Reinforcing Strict Rule 65 Compliance and the Apex Doctrine in Emergency Suits Against State Agencies

Case: Crook v. South Carolina Election Commission

Court: Supreme Court of South Carolina

Date: September 11, 2025

Note on precedential status: This is a memorandum opinion with no precedential value and should not be cited, except as permitted by Rule 268(d)(2), SCACR. The commentary below analyzes the Court’s reasoning and practical implications.

Introduction

This emergency appeal arose on the eve of the federal Department of Justice’s request for South Carolina’s statewide voter registration list, including fields such as full name, date of birth, address, and driver’s license or partial Social Security numbers. Respondent, a South Carolina voter, sought to prevent the state from furnishing her data to DOJ by obtaining an ex parte temporary restraining order (TRO) and preliminary injunction from the circuit court.

The South Carolina Election Commission appealed. The Governor moved to intervene, sought supersedeas to stay the injunction, and moved to quash a subpoena compelling his testimony at a scheduled hearing. Amid shifting representations about settlement and a proposed consent motion to stay/transfer venue, the Supreme Court stepped in, granted intervention, dispensed with briefing, and reversed the circuit court’s order.

The opinion addresses three principal issues:

• Whether the ex parte TRO and preliminary injunction complied with the stringent requirements of Rule 65, SCRCP.
• Whether ex parte restraints against the State are proper.
• Whether a subpoena for the Governor’s testimony was appropriate under the apex doctrine.

The Court also directed expedited resolution of a venue motion under section 15-77-50 of the South Carolina Code.

Summary of the Opinion

The Supreme Court reversed the circuit court’s ex parte TRO and preliminary injunction because:

• The order did not satisfy Rule 65’s requirements to define the injury, explain why it is irreparable, state why relief issued without notice, set forth reasons for issuance, and describe the restrained acts with specificity.
• Ex parte restraining orders are improper where the State is involved.
• The order failed to demonstrate the elements for injunctive relief: immediate irreparable harm, likelihood of success on the merits, and lack of an adequate legal remedy.

The Court granted the Governor’s motion to intervene and held that the case was not moot despite cancellation of a hearing, looming TRO expiration, and a proposed consent motion that was not actually agreed to by all parties or filed in the circuit court. Because the circuit court had also granted a preliminary injunction, the injunction continued in effect until reversed.

Although the specific subpoena was rendered moot by cancellation of the hearing, the Court emphasized the apex doctrine: absent extraordinary circumstances and a showing of unique, non-duplicative knowledge, top-level executive officials like the Governor should not be compelled to testify. No subpoena for the Governor’s testimony may be issued without a threshold showing to the circuit court that his attendance is warranted under law.

Finally, the Court noted that the Election Commission’s motion for change of venue under section 15-77-50 must be decided within ten days of the opinion and before any further proceedings.

Analysis

Precedents and Authorities Cited

• Rule 65, SCRCP (b) & (d): Requires that ex parte TROs define the injury, explain irreparability, and state why notice was not given; and that injunctive orders set forth reasons, specify terms, and describe restrained acts with reasonable detail.
• Spartanburg Buddhist Ctr. of S.C. v. Ork, 417 S.C. 601, 790 S.E.2d 430 (Ct. App. 2016): An injunction that merely recites irreparable harm without elaboration fails Rule 65; orders must be specific and reasoned. The Court relied on this to find the circuit court’s conclusory order defective.
• Compton v. S.C. Dep’t of Corrections, 392 S.C. 361, 709 S.E.2d 639 (2011): Establishes the three elements for injunctive relief (irreparable harm, likelihood of success, lack of adequate remedy at law) and frames preliminary relief as preserving the status quo. The Court found the circuit court made no sufficient findings on these elements.
• State v. Hill, 266 S.C. 49, 221 S.E.2d 398 (1976), and State v. Best, 257 S.C. 361, 186 S.E.2d 272 (1972): Ex parte orders against the State are improper and can be set aside on that ground alone. These cases reinforce the procedural impropriety of the ex parte restraint here.
• Apex doctrine authorities:
  • Thomas v. Cate, 715 F. Supp. 2d 1012 (E.D. Cal. 2010): High-ranking officials are generally not subject to testimony or depositions absent extraordinary circumstances.
  • In re U.S. Dep’t of Educ., 25 F.4th 692 (9th Cir. 2022): The valuable time and high-level responsibilities of top officials should not be interrupted where information can be obtained elsewhere.
  • Florida v. United States, 625 F. Supp. 3d 1242 (N.D. Fla. 2022): Labels this protection the “apex doctrine.”
  The Court applied this doctrine to caution against compelling the Governor’s testimony without a showing of unique, necessary knowledge.
• Section 15-77-50, South Carolina Code (2025): Requires actions affecting state agencies to be heard in the circuit in which the question, action, or controversy arose. The Court mandated expedited resolution of the venue motion before any further proceedings.

Legal Reasoning

1) Strict compliance with Rule 65 in emergency injunctions

The Court found the order “conclusory” and noncompliant with Rule 65. Merely stating a likelihood of “immediate and irreparable damage” from a privacy violation did not define the injury, explain why it is irreparable, or justify the absence of notice. Nor did the order identify its reasons for issuance, specify the terms with precision, or delineate the acts restrained apart from broad reference to “South Carolina’s statewide voter registration list and information.”

Rule 65 is designed to cabin the extraordinary nature of injunctive relief, especially ex parte. The Court’s reliance on Spartanburg Buddhist Center underscores that injunctions cannot rest on formulaic recitations; they require particularized findings tied to evidence.

2) Ex parte restraints against the State are improper

Invoking Hill and Best, the Court reiterated the impropriety of ex parte restraining orders involving the State. That rule reflects the strong institutional interest in affording the State notice and an opportunity to be heard before its actions are enjoined, absent truly extraordinary circumstances clearly justified in the order. The circuit court provided no such justification.

3) Failure to establish the three elements of injunctive relief

Beyond procedural defects, the circuit court’s order failed to address any of the essential equitable elements:

• Immediate, irreparable harm: A generic invocation of privacy interests did not specify what harm Respondent would suffer absent relief or why money damages would be inadequate.
• Likelihood of success on the merits: The order was silent; it did not assess Respondent’s constitutional privacy claim under article I, section 10 or any statutory theories limiting data disclosure.
• No adequate remedy at law: Again, no findings were made.

Without these findings, the Court held the injunction could not stand.

4) Mootness rejected; preliminary injunction still in effect

Respondent argued the appeal was moot due to cancellation of a hearing, impending expiration of the TRO, and a purported consent motion to stay and transfer venue. The Court found:

• The TRO and preliminary injunction remained effective at the time of decision; notably, the preliminary injunction continued “until a hearing can be held” or further order of the circuit court.
• The alleged consent motion was neither agreed to by all parties (the Election Commission expressly disagreed) nor filed with the circuit court.

Because effective restraints persisted, the appeal was live and required resolution.

5) Apex doctrine and subpoenas to the Governor

Although the specific subpoena became moot when the hearing was canceled, the Court stated that high-ranking officials should not be compelled to testify absent a showing of unique, non-duplicative knowledge necessary to the case, consistent with the apex doctrine. The Court concluded Respondent failed to make that showing, and warned that no subpoena for the Governor’s testimony may issue absent a threshold demonstration that his attendance is warranted under law.

6) Venue must be resolved first and promptly

Recognizing the statutory directive in section 15-77-50, the Court ordered the circuit court to decide the venue motion within ten days of the opinion and before any further proceedings. This instruction enforces legislative policy on where actions affecting state agencies must be heard, ensuring swift procedural regularity in high-stakes, time-sensitive disputes.

Impact and Practical Implications

Immediate procedural impacts

• Heightened scrutiny of ex parte injunctions against the State: Trial courts must strictly adhere to Rule 65 and are discouraged from restraining State action without notice. Orders that lack detailed findings and justification are vulnerable to rapid reversal.
• Detailed injunctive orders required: Parties seeking emergency relief must supply—and courts must adopt—specific, evidence-based findings on injury, irreparability, notice, likelihood of success, and lack of legal remedy. Boilerplate will not suffice.
• Protection of top officials’ time: The apex doctrine is a practical shield against routine subpoenas to the Governor. Litigants must exhaust other sources and demonstrate unique, indispensable knowledge before seeking such testimony.
• Venue discipline: When a state agency is affected, section 15-77-50’s venue directive must be resolved at the outset, and expeditiously, before further proceedings.

Substantive issues left undecided

The Court explicitly avoided the merits of Respondent’s underlying claims—namely, whether furnishing the DOJ with voter registration data would violate article I, section 10’s privacy protections or state confidentiality statutes, and how those interests intersect with federal law (including the NVRA’s list-maintenance framework). Future litigation may explore:

• The scope of privacy interests in voter registration data under South Carolina’s Constitution.
• The interplay between state confidentiality provisions and federal requests or mandates, including potential preemption or cooperative-federalism considerations under the NVRA.
• Mechanisms for protective orders or tailored disclosures that mitigate privacy risks while complying with federal law.

Election administration context

Although the case arose in the heat of election preparations and DOJ oversight of list maintenance, the Court confined itself to procedural correctness. The opinion signals that emergency election litigation must still satisfy exacting procedural standards; the urgency of electoral timelines does not relax Rule 65 or the apex doctrine.

Complex Concepts Simplified

• TRO (Temporary Restraining Order): A short-term order to prevent immediate harm before a full hearing. If issued without notice (ex parte), the order must explain why notice wasn’t possible and precisely identify the harm and restraints.
• Preliminary Injunction: A longer-lasting order that preserves the status quo during the case. To obtain one, a party must show immediate irreparable harm, likelihood of success, and no adequate legal remedy (e.g., money damages won’t fix it).
• Rule 65, SCRCP: The rule governing TROs and preliminary injunctions in South Carolina state courts. It demands specific, reasoned findings and detailed, narrowly tailored restraints.
• Ex parte order: Relief granted without notifying or hearing from the opposing party. Such orders are disfavored—especially against the State—and permitted only in truly exigent, well-justified circumstances.
• Supersedeas: A stay of the lower court’s order while an appeal is pending. The Court found the request moot after reversing the injunction.
• Apex doctrine: A principle limiting depositions or testimony of high-ranking officials. A party must first show the official has unique knowledge that cannot be secured from other sources and that the testimony is truly necessary.
• Intervention: A nonparty’s entry into a case because of a significant interest in the outcome. Here, the Governor intervened in his official capacity.
• Venue: The proper location for a case. Section 15-77-50 governs actions affecting state agencies and, per the Court, requires such actions be heard in the circuit where the controversy arose.
• Mootness: A case is moot if there is no live controversy. Here, because the preliminary injunction remained in effect, the appeal was not moot.
• NVRA: The National Voter Registration Act; among other things, it requires reasonable list-maintenance procedures. The Court did not decide any NVRA merits questions.

Conclusion

Even in emergency, high-stakes litigation involving election administration and federal-state coordination, procedural guardrails matter. In reversing the ex parte TRO and preliminary injunction, the Supreme Court of South Carolina reinforced three core principles:

• Strict Rule 65 compliance: Injunctive orders must be grounded in specific, reasoned findings that define the injury, explain irreparability, justify any lack of notice, and detail the restrained conduct.
• Ex parte restraints against the State are improper: Orders affecting the State demand notice and an opportunity to be heard, absent extraordinary and well-documented circumstances.
• Apex doctrine adherence: Subpoenas to top executive officials require a threshold showing of unique, indispensable knowledge not obtainable elsewhere.

The Court also insisted that venue disputes under section 15-77-50 be resolved promptly and before further proceedings. While the opinion is non-precedential under Rule 268(d)(2), its clear articulation of Rule 65’s demands, caution against ex parte restraints on the State, and reaffirmation of the apex doctrine provide an unmistakable roadmap for trial courts and litigants. The merits of privacy and disclosure under state law, and their relationship to federal list-maintenance requests, remain for another day—after the parties meet the exacting procedural standards that safeguard the integrity and fairness of emergency judicial relief.