Newman v. Richland County Historic Preservation Com'n

• Decision Date: 21 February 1996
• Docket Number: No. 24547,24547
• Parties: Ann P. NEWMAN, Respondent, v. RICHLAND COUNTY HISTORIC PRESERVATION COMMISSION, City of Columbia, South Carolina, and County of Richland, South Carolina, Defendants, Of whom City of Columbia, South Carolina, and County of Richland, South Carolina are Appellants. . Heard
• Court: South Carolina Supreme Court

Page 72

480 S.E.2d 72

325 S.C. 79

Ann P. NEWMAN, Respondent, v. RICHLAND COUNTY HISTORIC PRESERVATION COMMISSION, City of Columbia, South Carolina, and County of Richland South Carolina, Defendants Of whom City of Columbia, South Carolina, and County of Richland, South Carolina are Appellants.

No. 24547.

Supreme Court of South Carolina.

Heard Feb. 21, 1996.

Decided Jan. 13, 1997.

James S. Meggs and Thomas E. Ellenburg, both of the Office of the City Attorney, Columbia, for appellant City of Columbia and Larry C. Smith, of the Office of the Richland County Attorneys Office, Columbia, for appellant County of Richland.

D. Cravens Ravenel, of Baker, Barwick, Ravenel & Bender, Columbia, for respondent.

Wayne F. Rush, of the Office of General Services, South Carolina Budget and Control Board, Columbia, for amicus curiae.

FINNEY, Chief Justice:

The dispositive issue in this appeal is whether a member of the governing board of a special purpose district has standing to bring a declaratory judgment action challenging passage by the board of a resolution which the member opposed? We hold the member lacks standing to bring such a suit either in her official capacity or as a citizen and taxpayer, and reverse.

Respondent (Newman) was appointed to a four year term as a commissioner on defendant ¹ Richland County Historic Preservation Commission (RCHPC). The RCHPC is a special purpose district created in 1963. 1963 S.C. Acts 69. ²

In May 1994 RCHPC owned four historic homes in Columbia, ³ and some of their furnishings. Six of the seven commissioners were present at the regularly scheduled May 1994 RCHPC meeting. At this meeting a resolution was introduced and passed by a vote of 4-2. Newman was one of the dissenters. This resolution had two provisions:

(A) That the RCHPC deed two of its properties to appellant City of Columbia (City) ⁴ and the other two to appellant Richland County (County); ⁵ and

(B) that the RCHPC dissolve itself.

Newman then brought this declaratory judgment action to declare the property transfers void and the dissolution ineffective. She brought the suit both in her capacity as a commissioner and as a citizen-taxpayer. After County and City and RCHPC answered, Newman moved for summary judgment as did City and RCHPC. ⁶ The circuit court granted Newman's motion, and denied the other two. Appellants appealed.

On appeal there is no challenge to the circuit court's conclusion that the RCHPC lacks the ability to dissolve itself, an action which can only be achieved by an act of the General Assembly, S.C.Code Ann. § 4-9-80 (1986), or by the Secretary of State in cases of inactive special purpose districts. S.C.Code Ann. § 4-11-290 (Supp.1995). The issue before the Court is whether Newman had standing to bring this declaratory judgment action challenging the propriety of the RCHPC's decision to deed the four properties to the appellants. The circuit court held Newman had standing to maintain this suit both as a RCHPC commissioner and as a taxpayer.

Standing is "a personal stake in the subject matter of a lawsuit." Bailey v. Bailey, 312 S.C. 454, 441 S.E.2d 325 (1994). Newman first alleges standing as a disgruntled commissioner, and relies on Gilbert v. McLeod Infirmary, 219 S.C. 174, 64 S.E.2d 524 (1951). In Gilbert, two trustees of an eleemosynary hospital corporation brought suit to set aside the corporation's sale of certain property to "insiders" at a price far below market value. In addition to alleging improper self-dealing, the plaintiffs alleged irregularities in the procedures surrounding the sale. ⁷ On appeal, the Court rejected the defendants' contentions that the plaintiffs lacked capacity (not standing) to bring this suit. The Court disposed of this argument by pointing out that the hospital corporation's trustees were analogous to the directors and shareholders of a corporation, and that under corporate law directors and shareholders were entitled to bring this type of derivative action.

Here, however, the RCHPC is not a corporation, but a "body politic." The proper analogy is not to a corporation and its directors, but to a legislative body and its members. We have been unable to find any case which permits a disappointed legislator to attack a decision of her own body, either through a declaratory judgment or through a direct "appeal" of the decision. See, e.g., Munhall v. Inland Wetlands Comm'n, 221 Conn. 46, 602 A.2d 566 (1992); Randolph v. Cantrell, 707 P.2d 48 (Ok.App.1985); Control Data Corp. v. Controlling Bd. of Ohio, 16 Ohio App.3d 30, 16 OBR 32, 474 N.E.2d 336 (1983); cf., Anders v. South Carolina Parole and Community Corrections Bd., 279 S.C. 206, 305 S.E.2d 229 (1983) (statute denying solicitor right to sue the state reflects rule that governmental employee cannot sue his employer because that is tantamount to suing himself). In Randolph, the court held an "individual member of a governing body does not have the power to institute lawsuits, or file appeals in his or her own name. Such a result could create judicial as well as political chaos." We agree. Further, denial of the right to sue to a member of the governing body does not insulate review of the decision. "It would be improper to consider a member of the Controlling Board as a person "aggrieved" when a decision of the Controlling Board is contrary to his personal opinion or the position for which his vote was cast. Sufficient representation of the public's interest could be provided by a citizen affected by the decision of the Controlling Board and not by allowing a member of the Board to take a partisan position and challenge the outcome." Control Data, supra.

In Munhall, supra, the disgruntled commission member sought both to appeal the commission's decision and to bring a declaratory judgment action. The following discussion, although addressed to the appeal issue, is equally persuasive when applied to the declaratory judgment question:

We have never concluded that individual commission members are aggrieved for the purpose of appealing the decision of the very agency upon which they sit. Inherent in such a state of the law is the notion that the legislative function of any agency, by its very nature, involves the interaction of competing ideas that eventually resolve themselves in a decision that may not satisfy all of the agency's members. This is the essence of the legislative process, a process that should not be compromised by ready access to a supplemental forum for those dissenting members who are disappointed in the outcome.

We agree and reverse the circuit court's holding that Newman had standing as a commissioner to bring this suit.

We have held that where a governmental employee could not maintain a suit in his official capacity because the posture of the suit was such that he was suing himself, he also could not "proceed with the matter under the guise of appearing as a citizen and tax-payer." Anders, supra; see also McTaggart v. Public Service Comm'n, 168 Mont. 155, 541 P.2d 778 (1975). Anders is dispositive of Newman's alternate standing as a citizen-taxpayer. Accordingly, the decision below is

REVERSED.

MOORE, WALLER and BURNETT, JJ., concur.

TOAL, J., dissents in separate opinion.

TOAL, Justice, dissenting:

I respectfully dissent because I believe Ann Newman had standing to contest the transfers of property by the Richland County Historic Preservation Commission ("Commission"). Moreover, I would find that the Commission lacked the authority to make these transfers.

A. STANDING

The court below was correct in holding that Newman had standing to bring this action. Generally, 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 danger of sustaining, prejudice therefrom. Florence Morning News, Inc. v. Building Comm'n, 265 S.C. 389, 218 S.E.2d 881 (1975). Such imminent prejudice must be of a personal nature to the party laying claim to standing and not merely of general interest common to all members of the public. Citizens of Lee County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992). However, an exception to this rule exists for ultra vires acts by government officials. For example, we have said that a court will not attempt to control the discretionary powers conferred upon a county board and will not interfere, by means of a taxpayer suit, to restrain the authorities of a county board from the exercise of their discretionary power with regard to the control or disposition of property of the county board in the absence of illegality, fraud, or clear abuse of authority. Owens v. Magill, 308 S.C. 556, 419 S.E.2d 786 (1992) (emphasis added); see also Ex Parte Hart, 190 S.C. 473, 477, 2 S.E.2d 52, 53-54 ("[I]f a county has a cause of action for an injury sustained, which should be enforced for the protection of its citizens or taxpayers, and its governing board unjustifiably refuses to assert such cause of action, any citizen, because of his indirect interest, may sue, in behalf of himself and others similarly situated, the person against whom the cause of action exists, and thereby enforce the rights of the county. In such case it is proper to make the corporation a defendant as trustee for all of its members."), cert. denied, 308 U.S. 569, 60 S.Ct. 82, 84 L.Ed. 477 (1939).

Underlying these decisions on the issue of standing is a balance between two competing policies: citizens' access to a judicial process that addresses their grievances, and the government's interest in judicial economy and freedom from excessive and meritless lawsuits. If citizens were barred from bringing all lawsuits that concern governmental action, then there would be...