STATEMENT OF ISSUES
|1.||Does a citizen, resident, and
taxpayer of the State of South Carolina possess standing to assert that
a State official has violated a statutory duty and that an Act of the
General Assembly violates the South Carolina Constitution?
|2.||When Section 1 of an Act of the
General Assembly relates to background checks for teachers, and Section
2 the Act repeals statutes requiring the Secretary of Education to issue
certain comprehensive reports unrelated to background checks for
teachers, does the Act relate to more than one subject in violation of
the South Carolina Constitution?
|3.||When an Act of the General Assembly
does not contain an overarching single subject expressed in the title of
the act, but rather it lists more than one subject, does the Act violate
the Constitution of South Carolina which requires that the Act’s one
subject be “expressed in the title?”
|4.||When an Act of the General Assembly
relates to more than one subject and does not contain a severability
clause, should the court declare the entire Act to be in violation of
the South Carolina Constitution?
|5.||When a Secretary of Education admits her failure to comply with an annual statutory duty for at least 10 years, is the Plaintiff entitled to declaratory judgment and injunctive relief compelling compliance with the statute?|
STATEMENT OF THE CASE
Appellant Sloan is a South Carolina citizen, resident, taxpayer and registered elector, and brings this action individually and on behalf of all others similarly situated. Respondent is an officer of the State of South Carolina subject to the jurisdiction of this Court and is named in her official capacity.
Sloan had been researching the cost of public school education in South Carolina, and found that South Carolina Code § 59-3-60 requires the Respondent to make annual reports to the Governor on a variety of topics all related to public education in South Carolina. In the course of this litigation, Sloan has learned that for more than ten years, Respondent has failed to comply with § 59-3-60. In her Motion to Dismiss, Respondent admits the following:
[T]he report is no longer published in the exact format set forth in the statute . . . . The last edition of the report issued pursuant to this statute was published for the 1993-94 fiscal year. Much of the data specifically mentioned in the statute was not in that report, and was not included for many years prior to that date. . . . The State Budget and Control Board, which paid for the report to be published, decided not to publish the report after the 1993-94 report was issued.
(R. p. 15 (Respondent’s Memorandum in Support of Motion to Dismiss, filed on March 2, 2004, p. 3.)) The Court denied the Motion to Dismiss, and Defendants filed an Answer.
Thereafter, at the urging of the Respondents (R. p. 72, l. 19 (Transcript, p. 40, l. 19)), the General Assembly enacted Act 195 of 2004, which addressed two subjects: background checks for teachers and the repeal of §§ 59-3-50, -60, and -70, the statute requiring the reports.
On January 19, 2005, Respondent’s counsel notified Appellant’s counsel that effective January 1, 2005, Act 195 of 2004 had repealed § 59-3-60, the statute requiring the reports at issue. Act 195 contains three sections. Section 1 of Act 195 provides for background checks for teachers and student teachers. Section 2 of Act 195 states in its entirety: “Sections 59-3-50, 59-3-60, and 59-3-70 of the 1976 Code are repealed.” Section 3 of the act contains its effective date.
The next day, January 20, 2005, Sloan served a Motion to file a Supplemental Complaint, alleging the violation of Article III, § 17 (R. pp. 25-29, Supplemental Complaint). The Motion was actually filed January 27, 2005. Defendants later consented to the filing of the Supplemental Complaint, which was file-stamped July 8, 2005. Defendants filed an Answer July 25, 2005 (R. pp. 30-32, Answer to Supplemental Complaint).
Respondents argued that Act 195 of 2004 had made the matter moot. Sloan argued that Act 195 violated Article III, § 17 of the South Carolina Constitution: “Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title” (emphasis added). Article III, § 17 contains two requirements: (1) that the Act relate to “one subject,” and (2) that that subject be “expressed” in the title of the Act.
The Circuit Court of Richland County held a non-jury trial on this matter on April 11, 2006, and invited both sides to submit proposed orders. The Court then ruled that Act 195 was constitutional. Appellant appeals.
STATEMENT OF FACTS
The following facts are taken from the pleadings: Appellant is a South Carolina citizen, resident, taxpayer and registered elector and he brings this action individually and on behalf of all others similarly situated. Respondent is an officer of the State of South Carolina subject to the jurisdiction of this Court and is named in her official capacity. This Court has jurisdiction pursuant to South Carolina Code § 15-53-10, et seq., known as the Uniform Declaratory Judgment Act. This action raises matters of important public interest: the failure of a State officer to comply with his statutory duty. Venue is properly placed in Richland County. South Carolina Code § 59-3-60 requires the Respondent to make annual reports to the Governor as detailed therein. Respondent has failed to comply with § 59-3-60.
Other facts that should inform the Court’s decision are that Respondent’s “Quick Facts” publication states that State educational expenses now exceed five billion dollars annually. Politicians say education comprises more than 50% of the State budget. Thus, the public importance of this topic, and its significance to the State of South Carolina cannot be overstated.
I. APPELLANT POSSESSES STANDING
Defendants have argued that Mr. Sloan lacks standing to pursue this matter. Mr. Sloan respectfully submits that he possesses standing and that the case raises matters of public importance, just as Appellants possessed standing in the following matters, which also raised matters of public importance: Sloan v. Department of Transportation, 365 S.C. 299, 618 S.E.2d 876 (2005), Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005), Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004), Sloan v. Greenville County, 356 S.C. 531, 590 S.E.2d 338 (Ct. App. 2003), Sloan v. School District of Greenville County, 342 S.C. 515, 537 S.E.2d 299 (Ct. App. 2000), Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999), and Newman v. Richland County Historic Preservation Commission, 325 S.C. 79, 480 S.E.2d 72 (1997).
A. Appellant Possesses Public Interest Standing.
Appellant possesses standing under Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999). In Baird, the Supreme Court held that when government commits an ultra vires act, the public importance of the issue supports granting standing to the Appellant so that the issue may be decided for future guidance.
In this case, Doctors have specifically alleged that the County committed an ultra vires act by exceeding its statutory authority to issue the hospital bonds. . . . Thus, as citizens of Charleston County, Doctors have a significant interest in ensuring that their county acts within the legal parameters established by the legislature for funding hospital development. Thus, by virtue of the immense public interest at stake here, Doctors have standing to bring the present action, and any further determination of imminent prejudice is unnecessary.
Id. at 333 S.C. 519, 511 S.E.2d 69, 75-76 (1999).
Most recently, the Supreme Court ruled in Sloan v. Sanford, "Citizens must be afforded access to the judicial process to address alleged injuries." Id. at 357 S.C. 431, 593 S.E.2d 470 (citing Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999)). Similarly in Evins v. Richland County Historic Preservation District, the Supreme Court found public interest standing was appropriately granted to the Appellant. Id. at 341 S.C. 15, 532 S.E.2d 876 (2000).
B. Sloan, a Taxpayer, Possesses Taxpayer Standing Based upon an Interest that Is Distinct From State Citizens as a Whole.
Appellant respectfully suggests that he also possesses taxpayer standing. State taxpayers are a distinct subset of State citizens. In Myers v. Patterson, State taxpayers sued the State Treasurer, Commissioners, and Executive Director of the South Carolina Highways and Public Transportation Commission. Id. at 350 S.C. 248, 433 S.E.2d 841 (1993). The Supreme Court acknowledged that an Appellant ordinarily must allege damage to himself different from that sustained by the public generally, but also noted the exception to the rule: an unlawful diversion of public funds.
In such cases, a taxpayer who may be compelled to pay the assessment, or who has contributed to the sum jeopardized, is considered to have sufficient interest to enjoin the illegal act. Shillito v. City of Spartanburg, 214 S.C. 11, 22, 51 S.E.2d 95, 97 (1948). See also Kirk v. Clark, 191 S.C. 205, 4 S.E.2d 13 (1939) (The principle is firmly settled in this State that a taxpayer may maintain an action in equity, on behalf of himself and all other taxpayers, to restrain public officers from paying out public money for purposes unauthorized by law.).
Thus, the Supreme Court explicitly recognized that a South Carolina taxpayer possesses standing to sue the State for illegal expenditures, if he has contributed to the sum at issue. In the case at bar, South Carolina tax funds are involved in funding the provisions of Act 195 of 2004. Appellant has alleged Act 195 of 2004 is unconstitutional and any taxpayer funds spent would be ultra vires.
II. ACT 195 RELATES TO MORE THAN ONE SUBJECT.
Act 195 violates Article III, Section 17 of the Constitution: “Every Act or resolution having the force of law shall relate to but one subject and that shall be expressed in the title.” Article III, Section 17 has two complimentary requirements: (1) the Act must relate to “but one subject,” and (2) that subject “shall be expressed in the title” of the Act. Act 195 violates both requirements.
The provision of Act III, Section 17 also appears in the Constitutions of 1865 and 1868. Basic Documents of South Carolina History: The Constitution of 1865, ed. by J. Harold Wolfe. The provision “passed without debate to a third reading” at the Convention of 1868. Proceedings of the Constitutional Convention of South Carolina, vol. I, p. 446. Huger Sinkler, a member of the West Committee, stated, “I don’t doubt that this particular 17 came out of the Confederate Constitution. It had some awfully good ideas.” Proceedings of the Committee to Make a Study of the Constitution of South Carolina (1895), Book II, Minutes of Nov. 17, 1967 Committee Meeting, p. 15. The wording of the South Carolina provision is almost identical to Art. I § 9 of the Confederate Constitution of 1861. Thus, in 1967, the West Committee ultimately concluded, “I think we can accept what we’ve got. If there is no further comment, we’ll keep Section 17.” Id. at 17.
Professor James Underwood explains the purposes of this provision:
The twin pillars of this provision, the single subject rule and the accurate title requirement, interact to achieve several related purposes. Paramount among these purposes are the following: 1. The avoidance of the manipulation of legislative bodies and the subversion of majority rule that results from the practice of logrolling […] (called bobtailing in South Carolina) […] 2. Foiling those who would dupe the General Assembly into passing bills with real content that differs from their apparent content. Both an inaccurate title and a confusing mixture of subjects in a bill can obscure its true meaning and mislead the unwary into voting for it. […] 3. To insure that the public is apprised of the contents of proposals pending before the legislature so that voters can contact their representatives and voice their views.
Underwood, The Constitution of South Carolina, Volume I: The Relationship of the Legislative, Executive, and Judicial Branches, (U.S.C. Press) Vol. I, p. 119 (internal footnotes omitted). He noted:
Excessive fervor in voiding legislation would result in the courts usurping the law-making role of the General Assembly. Excessive timidity in declaring clearly violative legislation to be unconstitutional could result in encouraging the rampant use of logrolling and deceptive titles to obtain passage of legislation with scant support.
Id. at 119-120. Accordingly, “The courts have interpreted both the single subject and accurate title standards with a liberal but not indulgent hand.” Id. at 119.
The first case in which this Court interpreted the provision provides the most thorough definition of “subject” as used in Art. III § 17 (then Section 20, Art. II, but identically worded). Morton, Bliss & Co. v. Comptroller General, 4 S.C. 430, 4 Richardson 430 (1873). In Morton, this Court ruled that the subject of the statute was “the Land Commissioner and his office” and that “the creation of public debt for the purposes and uses of the Land Office” appertained to the subject of the Act. Id.
In the most general sense, the subject of a statute is some right, obligation or power, either public or private, created, modified or destroyed, for the purpose of attaining some end, either of public or private advantage, which constitutes the object of the statute.
Id. at 8.
This Court provided a similar definition in Poulnot v. Cantwell. Id. at 129 S.C. 171, 123 S.E.651 (1924).
As used in this section of the Constitution, “subject is the thing legislated about, or the matter or matters upon which the legislation operates, to accomplish a definite object, or objects reasonably related one to the other.
Eight years later, this Court considered a case similar to the case at bar with a constitutional challenge to an act addressing two different kinds of taxes: taxes on personal property and license fees. Charleston v. Oliver, 16 S.C. 47 (1881). A man was charged criminally with failure to pay the City of Charleston license fees for running a printing business and for running a newspaper business. He was convicted and appealed, arguing, among other things, that the ordinance providing for the fees was unauthorized, having been premised upon an act in violation of the Constitutional provision: “Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.”
This Court in Oliver analyzed the purpose of this Constitutional provision and quoted the following:
[T]he purpose of this and other similar constitutional provisions is said to be: “1st, to prevent hodge-podge or ‘log-rolling’ legislation; 2d, to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and 3d, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire.”
Id. at *6 (citing Cooley Const. Lim. 143-4). The Court stated the issue:
The question then is: Does this act relate “to but one subject?” and is that subject “expressed in the title” and the practical inquiry is whether the subject—taxation of personal property—is the same as, or does it include, taxation of callings or occupations, usually denominated license taxes? That these two things are not the same, but, on the contrary, are essentially different in their nature, we have already seen, and we think it equally clear that the one does not include the other.
Id. This Court concluded that the title, “An act to regulate the assessment and taxation of personal property in the city of Charleston,” confined the subject to “the assessment and taxation of personal property.” Id. at *7. Accordingly, this Court ruled that levying the license taxes on a printing business and publishing a newspaper was a “wholly distinct and independent” subject and declared “that Section 7 of the act of 1st March, 1870, 14 Stat. 409, [levying license taxes] is in violation of Section 20, Article II of the constitution of this State.” Id. Thus, this Court found that the Act related to two different subjects, no one unifying subject was expressed in the title, and that the offending section of the Act was unconstitutional. Therefore, the City Ordinance written pursuant to that section was not authorized.
This Court also addressed the “expressed in the title” clause, which will be discussed in Argument III, below.
As demonstrated above, the early opinions of this Court interpreting the single subject requirement of Art. III, § 17 addressed acts far more uniform in subject matter than Act 195. Coleman v. Town Council of Chester, 18 S.C. 464 (1883) (act to provide a local option law for incorporated cities, towns and villages of the state that excluded “any city, town or village in which the sale of ardent spirits is now […] prohibited was a single subject); Woodsides v. McDaniel, 19 S.C. 114 (1883) (act codifying the statutes adopted in 1882 constitutional falls under exception to single-subject requirement); Floyd v. Perrin, 30 S.C. 1, 8 S.E. 14 (1888) (act to charter Greenville & Port Royal Railroad and incorporate the town of Ninety-Six met single subject requirements) Southern Power Co. v. Walker, 89 S.C. 84, 71 S.E.356 (1911) (act conferring on electric lighting and power companies the right to resort to condemnation proceedings ruled one subject); Furman v. Willimon, 106 S.C. 159, 90 S.E.700 (1916) (act relating to bonds of Greenville county for roads and courthouse relates to one subject); Poulnot v. Cantwell, 129 S.C. 171, 123 S.E.651 (1924) (resolution providing construction and operation of a ferry and of vehicular communication from eastern terminus of ferry addresses single subject); Arthur v. Johnston, 185 S.C.324, 194 S.E.151 (1937) (statute authorizing the issuance of State certificates of indebtedness and increase in liquor tax for purpose of financing the construction of buildings at certain state institutions of higher learning ruled a single subject); Medlock v. S.C. State Family Farm Development Authority, 279 S.C. 316, 306 S.E.2d 605 (1983) (provision of Family Farm Development Act authorizing bonded indebtedness to provide loans for low to moderate income farm families ruled to be part of the single subject of Act). In the case at bar, however, there is no clear single “right, obligation or power” pointing toward a single end to be attained.
More recent and successful challenges to bobtailing in South Carolina predating Sloan v. Wilkins, which is addressed below, involve Appropriations Acts and allege violations of the single subject requirement. Hercules, Inc. v. S.C. Tax Commission and, 275 S.C. 326, 270 S.E.2d 626 (1980); S.C. Tax Commission v. York Electric Cooperative, 274 S.C.137, 262 S.E.2d 45 (1980); Maner v. Maner, 278 S.C. 377, 296 S.E.2d 533 (1982); Georgetown County Water and Sewer Dist. v. Jacobs, 284 S.C. 466, 327 S.E.2d 654 (1985). In York Electric, the Court considered the addition of the Uniform Disposition of Unclaimed Property Act to the Appropriations Act and ruled it a violation of the single subject requirement because it failed the test of being “legislation […] reasonably and inherently related to the raising and expenditure of tax monies.” Id. quoting Hercules, Inc. v. S.C. Tax Commission, 274 S.C.137, 262 S.E.2d 45 (1980) (However, because the statute had later been incorporated as part of the codification of the 1952 Code of Laws, this Court ruled that the constitutional defect had been eliminated.). The Court in York also established,
The subject of appropriations bills is to make appropriations to meet the ordinary expenses of state government and to direct the manner of expending those funds.
The case at bar is not an appropriations act, but if the act in York Electric was found to violate the single subject requirement (although later cured), the same application to the case at bar would produce the same result.
In Maner, the Court ruled that amendments to the Court of Appeals Act putting the Court of Appeals in operation contained within the Appropriations Act were unconstitutional violations of the single subject requirement and applied the test in York and Hercules quoted above. Id. As in York, the one provision outside the subject of the Appropriations Act in Maner involving the Court of Appeals is similar to the case at bar. In Georgetown County Water and Sewer Dist. v. Jacobs, this Court struck as invalid a provision of an Appropriations Act providing “that voters residing in a special purpose district may, by referendum, decide between two methods of electing members to the District Board” for violating the single subject requirement. Id. at 284 S.C. 466, 327 S.E.2d 654 (1985). Once again, it is clear that if the case at bar were treated in the same manner, it would be ruled to violate the single subject requirement.
The Court’s most recent extensive discussion of hodge-podge legislation is Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005), addressing the Life Sciences Act. The Life Sciences Act had only 21 sections. The Life Sciences Act addressed 13 separate subjects, and included a severability clause. The Court set out the analytical framework for a challenge under Article III, § 17 of the South Carolina Constitution.
S.C. Constitution, Art. III, § 17 provides that “every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.” The purpose of Article III, § 17 is (1) to apprise the members of the General Assembly of the contents of an act by reading the title, (2) prevent legislative log-rolling and (3) inform the people of the state of the matters with which the General Assembly concerns itself. South Carolina Public Svc. Authority v. Citizens and Southern Nat'l Bank, 300 S.C. 142, 386 S.E.2d 775 (1989). See also Keyserling v. Beasley, 322 S.C. 83, 470 S.E.2d 100 (1996). Article III, § 17 is to be liberally construed so as to uphold an Act if practicable. McCollum v. Snipes, 213 S.C. 254, 49 S.E.2d 12 (1948). Doubtful or close cases are to be resolved in favor of upholding an Act’s validity. Alley v. Daniel, 153 S.C. 217, 150 S.E. 691 (1929). Article III, § 17 does not preclude the legislature from dealing with several branches of one general subject in a single act. It is complied with if the title of an act expresses a general subject and the body provides the means to facilitate accomplishment of the general purpose. Keyserling, supra. However, Article III, section 17 requires “the topics in the body of the act [be] kindred in nature and hav[e] a legitimate and natural association with the subject of the title,” and that the title conveys “reasonable notice of the subject matter to the legislature and the public.” Hercules, Inc. v. S.C. Tax Comm'n, 274 S.C. 137, 141, 262 S.E.2d 45, 47 (1980).
Id. at 362 S.C. 430, 608 S.E.2d 579, 583-584. The Court in Sloan v. Wilkins rejected an all-encompassing subject:
We simply cannot accept the dissent's assertion that the General Assembly may enact myriad measures, ranging from establishment of life sciences facilities to creation of a culinary arts institute, under the general guise of “economic development,” and thereby comport with the one subject requirement of Article III, § 17. For this Court to accept such a premise would give tacit approval to legislative logrolling.
Id. at FN 6. “Education” is a subject equally as broad as “economic development” and must be rejected as an invitation to legislative logrolling. Furthermore, Helen Still, former Superintendent of Records at the S.C. Department of Education and Respondents’ witness admitted that “background checks for teachers and student teachers and criminal checks for people that might go into education […] does not have anything to do with these reports the Secretary issues” (Transcript p. 37, ll. 15-21). Thus, the subjects of Section 1 and Section 2 of Act 195 are unrelated. Act 195 relates to more than one subject and therefore violates S.C. Constitution Article III, § 17, and is invalid.
III. ACT 195 DOES NOT HAVE ONLY ONE SUBJECT “EXPRESSED IN THE TITLE.”
The second requirement of Article III, § 17 is that the “one subject” be “expressed in the title” of the Act. “Expressed” means, “Declared in direct terms; stated in words; not left to inference or implication.” Black’s Law Dictionary, 7th Ed., West Group, St. Paul, MN 1999 (emphasis added).
As in Charleston v. Oliver, 16 S.C. 47 (1881), Respondents in the case at bar failed to title the Act as “anything relating to the general subject of education” or any other subject that might conceivably tie the disparate acts and subjects logrolled together as Act 195. The title of Act 195 contains two subjects, without a unifying theme. One subject is not “expressed in the title” of Act 195. Instead, two distinct subjects are expressed in the title. A list of subjects, an index, or a table of contents is not a single subject.
Many later opinions such as those cited below, challenge a title violation of Art. III § 17. Southern Power Co. v. Walker 89 S.C. 84, 71 S.E. 356 (1911); McKiever v. City of Sumter, 137 S.C. 266, 135 S.E. 60 (1926); Wachovia Bank & Trust Co. v. People’s Bank, 160 S.C. 104, 158 S.E. 214 (1931); Gasque v. Nates, 191 S.C. 271, 2 S.E.2d 36 (1939); Arthur v. Johnston, 185 S.C. 324, 194 S.E. 151 (1937); Douglas v. Watson, 186 S.C. 34, 195 S.E.116 (1938); McCollum v. Snipes, 213 S.C. 254, 49 S.E.2d 12 (1948); Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177 (1956); Carll v. S.C. Jobs-Economic Development Authority, 284 S.C. 438, 327 S.E.2d 331 (1985); Westvaco Corp. v. S.C. Dept. of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995); Keyserling v. Beasley, 322 S.C. 83, 470 S.E.2d 100 (1996).
Article III, § 17 does not permit opposing counsel to create an umbrella “subject” to attempt to unify the Act long after its passage. That is the burden of the General Assembly during the legislative process.
Likewise, it is not the role of this Court to glean the “one subject” by “inference or implication” (Black’s Law Dictionary). The subject must be “expressed.”
The courts cannot enlarge the scope of the title; they are vested with no dispensing power; the constitution has made the title the conclusive index to the legislative intent as to what shall have operation; it is no answer to say that the title might have been made more comprehensive, if, in fact, the legislatures have not seen fit to make it so.
Charleston v. Oliver, 16 S.C. 47 (1881), (quoting Cooley Const. Lim. 143-4, p. 149).
Act 195 does not have only “one subject” that is “expressed in the title,” and therefore the Act violates S.C. Constitution Article III, § 17 and is invalid. The title expresses two separate subjects: one relating to background checks, and the other related to the repeal of the statutes. Thus, the title of the Act is unconstitutional containing two separate subjects. The Constitution requires that the Act’s one subject be “expressed in the title,” and it is not.
IV. ACT 195 DOES NOT CONTAIN A SEVERABILITY CLAUSE.
Finally, an important factor in the Court’s analysis in Sloan v. Wilkins was the “very detailed severability clause.” Id. 362 S.C. at 439, 608 S.E.2d at 584. The Court in Sloan v. Wilkins found “the offending portions of Act 187 are severable.” Id. The offending sections of Act 187 in Sloan v. Wilkins did not “inhere with the underlying purposes of the Life Sciences Act. Accordingly, they [were] stricken as violative of Article III, § 17.” Id. 362 S.C. at 441, 608 S.E.2d at 585.
In the case at bar, Act 195 of 2004 does not contain a severability clause. Thus, this Court need not make a severability inquiry. Absent a severability clause, this Court need only rule that Act 195 “violates the one subject requirement of Article III, § 17 of the [C]onstitution.” Id. 362 S.C. at 442, 608 S.E.2d at 586.
V. RESPONDENT VIOLATED S.C. CODE ANN. SECTIONS 59-3-50, 59-3-60, AND 59-3-70.
The Court noted that Respondent “admitted that the report has not been provided in ten or twelve years” (Transcript, p. 11, ll. 9-11; p. 15, ll. 15-18). As a result of the testimony and evidence presented at the trial, the Respondent could have and still can comply with § 59-3-60 by making reports that reference other documents that publish the data required by the statute, and include them by reference, with a modest expenditure of effort.
Helen Still, former Superintendent at the S.C. Department of Education and Respondents’ witness testified that the practice of not issuing the report under § 59-3-60 was begun under an earlier administration in the Department of Education (Transcript, pp. 19, l. 15 – p. 20, l. 9). This earlier noncompliance does not excuse the noncompliance by this Respondent. Neither this Respondent nor her predecessor is free to simply ignore statutory requirements.
With Act 195 of 2004 stricken as violative of the Constitution, the provisions of “Sections 59-3-50, 59-3-60, and 59-3-70 of the 1976 Code” would not be repealed and would continue to be valid. By her own admission, Respondent has failed to comply with these sections of the South Carolina Code for more than 10 years.
Wherefore, Appellant prays the Court to reverse the Circuit Court’s order and to declare that Act 195 violates S.C. Constitution Article III, § 17, that the Respondent has failed to comply with § 59-3-60, and enjoining Respondent to comply with § 59-3-60 for the two most recent periods required thereby, awarding Appellant costs and attorney fees; and granting such other and further relief as the Court deems just and proper.
THE CARPENTER LAW FIRM, PC
James G. Carpenter, SC Bar No. 1136
Jennifer J. Miller, SC Bar No. 13611
819 E. North Street, Suite 230
Greenville, SC 29601
Telephone: (864) 235-1269
Facsimile: (864) 242-5500
Attorneys for Appellant