CHARLESTON SCHOOL DIST. v. ELECTION COM'N, 24980.

Citation519 S.E.2d 567,336 S.C. 174
Decision Date02 August 1999
Docket NumberNo. 24980.,24980.
PartiesCHARLESTON COUNTY SCHOOL DISTRICT, Respondent, v. CHARLESTON COUNTY ELECTION COMMISSION and State of South Carolina Election Commission, of whom State of South Carolina Election Commission is Appellant.
CourtUnited States State Supreme Court of South Carolina

Attorney General Charles M. Condon, Deputy Attorney General Treva G. Ashworth, Assistant and Deputy Attorney General J. Emory Smith, Jr., all of Columbia, for appellant.

Robert N. Rosen, Donald B. Clark, and Daniel F. Blanchard, all of Rosen, Goodstein, and Hagood, of Charleston, for respondent.

WALLER, Justice:

The circuit court, at the request of the Charleston County School District (District), issued a writ of mandamus directing the Charleston County Election Commission (County Commission) to post and distribute a supplemental ballot handout to voters at each precinct during a $350 million school bond referendum. The South Carolina State Election Commission (State Commission) appeals. We reverse.

FACTS

District's Board of Trustees adopted a resolution in January 1998 calling for a $350 million bond referendum to build or renovate 76 schools. District directed County Commission to conduct an election March 28, 1998.

The ballot form prepared by District for placement on electronic voting machines consisted of text the length of twelve typewritten pages. The ballot form stated the question,1 then briefly listed specific renovations and additions that would occur at each school. County Commission, after consulting with State Commission, informed District the ballot form as proposed was too long to fit on the machines. Neither District nor County Commission wanted to use paper ballots.

After further discussion, County Commission agreed to place a summarized version of the question on the machines containing only the question and a list of affected schools. County Commission also agreed to post and distribute to voters at each precinct a twelve-page supplemental ballot handout (titled "Official Ballot Handout") containing the complete list of specific renovations and additions, along with the total estimated amount to be spent at each school. The Charleston County seal was placed at the top of the first page of the handout, a change that was informally approved only by County Commission's chairman. District printed 190,000 copies of the handout at a cost of $12,000. District also sought and obtained election pre-clearance from the United States Department of Justice in accordance with the Voting Rights Act of 1965. County Commission reversed its position at a meeting March 10, 1998. County commissioners stated in affidavits that State Election Commission Chairman Sam Howell's statements against distributing the handout, letters and comments from state legislators opposing the handout, and changes made by District in the handout, including the addition of the county seal, prompted them to refuse to distribute it. Commissioners believed the handout violated S.C.Code Ann. § 7-25-180 (Supp.1998), which prohibits the distribution of "campaign literature" within 200 feet of any polling place.

District filed a complaint and a motion seeking a writ of mandamus and mandatory injunction under Rule 65(f), SCRCP. District's complaint included a declaratory judgment action pursuant to S.C.Code Ann. § 15-53-30 (1976). County Commission and State Commission opposed District's request. The circuit court granted the motion for a writ of mandamus and ordered County Commission to post and distribute the handout. The order did not address the declaratory judgment action. County Commission complied with the order. A majority of voters rejected the bond referendum.

STANDARD OF REVIEW

"Mandamus is somewhat of a hybrid proceeding. It is not a suit in tort, nor is it a suit in contract; it is not strictly a law case, nor is it one in equity. It is based on the theory that an officer charged with a purely ministerial duty can be compelled to perform that duty in case of refusal." Lombard Iron Works & Supply Co. v. Town of Allendale, 187 S.C. 89, 95-96, 196 S.E. 513, 516 (1938). Whether to issue a writ of mandamus lies within the sound discretion of the trial court, and an appellate court will not overturn that decision unless the trial court abuses its discretion. Jolly v. Marion Nat'l Bank, 267 S.C. 681, 685-86, 231 S.E.2d 206, 208 (1976); Linton v. Gaillard, 203 S.C. 19, 23, 25 S.E.2d 896, 898 (1943). An abuse of discretion arises where the trial court was controlled by an error of law or where its order is based on factual conclusions that are without evidentiary support. Tri-County Ice and Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990). In reviewing a decision on a mandamus petition, an appellate court will not disturb the factual findings of the trial court when those findings are supported by any reasonable evidence. De Pass v. Broad River Power Co., 173 S.C. 387, 395, 176 S.E. 325, 328 (1934).

ISSUES
1. Is this appeal moot?
2. Does State Commission have standing to appeal this case?
3. Did the circuit court err in issuing a writ of mandamus directing County Commission to post and distribute a supplemental ballot handout?
DISCUSSION
1. MOOTNESS

District contends the Court should not hear this appeal because the case is moot. The handout was posted and distributed, the referendum failed, and no one appealed the outcome of the election. We disagree.

"This Court will not pass on moot and academic questions or make an adjudication where there remains no actual controversy. Mootness has been defined as follows: `A case becomes moot when judgment, if rendered, will have no practical legal effect upon existing controversy. This is true when some event occurs making it impossible for [the] reviewing Court to grant effectual relief.'" Byrd v. Irmo High School, 321 S.C. 426, 431, 468 S.E.2d 861, 864 (1996) (citations omitted). A court may take jurisdiction, despite mootness, if "the issue raised is `capable of repetition but evading review.'" Id. (citing In Interest of Darlene C., 278 S.C. 664, 665, 301 S.E.2d 136, 137 (1983)).

We choose to decide this appeal even though this particular case is moot. The same situation could arise again and it is unlikely an appellate court would resolve such a case before an election was held.

2. STANDING

District asserts State Commission lacks standing to adjudicate the rights of County Commission, which is not a party to this appeal, before this Court. State Commission is not responsible for conducting local elections, but merely provides advice and technical assistance, District contends. We disagree.

To have standing, one must have a personal stake in the subject matter of the lawsuit, i.e., one must be a real party in interest. Glaze v. Grooms, 324 S.C. 249, 255, 478 S.E.2d 841, 845 (1996); Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996). "A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action." Anchor Point Inc. v. Shoals Sewer Co., 308 S.C. 422, 428, 418 S.E.2d 546, 549 (1992).

State Commission has standing to pursue this appeal because it has significant duties regarding ballot forms which give it a real and substantial interest in this case. E.g., S.C.Code Ann. § 7-13-320 (1976 & Supp.1998) (ballot standards and specifications); S.C.Code Ann. § 7-13-325 (Supp. 1998) (develop regulations and forms on candidate's name as it appears on ballot); S.C.Code Ann. §§ 7-13-330 and -335 (1976 & Supp.1998) (arrangement of names and offices on ballot); S.C.Code Ann. § 7-13-340 (1976) (prepare and distribute all state and national ballots); S.C.Code Ann. § 7-13-400 (1976) (form of ballot for bond referendum or other question); S.C.Code Ann. § 7-13-610 (Supp.1998) (preparation of certain primary ballots); S.C.Code Ann. § 7-13-611 (Supp.1998) (establishing sample "official ballot" and giving State Commission power to promulgate regulations on county and state ballots); S.C.Code Ann. § 7-13-1360(c) and -1370 (1976) (prescribe form and arrangement of ballot labels and ballot cards used in vote recorders); S.C.Code Ann. § 7-13-1490 (1976) (promulgate regulations on use of vote recorders).

Furthermore, State Commission may appeal because District named it as a party in its complaint and motion, and the circuit court named it as a party in its order. See Rule 201(b), SCACR ("[o]nly a party aggrieved by an order, judgment, or sentence may appeal").

3. WRIT OF MANDAMUS

State Commission asserts the circuit court erred in issuing a writ of mandamus because (1) no established right exists to the use of a handout in a bond referendum; (2) any decision on the use of a handout was for County Commission to make, not District; (3) District had an adequate remedy at law because it could have delayed the election to resolve the handout issue; and (4) a supplemental ballot handout on a bond referendum is not authorized by statute or case law.

District contends mandamus was proper because (1) District has the authority to write the question to be placed on the ballot form, and County Commission must merely carry out its ministerial duty by conducting the election as ordered; (2) District did not have time before the election to engage in protracted litigation to enforce its rights; (3) no statute prohibits supplemental ballot handouts; and (4) the handout was not forbidden "campaign literature," but was merely the full, unbiased text of the public measure at issue and was permissible under the statutes and this Court's precedent.

"The writ of mandamus is the highest judicial writ known to the law.... The primary purpose or function of a writ of mandamus is to enforce an established right, and to enforce a corresponding imperative duty created or imposed by law. It is designed to promote justice, subject...

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