City of Charleston v. Masi

• Decision Date: 14 February 2005
• Docket Number: No. 25941.,25941.
• Citation: 609 S.E.2d 301,362 S.C. 505
• Parties: CITY OF CHARLESTON, a Municipal Corporation, Robert B. Kizer, and Laura Cabiness, Appellants/Respondents, v. Thomas J. MASI, Margaret B. Schwochow, John L. Chisolm, Carolyn L. Collins, and June D. Smith, in their capacities as The Charleston County Election Commission, Gertrude D. Brown, Flora P. Condon, Louise M. Hill, Alice K. Mitchell, and Beverly A. Whitney, in their capacities as The Board of Elections and Voter Registration of Charleston County, Respondents, and The James Island Public Service District, Respondent/Appellant.
• Court: South Carolina Supreme Court

362 S.C. 505

609 S.E.2d 301

CITY OF CHARLESTON, a Municipal Corporation, Robert B. Kizer, and Laura Cabiness, Appellants/Respondents, v. Thomas J. MASI, Margaret B. Schwochow, John L. Chisolm, Carolyn L. Collins, and June D. Smith, in their capacities as The Charleston County Election Commission, Gertrude D. Brown, Flora P. Condon, Louise M. Hill, Alice K. Mitchell, and Beverly A. Whitney, in their capacities as The Board of Elections and Voter Registration of Charleston County, Respondents, and The James Island Public Service District, Respondent/Appellant.

No. 25941.

Supreme Court of South Carolina.

Heard January 4, 2005.

Decided February 14, 2005.

Susan Jeanne Herdina, of Charleston; Timothy A. Domin, of Clawson & Staubes, L.L.C., of Charleston; William B. Regan and Frances I. Cantwell, of Regan and Cantwell, L.L.C., of Charleston, for appellants/respondents.

Samuel W. Howell, IV, of Howell & Linkous, L.L.C., of Charleston, for respondents.

Trent M. Kernodle, David A. Root, Christine C. Varnado, and Robert B. Varnado, of Kernodle, Taylor & Root, of Charleston, for respondent/appellant.

PER CURIAM:

We dismiss this action as moot and find the trial court did not err by failing to award attorney's fees to the James Island Public Service District (District).

FACTS

In June 2002, the Town of James Island (Town) was formed. Thereafter, an action was commenced by the City of Charleston (City), a resident and elector of the City who lives on James Island (Kizer), and a taxpayer and elector of the Town (Cabiness) (jointly referred to as City unless otherwise noted). The complaint sought injunctive relief and declaratory relief as to who, after the incorporation of the Town, was entitled to vote in the District elections and to serve as District commissioners. The complaint alleged that as a function of the incorporation of the Town, which overlapped certain areas in the District, the territorial boundaries of the District were reduced such that Town residents should be prohibited from participating in District elections.

A general election for District commissioners was scheduled for November 5, 2002. The City's motion for a preliminary injunction to stay the November election was denied after a hearing. This matter was heard on the merits and the circuit court issued an order declining to decide the issues raised by the City. The circuit court also denied the District's motion for attorney's fees. Both the City and the District appealed.

Subsequent to the filing of this appeal, this Court found the Town of James Island to be a nullity because it had been created by unconstitutional special legislation. Kizer v. Clark, 360 S.C. 86, 600 S.E.2d 529 (2004).

ISSUES

I. Is the City's action moot?

II. Did the trial court err by failing to award the District attorney's fees?

DISCUSSION

I

We find the District correctly argues that this case regarding the Town residents' entitlement to vote in the District elections and the entitlement to serve as a District commissioner is moot given that the Town is a nullity. Our opinion in Kizer v. Clark, supra,

rendered the case nonjusticiable because a judgment, if rendered, would not have any practical legal effect given the Town was deemed nonexistent. See Curtis v. State, 345 S.C. 557, 549 S.E.2d 591 (2001),

cert. denied, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002) (case becomes moot when judgment, if rendered, will have no practical legal effect upon existing controversy); Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996) (justiciable controversy is real and substantial controversy appropriate for judicial determination, as opposed to dispute or difference of contingent, hypothetical or abstract character).

The City argues, however, that the Court should decide the issues involved because they are capable of repetition yet evade review and because the issues involve matters of important public interest. We find neither exception is met in this case.

Regarding the exception that a court can take jurisdiction, despite mootness, if the issue raised is capable of repetition but evading review, we find that while the questions involved could arise again, the questions will not "usually become moot" before they can be reviewed. See South Carolina Dep't of Mental Health v. State, 301 S.C. 75, 390 S.E.2d 185 (1990)

(although specific case is moot, appeal allowed because raises question that is capable of repetition, but which usually becomes moot before it can be reviewed). Further, the issues involved do not appear to present a "recurring dilemma" which the Court needs to address to clarify the law. See Evans v. South Carolina Dep't of Social Servs., 303 S.C. 108, 399 S.E.2d 156 (1990) (although development renders case moot, controversy presents a recurring dilemma which the Court will address to clarify the law).

The other exception the City argues is that questions of public interest originally encompassed in an action should be decided for future guidance, however abstract or moot they may have become in the immediate contest. Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947); Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459 (1951) (same). However, pursuant to our opinion in Sloan v. Greenville County, 361 S.C. 568, 606 S.E.2d 464 (2004), we find this case does not fit within the public importance exception to mootness because there is no imperative or manifest urgency in obtaining a decision on whether Town residents can vote in the District's election when the Town does not exist. Further, while ensuring voters are not improperly denied their right to vote in a particular election is important, the fact remains that the pertinent issue does not present a recurring dilemma such that this issue should be addressed to clarify the law. Compare Sloan v. Greenville County, 356 S.C. 531, 590 S.E.2d 338 (Ct.App.2003)

(important public interest exists in stewardship of public funds and strong need exists to provide guidance for future procurement decisions) and Sloan v. Sch. Dist. of Greenville County, 342 S.C. 515, 537 S.E.2d 299 (Ct.App.2000) (same) with Sasser v. South Carolina Democratic Party, 277 S.C. 67, 282 S.E.2d 602 (1981) (appeal from circuit court order sustaining demurrers to petition to nullify results of primary election for political party's nomination to State House of Representatives was rendered moot, where general election had already occurred).

Accordingly, this case is dismissed...