THE STATE OF SOUTH CAROLINA In The Supreme Court

Mohsen A. Baddourah, as a me mber of the City Council of the City of Columbia, Appellant,

v.

Henry McMaster, in his capacity as Governor for the State of South Carolina, Respondent.

Appellate Case No. 2017-002576

Appeal from Richland County G. Thomas Cooper Jr., Circuit Court Judge

Opinion No. 28013 Heard October 14, 2020 – File d March 10, 2021

AFFIRMED AS MODIFIED

Tobias G. Ward Jr. and J. De rrick Jackson, of Tobias G. Ward, Jr., PA, Joseph M. M cCulloch Jr., and Kathy R. Schillaci, all of Columb ia, for Appellant.

Thomas A. Limehouse Jr., of Office of the Governor, of Columbia, for Respondent.

CHIEF JUSTICE BEATTY: Governor Henry McMaster issued an order suspending Mohsen Baddourah from his positi on as a member of the Columbia City Council after Baddourah was indicted for second-degree domestic violence. Baddourah initiated this declaratory judgment action in the circu it court, seeking a determination that (1) he is a member of the Legislative Branch and is, therefore,excepted from the Governor's suspension power under the South Carolina Constitution; and (2) second-degree domes tic violence is not a crime involving moral turpitude, so it is not an act that is within the scope of the Governor's suspension power. The circuit court di smissed Baddourah's complaint on the ground the court lacked subject matter jurisdiction and, alternativ ely, for failure to state a cause of action. We affirm as modified.

I. FACTS

Baddourah was elected to his second te rm representing District 3 on the Columbia City Council, for the period of January 1, 2016 to December 31, 2019. On July 2, 2016, Baddourah was in the mi dst of a divorce and custody battle when
he was arrested for an alle ged altercation involving hi s estranged wife. He was subsequently indicted on a charge of second-degree domestic violence.

On March 13, 2017, the Governor is sued Executive Order 2017-05, finding second-degree domestic violence is a crime of moral turpitude 1 and suspending Baddourah from his position as a member of the Columbia City Council pursuant toarticle VI, section 8 of the South Carolina Constitution "until . . . the abovereferenced charge is resolved, at which ti me further appropriate action will be taken by the undersigned."

After this Court declined to hear Baddourah's challenge to the Executive Order in our original jurisdiction, Baddour ah filed a declarator y judgment action in the circuit court in July 2017. Baddourah asserted that, while the Governor may suspend any officer of the state or its po litical subdivisions who has been indicted for a crime involving moral turpitude, South Carolina's Constitution includes an exception for "members and officers of the Le gislative and Judicial Branches," citing

S.C. Const. art. VI, § 8. Baddourah sough t a determination that (1) he is excepted from the Governor's suspension power under article VI, section 8 because he is a member of the Legislative Br anch in his position on the Columbia City Council, and (2) the Executive Order is not enforceable because second-degree domestic violence is not a crime involving mora l turpitude. In addition, Baddourah sought a mandatory

1 Prior to the suspension, the Governor sought an opinion from the South Carolina Attorney General's Office as to whether second-degree domestic violence is a crime involving moral turpitude for purposes of the Governor's suspension power under article VI, section 8. The opinion of the Attorney General was "that a court would most likely conclude that domestic violence 2 nd degree is a crime of moral turpitude" for this purpose. See S.C. Att'y Gen. Op. (Mar. 9, 2017), 2017 WL 1095385, at *1.injunction staying enforcement of the Exec utive Order and an award of attorney's
fees.

By order filed November 9, 2017, th e circuit court granted the Governor's motion to dismiss Baddourah's complaint. The court first ruled dismissal was proper under Rule 12(b)(1), SCRCP, based on a lack of subject matter jurisdiction. The circuit court found the Governor's suspen sion power is discre tionary and under the separation of powers doctrine of the Sout h Carolina Constitution, courts may not review discretionary acts by the Executive Branch, so the Executive Order was not subject to court review.

The circuit court alternatively found th at, even accepting Baddourah's factual allegations as true, his complaint failed to state sufficient facts to constitute a cause
of action or claim for relief and should, therefore, be di smissed under Rule 12(b)(6),
SCRCP. The circuit court found Baddourah's argument that he is a member of the Legislative Branch by virtue of his position on the Columbia City Council was without merit, as the text of the state c onstitution indicated that "Legislative Branch"
was meant to refer to members of the Sout h Carolina General Assembly. The circuit
court further found that it "need not r each or decide the question of whether Domestic Violence, Second De gree, constitutes a 'crime involving moral turpitude' for purposes of article VI, section 8," as this phrase is not defined in the text of the state constitution and, therefore, its meani ng must be determined by the Governor in
his sole discretion.

Baddourah appealed to the court of appeal s, and this Court ce rtified the appeal for review pursuant to Rule 204(b), SCACR. See Baddourah v. McMaster

, Appellate Case No. 2017-002 576, S.C. Sup. Ct. Or der dated June 16, 2020.

II. DISCUSSION

On appeal, Baddourah argues the circui t court erred in (1) dismissing his complaint based on a lack of subject matter jurisdiction; (2) alternatively, dismissing the action for failing to state a cause of acti on, after finding he was not a member of the Legislative Branch; and (3) failing to address whether second-degree domestic violence is a crime of moral turpitude. Ba ddourah asserts this appeal concerns novel
issues that should not have been decided on a motion to dismiss.

As an initial matter, we note that, a few days before oral argument, the Governor submitted supplemental filings indicating both Baddourah's suspension
and term of office have e nded and suggesting the appeal should be dismissed formootness. 2 We decline to dismiss the appeal under the circumstances present here. Baddourah promptly challenged the Executiv e Order when he was first suspended in 2017, but the litigation continued over an extended period, before this Court's certification of the appeal. Mo reover, the appeal concerns issues that are capable of repetition, yet evading review, so they are appropriate for our consideration. The suspension of Baddourah, even if appropriate, resulted in a period of approximately

1.5 years where the residents of District 3 had no representation on the Columbia City Council, so bringing clarity to the ques tions before the Court is highly desirable
for all concerned. Cf., e.g.

, Byrd v. Irmo High Sch. , 321 S.C. 426, 431–32, 468 S.E.2d 861, 864 (1996) (recognizing that a c ourt may take appella te jurisdiction, despite the mootness of a specific case, if th e issue raised is a matter that is capable of repetition yet evades review); id. at 432, 468 S.E.2d at 864 (observing "[s]hort

term student suspensions, by their very nature, are completed long before an appellate court can review the issues th ey implicate" and concluding such cases "clearly fit[] into the evading review ex ception of the mootness doctrine").

A. Subject Matter Jurisdiction

Baddourah contends the circuit court e rred in dismissing his complaint under Rule 12(b)(1), SCRCP after finding it lack ed subject matter jurisdiction to review discretionary acts by the Governor. We agree.

"A court's subject matter jurisdiction is determined by whether it has the authority to hear the type of case in question." Allison v. W.L. Gore & Assocs. , 394
S.C. 185, 188, 714 S.E.2d 547, 549 (2011). A judgment is void and without legal
effect if a court does not have jurisdiction. Thomas & Howard Co. v. T.W. Graham

& Co. , 318 S.C. 286, 291, 457 S.E.2d 340, 343 (1995). "The question of subject matter jurisdiction is a question of law for the court." Capital City Ins. Co. v. BP Staff, Inc. , 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App. 2009) (citation omitted).

The subject matter of this declaratory judgment action concerns the Governor's suspension power under the Sout h Carolina Constitution. In particular,

2 In his supplemental filings, the Governor stated Baddourah's indictment was nolle prossed in 2018, after Baddourah completed a pretrial intervention program, and by Executive Order 2018-51, the Governor e nded Baddourah's suspension from the Columbia City Council on Oc tober 17, 2018. Baddourah served on the Columbia City Council until his term ended on December 31, 2019. This Court certified the appeal in June 2020, but the issue of mootne ss was not raised until just prior to oral argument in October 2020.article VI, section 8 states the Governor has the power to suspend officers of the state and its political subdivisions unde r the following specified conditions:

Any officer of the State or its political subdivisions, except members and officers of the Legislative and
Judicial Branches , who has been indicted by a grand jury
for a crime involving moral turpitude or who has waived such indictment if permitted by law may be suspended by
the Governor until he shall ha ve been acquitted. In case
of conviction the office shall be declared vacant and the vacancy filled as may be provided by law.

S.C. Const. art. VI, § 8 (emphasis added).

The circuit court found that, "[b]y using the word 'may,' this provision represents a textual commitment of the ques tion to the Governor, in the exercise of his discretion, and makes clear that the G overnor's suspension authority is neither
automatic nor ministerial." Th e circuit court noted courts have jurisdiction to review ministerial acts of the Governor; however , where the Governor's authority is discretionary in nature, courts may not substitute their judicial discretion for that of the executive without violating the sepa ration of powers provision of the South
Carolina Constitution. Accord ingly, the circuit court fo und dismissal was proper because it lacked subject ma tter jurisdiction to consider Baddourah's complaint. See
S.C. Const. art. I, § 8 ("In the government of this State, the legislative, executive, and judicial powers of the government sha ll be forever separate and distinct from each other, and no person or persons ex ercising the functions of one of said departments shall assume or discharge the duties of any other.").

We hold the circuit court erred in findi ng it lacked subject matter jurisdiction
in this case. Baddourah alle ged the Governor did not have the power to suspend him under article VI, section 8 of the Sout h Carolina Constitution because (1) this provision expressly excepts members of the Legislative Branch, and (2) it only authorizes suspension for a crime of moral turpitude. Th e circuit court was asked to make legal determinations—whether Ba ddourah qualifies as a member of the Legislative Branch and whether the offe nse qualifies as a crime involving moral turpitude. These legal questions involv e interpretation of the constitution to
determine the extent of the Governor's suspension power, a subject that is appropriate for judici al determination. See Segars-Andrews v. Judicial Merit
Selection Comm'n , 387 S.C. 109, 123, 691 S.E.2d 453, 461 (2010) ("It is the duty of this Court to interpret and declar e the meaning of the constitution."); Rose v. Beasley , 327 S.C. 197, 206, 489 S.E.2d 625, 629 (1997) ("Under South Carolinalaw, the Governor can neither appoint to office nor suspend or remove from office unless the power to do so is conferred upo n him by the Constitution or statute.").

The determination of these legal ques tions does not implicate the separation of powers clause. Consequently, we hold the circuit court erred in dismissing Baddourah's complaint based on its finding that it lacked subject matter jurisdiction.

B. Failure to State a Cause of Action

Baddourah further argues the circuit court erred in alternatively dismissing his action under Rule 12(b)(6), SCRCP, for failing to state a cause of action. The circuit court based this conclusion on two subsidiary findings: (1) Baddourah was not a member of the Legislative Branch and, thus, was not excepted from the Governor's suspension power, and (2) whether seco nd-degree domestic violence qualifies as a crime of moral turpitude was solely within the Governor's discretion and need not be addressed by the courts. We shall a ddress each point in turn.

1. Legislative Branch Exception

Baddourah first asserts the circuit court erred in finding he was not excepted from the Governor's suspension power as a member of the "Legislative Branch." We disagree.

The circuit court found "[t]he exclusio n of 'members and officers of the Legislative and Judicial Bran ches' from section 8 of artic le VI is derived from the separation of powers prescribed in the C onstitution of 1895." The court stated, "This separate, tripartite structure is expressly me morialized in article I, section 8, which mandates that . . . the legislative, executive, and judicial powers" of state government "shall be forever sepa rate and distinct from each ot her, and no person or persons exercising the functions of one of said de partments shall assume or discharge the duties of any other." See S.C. Const. art. I, § 8.

The circuit court explained that, by referri ng to "the legislative, executive, and judicial powers" as the functions "of one of said departments," the constitution's framers were directly refe rring to the three distinct "Departments" of state government addressed in three separate articles of the constitution. See S.C. Const. art. III (entitled, "Legislative Department"); S.C. Const. art. IV (entitled, "Executive Department"); S.C. Const. art. V (entitled, "Judicial Department"). By capitalizing "Legislative and Judicial Branches" in arti cle VI, section 8, the circuit court found, the framers essentially employed defined terms, craving reference to their use elsewhere in the constitution, namely, articles III and V, wh ich address, respectively, the Legislative and Judi cial Departments.The circuit court highlighted the langua ge employed in article III, governing the Legislative Department, which confirms South Carolina's legislative power is
vested in "two distinct br anches" of state government:

The legislative power of this State shall be vested
in two distinct branches , the one to be styled the "Senate"
and the other the "House of Representatives," and both together the "General Assemb ly of the State of South
Carolina."

S.C. Const. art. III, § 1 (em phasis added). The circuit cour t stated: "[T] he relevant text is unambiguous and does not mention municipal officials or contemplate that they will be viewed as me mbers of the Legislative Branch. Indeed, municipal government is separately addr essed elsewhere in the constitu tion," citing S.C. Const. art. VIII (entitled, "Local Government").

The circuit court found further support for the conclusion that the term "Legislative Branch" does not include members of muni cipal councils because the text of other, unrelated constitutional pr ovisions, such as a section addressing the adoption of the constitution and the terms of elected officials, shows the drafters were capable of distinguishing "legislative" officers from other types of officers. See, e.g.

, S.C. Const. art. XVII, § 11 ("All offi cers, State, executive, legislative, judicial, circuit, district, County, township and municipal, who may be in office at the adoption of this Constitu tion . . . shall hold their re spective offices until their terms have expired and until their successo rs are elected or a ppointed and qualified as provided in this Constitution . . . .").

We find Baddourah, as a member of the Columbia City Council, is a member of a local "legislative body," which has b een delegated authority by the state's highest legislative body, the General Assembly. See generally Noble v. Ternyik

, 539 P.2d 658, 660 (Or. 1975) (r eferencing the highest legislative body of a state and "lesser" or "subordinate" legislativ e bodies to which a state has delegated some legislative power); Issa v. Benson , 420 S.W.3d 23, 26–27 (Tenn. Ct. App. 2013) (discussing "subordinate legislative bodies like city councils" that perform some legislative functions).

Baddourah's membership in a loca l or subordinate "legislative body," however, does not make him a member of the "Legislativ e Branch" as that term is used in our constitution, nor confer on him all of its attendant functions. Rather, the meaning must be discerned from the context in which it is used and an examination of other constitutional provisions. See generally Carroll v. Town ofYork , 109 S.C. 1, 10, 95 S.E. 121, 124 (1 918) (holding under the Constitution of 1895, "the legislative branch of the government has the exclusive power of taxation, but may delegate it to towns fo r municipal purposes, and may therefore restrict the towns in that respect").

The constitutional provisions cited by the circuit court, including the directive governing the separa tion of powers in article I, section 8 (providing a separation of the legislative, executive, and judicial "powers" in the respective "departments"), as well as our review of other portions of the constitution, leads
to the conclusion that the framers' refe rence to the "Legislative Branch" was
intended to refer to the Senate and th e House of Representatives (which it denominated the two legislative branches). In other words, the General Assembly.

See S.C. Const. art. III (governing the "L egislative Departme nt"); art. III, § 1 (indicating the legislative power of the stat e is vested in two "branches" of state government, the Senate and the House of Representatives, which together comprise the General Assembly).

While Baddourah understandably take s issue with the fact that the constitution did not just simply refer to the "General Assemb ly" in the exception to the Governor's suspension power, we agree with the circuit court that the genesis for the distinction was respect for the separation of powers provision of article I, section 8. Th e purpose of the exception in the provision outlining the Governor's suspension power was to prev ent the Governor, part of the Executive Branch, from intruding on or removing offi cers in the Legislative and Judicial Branches, 3 and article VI, section 8 (concerni ng the Governor's suspension power) echoes the language used in article I.

Various terms have been used to desc ribe the divisions of government. The most common descriptions, however, refe r to the executive, legislative, and judicial "branches" of government. See Sloan v. Sanford , 357 S.C. 431, 436, 593 S.E.2d 470, 473 (2004) (discussing "the separa tion of powers of the three branches of government, that is, [the need] to keep the executive, judicial,
and legislative branches of government separate" (em phasis added)). This Court, recognizing the importance of the separati on of the three co-equal branches of government, recently changed its public denomination from the Judicial

3 For example, the General Assembly has its own procedures for the punishment and expulsion of officers. See S.C. Const. art. III, § 12 (" Each house shall . . . punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member . . . .").Department to the Judicial Branch to better conform with this prevailing terminology and to disabuse the public of the notion that the Judicial Department/Branch is a de partment within the Execu tive Department/Branch. For all the foregoing reasons, we hold th e circuit court did not err in finding Baddourah was not a member of the Legi slative Branch and, thus, was not excepted from the Governor's suspension power.

2. Crimes Involving Moral Turpitude

Baddourah next argues the circuit cour t erred in dismissing his complaint under Rule 12(b)(6), SCRCP for failing to st ate a cause of action, after finding the question of whether the offense charged wa s a crime involving moral turpitude need not be addressed by the courts. We agree.

In dismissing Baddourah's complaint for a declaratory judgment, the circuit
court found that it "need not reach or deci de the question of whether" second-degree
domestic violence constitutes a crime in volving moral turpitude for purposes of article VI, section 8. The court reasoned that, because th is phrase is not defined in the text of the South Carolina Constitution, its application must be left solely to the
determination of the Governor in th e exercise of his discretion, citing McConnell v. Haley , 393 S.C. 136, 138, 711 S.E.2d 886, 887 (2011) ("Because there is no
indication in the Constitution as to what c onstitutes an 'extraordinary occasion' to justify an extra session of the General Asse mbly, this matter must be left to the
discretion of the Governor and this Cour t may not review that decision."). The circuit court found this was particularly true where the Governor had requested and obtained an Attorney General opinion, which had confirmed the Governor's conclusion that second-degree domestic violence qualified as a crime of moral turpitude for purposes of article VI, section 8. See supra note 1. As a result, the circuit court stated, "it cannot be said that [the Governor's] exerci se of his discretion to temporarily suspend [Ba ddourah] was arbitrary."

(a) Propriety of Court Ruling on Offense

Baddourah first asserts the circuit co urt erred in failin g to address his contention that second-degree domestic violence is not a crime of moral turpitude. Baddourah states that, although the circuit court refused to address the question, the Governor argued in his motion to dismiss that the offense is a crime of moral turpitude, yet did "not cite a single case wh ere a South Carolina court has determined
this." Baddourah also asserts th e circuit court erred in relying on McConnell to rule that a term addressing the Governor's au thority is discretionary where it is not defined in the constitution, as the circumstan ces here are distinguishable. We agree.Baddourah maintains that, while it is not defined in the constitution, the concept of "a crime of moral turpitude ," in contrast to the situation in McConnell , is a recognized term of art that has been ru led on by numerous jurisdictions. He opines
that "it would be an absurd result if th e Governor and the [AG] can review and interpret the case law on what constitutes a crime of moral turpitude, but the court whose primary job it is to interpret the law cannot."

In response, the Governor contends "the circuit court properly rejected [Baddourah's] latest attempt to litigate th e underlying criminal charge against him by declining to address specifically whethe r [Baddourah's] indictment for Domestic Violence, Second Degree charges a 'cri me involving moral turpitude.'" The
Governor maintains the circ uit court correctly found the term was undefined in the constitution, so its definition must be left solely to his discretion. We disagree.

We find the circuit court erred in fa iling to address whether second-degree domestic violence is a crime involving mora l turpitude. Baddourah is not attempting to litigate his criminal charge (which the Governor acknowledges has been dismissed, see supra note 2). We do agree that th e Governor's exercise of his suspension power is a matter left to his sole discretion. Ho wever, defining terms
used in the state's constitution is not. It is well settled that the interpretation of the
state's constitution is a matter for the cour ts. The interpretation of the constitution necessarily requires defining th e meaning of its terms.

The Governor's exercise of his suspension power is predicated on the constitution, which provides the Governor can suspend any officer of the state or its political subdivisions who has been indicted for a crime of moral turpitude, unless
the individual is a member or officer of the Legislative or Judicial Branches.
Because we have concluded Baddourah is not a member of the Legislative Branch, the only question remaining is whether the o ffense is one involving moral turpitude. This point is dispositive because it determ ines if the Governor had the requisite authority to issue the suspension order.

A crime of moral turpitude is a term of art that has been defined by South Carolina law, and whether an offense qualif ies as a crime of moral turpitude is a question that is appropriate for the courts, contrary to the ruling of the circuit court. 4

4 To the extent the circuit court relied on McConnell in finding the issue was not appropriate for determina tion by the courts, we find McConnell involved a distinguishable situation that ultimately did not turn on the point for which it was cited by the circuit court. McConnell focused on a constitutional provision stating "[t]he Governor may on extraordinary occasions convene the General AssemblySee State v. Yates , 280 S.C. 29, 37, 310 S.E.2d 805, 810 (1982) ("Whether a particular offense constitutes a crime of moral turpitude ha s been developed in South Carolina on a case by case basis as a matter of common law."), overruled on other grounds by State v. Torrence , 305 S.C. 45, 406 S.E.2d 315 (1991); see also State v. Major , 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990) (stating "[ i]n determining whether a crime is one involving moral turpitude, the Court focuses primarily on the duty to society and fellow men which is breached by the commission of the crime" (alteration in original) (citation omitted)).

Because the circuit court did not rule on this novel question, Baddourah asks the Court to address his argument that s econd-degree domestic violence is not a crime involving moral turpitude. Due to the lengthy period of time this action has been pending in the courts and the desirability of bringing closure to the parties, we do so in the interest of judicial economy . We begin by reviewing, as a logical starting point, the origins of the term "crimes involving moral turpitude."

(b) Development of "Crimes Involving Moral Turpitude"

"Moral turpitude" has been present in the law of the United States for well over two centuries. Julia Ann Simon-Kerr, Moral Turpitude , 2012 Utah L. Rev. 1001, 1002 (2012). The beginning of its de velopment can be traced to social and political discourse in the early nineteen th century, when recitations about the "honor"—or lack thereof—of public figur es shaped the po litical landscape. Id. at 1010–11. Because the governme nt had not yet developed institutional routines, reputation was a key factor used in the early Republic to judge individuals, and "moral turpitude" became a term for characterizing their conduct. See id. at 1011. The phrase "moral turpitude" appeared in the published letters, pamphlets, speeches, and private correspondence of many notable political figures of the time; it was a term denoting "honor's opposite" and was a concept taken from cl assical thinkers such as Cicero, a figure the nation's founders admired. 5 Id. at 1010–11.

in extra session." McConnell , 393 S.C. at 138, 711 S.E. 2d at 887 (emphasis added by the Court). While the Court held the term "extraordinary occasion" must, of necessity, be left to the Governor's discretion since it was undefined in the constitution, the Court's decision actually turned on the meaning of an "extra" session, which the Court recognized has a readily discernible meaning, i.e., the

Governor cannot convene an "extra" session when the General Assembly is already in session and has not adjourned sine die

. Id.

5 In 45 B.C., the Roman philosopher Marcus Tullius Cicero, in his multi-volume work, De Finibus Bonorum et Malorum (i.e., On the Ends of Good and Evil), equatedThis concept naturally extended to the law of defamation because printed statements of dishonor "could 'damn[] a man's reputation for all time.'" Id. at 1011 (alteration in original) (citation omitted). English law had already established "the rough principle" that spoken words implying a plaintiff was guilty of a crime punishable by imprisonment was actionable per se, i.e., without proof of damages.
Id. at 1016. American courts struggled to define the boundaries of the English rule,
such as whether the line should be drawn between felonies and misdemeanors, or by the term of punishment. Id. In these circumstances, the "nascent American legal system" attempted "to invent a new rule for an old tort." Id. The New York Supreme Court did so in 1809, in Brooker v. Coffin , 5 Johns. 188, 191–92 (N.Y. Sup. Ct. 1809), when it adopted the rule that a crim e would be deemed ac tionable as slander per se if the words, if true, would resu lt in indictment for a crime involving moral turpitude or subject a person to an infamous punishment. Id. at 1016–17. The New
York court noted a "contradiction of cases " then existed, and it believed its rule would provide a suitable criterion; however, the court did not actually define moral turpitude in its opinion. Brooker , 5 Johns. at 192.

Over forty-five years later, after num erous courts had failed to come to a
consensus and there was still no treatise or legal dictionary that defined moral turpitude, the Supreme Court of Tennessee turned to the definition in Webster's Dictionary, which stated "[m]oral turpitude is said to imply 'inherent baseness or vileness of principle in the huma n heart; extreme depravity.'" See Simon-Kerr,

supra , at 1022 & 1022 n.155 (alteration in original) (quoting Smith v. Smith , 34 Tenn. (2 Sneed) 473, 479 (1855)). The Tenne ssee court's definition from Webster's "provided a lasting definition that c ould be and often wa s quoted in cases necessitating a moral turpitude analysis," and "it was [eventually] incorporated
almost verbatim into law treatises." Id. at 1022 n.155.

The application of moral turpitude was also extended to the law of evidence,
where it was used to evaluate witness im peachment issues based on the reasoning that "evidence of a person's reputation wa s relevant to his or her credibility." Id. at 1025–26. By the late nineteenth century, many courts "had e ndorsed formal rules permitting evidence of crimes or acts invol ving moral turpitude for impeachment[.]"
Id. at 1026. However, in contrast to it s use for the law of defamation, "moral

virtue with moral excellenc y and described mo ral turpitude as a most undesirable trait: "[A]s virtue or moral excellency is for itself to be valued and desired, so vice or moral turpitude is to be ha ted and avoided. " Simon-Kerr, supra , at 1011 & n.75 (citing an 1812 translation, 3 Cicero, De Finibus Bonorum et Malorum 158 (Jeremy Collier, ed., Samuel Pa rker, trans., 1812)).turpitude proved an uneasy fit as a st andard for impeachment evidence." Id. Observers have noted that the difficulty lies in the fact that there is a difference between "character," which is what a person really is , and "reputation," which is what a person seems to be

. Id. As evidentiary rules matu red, courts criticized the moral turpitude standard as indeterminate, noting it "often did mire courts in a
definitional morass." Id. at 1027, 1033. After Congre ss's adoption of the Federal Rules of Evidence in 1975, most, but not all, states abandoned moral turpitude as an
evidence standard and turned to an analysis based on (1 ) the length of the sentence or (2) whether the offense involved dishones ty or a false statement, regardless of the punishment. 6 See id. at 1027, 1034.

Moral turpitude was also appropriated for use in other fields, such as voting rights, 7 juror disqualification, profession al licensing, and immigration law. Id. at 1001; see also Note, Crimes Involving Moral Turpitude , 43 Harv. L. Rev. 117, 118 (1929) (stating that, in addition to defamation and the credibility of witnesses, the phrase "crimes involving moral turpitude" is one that "has been widely employed[] in legislation dealing with immigration, disbarment, [and the] revocation of physicians' licenses" (footnotes omitted)). In these contex ts, its function changed to being a standard "to judge character inst ead of reputational harm." Simon-Kerr,

supra , at 1002.

Despite this development across various fields, the term "moral turpitude" is not without its detractors. Judge Richar d Posner, formerly one of the leading appellate judges in the nation and a legal professor, has obs erved that the words base, vile, depraved, and turpitude have virtua lly disappeared from the modern American

6 South Carolina echoes the federal rule. See Rule 609(a), SCRE (allowing impeachment with evidence of (1) a convic tion for a crime that is punishable by death or imprisonment in excess of one year, or (2) a crime involving dishonesty or false statement, regardle ss of the punishment).

7 "In 1877, Georgia passed the first cons titutional amendment to overtly use the moral turpitude standard as a disen franchisement tool." Simon-Kerr, supra , at 1041–42. South Carolina and Alabama "also passed laws aimed at disenfranchising black men by discriminating ag ainst certain offenses." Id. at 1041. However, the United States Supreme Court held Alabam a's constitutional provision violated the Equal Protection Clause of the Fourteen th Amendment, where the particular offenses selected for classification by state registrars as crimes of moral turpitude disenfranchised approxima tely ten times more black voters than white. Id. at 1043 (citing Hunter v. Underwood , 471 U.S. 222, 226–33 (1985)).vocabulary, leaving courts to gra pple with antiquated "legalese." Arias v. Lynch

, 834 F.3d 823, 831–32 (7th Cir. 2016) (Posner, J., concurring). Wh ile there are some guidelines for its application, the moral tu rpitude standard lacks absolute precision
in American law. 8

Ultimately, this lack of precision might be inherent in a concept based on contemporary standards of community morality. Commentator Simon-Kerr has compared the difficulty in applying the moral turpitude standard to the test for obscenity, which also focuses on community morality standards and has likewise eluded certainty. Simon-Kerr, supra , at 1003 n.15. "As framed in 1957, the [obscenity] test asks 'whether to th e average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.'" Id. (quoting Roth v. United States , 354 U.S. 476, 489 (1957)). Simon-Kerr stated this test "p rovoked Justice [Potter] Stewart's famous comments about pornography":

I shall not today attempt further to define the kinds of
material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . .

Id. (quoting Jacobellis v. Ohio , 378 U.S. 184, 197 (1964) (Stewart, J., concurring)). We hasten to add, however, that while crimes involving moral turpitude have
continued to evolve over the la st two centuries (there was, for example, no such thing as trafficking in crack cocaine in the earl y days of the Republic), and there has been some disagreement in the conclusions as to specific crimes among jurisdictions, there is a recognized framewo rk for its application.

(c) Crimes Involving Moral Turpitude in South Carolina

With this backdrop, it is evident that moral turpitude has long been used, in many contexts, as a legal term of art. South Carolina has applied a traditional framework, defining moral turpitude as "an act of baseness, vileness, or depravity in the private and social duties which a man ow es to his fellow man, or to society in general, contrary to the ac cepted and customary rule of right and duty between man

8 Judge Posner remarked, "It is preposterous that that stale, antiquated, and, worse, meaningless phrase [moral turpitude] should con tinue to be a part of American law."

Arias , 834 F.3d at 830 (Posner, J., concurring).and man." See State v. Horton , 271 S.C. 413, 414, 248 S.E.2d 263, 263 (1978) (citation omitted).

Although descriptions have varied among jurisdictions since the nineteenth century, this definition is currently th e most common one appearing in court opinions and law journals. Lindsay M. Kornegay & Evan Tsen Lee, Why Deporting Immigrants for "Crimes Involving Mora l Turpitude" Is Now Unconstitutional , 13 Duke J. Const. L. & Pub. Pol'y 47, 57 & n.56 (2017) (arguing moral turpitude is impermissibly vague and noting this definitio n, is the most prevalent, however, and appears in Moral turpitude , Black's Law Dictiona ry (9th ed. 2009)); see also Arias

, 834 F.3d at 831 (Posner, J., concurring) (n oting Congress had never defined "moral turpitude," but courts and immi gration agencies have tended to cite a variation of the
definition in Black's Law Dictionary ).

South Carolina courts have not required that an offense be a felony to qualify as a crime involving moral turpitude. See State v. Harris , 293 S.C. 75, 76, 358 S.E.2d 713, 714 (1987) (" While not determinative , it is also significant that the legislature has categorized the crime as a felony." (emphasis adde d)). Further, we have pointed out that, "[w]hile all cr imes involve some degree of social irresponsibility, all crimes do not involve moral turpitude." State v. LaBarge , 275
S.C. 168, 172, 268 S. E.2d 278, 280 (1980).

Making the issue somewhat more comple x, South Carolina courts have held
that whether some offenses are a crime involving moral turpitude can depend on the facts of the case. In those cases, determin ing whether an offense qualifies as a crime involving moral turpitude involves consid eration of the nature of the crime as defined by law as well as the particulariz ed facts contained in the indictment. See,

e.g. , State v. Bailey, 275 S.C. 444, 446, 272 S.E.2d 439, 440 (1980) (observing whether assault and battery of a high and aggravated nature is a crime of moral turpitude de pends upon the facts of the pa rticular case as set forth in the indictment); id. ("Proof of the nature of a prio r conviction must necessarily be
confined to the inherent nature of the cr ime as defined by law a nd particularized by the indictment."); see also In re Lee , 313 S.C. 142, 143–44, 43 7 S.E.2d 85, 86 (1993) (stating "while the crimes of misconduct in office, assault of a high and aggravated nature, and assault and battery of a high and aggravated nature are not always crimes of moral turpitude, they ma y be depending on the facts as particularized in the indictment"); State v. Hall , 306 S.C. 293, 295, 411 S.E. 2d 441, 442 (Ct. App. 1991) (holding whether resisting arrest "is a crime of moral turpitude depends upon the facts of the case"; specifically, wh ether the resistance was violent).This Court has also stated that crimes involving primarily self-destructive behavior generally do not implicate moral turpitude; rather, "[i]n determining whether a crime is one involving moral turpitude, the Court focuses primarily on the duty to society and fellow man which is br eached by the commission of the crime."
State v. Ball , 292 S.C. 71, 73–74, 354 S.E.2d 906, 908 (1987), overruled on other grounds by State v. Major , 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990) (retaining the test for moral turpitude stated in Ball but overruling Ball because of its holding regarding cocaine possession and stating that, because "any involvement with
cocaine contributes to the destruction of ordered society, " mere possession of cocaine is a crime of moral turpitude).

In Ball , the Court outlined some offenses that have been deemed crimes involving moral turpitude in South Carolin a under the foregoing te st: accessory to bank robbery, arson, assault and battery with intent to kill, assault with intent to rape, assault with intent to ravish, auto theft, breaking into a motor ve hicle with intent to steal, conspiracy to obtain property unde r false pretense, criminal sexual conduct with a minor (any degree), failure to yield right of way, hit and run, housebreaking and larceny, larceny, manufact ure of marijuana, possession of marijuana with intent to distribute, receiving stolen goods, robbery, sale of controlled substances, sale of narcotics, and tax fraud. Id. In contrast, the Court no ted the following had not been deemed crimes involving moral turpitude: bookmaking, disorder ly conduct, illegal possession of prescription drugs, possessi on of an unlawful weapon, public drunkenness, and simple po ssession of marijuana. Id. at 74, 354 S.E.2d at 908.

(d) Second-Degree Domestic Violence

We turn now to the particular offe nse with which Baddourah was charged, second-degree domestic violence.

Domestic violence is generally defi ned in subsection 16-25-20(A) of the
South Carolina Code as follows:

(A) It is unlawful to:

(1) cause physical harm or injury to a person's own household member; or

(2) offer or attempt to cause physical harm or injury to a person's own household member with apparent present ability under ci rcumstances reasonably creating fear of imminent peril.S.C. Code Ann. § 16-25- 20(A) (Supp. 2020). Subsec tion (C) provides a person
commits the offense of domesti c violence in the second degr ee if the person violates subsection (A) and any of several enumerated alternatives set forth in subsection (C).
Id. § 16-25-20(C). Alternative (1) states, "[M]oderate bodily injury to the person's
own household member results or the act is accomplished by means likely to result in moderate bodily injury to the person's own household member." 9 Id. § 16-25

- 20(C)(1).

The indictment charging Baddourah with second-degree domestic violence alleged, in relevant part, that he "did . . . cause physical harm or injury to a household member, [his spouse], or did offer or attemp t to cause physical harm or injury . . . , with apparent present ability under circ umstances reasonably creating fear of imminent peril by striking [his spouse] with a car door [,] an act likely to result in moderate bodily injury." (Emphasis added.)

Baddourah argues his offense, allegedl y striking his spouse with a car door, did not involve "severe" injury, 10 and he urges this Cour t to require offenses involving moral turpitude to be limited to "extremely grave acts of violence and depravity" or offenses that are malum in se . For support, Baddourah cites Tucker v.
Oklahoma , in which the Oklahoma court discu ssed various defin itions of moral turpitude and noted that it had previously "applied an Eighth Circuit definition which restricted moral turpitude to 'the gravest offenses–felonies, infamous crimes, those

9 Section 16-25-10 defines the term "moderate bodily injury" as follows:

"Moderate bodily injury" means physical injury that involves prolonged loss of consciousness or th at causes temporary or moderate disfigurement or temporary loss of the function of a bodily member or organ or injury that requires medi cal treatment when the treatment requires the use of regional or general anesthesia or injury that results
in a fracture or dislocation. Mode rate bodily injury does not include one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.

S.C. Code Ann. § 16- 25-10(4) (Supp. 2020).

10 Baddourah maintains his wife grabbed his iPhone and was attempting to shut and lock her car door and leave with his phone , so he grabbed the door to keep it from shutting. Baddourah's wife, in contra st, maintained Baddourah shut the door, causing her to sustain injuries.that are malum in se .'" 395 P.3d 1, 5 (Okla. Crim. App. 2016) (citation omitted). The Oklahoma court reasoned, "It is difficu lt to characterize domestic violence as a
malum in se crime, or one recognized as inheren tly evil and immoral, given that for centuries it was not recognized as a crime at all, and only recently has our Legislature granted it felony status." Id. The Oklahoma Court noted the State had not presented a compelling reason "to expand the definition of 'moral turpitude' and to separate domestic assault and battery fro m the well-settled law that assault and battery is not a crime of moral turpitude." Id.

We decline Baddourah's suggestion to re quire a threshold of "extremely grave acts of violence and depravity" or to restrict our analysis to malum in se offenses. As discussed above, the measure of moral turpitude in South Carolina is not based on the severity of physical injury, as even offenses that do not involve physical harm or felonies have been designated as crimes of moral turpitude. See generally Ball

, 292 S.C. at 73–74, 354 S.E.2d at 908 (summarizing offenses). Moreover, we reject the Oklahoma court's reasoning that the past failure to recognize the significant danger of domestic violence to household memb ers, as well as its impact on children and other societal harm, somehow justif ies insulating it from classification under contemporary standards as a crim e involving moral turpitude.

Under South Carolina's moral turpitude framework, we focus "primarily on the duty to society and fellow man [that] is breached by the commission of the
crime." Ball , 292 S.C. at 74, 354 S.E.2d at 908. According to the Centers for Disease Control and Prevention ("CDC"), domestic violence affects millions of people in the United States each year, ra nging from one episode to severe, chronic abuse over multiple years. CDC, Preventing Intimate Partner Violence (2020 Fact Sheet), https://www.cdc.gov/violencepre vention/pdf/ipv/IPV-factsheet_2020_508

. pdf. About 1 in 4 women and nearly 1 in 10 men in the United States have experienced physical or sexual violence and/or stalking by an intimate partner during their lifetime, and over 43 million women and 38 million men have experienced psychological aggression by a partner. Id. (citing data from the CDC's
National Intimate Partner a nd Sexual Violence Survey , 2015 Data Brief–Updated Release).

In South Carolina, domestic violence occu rs at rates far exceeding the national average, as evidenced by annual statistic s compiled by organizations such as the National Coalition Against Dome stic Violence ("NCADV"). See NCADV, State

by-State Statistics on Domestic Violence

, https://ncadv.org/state-by-state (last visited Jan. 5, 2021). A fact sheet publ ished by the NCADV indicates 41.5% of
South Carolina women and 17.4% of Sout h Carolina men experi ence physical or sexual violence and/or stalking by an intima te partner in their lifetimes. NCADV,Domestic Violence in South Carolina

, https://assets.speakcdn.com/assets/2497/ south_carolina_2019.pdf (last visited Jan. 5, 2021). In 2011, South Carolina had the highest rate of women murdered by men in the United States, mo re than double the national average. Id. In 2012, South Carolina had th e second highest rate of women murdered by men. Id.

In its most recent annual report (its 23rd), the Violence Policy Center ("VPC") notes that, nationwide, 92% of women mu rdered by men are killed by someone they know, and it lists South Carolina as number 11 in a ranking of states for the killing of women by men, based on 2018 FBI data. See VPC, When Men Murder Women, An Analysis of 2018 Homicide Data (Sept. 2020), https://vpc.org/studies/wmmw2020.pdf . Fo r over two decades, South Carolina had consistently ranked in the top 10 worst states in the United States in the VPC's annual reports, and it topped the list in four of those years. See id. ; see also South Carolina Domestic Violence Advisory Committee, S.C. Domestic Violence Advisory Committee 2018 Annual Report 1 (Mar. 27, 2019), https://dc.statelibrary.s c.gov/handle/10827/29954

.
In 2015, the South Carolina General A ssembly passed the Domestic Violence Reform Act, which increased penalties fo r domestic violence, with the aim of curbing these alarming statistics. See generally Christina L. Myers, South Carolina still near bottom in violence against women , A.P. News (Feb. 11, 2019), https://apnews.com/article/af9 c4ee9c722496398f20d6e234d172e

.
In light of the prevalence of dom estic violence nationally, and the overwhelming statistics for South Carolina in particular, there can be no doubt that
domestic violence is an affront to the fundam ental sanctity of the home and society. Accordingly, we find the more persuasive view is that domestic violence, with its inherent violation of a specia l relationship, can qualify as a crime of moral turpitude.

See California v. Burton , 196 Cal. Rptr. 3d 392, 397 & n. 8 (Ct. App. 2015) (stating where the assailant is in a special relati onship with the victim, "for which society rationally demands, and the victim may reas onably expect, stability and safety," and then commits a willful act upon the victim in violation of that relationship, it "necessarily connotes the gene ral readiness to do evil that has been held to define moral turpitude" (citation omitted)); cf. Major , 301 S.C. at 184, 391 S.E.2d at 237 (holding that, because "cocaine contributes to the destruction of ordered society," mere possession of cocaine is a crime of moral turpitude).

Turning to the specific offense fo r which Baddourah was indicted, seconddegree domestic violence, we examine its st atutory definition and consider the facts alleged in the indictment, in which Ba ddourah was charged w ith "striking [hisspouse] with a car door[,] an act likely to result in moderate bodily injury." Cf. Bailey, 275 S.C. at 446, 272 S.E.2d at 440 ( observing some offenses are not invariably crimes of moral turpitude, so a court must look to not only the statutory definition of an offense, but also the partic ularized facts alleged in the indictment to determine whether an offense qualifies as an offense involving moral turpitude); In

re Lee , 313 S.C. at 143–44, 437 S. E.2d at 86 (stating some cr imes "may be [crimes involving moral turpitude] depending on th e facts as partic ularized in the indictment"). Under the circumstances presen ted here, in which it is alleged that an individual engaged in conduct that was "likel y to result in moderate bodily injury," we conclude the charge of second-degree domestic violence qualifies as a crime involving moral turpitude. 11

Because we find Baddourah's indictme nt charged a crime involving moral turpitude, we hold the Governor had th e constitutional authority to issue the Executive Order suspending Baddourah fro m his position as a member of the Columbia City Council. Although Baddourah disputes whether the suspension was warranted, where the Governor is c onstitutionally authorized to impose a suspension, the decision whether to do so is a matter committed to the Governor's discretion after considering all of the a ttendant circumstances. Consequently, the circuit court's order dismissing Baddourah's challenge to the suspension order is
affirmed as modified.

III. CONCLUSION

We conclude the Governor acted within the scope of his authority in issuing the Executive Order suspending Baddourah from the Columbia City Council. As a result, the order of the circuit court is affirmed as modified.

AFFIRMED AS MODIFIED.

KITTREDGE, HEARN, FEW, and JAMES, JJ., concur.

11 Our holding today is limited to the issue before the Court, a charge of seconddegree domestic violence involving an allegation of physical violence "likely to result in moderate bodily injury."