Found v. S.C. Dep't of Transp. & John V. Walsh

• Decision Date: 14 September 2017
• Docket Number: Opinion No. 27738.
• Citation: 421 S.C. 110,804 S.E.2d 854
• Parties: SOUTH CAROLINA PUBLIC INTEREST FOUNDATION and Edward D. Sloan, individually, and on behalf of all others similarly situated, Petitioners, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION and John V. Walsh, Deputy Secretary of Transportation for Engineering, Respondents.
• Court: South Carolina Supreme Court

421 S.C. 110

804 S.E.2d 854

SOUTH CAROLINA PUBLIC INTEREST FOUNDATION and Edward D. Sloan, individually, and on behalf of all others similarly situated, Petitioners,

v.SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION and John V. Walsh, Deputy Secretary of Transportation for Engineering, Respondents.

Opinion No. 27738.

Supreme Court of South Carolina.

Heard January 12, 2016

Filed September 14, 2017

James G. Carpenter and Jennifer J. Miller, both of Greenville, for Petitioners.

Beacham O. Brooker, Jr., of SC Department of Transportation, of Columbia, for Respondents.

CHIEF JUSTICE BEATTY :

South Carolina Public Interest Foundation and Edward D. Sloan,¹ individually and on behalf of all others similarly situated ("Petitioners"), filed this declaratory judgment action against the South Carolina Department of Transportation ("SCDOT") and John V. Walsh, Deputy Secretary of Transportation for Engineering of SCDOT ("Respondents"). Petitioners sought a declaration that SCDOT's inspection of three privately owned bridges violated sections 5 and 11 of article X of the South Carolina Constitution,² which Petitioners assert prohibit the expenditure of public funds for a private purpose. The trial court granted Respondents' motion for summary judgment, finding: Petitioners lacked standing; the controversy was moot and did not fall under any of the exceptions to the mootness doctrine; and Respondents' actions were not ultra vires or unconstitutional. The Court of Appeals affirmed. S.C. Pub. Interest Found. v. S.C. Dep't of Transp. , 412 S.C. 18, 770 S.E.2d 399 (Ct. App. 2015). This Court granted Petitioners' request for a writ of certiorari. We reverse.

I. Factual and Procedural History

Aiken City Councilman Reggie Ebner is a resident of Woodside Plantation, a gated subdivision in the City of Aiken. In September of 2010, Ebner emailed then-State Representative Tom Young asking for guidance on "who is responsible for the design approval, construction inspection, safety requirements and final approval for bridges in the City of Aiken." In July of 2011, Young forwarded an email from his "constituent Reggie Ebner" to Walsh at SCDOT. In the email, Ebner requested SCDOT inspect three wooden bridges located within Woodside Plantation, which he alleged had engineering and construction flaws. Ebner signed the email "Reggie Ebner, City of Aiken Councilman for District 4." After receiving the email, SCDOT conducted an inspection of the three bridges and issued a report on its findings.³ SCDOT estimated the cost of the inspection was $1,400.

Following the inspection, the Office of the Chief Internal Auditor ("OCIA") for the Commission on the Department of Transportation investigated the propriety of Respondents' actions. In a report to former Secretary of Transportation Robert St. Onge, OCIA made several findings, including:

(1) The bridges are neither part of the State highway system nor are they owned or maintained by the City of Aiken;

(2) The request to inspect the bridges came from a city councilman, not from the City of Aiken;

(3) Prior to the inspection, SCDOT personnel made a direct inquiry to the City of Aiken and verified that the bridges were private property;

(4) SCDOT's employees warned Chief Engineer for Operations Clem Watson that it was against SCDOT's policy to inspect privately owned bridges;

(5) SCDOT had no obligation to inspect the bridges; and

(6) Walsh and Watson maintained their actions fell within a "grey area" of the law.

Petitioners subsequently filed this declaratory judgment action seeking a declaration that SCDOT's inspection of the privately owned bridges contravened the constitutional requirement that the expenditure of public funds serve a public purpose. After both parties moved for summary judgment, the trial court concluded: Petitioners lacked standing; the issue was moot; and no exceptions to the mootness doctrine applied. Nevertheless, the trial court proceeded to address the merits of the issue and determined the inspection was not unconstitutional because it did not solely benefit the homeowners in Woodside Plantation, but was for the health, safety, and welfare of the public at large. The trial court also found the inspection was not ultra vires because "the inspection of the bridges was legitimately within the City's police power and the decision by Walsh to assist it was well within the Department's enumerated powers to assist other governmental entities in areas of its expertise" under section 57-3-110 of the South Carolina Code.⁴

The Court of Appeals affirmed, concluding Petitioners did not have standing and the action did not fall under any exception to the mootness doctrine. S.C. Pub. Interest Found. , 412 S.C. at 24-28, 770 S.E.2d at 402-04. The Court of Appeals based its conclusion solely on its belief that SCDOT "conducted its own audit and concluded its own actions were improper." Id. at 24, 770 S.E.2d at 402. The Court of Appeals declined to reach the issues of whether Respondents' conduct was ultra vires or unconstitutional based on its disposition of the justiciability issues. Id. at 28, 770 S.E.2d at 404. This Court granted certiorari to review the decision of the Court of Appeals.

II. Standard of Review

When reviewing a grant of summary judgment, appellate courts apply the same standard that governs the trial court under Rule 56(c), SCRCP, which provides that summary judgment is proper when there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law. USAA Prop. & Cas. Ins. Co. v. Clegg , 377 S.C. 643, 653, 661 S.E.2d 791, 796 (2008) ; Rule 56(c), SCRCP. This Court reviews all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below. Willis v. Wu , 362 S.C. 146, 151, 607 S.E.2d 63, 65 (2004).

III. Discussion

A. Whether Petitioners have standing to bring their claim.

"A plaintiff must have standing to institute an action." Sloan v. Greenville Cnty. , 356 S.C. 531, 547, 590 S.E.2d 338, 347 (Ct. App. 2003). Standing is "[a] party's right to make a legal claim or seek judicial enforcement of a duty or right." Black's Law Dictionary 1625 (10th ed. 2014). We recognize three types of standing: (1) standing conferred by statute; (2) "constitutional standing"; and (3) public importance standing. ATC S., Inc. v. Charleston Cnty. , 380 S.C. 191, 195, 669 S.E.2d 337, 339 (2008). Petitioners assert they have constitutional standing as taxpayers and public importance standing.

1. Constitutional Standing

A party has constitutional standing if he can show: (1) he suffered an invasion of a legally protected interest, which is concrete and particularized, and actual or imminent; 2) a causal connection between the injury and the challenged conduct; and (3) it is likely the injury will be redressed by a favorable decision. Youngblood v. S.C. Dep't. of Soc. Servs. , 402 S.C. 311, 317-18, 741 S.E.2d 515, 518 (2013). Here, Petitioners are unable to show they suffered a concrete and particularized injury distinct from that shared by other taxpayers; therefore, we find Petitioners do not have constitutional standing. See Freemantle v. Preston , 398 S.C. 186, 193, 728 S.E.2d 40, 44 (2012) (recognizing that a taxpayer's injuries are "common to all citizens and taxpayers ... [which thereby] defeats the constitutional requirement of a concrete and particularized injury").

2. Public Importance Standing

Unlike with constitutional standing, a party is not required to show he has suffered a concrete or particularized injury in order to obtain public importance standing. S.C. Pub. Interest Found. v. S.C. Transp. Infrastructure Bank , 403 S.C. 640, 645, 744 S.E.2d 521, 524 (2013). Nor must he "show he has an interest greater than other potential plaintiffs." Davis v. Richland Cnty. Council , 372 S.C. 497, 500, 642 S.E.2d 740, 742 (2007). Requiring otherwise would undermine the purpose of public importance standing, which is to "[a]llow[ ] interested citizens a right of action in our judicial system when issues are of significant public importance to ensure [ ] ... accountability and the concomitant integrity of government action."

Sloan v. Greenville Cnty. , 356 S.C. at 551, 590 S.E.2d at 349. However, as this Court recognized:

An appropriate balance between the competing policy concerns underlying the issue of standing must be realized. Citizens must be afforded access to the judicial process to address alleged injustices. On the other hand, standing cannot be granted to every individual who has a grievance against a public official. Otherwise, public officials would be subject to numerous lawsuits at the expense of both judicial economy and the freedom from frivolous lawsuits.

Sloan v. Sanford , 357 S.C. 431, 434, 593 S.E.2d 470, 472 (2004). Thus, when deciding whether to confer public importance standing, courts must take these competing policy concerns into consideration, and must also determine whether the party presents an issue of public importance and whether future guidance on that issue is needed.

ATC S. , 380 S.C. at 198-99, 669 S.E.2d at 341. However, as this Court has acknowledged, since many issues may be of public interest, or importance,⁵ "[t]he key ... is whether a resolution is needed for future guidance." Id. at 199, 669 S.E.2d at 341 ; Carnival Corp. v. Historic Ansonborough Neighborhood Ass'n , 407 S.C. 67, 79-80, 753 S.E.2d 846, 853 (2014) ("Whether [public importance standing] applies in a particular case turns on whether resolution of the dispute is needed for future guidance.... [T]he need for future guidance generally dictates when [public importance standing] applies."). Applying this test to the case at hand, we find Petitioners have established public importance standing.

The issue of whether SCDOT may inspect bridges within private, gated communities is one of public importance as it involves both the conduct of a government entity and the expenditure of public funds. See Sloan v. Sch....