Court hears challenge to 'bobtailing'

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McMaster argued before the five justices that even though lawmakers violated the state Constitution when they crafted the Life Sciences Act this year because they added many different parts to the legislation — a practice called "bobtailing" — that the root of the measure should be kept.

The Constitution requires that each bill or act deal with only one subject.

A ruling against the entire act could delay or prevent some economic prospects, lawmakers have said. It also could endanger prior legislation that involved multiple subjects, legislative attorneys said Tuesday.

A decision isn't expected for weeks or months, attorneys in the case said afterward, though McMaster asked for a quick ruling.

Supreme Court Chief Justice Jean Toal, a former lawmaker, called the case "important and complicated" and at one point said the Life Sciences legislation might be the "granddaddy of all bobtailing bills."

"The allegation is that the General Assembly has continued to push the envelope and push the envelope and push the envelope," she told the attorneys, "that this is a needed check on a tendency of the General Assembly over the last 20 years to bobtail extensively."

The act offers hundreds of millions of dollars for universities and biotechnology firms that move to the state, incentives that officials hope will translate to new jobs and high technology economic growth.

But it also includes new scholarship requirements; a provision to make the University of South Carolina at Sumter a four-year school; another to create a culinary arts school at Trident Technical College; another to provide $7 million in bond money for an international trade center in Myrtle Beach; and another for the creation of a committee to study the idea of a law school at S.C. State University in Orangeburg.

Greenville businessman Edward "Ned" Sloan, who filed the lawsuit, wants the entire bill struck, while McMaster argued that 12 of its 15 parts should be declared unconstitutional.

Attorneys for the Legislature argue that the bill meets constitutional standards and that all of its parts relate to one subject.

Gov. Mark Sanford vetoed the bill as an example of pork-barrel legislation this year, but the Legislature overrode his veto.

Michael Hitchcock, assistant clerk of the Senate, argued before the justices that all of the act's parts relate to the subject of job creation for a knowledge-based economy.

Asked by justices how the Myrtle Beach convention center and the culinary school relate to a high-tech economy, Hitchcock said those provisions would make the state a more "hospitable place to live," a requisite for luring high-tech firms to locate in the state.

He said the other parts dealing with education relate to expanding the education opportunities of the work force.

Toal said she was bothered by the question of what to do if the court finds the act unconstitutional.

Should the justices sever some parts and keep others? she asked. And how, she asked, do they determine what should be kept?

"That's the hard part," McMaster told her, though his own analysis, he said, found only three parts to pass constitutional muster: the initial Life Sciences bill, the provision for venture capital for new companies and the part providing bond money for the state's three research universities.

The legislation contains a severability clause designed to keep portions of the bill intact if a court should rule other parts are unconstitutional.

McMaster said the clause is almost identical to a clause used with video poker legislation. When the Supreme Court struck down parts of that bill, other parts remained because of the clause, killing the games.

But Jim Carpenter, Sloan's attorney, told the justices that they have no way of knowing if the bill would have passed had it been without all of its parts. He said the justices must strike the whole bill if they find any part unconstitutional.

McMaster said the core of the Life Sciences Act is essential for the state's economic future and urged the court to preserve it. "The core of the bill is great," he said.

Hitchcock argued that Sloan didn't have standing to sue the Legislature and that a constitutional ban on governors suing over legislation extended to the attorney general.

But McMaster said that isn't true and said a former attorney general sued the Legislature many times over improper legislation. Toal said the court accepted the case because it is considered a matter of public interest.

She described Sloan as a "very clever gadfly" who uses his resources to bring matters of public policy before the courts. "Mr. Sloan is saying that the Constitution means something," she said.

Sloan last year unsuccessfully sued Sanford before the Supreme Court in a case challenging Sanford's right to hold an officer's commission in the Air Force Reserve.