                      THE STATE OF SOUTH CAROLINA
                           In The Supreme Court

            The State, Respondent,

            v.


            Alice Bellardino, Petitioner.

            Appellate Case No. 2018-001872


                          ORIGINAL JURISDICTION



                                Opinion No. 27924
                 Submitted October 4, 2019 – Filed October 23, 2019


                            JUDGMENT DECLARED


            Elizabeth Fielding Pringle, Kieley Marie Sutton, and
            Constantine George Pournaras, of Columbia, for
            Petitioner.

            Attorney General Attorney General Alan McCrory
            Wilson and Deputy Attorney General Donald J. Zelenka,
            of Columbia; and Dana M. Thye, of Columbia, for
            Respondent.


PER CURIAM: We granted Petitioner's request to hear this declaratory
judgment action in our original jurisdiction. Petitioner asks us to declare section
44-23-410 of the South Carolina Code (2018) unconstitutional because it precludes
summary courts from ordering competency evaluations when there is a question of
a defendant's competence to stand trial. Because we hold section 44-23-410 does
not preclude summary courts from ordering competency evaluations, we decline to
hold section 44-23-410 unconstitutional.

                                      FACTS
Petitioner was charged with disorderly conduct, and the case was called for trial in
the City of Columbia municipal court. At trial, Petitioner's attorney moved for a
competency evaluation. Following a hearing on the issue, the municipal court
found there was reason to believe Petitioner lacked the capacity to understand the
proceedings against her or to assist in her own defense as a result of a lack of
mental capacity. Although the court found Petitioner was entitled to a competency
evaluation, the court held it did not have the authority to order a competency
evaluation because the language of section 44-23-410 (2018) limits the authority to
order evaluations to circuit courts and family courts. Accordingly, the court denied
the motion for a competency evaluation and stayed all proceedings in Petitioner's
case.1

                                        LAW
"A person who is: (1) found [in public] in a grossly intoxicated condition or
otherwise conducts himself in a disorderly or boisterous manner . . . is guilty of a
misdemeanor" entitled "public disorderly conduct." S.C. Code Ann. § 16-17-
530(A) (Supp. 2019). Subsection 16-17-530(A) provides that "upon conviction,"
the defendant "must be fined not more than one hundred dollars or be imprisoned
for not more than thirty days." Summary courts2 "shall have exclusive jurisdiction

1
  Petitioner's request to the circuit court to order an evaluation was denied because
the case was not before that court.
2
  The term "summary court" is poorly defined in our code of laws. According to
subsection 16-3-1510(6) of the South Carolina Code (2015), "'Summary court'
means magistrate or municipal court." That is a precise definition, but technically,
the definition applies only to title 16, chapter 3, article 15. § 16-3-1510.
Historically, "summary court" was a descriptive term used to distinguish a
magistrate or municipal court from a court of record. A "court of record" must
record all proceedings—word for word—for appellate review. A magistrate court,
however, need only summarize what occurred for appellate review. See S.C. Code
Ann. § 22-3-730 (2007) ("All proceedings before magistrates shall be summary or
with only such delay as a fair and just examination of the case requires."). Thus, a
magistrate court is by definition "summary" in some contexts, but it is by
description "summary" in all contexts.
of all criminal cases in which the punishment does not exceed a fine of one
hundred dollars or imprisonment for thirty days." S.C. Code Ann. § 22-3-540
(2007).3 Therefore, a defendant charged with disorderly conduct may not be tried
in circuit court, but must be tried in the exclusive jurisdiction of the summary
court.

However, a person who lacks the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to assist in preparing a
defense may not be subjected to a trial. Drope v. Missouri, 420 U.S. 162, 171
(1975). This prohibition is "fundamental to an adversary system of justice." Id. at
172. The conviction of an accused person who is legally incompetent violates due
process, and state procedures must be adequate to protect this right. Pate v.
Robinson, 383 U.S. 375, 378 (1966). Therefore, a summary court must have the
power to order that an expert evaluate a defendant the court suspects lacks
competency, to determine whether the court's suspicion is valid. Otherwise, due
process prevents the court from proceeding to trial.

Section 44-23-410(A) (2018) provides, in part:

            Whenever a judge of the circuit court or family court has
            reason to believe that a person on trial before him,
            charged with the commission of a criminal offense or
            civil contempt, is not fit to stand trial because the person
            lacks the capacity to understand the proceedings against
            him or to assist in his own defense as a result of a lack of
            mental capacity, the judge shall: (1) order examination of
            the person [by the Department of Mental Health or the
            Department of Disabilities and Special Needs]; or (2)
            order the person committed for examination and
            observation to an appropriate facility of the Department
            of Mental Health or the Department of Disabilities and
            Special Needs."

Nothing in section 44-23-410 references summary courts or their authority to order
competency evaluations. Rather, section 44-23-410 provides procedural
requirements for circuit courts and family courts ordering competency evaluations.

3
  Section 22-3-540 uses the term "Magistrates," but as we explained in footnote 2,
the magistrate court is a summary court.
However, there is also nothing in section 44-23-410 prohibiting a summary court
from ordering an evaluation. To construe the section as prohibiting a summary
court from ordering an evaluation when the court suspects the defendant is not
competent would render the section unconstitutional. "We will not construe
statutes to be unconstitutional when susceptible to a constitutional interpretation."
Hampton v. Haley, 403 S.C. 395, 408, 743 S.E.2d 258, 265 (2013) (citing Joytime
Distributors & Amusement Co., Inc. v. State, 338 S.C. 634, 640, 528 S.E.2d 647,
650 (1999)).

Because a competency determination is required by due process when the trial
court suspects the defendant lacks competence, we construe section 44-23-410 to
merely set forth the formal procedure to be followed in circuit and family court,
and not to limit the authority of summary courts to order an evaluation. Because it
is necessary to protect the due process rights of defendants, summary courts must
have the inherent authority to order competency evaluations.

The question becomes who must pay for the evaluation. Pursuant to section 44-23-
410, when such an evaluation is ordered by a circuit or family court, the
examination must be provided or paid for by the Department of Mental Health or
the Department of Disabilities and Special Needs. There is no such provision for
an evaluation ordered by the summary court. As we have explained, summary
courts have the inherent power to order an evaluation, but no court has inherent
power to order an executive branch agency to pay for one. Thus, until the
Legislature has a chance to address the provision of such examinations, the
prosecuting entity must agree to pay the costs of the evaluation of indigent
defendants. Otherwise—as the summary court ordered here—the prosecution may
not go forward.

JUDGMENT DECLARED.

BEATTY, C.J., KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
