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Date Published: March 24, 2004
Legal experts disagree on lawsuit
By SHARYN LUCAS-PARKER
Item Senior Staff Writer
sharynp@theitem.com
If the governor follows through with his threat to sue the state Legislature for overriding his veto of a bill that includes four-year status for the University of South Carolina Sumter, legal experts say a court's ruling would likely come down to one thing: interpretation.
Gov. Mark Sanford contends that the South Carolina Life Sciences Act, with myriad proposals attached to it during the legislative process, might violate the portion of the state constitution that requires legislation deal with just one idea.
Lawmakers say it does: economic development.
The core of the Life Sciences Act would provide economic incentives to biomedical companies that locate to the state and set up a state-run venture capital fund.
But the bill eventually swelled into one that, among other things:
Grants four-year status to the University of South Carolina Sumter.
Provides about $7 million for an international convention center in Myrtle Beach.
Provides $220 million to the state's three research universities for construction projects.
Adds a four-year culinary curriculum at Trident Technical College in Charleston.
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SANFORD |
Sanford has said he favored the initial portions of the bill but the many amendments are too costly and never received a thorough debate.
If he acts on his threat of litigation, a court would have to decide if the bill really deals with one issue or several issues, said Richard Gershon, the dean of Charleston School of Law.
"That's an interpretation question," Gershon said. "There's definitely a lot in this package. ... You can see the argument on both sides in some ways."
But Gershon, like some of the state's other attorneys, says this is a matter that the governor and lawmakers could work out among themselves outside a courtroom.
"It's a political process. You might see some compromise," he said.
Funding issues, he pointed out, typically must be resolved quickly whereas litigated matters are usually lengthy.
POLITICS
Unlike the federal Constitution, the state constitution is rarely litigated so it's difficult to speculate how this could play out if it went to court, said Brian Gambrell, a lawyer with Ratchford and Hamilton in Columbia and the chairman of the Constitutional Law Committee for the S.C. Bar.
"As a matter of politics goes, it certainly would be an open question as to what the state Supreme Court does," he said. "Iwould think the ideal solution would be a political solution -- not having to get the Supreme Court involved. This could be solved without litigation. Whether the Legislature would have the political courage to do it would be another whole question. They could certainly sacrifice a measure of their power to do it. Whether they will do it or not is another thing. Maybe the threat of litigation will force them to do it."
On the other hand, Gambrell noted, Sanford has to decide whether he wants to risk alienating the Legislature.
But based on Sanford's argument and the wording of the constitution, he might have a legitimate shot with his litigation, Gambrell said.
"There appears to be something there if he wants to fight it but he's got to decide for himself whether the political fight is worth it,"Gambrell said. "It seems to me that the governor lost a political fight. We don't want to set a precedent that every time somebody loses a political fight they turn to the court system, especially during a budget crunch."
Observers say the cost of litigation would be significant, and they wonder who would pick up the tab in light of the governor saying he supports some type of legislation that would help reduce frivolous lawsuits, such as requiring plaintiffs who bring litigation and lose to not only bear their own court costs but the defendant's as well, otherwise known as "loser pays."
"I wonder if he is willing to pay the fees if he loses the suit,"said Alex Sanders, a fellow with the John F. Kennedy School of Government at Harvard University and a professor at the College of Charleston.
Ordinarily, Sanders noted, taxpayers would pay.
"There will be no deterrent if he pays for it with the state's money,"Sanders said.
BOBTAILING
A Sanford spokesman has said the governor wants to avoid legal action and its potential to hurt his working relationship with the General Assembly.
Sanford has said he had two options after legislators voted overwhelmingly last week to override his veto of the Life Sciences Act. One was to ask the S.C. Supreme Court to rule the bill unconstitutional. The other was to pursue legislation preventing similar problems in the future. Sanford said he was considering proposing legislation that would prevent legislators from tacking multiple amendments on to future bills.
The latter could prevent something like this from happening again, but under the circumstances, many wonder how such a proposal would even pass.
"That legislation would solve the problem, clearly," Gambrell said. "But as a matter of reality, do you ever think the Legislature would pass something like that?"
At issue is Article 3, Section 17 of the state constitution: "... Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."
Legal experts say the idea is to prevent what is known as "bobtailing," or adding extraneous amendments, and that could bolster Sanford's argument.
"That's a popular way at the federal level to get pork in," Gambrell said.
For example, lawmakers might introduce a bill that pertains to highway construction and later add an amendment that involves studying cattle in another state.
"That has no rational relationship to the subject of the highway bill," Gambrell said. "The bill is so multifaceted that it doesn't reflect the original intent of the bill."
The S.C. Constitution's provision that prohibits that is called the single subject rule.
Gambrell noted that a similar issue came up several years ago but was later dropped before litigation.
The S.C. Chamber of Commerce filed a 1986 suit against the state Senate over bobtailing. That suit was dropped in exchange for a promise that the practice would stop.
"It's certainly been threatened in the past, but nobody has followed through," Gambrell said.
Based on the amendments, Sanford also could argue that the title of the bill, Life Sciences Act, is misleading, some legal experts say.
"Four-year status to USC Sumter, unless it has to do with granting biology degrees, would not have anything to do with life sciences," Gambrell said. "I would say the same about $7 million for convention centers, unless it was for life sciences.
"What is frightening to me is they can bobtail in provisions that affect the rights of South Carolinians without a full and fair debate," Gambrell added. "If bobtailing was allowed to continue, we could see video poker again and tort reform passed. Or, you wake up one morning and loser pay is the law of this state. You do it as an amendment and it gets through. That would be, at least not to me, a fair way to do it."
UNFAIR CRITICISM
@$:Sumter Mayor Joe McElveen, who also cited the chamber case, sees it differently.
The provision in the S.C. Constitution intended to curtail bobtailing was put in place to ward off fraud and prevent citizens and even lawmakers from being taken by surprise.
The USC Sumter provision was heavily debated, McElveen, who is a practicing lawyer and a former state House member, pointed out.
"When a matter is debated on both floors you can hardly say anybody is being surprised," he said. "It has been debated at length. There were no surprises. It was not like somebody slapped a tattoo parlor amendment on it at the last minute."
He believes the general subject of the bill is expressed in the title.
"This bill started off giving money to higher education institutions," McElveen said. "How can you say it doesn't relate to higher education? I don't think you are going to see the governor prevail on this."
Sumter and its university have been unfairly targeted in this debate, McElveen said.
"As mayor, my concern is my community and the college I'm proud of are being held to unfair criticism and scrutiny that has nothing to do with their merits. It is something we are very sensitive to here in Sumter," he said Tuesday.
For at least 20 years politicians who want to "stir up an argument about duplication" have been singling out USC Sumter and Central Carolina Technical College. The same was done with USC Beaufort and the technical college there before USC Beaufort was granted four-year status, McElveen said.
"Nobody says 'Yes, they sit next to each other and both are doing a good job,'" he said.
"Now," he said, "we are being put up as the poster child for pork and bad legislation and it just doesn't fit."
Local lawmakers did a good job fighting for USC Sumter, McElveen said, adding that every good legislator tries to secure what he can for his community.
"That is not bad. Taxpayers want a portion of their money returned to their communities. That's why we are a state. We try to equitably spread out the money," he said.
A trend has been developing for some time, he said, and if it continues, only certain parts of the state will continue to benefit from legislation and tax money, and poorer areas will be left behind.
"Everything will end up in Charleston, Greenville and Columbia," McElveen said.
Gambrell agrees that there is an issue of power at the core of the debate, and that the governor and lawmakers alike will have to decide how much muscle they are willing to flex to resolve it.
"It is a balance of power issue. If the governor pushes it, he could really open a can of worms," Gambrell said. "What will happen is every bill that comes through, you could face judicial scrutiny about whether the bill is bobtailed or not. You can see how this could be a never-ending cycle.
"It could be one of those questions that nobody wants to decide," he added. "Maybe the threat alone of litigation will be enough. Who knows. Guess we will find out."
Contact Senior Staff Writer Sharyn Lucas-Parker at sharynp@theitem.com or 803-774-1250.
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April 16, 2004
