Retroactive Statutory Amendments Are Constitutionally Permissible in South Carolina (Overruling Lindsay) So Long as Final Judgments Remain Undisturbed

I. Introduction

In these consolidated class actions—Richard A. Butts and Carroll Brown as respondents (plaintiffs below) versus Georgetown and Orangeburg County officials and entities as appellants (defendants below)—the Supreme Court of South Carolina addressed whether the General Assembly may retroactively amend a statute after the Court has interpreted it, and apply that amendment to pending cases.

The lawsuits challenged county “road maintenance fees” imposed per registered vehicle in Orangeburg County and Georgetown County. After this Court’s decision in Burns v. Greenville County Council construed the governing statute (S.C. Code § 6-1-300(6) (1997)) in a way that placed those fees at risk of being treated as invalid taxes, the General Assembly enacted Act No. 236 of 2022. The Act amended § 6-1-300(6) and—critically—provided in § 2(E) that the amendment applied retroactively to “any service or user fee imposed after December 21, 1996.”

The core constitutional question became whether § 2(E)’s retroactivity violates the Separation of Powers Clause (S.C. Const. art. I, § 8) under the Court’s long-standing rule from Lindsay v. National Old Line Insurance Company and related cases, which had read separation of powers to categorically bar retroactive legislative “override” of a prior judicial statutory interpretation.

II. Summary of the Opinion

The Court (Justice Verdin) reversed and remanded, holding:

  • The Court overruled Lindsay v. National Old Line Insurance Company and its progeny to the extent they imposed a categorical separation-of-powers bar on retroactive statutory amendments enacted after a judicial interpretation.
  • The Court announced a new rule: the General Assembly may determine the retroactive application of statutory amendments so long as retroactivity (a) does not disturb final judgments and (b) does not violate an independent constitutional limitation.
  • Applying that rule, § 2(E) of Act 236 is constitutional under article I, § 8 as applied to these pending cases, while Burns (a final judgment) remains “entirely undisturbed.”
  • Using the constitutional avoidance canon, the Court construed § 2(E)’s broad language not to reach final judgments (even though a literal reading could be read to “encompass” the fee in Burns), because the legislature may not alter a court’s final judgment.

III. Analysis

A. Precedents Cited

1. The statutory backdrop and the trigger decision: Burns v. Greenville County Council

Burns v. Greenville County Council, 433 S.C. 583, 861 S.E.2d 31 (2021), interpreted § 6-1-300(6) (1997) to require that a county “service or user fee” provide a benefit to the payer that is different from the benefit received by the non-paying general public—otherwise the charge risks being an invalid “tax” under the statute. The plaintiffs in Orangeburg and Georgetown relied on Burns to attack their counties’ road maintenance fees.

Act 236 was expressly enacted “in response” to Burns, amending § 6-1-300(6) to allow fees “used to the benefit of the payers, even if the general public also benefits,” and making the amendment retroactive via § 2(E).

2. The overruled line: Lindsay v. National Old Line Insurance Company and its progeny

For roughly fifty years, Lindsay v. National Old Line Insurance Company, 262 S.C. 621, 207 S.E.2d 75 (1974), had been read to mean that once the judiciary interprets a statute, the legislature cannot retroactively apply a contrary amendment without violating the Separation of Powers Clause. The Court noted that it had reaffirmed that “Lindsay Rule” in:

  • Steinke v. S.C. Dep't of Labor, Licensing & Regulation, 336 S.C. 373, 520 S.E.2d 142 (1999)
  • Dykema v. Carolina Emergency Physicians, P.C., 348 S.C. 549, 560 S.E.2d 894 (2002)
  • Simmons v. Greenville Hosp. Sys., 355 S.C. 581, 586 S.E.2d 569 (2003)
  • JRS Builders, Inc. v. Neunsinger, 364 S.C. 596, 614 S.E.2d 629 (2005)

The Court overruled Lindsay and these cases insofar as they constitutionalized a categorical ban on retroactive amendments following judicial interpretation.

3. The Court’s return to a functional separation-of-powers tradition: South Carolina history and early cases

The Court emphasized South Carolina’s “functional” and historically “overlapping” separation-of-powers structure, citing:

  • S.C. Pub. Int. Found. v. S.C. Transp. Infrastructure Bank, 403 S.C. 640, 744 S.E.2d 521 (2013) (South Carolina does not follow a rigid “cookie-cutter” model; overlap is a “feature”)
  • State v. Langford, 400 S.C. 421, 735 S.E.2d 471 (2012) (violation occurs when there is “significant interference” with another branch’s operations)
  • State Ex Rel. McLeod v. McInnis, 278 S.C. 307, 295 S.E.2d 633 (1982) (some overlap/encroachment is inherent)
  • State ex rel. McLeod v. Yonce, 274 S.C. 81, 261 S.E.2d 303 (1979) (core branch powers: legislature makes laws; judiciary interprets/declares)
  • Hampton v. Haley, 403 S.C. 395, 743 S.E.2d 258 (2013) (legislature’s plenary policy authority)
  • Carnival Corp. v. Historic Ansonborough Neighborhood Ass'n, 407 S.C. 67, 753 S.E.2d 846 (2014) (judicial power to resolve cases and inherent powers)

On retroactivity, the Court relied heavily on pre-Lindsay “curative/validating statute” precedent:

  • Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346 (1929) (legislature may retroactively validate acts it could have authorized initially, including in matters where “no final judgment” has been rendered)
  • State v. Whitesides, 30 S.C. 579, 9 S.E. 661 (1889) (retroactive legislative approval of previously invalid county actions, in non-final matters)
  • State v. Neely, 30 S.C. 587, 9 S.E. 664 (1889) (same)
  • Hodge v. Levi, 80 S.C. 518, 61 S.E. 1009 (1908) (validating statute permissible if legislature could have authorized the act before; later law can make prior “irregularity” immaterial)
  • Dove v. Kirkland, 92 S.C. 313, 75 S.E.2d 503 (1912) (same principle)
  • Segars v. Gomez, 360 F. Supp. 50 (D.S.C. 1972) (summarizing South Carolina rule: legislature may ratify/validate past acts it could originally have authorized, absent impairment of vested rights)

4. Federal separation-of-powers authorities supporting retroactivity in pending cases

The Court found the Lindsay categorical bar out of step with U.S. Supreme Court doctrine allowing retroactive statutory change applicable to pending cases while protecting final judgments:

  • Rivers v. Rodway Express, Inc., 511 U.S. 298 (1994) (Congress may amend statutes and make changes retroactive within broad constitutional bounds)
  • Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (retroactive laws may affect cases still on appeal; legislature may not change the law applicable to a case after final judgment)
  • Bank Markazi v. Peterson, 578 U.S. 212 (2016) (Congress may change law affecting pending cases; may not exercise judicial power)
  • Patchak v. Zinke, 583 U.S. 244 (2018) (plurality) (Congress can make retroactive laws affecting pending lawsuits even if outcome-determinative)

Although South Carolina can interpret its constitution to provide more protection, the Court cited State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001), for the proposition that the federal constitution is the “floor,” and concluded South Carolina’s structure does not justify a stricter, categorical rule like Lindsay.

5. Stare decisis and the decision to overrule

The Court grounded its decision to overrule Lindsay in modern stare decisis factors, relying on:

  • Kimble v. Marvel Ent., LLC, 576 U.S. 446 (2015) (value of stability; differing force in statutory vs constitutional cases)
  • Payne v. Tennessee, 501 U.S. 808 (1991) (stare decisis rationales)
  • Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022) (in constitutional cases, stare decisis does not require adherence to decisions “wrong from the start”)
  • McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012), quoting Smith v. Daniel Constr. Co., 253 S.C. 248, 169 S.E.2d 767 (1969) (rejecting “blind adherence” to wrong precedent)

6. The presumption of constitutionality and constitutional avoidance

After adopting the new retroactivity rule, the Court still confronted § 2(E)’s breadth (“any service or fee imposed after December 21, 1996”), which could be read to unsettle the final judgment in Burns. To avoid that constitutional problem, the Court invoked:

  • Climer v. Loftis, 447 S.C. 25, 923 S.E.2d 645 (2025) (presumption enactments are constitutional)
  • Henderson v. Evans, 268 S.C. 127, 232 S.E.2d 331 (1977) (constitutional avoidance canon)
  • Hodges v. Rainey, 341 S.C. 79, 341 S.E.2d 578 (2000) (courts cannot rewrite clear text)
  • Boumediene v. Bush, 553 U.S. 723 (2008) (avoidance applies only if “fairly possible”)
  • Crow v. McAlpine, 277 S.C. 240, 285 S.E.2d 355 (1981) (resolve doubts in favor of constitutionality if reasonable)

The upshot: § 2(E) is construed to apply to pending matters, not to disturb final judgments.

7. Background rules about legislative power and retroactivity limits

The Court anchored its analysis in the principle that the state constitution is a limitation on legislative power, not a grant:

  • Segars-Andrews v. Judicial Merit Selection Comm'n, 387 S.C. 109, 691 S.E.2d 453 (2010) (legislature may enact any law not prohibited)
  • Boatwright v. McElmurray, 247 S.C. 199, 146 S.E.2d 716 (1966) (plenary power to amend statutes)
  • McLure v. Melton, 24 S.C. 559 (1886) (no general constitutional ban on retrospective laws; protections arise through specific safeguards)

The Court flagged other possible constitutional constraints—due process, takings, vested rights, contracts (S.C. Const. art. I, § 4)—but declined to address undeveloped due process/takings arguments, citing I'On, LLC v. Town of Mount Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).

B. Legal Reasoning

1. Identifying the conflict: Lindsay versus a functional separation-of-powers model

Under Lindsay, the result would have been simple: because Burns v. Greenville County Council construed § 6-1-300(6) and Act 236 retroactively contradicted that construction, § 2(E) would be unconstitutional under article I, § 8. The Court rejected that categorical approach as inconsistent with South Carolina’s constitutional structure and historical practice.

2. Three reasons Lindsay was “wrong from the start”

  1. Structural incompatibility: South Carolina separation of powers is functional; overlap is expected. A violation requires “significant interference” with another branch’s operations, and only when one branch intrudes on powers exclusively committed to another. Determining whether an amendment is retroactive is a core legislative function (policy and lawmaking) unless it crosses distinct constitutional boundaries (e.g., final judgments).
  2. Unexplained departure: Lindsay departed from older South Carolina curative-statute cases (e.g., Green v. City of Rock Hill) that permitted retroactive legislation in non-final matters, and Lindsay and its progeny did not justify that shift with persuasive text/history/structure.
  3. Mismatch with federal separation-of-powers doctrine (and South Carolina’s own pre-Lindsay cases): Federal law allows retroactive change applicable to pending cases while protecting final judgments (Plaut v. Spendthrift Farm, Inc.; Rivers v. Rodway Express, Inc.). South Carolina’s earlier cases followed the same basic boundary.

3. The new rule announced

The Court held that the General Assembly may enact retroactive statutory amendments—even after judicial interpretation—so long as:

  • the amendment’s retroactive application does not disturb a final judgment, and
  • the retroactive application does not violate an independent constitutional limitation (e.g., due process, takings, impairment of contracts, vested rights, ex post facto restrictions where applicable).

4. Application to Act 236 and § 2(E)

Because § 2(E) expressly provides retroactivity, and because the cases against Orangeburg and Georgetown were pending when Act 236 took effect, the amendment governs them. The legislature may modify the statutory framework by which counties impose fees (the Court referenced the statutory scheme including § 6-1-300(6) and § 6-1-330(A)).

5. Final judgments remain untouchable; avoidance narrows § 2(E)

The Court stressed that while it overruled Lindsay, it did not authorize legislative interference with final judgments—an “axiomatic” separation-of-powers limit. Because § 2(E)’s broad phrasing could be read to reach Burns, the Court used constitutional avoidance to adopt a constitutional construction: § 2(E) applies retroactively only to non-final matters (pending cases), leaving Burns intact.

C. Impact

1. Immediate effects on pending “fee vs. tax” litigation

The decision significantly strengthens the State’s and local governments’ ability to defend statutory authority for fees challenged under Burns v. Greenville County Council, because Act 236’s retroactive amendment now applies to cases still in the pipeline when the Act took effect—precisely the posture of many post-Burns challenges.

2. A broader shift in South Carolina constitutional law

By overruling Lindsay v. National Old Line Insurance Company and related decisions, the Court reorients South Carolina separation-of-powers jurisprudence away from a categorical anti-retroactivity rule and toward a boundary-based approach:

  • Permitted: retroactive statutory amendments that change the rule of decision for pending disputes.
  • Forbidden: retroactive legislation that reopens, revises, or nullifies final judgments.

3. Litigation strategy going forward: the battleground moves

With the separation-of-powers barrier lowered, challengers to retroactive civil legislation will predictably pivot to:

  • Vested-rights and due process theories,
  • takings challenges (where monetary or property interests are implicated),
  • impairment of contracts arguments under S.C. Const. art. I, § 4,
  • and careful finality arguments (identifying when a judgment is truly “final”).

The Court’s refusal to address undeveloped due process and takings arguments leaves those doctrines open for fuller presentation in future cases.

4. Legislative drafting consequences

The Court flagged that § 2(E) was “inartful” and “dangerously close” to suggesting interference with final judgments. Future retroactive legislation in South Carolina will likely be drafted with explicit “pending cases only / non-final matters only” language to avoid avoidable constitutional disputes.

IV. Complex Concepts Simplified

  • Separation of Powers (S.C. Const. art. I, § 8): The idea that lawmaking (legislature), law-execution (executive), and law-interpretation (judiciary) are distinct. South Carolina applies a functional version—some overlap is acceptable; the problem is “significant interference” with another branch’s core functions.
  • Retroactive legislation: A law that applies to events or actions that occurred before the law was enacted.
  • Curative/validating statutes: Retroactive laws intended to “cure” defects in prior governmental action—historically allowed if the legislature could have authorized the action in the first place and if constitutional rights are not violated.
  • Final judgment: A court decision that is conclusively resolved and no longer subject to ordinary appellate change. Legislatures may not reopen or alter final judgments—this is a core judicial function.
  • Constitutional avoidance: If a statute can reasonably be read two ways—one constitutional and one unconstitutional—courts adopt the constitutional reading (without rewriting unambiguous text).
  • Stare decisis: Respect for precedent. The Court explained it has less force in constitutional interpretation when the precedent is fundamentally mistaken because legislative correction is not available and constitutional errors can persist.

V. Conclusion

This opinion marks a major doctrinal shift in South Carolina constitutional law. The Supreme Court overruled Lindsay v. National Old Line Insurance Company and related cases insofar as they created a categorical separation-of-powers prohibition against retroactive statutory amendments enacted after judicial interpretation. The Court replaced that rule with a functional, boundary-based principle: the General Assembly may make statutory amendments retroactive and apply them to pending cases, provided it does not disturb final judgments and does not violate other constitutional limits.

For the road maintenance fee litigation, that means Act 236’s retroactivity provision (§ 2(E)) governs these pending Orangeburg and Georgetown cases, and the trial courts’ separation-of-powers rulings were reversed. More broadly, South Carolina returns to a model in which retroactivity debates will turn less on categorical separation-of-powers claims and more on finality, vested rights, due process, takings, and other specific constitutional constraints.