II

RICHARD A. HAR.POOTLIAN OFFICE DIR.ECT CONTACT

[email protected] 1410 LAUREL STREET TELEPHONE (803) 252-4848
COLUMBIA. SC FACSIMILE (803) 252-4810
CHRISTOPHER. P. KENNEY 29201 TOLL FREE (866) 706-3997
[email protected]
MAILING ADDRESS ONLINE

HARPOOTLIAN PHILLIP D. BAR.BER.

[email protected]
POST OFFICE Box 1090

COLUMBIA. SC
HARPOOTLIANLAW.COM

ATTORNEYS AT LAW 29202

JAMIE L. HAR.POOTLIAN*
OF COUNSEL
*ADMITTED ONLY IN LOUISIANA

August 5, 2021
FILING VIA ONE DRIVE
Aug 05 2021
The Honorable Daniel Shearouse
Clerk of Court
Supreme Court of South Carolina
P.O. Box 11330
Columbia, SC 29211

In re: Richard J. Creswick v. The University of South Carolina and Alan Wilson in his
official capacity as Attorney General

Dear Mr. Shearouse:

Enclosed please find a Rule 245(c) Notice and Petition for Original Jurisdiction, Expedited
Disposition, and Emergency Declaration in connection with the above-referenced matter.
With warmest personal regards, I am

Sincerely,
s/Christopher P. Kenney
Christopher P. Kenney

CPK:hm
Enclosures
 THE STATE OF SOUTH CAROLINA Aug 05 2021
In the Supreme Court
_______________________

In the Original Jurisdiction

_______________________

Richard J. Creswick………...……………………………………………………….….Petitioners,

v.

The University of South Carolina and

Alan Wilson in his official capacity as Attorney General……………………….…….Respondents,

_______________________

RULE 245(c) NOTICE

_______________________

TAKE NOTICE, pursuant to Rule 245(c) of the South Carolina Appellate Court Rules,

that you are required to file a return to this Petitioners petition for original jurisdiction within 20

days from the date of service. Failure of a party to timely file a return may be deemed a consent

by that party to the matter being heard in the original jurisdiction.

Respectfully submitted by,

s/Christopher P. Kenney
Richard A. Harpootlian (SC Bar No. 2725)
Christopher P. Kenney (SC Bar No. 100147)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street (29201)
Post Office Box 1090
Columbia, SC 29202
(803) 252-4848
(803) 252-4810 (facsimile)
[email protected]
[email protected]

ATTORNEYS FOR PETITIONER

RICHARD J. CRESWICK
August 5, 2020
Columbia, South Carolina.
 THE STATE OF SOUTH CAROLINA
In the Supreme Court
Aug 05 2021
_______________________

In the Original Jurisdiction

_______________________

Richard J. Creswick………...……………………………………………………….….Petitioners,

v.

The University of South Carolina and

Alan Wilson in his official capacity as Attorney General……………………….…….Respondents,

_______________________

PETITION FOR ORIGINAL JURISDICTION,

EXPEDITED DISPOSITION, AND EMERGENCY DECLARATION
_______________________

Richard A. Harpootlian (SC Bar No. 2725)

Christopher P. Kenney (SC Bar No. 100147)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street (29201)
Post Office Box 1090
Columbia, South Carolina 29202
(803) 252-4848
(803) 252-4810 (facsimile)
[email protected]
[email protected]

ATTORNEYS FOR PETITIONER

RICHARD J. CRESWICK

August 5, 2020
Columbia, South Carolina.
 The simplicity of this dispute is underscored only by its gravity. The coronavirus pandemic

is rising again, this time with a new, more contagious strain of the disease capable of breaking

through otherwise highly efficacious vaccines and being spread by vaccinated and unvaccinated

alike. Respondent University of South Carolina responded to new public health guidance by

enacting a universal masking policy for classes starting on August 19, 2021—a measure that would

keep everyone inside campus buildings safe by preventing transmission of the Delta variant.

Respondent Alan Wilson intervened. Citing Proviso 117.190 of the Appropriations Act of

2021–22, he claimed there was ambiguity where there is none, and then offered his own view the

proviso should be read to prohibit public institutions of higher learning from requiring universal

masking during in-person classroom instruction or other congregate functions that are a routine

part of university life. Yet, the totality of the one-year budget instruction simply reads:

117.190. (GP: Masks at Higher Education Facilities) A public institution of higher

learning, including a technical college, may not use any funds appropriated or
authorized pursuant to this act to require that its students have received the COVID-
19 vaccination in order to be present at the institutions facilities without being
required to wear a facemask. This prohibition extends to the announcement or
enforcement of any such policy.

2021 Act No. 94, Part 1B, § 117.190. Thus, the proviso prohibits unvaccinated persons from being

singled out to wear a mask on campus. But the Attorney General’s interpretation contorts this non-

discrimination provision to prohibit all masking—a reading far beyond the text and contrary to

what public health authorities in this State and across the Nation have required and still require in

congregate settings to stop COVID-19 transmission while public life continues.

No great act of construction is required here; the Attorney General is plainly wrong and

has created a controversy where none should exist. Regrettably, the University acceded to the

Attorney General’s demand and revoked its universal mask mandate while acknowledging its

importance and pleading for voluntary compliance. Thus, the Attorney General’s performative act

2
of legal coercion has put particle astrophysics professor Petitioner Richard J. Creswick, his

immunocompromised wife, the University’s faculty, staff, and students, and the surrounding

community all unnecessarily at risk at the very moment public health officials are urging public

masking and increased vigilance.

This petition for original jurisdiction seeks to end this manufactured legal controversy and

allow the University to follow public health guidance free from the threat of legal coercion by the

State’s top lawyer. The case is submitted pursuant to article V, § 5 of the Constitution, South

Carolina Code § 14-3-310, and Rule 245 of the South Carolina Appellate Court Rules. Petitioner

seeks (1) leave to file the proposed complaint (Exhibit A); (2) an order expediting Respondents’

time to file a return and/or answer; (3) (if necessary) expedited discovery; and (4) an expedited

hearing and decision declaring that Proviso No. 117.190 does not prohibit the University or any

other public institution of higher learning from enacting a universal mask mandate inside campus

buildings. Because fall classes begin on August 19, 2021, time is of the essence.

FACTUAL BACKGROUND

The relevant factual background is detailed in Petitioner’s proposed verified complaint,

which is attached as Exhibit A and incorporated here as if set forth verbatim.

STANDARD OF REVIEW

When appropriate, the Court will consider matters in its original jurisdiction when the

public interest is involved or if special grounds of emergency or other good reasons exist, and the

matter cannot be considered by a lower court first without material prejudice to the rights of the

parties. Rule 245(a), SCACR.

3
 GROUNDS FOR GRANTING THE PETITION

The petition should be granted because the natural and certain consequence of failing to

correct the Attorney General’s flawed legal theory is transmission of the highly contagious Delta

variant in congregate classroom settings among vaccinated and unvaccinated alike, which will

cause serious illness and death, and prolong the COVID-19 pandemic.

The petition addresses three points below. First, the Attorney General’s construction is

neither necessary nor reasonable. No construction is required because the text is clear, and the

construction he offers makes no sense. Second, original jurisdiction is appropriate because this is

a matter of public importance that affects the State’s largest university, the surrounding

community, and every public institution that might seek to curb the spread of the most dangerous

strain of coronavirus we have faced during this pandemic. Third, Prof. Creswick has standing to

bring this action on the Court’s original jurisdiction because this is a matter of public importance,

the controversy is concrete and, as an employee of the University, he has an immediate and

personal stake in it that should be redressable before this Court.

I. Proviso No. 117.190 requires no construction and the Attorney General’s

construction creates new law where none exists.

The Court should conclude that Proviso No. 117.190 simply prohibits a mask mandate that

discriminates against the unvaccinated but does not prohibit a universal mask mandate and that the

Attorney General’s contrary view violates the rules of statutory construction.

Resolving statutory construction questions turns on discerning legislative intent. Fullbright

v. Spinnaker Resorts, Inc., 420 S.C. 265, 272, 802 S.E.2d 794, 797 (2017) (collecting cases). “If a

statute’s language is plain, unambiguous, and conveys a clear meaning, the rules of statutory

interpretation are not needed and the court has no right to impose another meaning.” Id. (bracket

and quotations omitted, quoting Brown v. Bi-Lo, Inc., 354 S.C. 436, 439, 581 S.E.2d 836, 838

4
(2003) (quoting Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000))). Only when a

statute is ambiguous does a court construe it in an effort to discern the legislature’s intent, and that

construction must give the statute as a whole a “practical, reasonable, and fair interpretation

consonant with the purpose, design, and policy of lawmakers.” Id.

The Attorney General’s position departs from these rules on all counts. Consider his letter

to University President Harris Pastides. See Ex. A at Ex. 1. First, the Attorney General professes

concern that the University’s masking policy violates Proviso Nos. 117.163 and 117.190. He

explains Proviso No. 117.163 to “prohibit[ ] institutions of higher learning receiving directly or

indirectly appropriated funds to require proof of a COVID-19 vaccination as a condition of

enrollment or attendance.” Ex. A at Ex. 1, p. 1. He describes Proviso 117.190 to “similarly

provide[ ] that appropriated funds may not be used to require a vaccination [sic] to be present at

the institution’s facilities ‘without being required to wear a facemask.” Id. Presumably, he meant

to say, “may not be used to require an unvaccinated person to be present … without being required

to wear a facemask” because what the proviso, in fact, says is “may not use any funds appropriated

or authorized pursuant to this act to require that its students have received the COVID-19

vaccination in order to be present at the institutions facilities without being required to wear a

facemask.” 2021 Act No. 94, Part 1B, § 117.190. He then concludes “the Legislature intended

these Provisos to bar use of State-appropriated funds to mandate COVID-19 vaccinations or the

wearing of facemasks.” Ex. A at Ex. 1, p. 1 (emphasis added).

This conclusion flows from a series of misrepresentations and non-sequiturs. For instance,

he claims Proviso 117.190 “is ambiguous, to be sure.” Ex. A at Ex. 1, p. 2. It is not. In the very

next sentence, he acknowledges the plain reading: “One reasonable interpretation is to prohibit

discrimination by requiring masks for the unvaccinated. Under this interpretation, a uniform mask

5
requirement does not violate the Proviso.” Id. Exactly—that is precisely what the proviso requires.

Nevertheless, the Attorney General continues “[s]uch a policy, however, is not consistent with the

intent of the Legislature”, contending further that Proviso No. 117.190 “was intended to prohibit

the mandatory wearing of masks, as reflected in its use of the language ‘without being required to

wear a facemask.’” Id. He then cites Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 845 (2002)

for the proposition that courts are not confined to a statute’s literal meaning when it contradicts

the real purpose and intent of lawmakers. Ex. A at Ex. 1, p. 2.

This reasoning is deeply flawed for three reasons. First, the proviso says what it says and

even the Attorney General acknowledges the proper reading to simply prohibit a mask mandate

that discriminates against the unvaccinated. There is no ambiguity, so there is no need to construe

the statute. Second, he creates the ambiguity by selectively quoting one clause from the proviso

while excluding the predicate. Applying this sort of “reasoning” renders every statute subject to

construction. It is not serious lawyering, and it shows no respect for the rule of law or the idea that

words and laws have meaning. Third, to the extent there was some ambiguity, one might look (for

instance) to Proviso No. 117.163, which reads in full:

117.163. (GP: COVID-19 Proof of Vaccination Restriction - Institutions) For the

current fiscal year, state-supported institutions of higher learning that directly or
indirectly receive funds appropriated or authorized through the general
appropriations act shall be restricted from requiring proof of COVID-19
vaccination for any student as a condition of enrollment, attendance at on campus
instruction, or residence on campus. In instances of off-campus learning events for
which third party program providers require proof of vaccination, the third party
requirements shall apply.

2021 Act No. 94, Part 1B, § 117.163. This provision prohibits discriminatory treatment of the

unvaccinated, which is entirely consistent with the discriminatory masking prohibition in Proviso

No. 117.190. Put differently, to the extent it was necessary to hunt for evidence of what the General

6
Assembly intended as to Proviso No. 117.190, Proviso No. 117.163 is strong evidence that what

the legislature was concerned with was disparate treatment of the unvaccinated.

The Attorney General’s approach leads to the type of “plainly absurd” result that the

Court’s construction jurisprudence has always sought to avoid. Cf. Hodges, 341 S.C. at 91, 533

S.E.2d at 584 (explaining plain meaning analysis is rejected only when it “would lead to a result

so plainly absurd that it could not possibly have been intended”). Indeed, that is the lesson from

Wade, where the Court reasoned the legislature did not intend for a statute revoking inmate credits

for testifying falsely to apply to post-conviction relief cases because doing so would cause a

disparate impact by allowing the State to punish incarcerated prisoners for asserting constitutional

rights, but non-incarcerated applicants could do so without fear of reprisal. 348 S.C. at 259–61,

559 S.E.2d at 845. Notably, this rare departure from a statute’s literal meaning turned not on the

“phraseology of an isolated section or provision, but the language of the statute as a whole

considered in the light of its manifest purpose.” See id. at 259, 559 S.E.2d at 845.

The Attorney General has done just the opposite: he fixates on one clause out of context

and the cites Wade as authority to ignore plain meaning. There is no precedent for such an absurdist

approach and the Court should hold accordingly.

II. The Court should exercise original jurisdiction because this is an emergency
matter of great public interest that cannot be resolved first by the circuit court.

“Only when there is an extraordinary reason such as a question of significant public interest

or an emergency will this Court exercise its original jurisdiction.” Key v. Currie, 305 S.C. 115,

116, 406 S.E.2d 356, 357 (1991). The common thread in original jurisdiction jurisprudence is an

effort to resolve conflicting claims of government power with broad impact on the State and public.

For example, original jurisdiction has been held to exist to decide whether a budget proviso

violated the S.C. Constitution’s one-subject rule. S.C. Pub. Interest Found. v. Lucas, 416 S.C. 269,

7
786 S.E.2d 124 (2016). Original jurisdiction has also been exercised to clarify the effective date

of a new constitutional amendment, Davis v. Leatherman, 419 S.C. 44, 796 S.E.2d 137 (2017), to

decide whether a governor had power to make recess appointments, Senate v. McMaster, 425 S.C.

315, 821 S.E.2d 908 (2018), and to remove a board member from a public utility. Hodges, 341

S.C. 79, 533 S.E.2d 578.

This matter implicates those same concerns, but the stakes are far higher. Like Lucas, it

concerns a disputed budget proviso and like Davis, McMaster, and Hodges, it asks whether a

government actor has eclipsed the scope of his power. Attorneys general in this State have long

opined on legal matter to give guidance to other public officials and public bodies. E.g., S.C. Code

Ann. § 1-7-90 (authorizing opinions on question of law submitted by the Governor or branch of

the legislature). But the Attorney General’s interpretive act here is separate and apart from that

ordinary function; he has given new meaning and intent to a law that required neither. It is more

akin to writing law than interpreting it, a power reserved for the General Assembly. If an attorney

general can quite literally give entirely new meaning to otherwise plain words, and then use his

own interpretation to coerce other departments of the government to conform to that view, then

the power of that office is far greater than the legislature acting as a whole. Not even the Court—

a coequal branch—claims such authority. Cf. Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 342,

713 S.E.2d 278, 283 (2011) (“Where the statute’s language is plain, unambiguous, and conveys a

clear, definite meaning, the rules of statutory interpretation are not needed and the court has no

right to impose another meaning.”).

Further, the stakes of this dispute are literally a matter of life and death. Medical science is

clear that masking dramatically reduces the transmission rate of COVID-19 and the most recent

public health data indicates the Delta variant is being contracted and spread by vaccinated persons.

8
See Ex. A ¶¶ 13–17. The University did the right thing—it followed the facts—but has been

frustrated by the Attorney General. By comparison, this dispute is certainly more consequential to

the public health and welfare than the one-subject rule, recess appointments, or the board member’s

tenure at a public utility. The better analogs here are the Court’s decisions last year to twice grant

original jurisdiction to consider the sufficiency of election procedures to protect vulnerable voters

from contracting the coronavirus at the polls. See Bailey v. S.C. State Election Comm’n, 430 S.C.

268, 844 S.E.2d 390 (2020); Duggins v. Lucas, 431 S.C. 115, 115, 847 S.E.2d 793 (2020), reh’g

denied (Sept. 30, 2020). In light of the University’s decision to accede to the Attorney General’s

demand, this dispute rises to that same level of urgency and public interest.

In-person instruction at the University resumes in just 14 days with other public institutions

also reconvening and unable to order universal masking. The Court is the only forum capable of

decisively ending this controversy and giving statewide guidance to all public institutions.

III. Prof. Creswick has standing.

Finally, the Attorney General is likely to defend this claim on the grounds that it should

not be heard because Prof. Creswick lacks standing. That is not correct. A litigant can have

standing to sue (1) by statute, (2) through the rubric of constitutional standing, or (3) under the

“public importance” exception. ATC S., Inc. v. Charleston Cty., 380 S.C. 191, 195, 669 S.E.2d

337, 339 (2008). Here, Prof. Creswick has constitutional and public importance standing.

A. Constitutional standing.

Constitutional standing exists where a plaintiff has an injury in fact, a causal connection

between the conduct and the injury, and can redress that injury with a favorable judicial decision.

ATC S., 380 S.C. at 195, 669 S.E.2d at 339 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

9
560–61 (1992)). Under this standard, the injury must be sufficiently concrete and particularized,

not speculative or hypothetical. Id. All of these elements are met here.

Prof. Creswick has a real, concrete, scientifically measurable fear that the Attorney

General’s disallowance of the University’s universal mask mandate will cause him to contract the

Delta variant. See Ex. A ¶¶ 9–17 (detailing public health findings about Delta). Contracting the

virus not only places him at risk, but it also places his immunocompromised spouse at risk while

she continues being treated for cancer. Id. ¶¶ 26–28. These are real and tangible harms that will

flow from requiring Prof. Creswick to expose himself to unmasked, unvaccinated individuals in a

congregate classroom setting and comports with the Court’s directive that “a private person may

not invoke the judicial power to determine the validity of executive or legislative action unless he

has sustained, or is in immediate danger of sustaining, prejudice therefrom.” ATC S., 380 S.C. at

196, 669 S.E.2d at 339 (quoting Evins v. Richland County Historic Pres. Comm’n, 341 S.C. 15,

21, 532 S.E.2d 876, 879 (2000)). Further, granting Prof. Creswick relief by declaring that Proviso

No. 117.190 does not prohibit a universal mask mandate is almost certain to redress the injury

since the University has already attempted to follow CDC’s guidance by ordering universal, indoor

masking and would likely reinstate the mandate in response to a favorable declaration by the Court.

Accordingly, the Court should conclude that Prof. Creswick has constitutional standing.

B. Public importance standing.

Prof. Creswick also has standing under the public importance exception to the standing

doctrine. Under the public importance exception, “standing may be conferred upon a party when

an issue is of such public importance as to require its resolution for future guidance … without

requiring the plaintiff to show he has an interest greater than other potential plaintiffs.” ATC S.,

10
380 S.C. at 198, 669 S.E.2d at 341 (quoting Davis v. Richland County Council, 372 S.C. 497, 500,

642 S.E.2d 740, 741 (2007)).

Here, Prof. Creswick has an interest greater than other potential plaintiffs: his own health

and that of his immunocompromised spouse. Nevertheless, the exception also applies because this

case concerns a legal interpretation that bars the State’s largest public university and all other

public institutions of higher learning from enacting universal mask mandates. There is no evidence

the pandemic is about to recede; to the contrary, the Delta variant is spreading, particularly in parts

of the country, like South Carolina, with relatively low vaccination rates. Community spread is

growing, and universities are an ideal place for that spread to occur and for infected persons to

then spread the disease further into surrounding communities. Universal masking stops this

transmission, but not so long as the Attorney General’s guidance stands, and public institutions

feel obligated to follow it.

The Court has emphasized that “[t]he key to the public importance analysis is whether a

resolution is needed for future guidance. It is this concept of ‘future guidance’ that gives meaning

to an issue which transcends a purely private matter and rises to the level of public importance.”

ATC S., 380 S.C. at 199, 669 S.E.2d at 341. Applying that standard, the Court should conclude

the standing exception is appropriate here.

CONCLUSION

The petition for original jurisdiction should be granted with leave to file the proposed

verified complaint. Respondents’ time to respond to the petition and complaint should be shortened

and any discovery and briefing expedited to allow the Court to reach a decision prior to the August

19, 2021 beginning of the Fall 2021 semester. Further, declaratory relief is warranted. The Court

should hold that Proviso No. 117.190 does not prohibit the University of South Carolina or any

11
public institution of higher learning from enacting a universal mask mandate inside campus

buildings and order any further relief the Court deems just and proper.

Respectfully submitted,

s/Christopher P. Kenney
Richard A. Harpootlian (SC Bar No. 2725)
Christopher P. Kenney (SC Bar No. 100147)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street (29201)
Post Office Box 1090
Columbia, South Carolina 29202
(803) 252-4848
(803) 252-4810 (facsimile)
[email protected]
[email protected]

ATTORNEYS FOR PETITIONER

RICHARD J. CRESWICK
August 5, 2021
Columbia, South Carolina.

12
 Aug 05 2021

Exhibit A
(Petitioner’s Proposed Complaint)
Exhibit A – Petitioner’s proposed complaint

IN THE ORIGINAL JURISDICTION

OF THE SOUTH CAROLINA SUPREME COURT

Richard J. Creswick,

Plaintiff, No. _______________________

v.

University of South Carolina and

Alan Wilson in his official capacity as [PROPOSED]
Attorney General, COMPLAINT

Defendants.

Plaintiff Richard J. Creswick would respectfully show this Honorable Court as follows:

JURISDICTION AND PARTIES

1. The Court has subject matter jurisdiction under article V, § 5 of the South Carolina

Constitution and personal jurisdiction over all Defendants.

2. Plaintiff Richard J. Creswick is a citizen of the State of South Carolina, a resident

of Richland County. He is a Professor of Physics and Astronomy and a researcher in particle

astrophysics at the University of South Carolina’s College of Arts and Sciences. As such, he is

expected to give in-person classroom instruction to the University’s undergraduate and graduate

students at the University’s main campus in Columbia, South Carolina.

3. Defendant University of South Carolina is a body corporate and politic, in deed and

in law, as provided by South Carolina Code § 59-117-40.

4. Defendant Alan Wilson is the Attorney General of the State of South Carolina.

FACTS

5. Since March 2020, the State of South Carolina has been grappling with COVID-

19, a highly communicable respiratory disease caused by a novel coronavirus called SARS-CoV-

2 that has spread throughout the world, including to all corners of the United States.

1
Exhibit A – Petitioner’s proposed complaint

6. On December 11, 2020, the U.S. Food and Drug Administration issued its first

emergency use authorization (EUA) for a vaccine for use by individuals 16 years of age and older

to prevent COVID-19. Several other vaccines subsequently received EUA, and the United States

has since obtain a sufficient supply of vaccine for every American adult to be vaccinated.

7. Nevertheless, vaccination rates in the United States and South Carolina specifically

have lagged behind what public health officials had hoped to achieve to stem the spread of the

virus. For instance, on August 2, 2021, THE STATE Newspaper reported that just 45% of South

Carolina residents are fully vaccinated and approximately 51% have received at least one dose. 1

8. Meanwhile, variants of the novel coronavirus have been observed by public health

officials in the United States and around the world.

9. One such variant, the B.1.617.2 “Delta” variant, was identified in India in

December 2020 and has since spread through the world, including in the United States.

10. From June 19, 2021 to July 23, 2021, COVID-19 cases increased approximately

300% nationally, followed by increases in hospitalizations and deaths, driven by the highly

transmissible Delta variant. 2

11. According to Dr. Rochelle P. Walensky, the director of the Centers for Disease

Control and Prevention (CDC), the Delta variant is “more aggressive and much more

1
Bailey Aldridge and Tanasia Kenney, “COVID vaccine live updates: Here’s what to know in
South Carolina on Aug. 2,” THE STATE (Aug. 2, 2021), available at:
https://www.thestate.com/news/coronavirus/article253184473.html.
2
Athalia Christie, MIA et al, “Guidance for Implementing COVID-19 Prevention Strategies in the
Context of Varying Community Transmission Levels and Vaccination Coverage,” CDC website
(July 30, 2021), available at: https://www.cdc.gov/mmwr/volumes/70/wr/mm7030e2.htm.

2
Exhibit A – Petitioner’s proposed complaint

transmissible” than prior strains of the virus and is “one of the most infectious respiratory viruses

we know if and that [she has] seen in [her] 20-year career.” 3

12. The head of the University of Alabama at Birmingham’s Infectious Disease

Division, Dr. Jeanne Marrazzo says the Delta variant is more infectious than other routine

respiratory virus the United States has dealt with in our lifetime, and is more infectious than

smallpox, the original SARs, and even Ebola. 4

13. While vaccines continue to provide protection against Delta from extreme illness

and death, CDC has observed fully vaccinated persons becoming infected and transmitting Delta.

14. Generally, this has caused the number of COVID-19 cases to surge throughout most

of the country, including in South Carolina.

15. In response to the rising number of “breakthrough” infections driven by the Delta

variant, on July 27, 2021, CDC revised its guidance concerning the use of face masks by vaccinated

persons and recommended that even vaccinated people should resume wearing masks in public

indoor spaces in parts of the country where the virus is surging. 5

16. The public health authority advised (in part) that:

Emerging evidence suggests that fully vaccinated persons who do become infected
with the Delta variant are at risk for transmitting it to others (2), (CDC COVID-19
Response Team, unpublished data, 2021); therefore, CDC also recommends that
fully vaccinated persons wear a mask in public indoor settings in areas of
substantial or high transmission, and consider wearing a mask regardless of
transmission level if they or someone in their household is immunocompromised
or at increased risk for severe disease, or if someone in their household is

3
Emily Anthes, “The Delta Variant: What Scientists Know,” NEW YORK TIMES (June 22, 2021),
available at: https://www.nytimes.com/2021/06/22/health/delta-variant-covid.html.
4
Josh Gauntt, “Dr. Marrazzo: Delta variant more contagious than smallpox, Ebola,” WBRC Fox
6 News website (Aug. 2, 2021), available at: https://www.wbrc.com/2021/08/03/dr-marrazzo-
delta-variant-more-contagious-than-smallpox-ebola/.
5
See Christie, supra.

3
Exhibit A – Petitioner’s proposed complaint

unvaccinated (including children aged <12 years who are currently ineligible for
vaccination). 6

17. According to CDC, 44 of 46 counties in South Carolina—including Richland

County where the University of South Carolina’s main campus is located—are recording “high”

levels of community transmission of the virus. 7

18. Meanwhile, on July 23, 2021, the University’s President, a former professor of

epidemiology, Dr. Harris Pastides, sent an email communication to the University community

addressing COVID-19 guidelines for Fall 2021. In relevant part, President Pastides announced:

Face Coverings:

• Face coverings will be required in the Center for Health and Well-Being
and Thomson Student Health Center. They are also required on shuttles,
buses and other forms of university transportation.

• Because face coverings have been proven effective in mitigating the

spread of COVID-19, we encourage everyone on campus to wear one
indoors whenever physical distancing is not possible. If you are not
vaccinated, you are strongly encouraged to take this simple step to protect
yourself and others.

19. Then, on July 30, 2021, and in response to CDC’s new July 27 masking guidance,

President Pastides issued a new email directive to the University stating, in relevant part:

Beginning on July 30, the university is requiring face coverings to be worn at

all times inside all campus buildings, unless you are in your own residence hall
room, private office or you are eating inside campus dining facilities. You are
not required to wear a face covering when you are outdoors. We will continue to
keep our COVID-19 site updated with the latest information.

(Bold original, hyperlink omitted).

6
Id.
7
COVID-19 Integrated County View for July 28, 2021 to Aug. 3, 2021, CDC website (last
accessed Aug. 4, 2021), available at: https://covid.cdc.gov/covid-data-tracker/#county-view.

4
Exhibit A – Petitioner’s proposed complaint

20. On August 2, 2021, Attorney General Wilson sent a letter to President Pastides

contending that certain budget provisos in the South Carolina Appropriation Act of 2021 bar the

University from enacting a universal mask mandate on campus. A true and correct copy of the

Attorney General’s letter is attached as Exhibit 1. The Attorney General’s letter cited Proviso Nos.

117.163 and 117.190.

21. Proviso 117.163 prohibits state-supported institutions of higher learning (like the

University) from requiring proof of COVID-19 vaccination from any student as a condition of

enrollment, attendance, or residence. Proviso 117.190 requires that a public institution of higher

learning from requiring unvaccinated students to wear a face mask.

22. But the Attorney General’s letter concluded Proviso 117.190 prohibits the

University from enacting a universal mask mandate for all persons—unvaccinated and vaccinated

alike—inside University buildings. He claimed the proviso was “inartfully worded” but should

nevertheless be read “to prohibit the mandatory wearing of masks[.]”

23. On August 3, 2021, President Pastides issued another statement concerning the

University’s face covering policy, explaining (in relevant part):

Yesterday, the University of South Carolina received a legal opinion from S.C.
Attorney General Alan Wilson stating that the General Assembly intended to
prohibit public universities from requiring the wearing of masks in their buildings.
In light of this opinion, the university will not require anyone to wear face coverings
in our buildings, except when in university health care facilities and when utilizing
campus public transportation, effective August 3. We continue to strongly
encourage the use of face coverings indoors, except in private offices or residence
hall rooms or while eating in campus dining facilities. 8

24. Accordingly, when students and faculty return to campus for new student

convocation on August 18, 2021 and in-person instruction on August 19, 2021 for the Fall 2021

8
Harris Pastides, “Statement on UofSC Face Covering Policy”, USC website, available at:
https://www.sc.edu/safety/coronavirus/messages/2021/aug_3_statement_face_coverings.php.

5
Exhibit A – Petitioner’s proposed complaint

semester, they will not be required to wear masks in the classroom or any other building aside

from health care facilities.

25. On August 5, 2021, the Attorney General told supporters, “It’s not about

science…”, in an email (Exhibit 2) soliciting campaign contributions as a reward for his

interference in public health measures. He wrote:

The fight over vaccines and masks has never been about science or health. It’s about
expanding the government's control over our daily lives. I won’t stand for it.

That’s why I stood up to University administrators when they tried to burden our
students with a confusing, unlawful COVID vaccine policy. It’s why I will continue
fighting to stop vaccine passports and mandates.

Say NO To Vaccine Mandates [linking to contribution page]

I believe that you, and all of South Carolina's citizens, are able to make your own
choice about what is right for yourself and your family. The government has NO
authority to take that freedom away from you.

The unelected bureaucrats at the CDC and liberal politicians at every level of
government are determined to use the COVID crisis as an excuse to dramatically
expand their interference in, and control over, every decision YOU make. They
won’t get away with it.

Join me today and help me take a stand, once and for all, to preserve our liberty and
keep COVID vaccine mandates out of South Carolina.

$10 [linking to contribution page]

$25 [linking to contribution page]

$50 [linking to contribution page]

$100 [linking to contribution page]

Thank you for your continued vigilance as we fight to keep our state and nation
free.

Alan

Ex. 2.

6
Exhibit A – Petitioner’s proposed complaint

26. Professor Creswick is 69 years old. He is vaccinated and he lives with his wife who

is 73 years old and is also vaccinated.

27. However, Prof. Creswick’s wife is immunocompromised. Since 2020, she has been

treated for breast cancer at MD Anderson. She recently finished a six (6) week round of radiation

and has a procedure scheduled for Friday, August 13. She will remain immunocompromised for

the foreseeable future and is therefore at high risk of contracting a breakthrough case of COVID-

19 that could result in serious illness or death.

28. Prof. Creswick’s presence in the classroom with unmasked and unvaccinated

students greatly increases his risk of contracting the Delta variant. Because he is vaccinated, he is

unlikely to suffer serious illness or death, but accordingly to CDC’s latest observations of Delta,

he is able to pass the virus to his wife even if he himself has no symptoms.

29. Thus, the University’s policy, as dictated by the Attorney General, is contrary to

CDC guidance and unnecessarily places Prof. Creswick and his immunocompromised wife in

grave danger of serious illness or death.

30. But for the Attorney General intervention in the University’s affairs, the University

would (and did) enact a universal mask mandate that complies with Proviso Nos. 117.163 and

117.190 and keeps faculty, staff, and students safe from the highly infectious Delta variant.

FOR A FIRST CAUSE OF ACTION

(Declaratory Relief)

31. Each of the paragraphs above is incorporated here verbatim.

32. This is a concrete legal dispute of great public health importance that will affect the

University of South Carolina and the faculty, staff, students, and communities surrounding the

University’s eight (8) campuses located through the State of South Carolina.

7
Exhibit A – Petitioner’s proposed complaint

33. Moreover, if left uncorrected, the Attorney General’s opinion is likely to chill other

public institutions of higher learning and possibly institutions supported by public funds from

following CDC masking guidance.

34. The Attorney General’s reading of Proviso 117.190 to prohibit the University from

enacting a universal mask mandate is legally flawed.

35. Pursuant to article V, § 5 of the Constitution and the Uniform Declaratory Judgment

Act, S.C. Code Ann. §§ 15-53-10 et seq., the Court should declare:

a. The text of Proviso 117.190 is plain and unambiguous and requires

no construction to discern its meaning or intent;

b. The clear meaning and intent of the proviso simply prohibits a

discriminatory masking policy that requires un-vaccinated persons

to mask while the vaccinated are not subject to the same mandate;

c. Further, the proviso does not prohibit institutions of higher learning

or any institution supported by public money from enacting a

universal mask mandate that applies equally to everyone; and

d. The University of South Carolina’s July 27 enactment of a universal

mask mandate was lawful and may be re-implemented at the

discretion of the appropriate University leadership without fear of

legal coercion by the Attorney General.

36. The Court should enter a final judgment declaring these rights in favor of Plaintiff

and against Defendants.

8
Exhibit A – Petitioner’s proposed complaint

PRAYER

37. Wherefore, after an expedited hearing, the Court should grant declaratory relief as

set forth above and grant such further relief as the Court deems just and proper.

Respectfully submitted,

s/Christopher P. Kenney
Richard A. Harpootlian (SC Bar No. 2725)
Christopher P. Kenney (SC Bar No. 100147)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street (29201)
Post Office Box 1090
Columbia, SC 29202
(803) 252-4848
(803) 252-4810 (facsimile)
[email protected]
[email protected]

ATTORNEYS FOR PLAINTIFF

RICHARD J. CRESWICK

August 5, 2021
Columbia, South Carolina.

9
Exhibit A – Petitioner’s proposed complaint

Exhibit 1
(Ltr. A. Wilson to H. Pastides)
Exhibit A – Petitioner’s proposed complaint

Exhibit 2
(A. Wilson campaign email)