMAN v. CAMPBELL5/27/1997
This is an appeal from an order which, in pertinent part, denied appellants' summary judgment motions and declared two parts of the South Carolina Constitution violative of the United States Constitution. We affirm the constitutional ruling and dismiss the appeals from the summary judgment rulings.
Respondent's application to become a Notary Public was returned by appellant Secretary of State Miles along with a letter explaining the application was being returned because it did "not comply with the South Carolina Constitution and statutes applicable to Notaries." Respondent, an atheist, had stricken through the portion of the oath on the application which read "So help me God." Respondent then sent his application straight to appellant Governor Carroll Campbell in September 1992. In December 1992, a member of Governor Campbell's staff returned respondent's application because it no longer met the statutory requirement that a notary application be signed by one-half the members of the applicant's county legislative delegation. S.C. Code Ann. § 26-1-20 (1991).
Respondent then brought this action for mandamus and a declaratory judgment against appellants Miles, Campbell, and the State. In his declaratory judgment request, respondent sought to have two parts of the South Carolina Constitution which prohibit public office holding by persons who deny the existence of a Supreme Being declared violative of the First Amendment's Establishment and Free Exercise Clauses and/or the Religious Test Clause, U.S. Const. art. VI, cl. 3.
All parties filed cross-motions for summary judgment. The circuit judge denied the appellants' motions, denied respondent's to the extent it sought mandamus, but granted respondent summary judgment on the declaratory judgment request, holding the State Constitution's "Supreme Being" provisions violative of the First Amendment and the Religious Test with a request he act on respondent's application within thirty days. Governor Beasley, former Governor Campbell, Secretary Miles, and the State have appealed.
Appellants first contend the circuit court erred in denying their summary judgment motions because the record is devoid of evidence that their actions here were motivated by "religious discrimination." While we agree there is no evidence that appellants acted other than in conformance with the applicable statutes and Constitutional provisions, it is well-settled that the denial of summary judgment is not directly appealable, Ballenger v. Bowen, 313 S.C. 476, 443 S.E.2d 379 (1994), nor is it appealable after final judgment. e.g., Raino v. Goodyear Tire, 309 S.C. 255, 422 S.E.2d 98 (1992). We do not address the denial of appellants' summary judgment motions.
Appellants next contend the trial judge abused his discretion in deciding the declaratory judgment question, noting that under the Declaratory Judgment Act the decision whether to grant relief rests in the judge's discretion. S.C. Code Ann. § 15-53-70 (1976). Appellants argue that since deciding the validity of the State Constitution's "Supreme Being" provisions will not guarantee respondent a notary appointment, the judge should have declined to address the issue.
We find no abuse of discretion here, especially since respondent's application was rejected by Secretary Miles at least in part on the basis of the Supreme Being provisions, and since Governor Campbell testified that his office routinely "rubber stamped" notary applications which had been approved by the Secretary of State's Office. The Declaratory Judgment Act gives the judge the discretion to refuse to render a declaratory judgment where the decree "would not terminate the uncertainty or controversy giving
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