New State Budget Challenged in S.C. Supreme Court

July 6, 2015

Investigative Reports

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S.C. Supreme CourtA Greenville-based, government watchdog organization is asking the S.C. Supreme Court to declare part of the new state budget and a section of existing state law unconstitutional dealing with the appointment of the head of the Department of Transportation.

The not-for-profit South Carolina Public Interest Foundation and its leader, Edward “Ned” Sloan, submitted separate petitions last week to the five-member high court asking it to take the cases under its “original jurisdiction,” or first-time appellate review, authority.

The Nerve last month reported about the legal issues raised in the petitions.

One of the petitions addresses a budget proviso (84.18) in the approximately $25 billion state budget bill (H. 3701) for the new fiscal year that started Wednesday. That proviso imposes a one-year suspension of a sunset provision in a 2007 law that would have transferred the authority to appoint the DOT secretary from the governor to the legislatively controlled DOT Commission.

The Public Interest Foundation contends the proviso is unconstitutional because it violates the “one-subject” rule in the S.C. Constitution (Article III, Section 17), which requires that every law “shall relate to but one subject.” The longstanding practice by lawmakers of adding unrelated topics in the same bill is commonly referred to as “bobtailing.” The proviso in question, according to documents filed with the petition, does not “reasonably and inherently” relate to the “raising and spending of tax monies,” which is the “main subject” of the state budget bill, and “thereby violates” the constitution.

Gov. Nikki Haley, a Republican, did not veto that proviso. The General Assembly returns this week to Columbia to take up her vetoes.

The other petition filed by the Public Interest Foundation asks the court to declare the sunset provision of the 2007 law (Act 114) unconstitutional, contending that giving the eight-member DOT Commission – seven of whose members are elected by lawmakers from the state’s seven congressional districts – the power to appoint the DOT secretary, who is the administrative head of the $1.8 billion (for fiscal 2016), 4,300-employee agency, violates the separation-of-powers provision of the state constitution (Article I, Section 8).

The petition cites a state law (Section 57-1-60 of the S.C. Code of Laws) that says, in part, that the governor is “charged with the responsibility of the state’s highway safety programs and is further charged with the duty of contracting and doing all other things necessary on behalf of this State,” and shall have the “ultimate responsibility for dealing with the federal government with respect to highway safety transportation programs and activities.”

Both petitions name House Speaker Jay Lucas, R-Darlington; Republican Lt. Gov. Henry McMaster, who by virtue of his position is the Senate president; and the state of South Carolina as parties in the cases. The petition alleging a separation-of-powers violation also names DOT Commission Chairman Jim Rozier as a party and asks the court to prevent the commission from appointing a DOT director, which was done before the 2007 law went into effect.

Under court rules, the court first has to decide whether to accept the petitions after the opposing parties have had a chance to respond. If the petitions are granted, the court will set a schedule to allow all sides to submit legal briefs on their positions. Oral arguments typically are then held, with a ruling to follow later.

In its petitions, prepared by Greenville attorney Jim Carpenter, the Public Interest Foundation contends the issues raised are matters of “great public importance and justify the use of the original jurisdiction of this Court.”

Besides asking the justices to declare the state budget proviso and section of the 2007 law unconstitutional, Sloan and his organization also want the court to award them legal costs and attorney’s fees, as allowed under state law, as well as “grant such other and further relief as the Court deems just and proper.”

The Nerve last month reported that a successful challenge under the one-subject rule could negate the entire state budget law, given a 2009 state Supreme Court ruling. In that decision, the court said if it found, going forward, an unconstitutional provision in a challenged law under the one-subject rule, it would declare the entire law unconstitutional.

The author of the 2009 ruling was Associate Justice Costa Pleicones, whom lawmakers in May elected as the top court’s next chief justice. Sloan, who won two earlier Supreme Court rulings on the one-subject issue, was not a party in the 2009 ruling, though the court accepted a friend-of-the-court brief from his organization in that case.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.