State ex rel. Condon v. Hodges, 25451.

• Citation: 349 S.C. 232,562 S.E.2d 623
• Decision Date: 18 April 2002
• Docket Number: No. 25451.,25451.
• Court: South Carolina Supreme Court
• Parties: STATE of South Carolina ex rel. Charlie CONDON, Attorney General, Plaintiff, v. James H. HODGES, Governor, State of South Carolina; James A. Lander, Comptroller General and Grady L. Patterson, Jr., State Treasurer, Defendants, and Glenn F. McConnell, President Pro Tempore of the South Carolina Senate, Hugh K. Leatherman, Sr., Chairman of the Finance Committee of the South Carolina Senate, David H. Wilkins, Speaker of the South Carolina House of Representatives and Robert W. Harrell, Jr., Chairman of the Ways and Means Committee of the South Carolina House of Representatives, Intervenors.

349 S.C. 232

562 S.E.2d 623

STATE of South Carolina ex rel. Charlie CONDON, Attorney General, Plaintiff, v. James H. HODGES, Governor, State of South Carolina; James A. Lander, Comptroller General and Grady L. Patterson, Jr., State Treasurer, Defendants, and Glenn F. McConnell, President Pro Tempore of the South Carolina Senate, Hugh K. Leatherman, Sr., Chairman of the Finance Committee of the South Carolina Senate, David H. Wilkins, Speaker of the South Carolina House of Representatives and Robert W. Harrell, Jr., Chairman of the Ways and Means Committee of the South Carolina House of Representatives, Intervenors.

No. 25451.

Supreme Court of South Carolina.

Heard February 21, 2002.

Decided April 18, 2002.

Attorney General Charles M. Condon, Deputy Attorney General Treva Ashworth, Assistant Deputy Attorney General Robert D. Cook, and Assistant Deputy Attorney General J. Emory Smith, Jr., all of Columbia, for plaintiff.

Dwight F. Drake and C. Mitchell Brown, both of Nelson, Mullins, Riley & Scarborough, of Columbia, and Stephen P. Bates, Chief Legal Counsel to the Governor, of Columbia, for defendants.

H. Pierce McNair, Jr., and Helen Ann S. Thrower, both of Columbia, for Intervenor South Carolina House of Representatives.

Michael R. Hitchcock and Geoffrey R. Penland, both of Columbia, for Intervenor South Carolina Senate.

James E. Smith, Jr., of Smith, Ellis & Stuckey, of Columbia, for Amici Curiae Douglas Jennings, Jr., John L. Scott, Jr., J. Anne Parks, Vida O. Miller, Walton J. McLeod, Herb Kirsh and Mack T. Hines, Officers for and of the House Democratic Caucus.

Justice MOORE.

We accepted this matter in our original jurisdiction to determine whether the Attorney General has the authority to bring an action against the Governor, whether a separation of powers violation has occurred, and whether the Governor is required to return a balanced budget to the General Assembly.

FACTS

This action was commenced by the plaintiff (hereinafter referred to as the Attorney General). Thereafter, a request to intervene by certain Senators and Representatives of the General Assembly was granted. An amicus curiae brief on behalf of the Officers of the House Democratic Caucus was permitted to be filed.

The General Assembly passed Act 66, R.147, H.3687, the 2001 General Appropriations Act (Appropriations Act), on June 21, 2001. The General Assembly provided for base-line reductions to the recurring budgets of the State's colleges and universities. In Part 1B, Proviso 72.109 of the Appropriations Act, the General Assembly ordered the State Treasurer to transfer $38,500,000 from the Extended Care Maintenance Fund (Barnwell Fund),¹ in varying amounts, to the colleges and universities. The General Assembly's appropriation from the Barnwell Fund reduced the impact of the base-line reductions on the various colleges and universities.

On June 27, 2001, the Governor delivered his veto message regarding the Appropriations Act. This message contained vetoes of the specific base-line reductions to the recurring budgets of each of the state colleges and universities.² The budgets of the colleges and universities were thus returned to their prior year funding level. The effect of the vetoes was to create new expenditures in the approximate amount of $88,000,000. Despite the reduction in spending through other vetoes, the expenditures established by the Governor's vetoes of the base-line reductions to the schools' recurring budgets left the state budget approximately $23,000,000 out of balance. To remedy this imbalance, the Governor included a statement in his veto message indicating that certain colleges and universities had agreed to return a total of $28,500,000 in funds appropriated pursuant to Proviso 72.109 of the Appropriations Act.³ The statement reads:

Since I have vetoed the base budget reductions to higher education, the supplemental appropriations contained in Proviso 72.109 are not necessary to reduce the cuts. These appropriations, however, must be reduced in order to balance the state budget. I have not vetoed these items because the colleges and universities have agreed to return these amounts to the general fund to accomplish this purpose.

Proviso 72.109 was not vetoed by the Governor for the above stated reason.⁴

On June 28, 2001, the South Carolina House of Representatives sustained the Governor's vetoes to the base-line reductions to the budgets of the colleges and universities. The provisions of the Appropriations Act became law, including Proviso 72.109. Pursuant to Proviso 72.109, money was transferred from the Barnwell Fund to the colleges and universities on July 2, 2001. However, previously on June 26th, defendants, through the Commission on Higher Education, had requested the return of the Barnwell funds. Accordingly, on July 2, 2001, a transfer of $28,500,000 was made from the accounts of the colleges and universities to the General Fund in an account in the Governor's office.

ISSUES

I. Whether the Attorney General has authority to bring suit against the governor?

II. Whether a separation of powers violation has occurred?

III. Whether the Governor is required to send a balanced budget to the General Assembly?

ISSUE I

Defendants argue the Attorney General is violating the South Carolina Constitution and the South Carolina Code by suing the Governor in his official capacity.

S.C. Const. Art. IV, § 15, provides:

The Governor shall take care that the laws be faithfully executed. To this end, the Attorney General shall assist and represent the Governor, but such power shall not be construed to authorize any action or proceeding against the General Assembly or the Supreme Court.

(Emphasis added).

The Attorney General argues the only restriction imposed by Art. IV, § 15, is that the Attorney General cannot bring suit against the General Assembly and the Supreme Court. He claims had a restriction been intended for suits against the Governor, such a restriction would have been included in the section. He cites to Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000), for the proposition, "expressio unius est exclusio alterius" or "inclusio unius est exclusio alterius," ie., "to express or include one thing implies the exclusion of another, or of the alternative." The Attorney General misconstrues the constitutional provision. There is no reason for the provision to mention suits against the Governor because it is concerned with the Attorney General, through his assistance and representation of the Governor, bringing actions on the Governor's behalf, against the other branches of government. In any event, there are other authorities which lead to the conclusion that the Attorney General is not prohibited from bringing an action against the Governor.

The General Assembly has elaborated on the Attorney General's duties in several statutes. First, pursuant to S.C.Code Ann. § 1-7-40 (Supp.2001), the Attorney General must

appear for the State in the Supreme Court and the court of appeals in the trial and argument of all causes, criminal and civil, in which the State is a party or interested, and in these causes in any other court or tribunal when required by the Governor or either branch of the General Assembly.

The State is an interested party in this action. The way in which public funds are handled and whether a violation of the separation of powers doctrine has occurred are clearly questions in which the State has an interest. By bringing the action against the Governor, the Attorney General is simply doing what the statute allows, which is to appear for the State before the Supreme Court in the trial and argument of a cause in which the State is interested.

The General Assembly has also provided that the Attorney General, upon written request of a State officer has a duty to appear and defend that officer when the officer is being prosecuted in a civil or criminal action, or other special proceeding, due to an act done or omitted in good faith in the course of employment. S.C.Code Ann. § 1-7-50 (1986).⁵ The Attorney General also must "give his opinion upon questions of law submitted to him by either branch" of the General Assembly or by the Governor. S.C.Code Ann. § 1-7-90 (1986).

There is no provision in the South Carolina Code or Constitution that explicitly prevents the Attorney General from bringing a civil action against the Governor. Further,

"[a]s the chief law officer of the State, [the Attorney General] may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require, and may institute, conduct and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights."

State ex rel. Daniel v. Broad River Power Co., 157 S.C. 1, 68, 153 S.E. 537, 560 (1929), aff'd282 U.S. 187, 51 S.Ct. 94, 75 L.Ed. 287 (1930) (citation omitted and italics added by Daniel court). Cf. State v. Beach Co., 271 S.C. 425, 248 S.E.2d 115 (1978) (while Attorney General has broad statutory authority, and arguably common law authority, to institute actions involving welfare of State, that authority is not unlimited).

The Attorney General has a dual role. He is an attorney for the Governor and he is an attorney for vindicating wrongs against the collective citizens of the State. See Porcher v. Cappelmann, 187 S.C. 491, 198 S.E. 8 (1938) (Attorney General represents sovereign power and general public). Allowing the Attorney General to bring an action against the Governor when there is the possibility the Governor is acting illegally is consistent with the duties of this dual role. Further, because the office of attorney general exists to properly ensure the administration of the laws of this State, the Attorney General is merely ensuring that Proviso 72.109 is being administered the way in which the General...