SC Supreme Court Tests Constitutionality

By Paul Gable

The SC Supreme Court agreed recently to grant two petitions or original jurisdiction that could have broad ranging consequences for the way the SC General Assembly does business.

Both petitions were filed by upstate activist Ned Sloane and his government watchdog organization South Carolina Public Interest Foundation.

One petition deals with a budget proviso for the current fiscal year. The proviso suspended for one year a sunset clause in a 2007 law that takes away the governor’s authority to appoint the Department of Transportation secretary.

The petition claims the proviso is unconstitutional because it violates Article III, Section 17 of the state constitution which requires that every law shall relate to only one subject. The petition alleges the proviso has nothing to do with the raising and spending of tax revenue.

In 2009, the SC Supreme Court ruled that in the future, a law successfully challenged under the one subject rule would see the entire law ruled unconstitutional.

Therefore, if this proviso is determined by the SC Supreme Court to be unconstitutional, the entire state budget for the current fiscal year could be declared unconstitutional.

The other petition claims that the sunset provision itself is unconstitutional because it violates the separation of powers.

State law Section 57-1-140 gives the governor the power to appoint the DOT secretary with the advice and consent of the Senate. However, the sunset provision, Act 114 of 2007, does away with that power and gives it instead to the DOT commission members. Seven of the eight commission members are appointed by the legislative delegations of the seven SC Congressional districts, respectively.

It will be interesting to see how both these petitions play out. For far too long, the SC General Assembly has held virtually absolute control over all of state government. This is a consequence of our 1895 Constitution that was written as a reaction to perceived abuses under the Reconstruction Constitution.

In many ways, the state is still dealing with the Civil War and its aftermath.