S.C. Pub. Interest Found. v. Lucas

• Decision Date: 18 May 2016
• Docket Number: Appellate Case No. 2015–001443.,No. 27638.,27638.
• Parties: SOUTH CAROLINA PUBLIC INTEREST FOUNDATION and Edward D. Sloan, Jr., individually, and on behalf of all others similarly situated, Petitioners, v. James H. “Jay” LUCAS, as Speaker of the S.C. House of Representatives, Henry D. McMaster, as President of the S.C. Senate, and The State of South Carolina, Respondents. Hugh K. Leatherman, Sr., in his capacity as President Pro Tempore of the South Carolina Senate, Intervenor.
• Court: South Carolina Supreme Court

416 S.C. 269

786 S.E.2d 124

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

v. James H. “Jay” LUCAS, as Speaker of the S.C. House of Representatives, Henry D. McMaster, as President of the S.C. Senate, and The State of South Carolina, Respondents.Hugh K. Leatherman, Sr., in his capacity as President Pro Tempore of the South Carolina Senate, Intervenor.

Appellate Case No. 2015–001443.

No. 27638.

Supreme Court of South Carolina.

Heard March 22, 2016.

Decided May 18, 2016.

James G. Carpenter, Esquire, of Carpenter Law Firm, PC, of Greenville, for petitioners.

Michael J. Anzelmo, and Blake Terence Williams, both of Nelson Mullins Riley & Scarborough; Richard L. Pearce, Patrick G. Dennis, and Charles Fennell Reid, all of Columbia, for respondent James H. “Jay” Lucas, Jr.; Attorney General, Alan McCrory Wilson and Deputy Solicitor General, J. Emory Smith, Jr., both of Columbia, for respondents State of South Carolina and Lieutenant Governor, Henry D. McMaster.

Kenneth M. Moffitt and Edward Houseal Bender, both of Columbia, for Intervenor Hugh K. Leatherman, Sr.

Chief Justice PLEICONES

.

We agreed to hear this constitutional challenge to the 2015–16 Appropriations Act in our original jurisdiction.¹ Petitioners contend, and we agree, that the inclusion of Proviso 84.18² in that act violates the “one subject” requirement found in S.C. Const. art. III, § 17

. As explained below, we hold that where the general appropriations act contains a section that is not germane to the purpose of that act, i.e., one that does not “reasonably and inherently relate to the raising and spending of tax monies,” that section may be excised by a court. In so doing, we modify our holding in Am. Petroleum Inst. v. South Carolina Dep't of Rev., 382 S.C. 572, 677 S.E.2d 16 (2009)

.³

FACTS

South Carolina Code Ann. § 57–1–410 (Supp.2015)

provides for the appointment of an administrative official denominated the Secretary of Transportation. This statute, enacted as § 5 of 2007 Act No. 114, reads:

The Governor shall appoint, with the advice and consent of the Senate, a Secretary of Transportation who shall serve at the pleasure of the Governor. A person appointed to this position shall possess practical and successful business and executive ability and be knowledgeable in the field of transportation. The Secretary of Transportation shall receive such compensation as may be established under the provisions of Section 8–11–160 and for which funds have been authorized in the general appropriations act.

The next section of 2007 Act No. 114 provided:

Unless extended by subsequent act of the General Assembly, the Governor's authority to appoint the Secretary of the Department of Transportation pursuant to Section 57–1–410

terminates and is devolved upon the Department of Transportation Commission effective July 1, 2015. All other provisions regarding the rights, powers, and duties of the secretary shall remain in full force and effect.

2007 Act No. 114, § 6.

Proviso 84.18 purports to suspend the 2015 termination/devolution provision of 2007 Act No. 114, § 6, for the fiscal year, i.e., until June 30, 2016, thus leaving intact the appointment authority given to the Governor in § 5.

Petitioners seek a declaration that the inclusion of Proviso 84.18 in the appropriations act violates art. III, § 17

. This section of our state constitution provides:

§ 17. One subject.

Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.

Article III, § 17

has three objectives:

“(1) to apprise the members of the General Assembly of the contents of an act by reading the title; (2) to prevent legislative ‘log-rolling’,⁴ and (3) to inform the people of the State of the matters with which the General Assembly concerns itself.” Am. Petroleum Inst. v. South Carolina Dep't of Revenue, 382 S.C. 572, 576, 677 S.E.2d 16, 18 (2009)

.

Sea Cove Dev., LLC v. Harbourside Comm. Bank, 387 S.C. 95, 101, 691 S.E.2d 158, 161 (2010).

“Log-rolling” is defined as a “legislative practice of including several propositions in one measure ... so that the Legislature ... will pass all of them, even though these propositions may not have passed if they had been submitted separately.” Am. Petroleum at 577, 677 S.E.2d at 18

, citing Blacks Law Dictionary 849 (7th ed.1999).

The crux of petitioners' art. III, § 17

challenge is that the subject matter of Proviso 84.18, suspension of the appointment power found in 2007 Act No. 114, § 6, is neither germane to, nor does it provide the means, methods, or instrumentalities for, effectuating the purpose of the general appropriations act, i.e. the raising or expenditure of revenue. See, e.g., Hercules Inc. v. S.C. Tax Comm'n, 274 S.C. 137, 141–2, 262 S.E.2d 45, 47–48 (1980)

. As such, petitioners argue that the inclusion of Proviso 84.18 in the 2015–16 Appropriations Act violates S.C. Const. art. III, § 17

. We agree.

The Court has decided a number of cases involving a challenge to a provision of the annual appropriations act as violative of art. III, § 17

. In the following cases, the “log-rolling” challenge was denied because the challenged section was found to be germane to the purpose of the act:

1. Giannini v. S.C. DOT, 378 S.C. 573, 664 S.E.2d 450 (2008)

(reenactment of Tort Claims Act Caps are reasonably and inherently related to raising and spending of tax monies).

2. Town of Hilton Head Island v. Morris, 324 S.C. 30, 484 S.E.2d 104 (1997) (requirement that local governments remit real estate transfer fees to the state).

3. Keyserling v. Beasley, 322 S.C. 83, 470 S.E.2d 100 (1996) (provisions creating a committee to negotiate new contracts and fees for waste disposal and to repeal an earlier law thereby allowing landfill to continue to accept out-of-state waste and associated fees).

4. State Farm Mut. Auto. Ins. Co. v. Smith, 281 S.C. 209, 314 S.E.2d 333 (1984) (insurance commission to collect a fee/tax from automobile insurers).

5. Powell v. Red Carpet Lounge, 280 S.C. 142, 311 S.E.2d 719 (1984) (altering definition of machines subject to licensing fee).

6. Hercules Inc. v. S.C. Tax Comm'n, 274 S.C. 137, 262 S.E.2d 45 (1980) (suspension of tax assessment statute of limitations).

7. Caldwell v. McMillan, 224 S.C. 150, 77 S.E.2d 798 (1953) (proviso permitting Highway Department to build a kitchen and lease the space to a restaurateur).

8. State ex rel. Roddey v. Byrnes, 219 S.C. 485, 66 S.E.2d 33 (1951) (issuance of state bonds; school construction; sales and use tax).

9. Crouch v. Benet, 198 S.C. 185, 17 S.E.2d 320 (1941)

(bonds to build additional facilities).

In the following cases, however, provisions of the appropriations act were found to violate art. III, § 17

because their content was not germane to the raising or spending of tax monies:

1. Ex parte Georgetown Water & Sewer Dist., 284 S.C. 466, 327 S.E.2d 654 (1985)

(permitting referendums in special purpose districts to decide method of electing members and/or nature of budget).

2. Maner v. Maner, 278 S.C. 377, 296 S.E.2d 533 (1982) (amendments to act creating the Court of Appeals).

3. S.C. Tax Comm'n v. York Elec. Coop., 275 S.C. 326, 270 S.E.2d 626 (1980) (Uniform Disposition of Unclaimed Property Act giving state custody of certain unclaimed property).

We agree with petitioners that Ex parte Georgetown, supra, Maner, supra, and York Elec. Coop., supra, dictate that we hold that the inclusion of Proviso 84.18 in the 2015–16 Appropriations Act violates the log-rolling prohibition found in art. III, § 17

. The provision at issue in Ex parte Georgetown, like Proviso 84.18, was concerned with the manner in which the governing body of a state entity would be selected. Like Proviso 84.18, Maner involved administrative, not monetary matters. Finally, in York Elec. Coop., the Court found the Unclaimed Property Act was not revenue providing, but instead merely procedural. We find that the suspension of the devolution of the Secretarial selection authority from the Governor to the Commission is a matter of administration and procedure involving the method of choosing an official.

Intervenor Leatherman argues, however, that because the Secretary necessarily has some discretion in making significant fiscal decisions on behalf of DOT, any legislation touching on the selection of the individual vested with this authority is properly included in the appropriations act. Article III, § 17

, however does not sweep this broadly: “The test applied in York and Hercules, both of which involved appropriations acts, was whether the challenged legislation was reasonably and inherently related to the raising and expenditure of tax monies.”

Maner, 278 S.C. at 382, 296 S.E.2d at 536

. The right to appoint the Secretary, whatever that officer's authority to expend agency funds, does not meet this test. The suspension of the appointment authority in Proviso 84.18 does not “reasonably and inherently” relate to the raising or spending of tax money and is therefore not germane to the purpose of the appropriations act.

Respondent Lucas takes a different approach and suggests a new analytical approach to art. III, § 17

challenges to legislation contained in an appropriations act. He suggests that the scope of the 2015–16 Appropriations Act was expanded beyond mere fiscal concerns by the words “the operation of state government” in its title. The full title of the Appropriations Act is:

AN ACT TO MAKE APPROPRIATIONS AND TO PROVIDE REVENUES TO MEET THE ORDINARY EXPENSES OF STATE GOVERNMENT FOR THE FISCAL YEAR BEGINNING JULY 1, 2015, TO REGULATE THE EXPENDITURE OF SUCH FUNDS, AND TO FURTHER PROVIDE FOR THE OPERATION OF STATE GOVERNMENT DURING THIS FISCAL YEAR AND FOR OTHER PURPOSES.

First, we are not convinced that the title is susceptible of a reading that separates “operation of state government” from fiscal issues. Further, if Respondent Lucas were correct, and 2015 Act No. 91 embraces both appropriations and...