Baddourah v. McMaster

• Decision Date: 10 March 2021
• Docket Number: Opinion No. 28013,Appellate Case No. 2017-002576
• Citation: 856 S.E.2d 561,433 S.C. 89
• Court: South Carolina Supreme Court
• Parties: Mohsen A. BADDOURAH, as a member 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.

433 S.C. 89

856 S.E.2d 561

Mohsen A. BADDOURAH, as a member 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

Opinion No. 28013

Supreme Court of South Carolina.

Heard October 14, 2020

Filed March 10, 2021

Tobias G. Ward Jr. and J. Derrick Jackson, of Tobias G. Ward, Jr., PA, Joseph M. McCulloch Jr., and Kathy R. Schillaci, all of Columbia, 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 position 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 circuit 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 domestic 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 dismissed Baddourah's complaint on the ground the court lacked subject matter jurisdiction and, alternatively, for failure to state a cause of action. We affirm as modified.

I. FACTS

Baddourah was elected to his second term 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 midst of a divorce and custody battle when he was arrested for an alleged altercation involving his estranged wife. He was subsequently indicted on a charge of second-degree domestic violence.

On March 13, 2017, the Governor issued Executive Order 2017-05, finding second-degree domestic violence is a crime of moral turpitude¹ and suspending Baddourah from his position as a member of the Columbia City Council pursuant to article VI, section 8 of the South Carolina Constitution "until ... the above-referenced charge is resolved, at which time 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, Baddourah filed a declaratory judgment action in the circuit court in July 2017. Baddourah asserted that, while the Governor may suspend any officer of the state or its political subdivisions who has been indicted for a crime involving moral turpitude, South Carolina's Constitution includes an exception for "members and officers of the Legislative and Judicial Branches," citing S.C. Const. art. VI, § 8. Baddourah sought 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 Branch 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 moral turpitude. In addition, Baddourah sought a mandatory injunction staying enforcement of the Executive Order and an award of attorney's fees.

By order filed November 9, 2017, the 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 suspension power is discretionary and under the separation of powers doctrine of the South 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 that, 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 dismissed 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 constitution indicated that "Legislative Branch" was meant to refer to members of the South Carolina General Assembly. The circuit court further found that it "need not reach or decide the question of whether Domestic Violence, Second Degree, 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 meaning must be determined by the Governor in his sole discretion.

Baddourah appealed to the court of appeals, and this Court certified the appeal for review pursuant to Rule 204(b), SCACR. See Baddourah v. McMaster , Appellate Case No. 2017-002576, S.C. Sup. Ct. Order dated June 16, 2020.

II. DISCUSSION

On appeal, Baddourah argues the circuit 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 action, 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. Baddourah 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 ended and suggesting the appeal should be dismissed for mootness.² We decline to dismiss the appeal under the circumstances present here. Baddourah promptly challenged the Executive Order when he was first suspended in 2017, but the litigation continued over an extended period, before this Court's certification of the appeal. Moreover, 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 questions 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 court may take appellate jurisdiction, despite the mootness of a specific case, if the 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 they implicate" and concluding such cases "clearly fit[ ] into the evading review exception of the mootness doctrine").

A. Subject Matter Jurisdiction

Baddourah contends the circuit court erred in dismissing his complaint under Rule 12(b)(1), SCRCP after finding it lacked 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 South Carolina Constitution. In particular, article VI, section 8 states the Governor has the power to suspend officers of the state and its political subdivisions under 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 have 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 question to the Governor, in the exercise of his discretion, and makes clear that the Governor's suspension authority is neither automatic nor ministerial." The 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 separation of powers provision of the South Carolina Constitution. Accordingly, the circuit court found dismissal was proper because it lacked subject matter 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 shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.").

We hold the circuit court erred in finding it lacked subject matter jurisdiction in this case. Baddourah alleged the Governor did not have the power to suspend him under article VI, section 8 of the South 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. The circuit court was asked to make legal determinations—whether Baddourah qualifies as a member of the Legislative Branch and whether the offense qualifies...