Unfortunately, the combined efforts of Charleston County officials and the state attorney general's office weren't enough to convince the state Supreme Court to issue an opinion on the revised wording of the upcoming half percent sales tax referendum. The high court's hands-off approach is disappointing in view of the fact that it invalidated -- because of the wording -- a successful half percent tax vote two years ago. However, proponents of the tax can take comfort in the fact that the court's refusal to rule in advance of the election means the ballot question still has the presumption of legality.
The county decided to petition the high court for a declaratory judgment after an attorney general's opinion questioned the fact that the ballot provides for only one rather than multiple answers to a three-part question on whether the tax money should be spent on roads, mass transit and the purchase of green space. That opinion recommended the county obtain judicial guidance.
At the county's request, the attorney general's office agreed to be a party to the pleadings to emphasize how important an answer was in terms of the public interest.
All involved recognized that convincing the high court to grant the county's petition for original jurisdiction, as opposed to the traditional route through the lower courts, would be difficult at best. But the referendum certainly warranted an exception. Further, the court wasn't being asked to deal with an unfamiliar issue. The opinion it issued in connection with the previous challenge was quite extensive.
The court did note that it had the authority to relax its rules in cases involving the public interest. It declined to do so in this instance, however, because there was no true adversary challenging the ballot. In the absence of what the court called a "justiciable controversy," it concluded that to address the merits of the matter would amount to "an advisory opinion, which this court has consistently declined to do." Apparently the only way for a local government to obtain what amounts to an advisory opinion from the court is through what's known as a "friendly" taxpayer's suit.
Ironically, in this instance, a not-so-friendly suit already is looming. According to our report today, Joey Douan, a candidate for County Council who challenged the earlier referendum, is planning to do the same this time around.
We still believe that in terms of the referendum's legality, the odds are on County Council's side. Obviously the ballot question no longer contains the biased language that the court specified as being fatal to the previous referendum. More significantly, the issue raised in the attorney general's recent opinion was argued in the previous lawsuit. Had the court thought the argument had merit, surely it would have said so at the time, particularly in view of near certainty that the referendum would be re-run. At least, there is nothing to hinder that important vote from being taken one more time as scheduled.
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