High Court Rejects ‘Power-of-One’ Practice

August 31, 2011

Investigative Reports

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The NerveThe balance of power in state government shifted somewhat Monday, courtesy of the S.C. Supreme Court.

In a 4-1 vote, the state’s top court said the General Assembly violated the S.C. Constitution last year when it overrode former Gov. Mark Sanford’s veto of a bill (H. 4431) involving the Fairfield County School Board.

The bill would have stripped the board of its financial authority and given it to a special committee appointed by the county’s two-member legislative delegation – Rep. Boyd Brown and Sen. Creighton Coleman, both Democrats.

The majority of justices said that the sole vote cast in the Senate, which was done by Coleman, and the 33 House votes to override Sanford’s veto were unconstitutional because a vote of two-thirds of a quorum, or a majority, of lawmakers in each chamber was required for the override.

A quorum in the 46-member Senate is 24 members; in the 124-member House, the number is 63. Assuming full membership in both chambers, at least 16 votes in the Senate (two-thirds of the 24 members) and 42 votes in the House (two-thirds of the 63 members) are needed to override a veto, based on Monday’s ruling.

Previously, a governor’s veto of a bill that applied only to a particular county, known as local legislation, could be overturned by just a single lawmaker in the 170-member General Assembly. By legislative custom, lawmakers outside a county’s delegation typically don’t participate in votes on local bills.

A practical result of that custom is that it weakens the governor’s authority to veto local bills. The Supreme Court on Monday ended what was described in court papers as a decades-long practice in the House and more recently, the Senate, of one lawmaker or several legislators having the power to override vetoes.

{C}“The constitution allows the legislative branch to override the executive branch – but that legislative power is limited and circumscribed by the heightened vote requirement,” Justice John Kittredge wrote for the majority.

The majority cited state Supreme Court rulings in 1873 and 1903 in support of the two-thirds-of-a-quorum requirement.

Kittredge was joined by justices Costa Pleicones, Kaye Hearn and Donald Beatty in voting to nullify the General Assembly’s override of the veto of the Fairfield County bill – in effect upholding the veto and killing the bill, which, after ratification, became known as Act 308.

Contacted Tuesday by The Nerve, Rob Godfrey, spokesman for Gov. Nikki Haley, called the ruling a “great win for our state.”

“Governor Haley has said from day one that local legislation is unconstitutional and amounts to legislators cutting backroom deals for their districts,” Godfrey said in a written response. “The Supreme Court has made it clear that, in South Carolina, local delegations alone voting on local legislation is in fact unconstitutional.”

In a separate concurring opinion, Beatty, a former Democratic state House member, blasted the bill as “unconstitutional special legislation beyond a reasonable doubt,” noting that state law grants school boards the power to “manage the finances of school districts.”

In the court’s sole dissent, Chief Justice Jean Toal, who, like Beatty, is a former Democratic House member, said the majority misinterpreted earlier court rulings, contending that the two-thirds requirement applies to only those lawmakers who vote on a particular bill, though a quorum is required to be present.

Alluding to the creation of a separate finance committee in the Fairfield County School District, Toal said no state law “explicitly vests budget-making authority with (school) district boards of trustees.

“Thus, by passing local laws in this area instead of enacting a general law that standardizes the school district budget-making process, the General Assembly has signaled its belief that a tailored approach best meets the needs of the varied districts within our state,” Toal wrote.

Beatty criticized Toal’s position, noting that it “illuminates in part this court’s history of turning a blind eye to legislative constitutional infractions when it comes to public education.”

Oral arguments in the case were held Nov. 30. At the time, The Nerve, citing research prepared for the school board, reported that between 1903 and 1980, no veto was overridden in either chamber with less than two-thirds of a quorum.

But the practice began to change in the House in the 1980s; beginning in 1989, for example, the House considered overriding more than 200 vetoes of local bills but voted in “full quorum” only five times, the review found.

From 1903 through 2007, the Senate only twice voted to override a veto of a statewide or local bill with less than two-thirds of a quorum, according to the school board’s research. But beginning in 2008, the Senate voted in “full quorum” only twice when considering whether to override vetoes on 16 local bills, the review found.

The majority of justices in Monday’s ruling accepted the findings of the school board’s study.

“We conclude that what the General Assembly contends is a ‘long-held precedent in the Senate’ is not as rooted as the General Assembly represents,” Kittredge wrote.

Efforts to reach Fairfield county delegation members Brown and Coleman were unsuccessful Tuesday. A spokeswoman for Coleman, an attorney, said he was “in the middle of preparing for a trial.”

Brown last year told The Nerve that a separate finance committee was needed because of a relatively low percentage of the school district’s budget spent on instruction, declining graduation rates and what he described as unnecessary interference by the school board with the school superintendent’s duties.

Besides the Fairfield County delegation, the state of South Carolina, represented by the S.C. Attorney General’s Office, also was a defendant in the lawsuit, which was filed in August 2010 in circuit court and later transferred to the state Supreme Court under its “original jurisdiction” authority.

Attorney general spokesman Mark Plowden told The Nerve in a written response Tuesday that the “portion (of the suit) we would have spoken to was never contemplated by the Court.” The majority of justices declined as a group to address whether the bill was a type of “special legislation,” or local bill, banned under the state constitution.

The school board was represented in the appeal by Charleston attorney Armand Derfner, who told The Nerve on Tuesday that he believes the ruling will “cut down some” on local bills being introduced in the future.

“A lot of local legislation done today should be done at the local level – county councils or whatever,” he said.

Derfner added he wonders whether Monday’s ruling will affect other local legislation that was enacted after vetoes were overridden with less than the two-thirds-of-a-quorum requirement.

In addition to the Fairfield County delegation, House Speaker Bobby Harrell and Senate President Pro Tempore Glenn McConnell, both Charleston Republicans, were parties in the suit, siding with the delegation.

It is unclear whether any of the lawmakers involved in the case will ask the Supreme Court to reconsider its ruling, which is allowed under court rules, though rarely granted.

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