SC Supreme Court to Hear DOT-Related Cases

September 28, 2015

Investigative Reports

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SC Supreme CourtSouth Carolina’s top court has agreed to hear two related cases dealing with part of the new state budget and whether the Legislature should have the power to appoint the head of the Department of Transportation.

The S.C. Supreme Court earlier this month voted 4-1, with Associate Justice Donald Beatty objecting, to grant a “petition of original jurisdiction” in each of the two cases, filed in July by the Greenville-based, government watchdog organization known as the South Carolina Public Interest Foundation, and its leader, Edward “Ned” Sloan.

Original jurisdiction relates to the high court’s first-time appellate review authority. Matters dealing with constitutional questions fall under that authority.

Sloan declined to comment when contacted by The Nerve last week.

S.C. House Speaker Jay Lucas, R-Darlington, who is named as a party in the case, and Senate President Pro Tempore Hugh Leatherman, R-Florence, whom the high court allowed to formally join the case, didn’t respond to phone or written messages last week seeking comment.

Leatherman – arguably the state’s most-powerful lawmaker –asked the justices in a written motion to “grant him leave to intervene as a matter of right,” contending other parties in the case can’t “adequately represent the interests of the South Carolina Senate in this action.”

As the Senate president pro tempore, Leatherman has the authority to appoint two of 10 members of the state Judicial Merit Selection Commission, which nominates judicial candidates for election by the Legislature. As the Senate Finance Committee chairman, he has a powerful say in how much money state agencies – including the Judicial Department – get annually.

One of Sloan’s original-jurisdiction petitions focuses on a state budget proviso (84.18) in the approximately $25 billion state budget for this fiscal year, which started July 1. That proviso imposes a one-year suspension of a sunset provision in a 2007 law that would have stripped the governor of her authority to appoint the DOT secretary – the administrative head of the $1.8 billion, 4,300-employee agency – and given that power to the legislatively controlled DOT Commission.

Sloan in court papers contends the proviso is unconstitutional because it violates the “one-subject” rule in the constitution (Article III, Section 17), which requires that every law “shall relate to but one subject.” Lawmakers’ longstanding practice of adding unrelated topics in the same bill has been commonly referred to as “bobtailing.”

The written complaint filed in that case says the proviso in question does not “reasonably and inherently” relate to the “raising and spending of tax monies,” which is the main subject of the state budget law (Act 91 of 2015).

The other case 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 violates the separation-of-powers provision in the state constitution (Article I, Section 8).

That complaint in that case cites a state law (Section 57-1-60 of the S.C. Code of Laws) that says 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 has the “ultimate responsibility for dealing with the federal government with respect to highway safety transportation programs and activities.”

Absent the sunset provision, state law (Section 57-1-410), gives the governor the power to appoint the DOT secretary, with advice and consent of the Senate.

“Quite frankly, I don’t care who appoints the secretary,” said DOT Commission Chairman Jim Rozier, who is named as a party in the separation-of-powers case, when contacted last week by The Nerve.

Rozier said he believes if the Supreme Court rules that the budget proviso dealing with the sunset provision doesn’t violate the constitution’s one-subject rule – thereby allowing the governor to temporarily continue to appoint the DOT secretary – the justices won’t need to address the other case, though he added, “It’s very confusing.”

Given court rules on when legal briefs have to be submitted to the high court, the justices likely won’t decide the cases until after the first of the year. The justices can schedule oral arguments in the cases, though they aren’t required to do so.

The Nerve reported earlier this year that a successful challenge of the one-subject rule could negate the entire state budget law, given a 2009 state Supreme Court ruling that 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.

If Sloan’s cases are decided next year, Costa Pleicones will be the court’s chief justice, replacing Jean Toal, who retires at the end of this year. The 2009 one-subject ruling was authored by Pleicones.