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State’s Top Court Asked to Remove Legislators from Aviation Authority

The S.C. Supreme Court has been asked to determine whether a 2007 law that appointed two state legislators to the Charleston County Aviation Authority, which owns Charleston International Airport, violates the state constitution.

The five-member high court, if it accepts the case, could further limit state lawmakers' involvement in local government.

The South Carolina Public Interest Foundation, a Greenville-based government watchdog organization, and Waring Howe, a Charleston attorney and former chairman of the aviation authority, contend in a petition and complaint to the high court that the appointment of Charleston Republicans Sen. Glenn McConnell and Rep. Chip Limehouse to the authority violates the S.C Constitution’s ban on:

  • Dual office holding by state lawmakers;
  • Allowing a member of one branch of government to simultaneously serve in another branch;
  • Special legislation when a general law is applicable; and
  • Local legislation or bills that affect only one county.

The petitioners also contend in court papers that the General Assembly’s vote to override former Gov. Mark Sanford’s veto of the 2007 law violated the constitution because there were not enough House votes to do so, citing a state Supreme Court ruling earlier this year on the issue.

The Nerve reported in August that the high court struck down the Legislature’s “power-of-one” practice, which allowed gubernatorial vetoes of local legislation to be overridden by just one cast vote. The majority of justices in the Fairfield County School Board case said the constitution requires a two-thirds vote of a quorum, or a majority, of lawmakers in each chamber to override a veto.

Asked last week if the South Carolina Public Interest Foundation plans to ask the Supreme Court to overturn other local legislation involving vetoes that were overridden by less-than-the-required margin, Greenville attorney James Carpenter, who represents the foundation and Howe, told The Nerve:  “We’re taking it one case at a time. We don’t have a schedule or an agenda on a bunch of cases.”

Carpenter said the appointment of McConnell and Limehouse to the aviation authority is a different situation compared to local politicians’ membership on the panel, noting, “It’s not like the General Assembly is supposed to be controlling the Charleston County Aviation Authority.”

As for the Supreme Court’s authority to retroactively nullify the 2007 law, Carpenter replied: “They (the high court) didn’t change the constitution when they made that ruling (in the Fairfield County School Board case).  It (the legislative practice of overriding vetoes with less-than-required votes) has always been unconstitutional, and it’s just the first time they said so.”

Edward “Ned” Sloan, president of the Public Interest Foundation, could not be reached for comment last week.

Howe was a member of the aviation authority from 1989 to 2001, serving as its chairman from 1996 to 1999, according to court papers. He also is the former Charleston County Democratic Party chairman.

Contacted last week by The Nerve, Howe denied that politics played any role in his decision to join in the Supreme Court petition naming various Republican lawmakers.

"They just happen to be the ones in the leadership positions," he said.

Howe said the problem with the appointment of McConnell and Limehouse to the aviation authority is that "when you get a great (percentage) of the board composed of politicians, you run a greater risk of politicization."

In an affidavit with the Supreme Court petition, Howe said a House bill (H. 4143) this year that would add two more Charleston County legislative delegation members to the aviation authority would cause, if enacted, "additional violations of the Constitution."

That bill, sponsored by Charleston Democrat Wendell Gilliard and co-sponsored by three other Charleston County Democrats, passed the 124-member House in May with just 11 cast votes - mostly from county delegation members - though it didn't move out of the Senate.

Limehouse, the aviation authority chairman and first vice-chairman of the budget-writing House Ways and Means Committee, declined comment when contacted last week by The Nerve, referring questions to his attorney, Robert Tyson of Columbia, who did not respond by publication of this story.

McConnell, the Senate president pro tempore and Senate Judiciary Committee chairman, and his staff attorneys did not respond last week to a written request from The Nerve seeking comment.

Attorneys for House Speaker Bobby Harrell, R-Charleston, and Republican Lt. Gov. Ken Ard, the Senate president, who are named in the petition and complaint with McConnell and Limehouse, also did not respond.

Mark Plowden, spokesman for S.C. Attorney General Alan Wilson, who is representing in the state in the case, declined comment last week, noting that a formal response from his office is due by Monday.

The petition to the Supreme Court was filed Oct. 31 under the court’s “original jurisdiction” authority, which, if granted, would allow the case to bypass the lower courts. The high court likely will decide whether to hear the case after receiving responses from the opposing parties.

Chartered by the state in 1970, the Charleston County Aviation Authority owns and operates Charleston International Airport, Charleston Executive Airport and the Mount Pleasant Regional Airport, according to the Charleston International Airport’s website.

The authority is made up of seven members appointed by the governor, one appointed jointly by Charleston County Council and Charleston City Council, and six ex-officio members: the Charleston County Council chairman; the mayors of Charleston, North Charleston and Mount Pleasant; and the chairman and vice-chairman of the Charleston County legislative delegation, according to the website.

McConnell and Limehouse were added to the authority after the General Assembly in 2007 passed a local bill, sponsored by Limehouse and former Rep. Wallace Scarborough, R-Charleston, creating the two positions. The bill, which became Act 130, was passed by the House’s Charleston County delegation without going through the normal committee process, records show.

In his veto message, Sanford said the bill violated constitutional bans on special and local legislation. The House – mostly Charleston County delegation members – voted 12-0, while the Senate voted 43-1 to override Sanford’s veto, records show.

The original jurisdiction petition pending before the Supreme Court contends that the House vote violated the court’s ruling earlier this year in the Fairfield County School Board case.

The petition and complaint also contend that the aviation authority is an executive body; and that McConnell and Limehouse, as state legislators, cannot serve in both positions at the same time. The petition asks the Supreme Court to decide the case without a lower-court ruling, noting that “this case addresses matters of great public importance, requiring the immediate attention of this Court.”

Besides asking the Supreme Court to declare the 2007 law invalid, the petitioners also seek reimbursement for attorney fees and court costs.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.

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Charleston County Aviation Authority South Carolina PUblic Interest Foundation