EITHER A KEY component of the landmark Home Rule Act that gave counties the right to govern themselves was a cruel hoax, or the state Supreme Court has been misinterpreting it for at least a quarter-century.

The question is likely to be put to the test again, as five members of the Richland County Recreation Commission try to convince a judge that the county legislative delegation violated the constitution when it gave its authority to appoint the commissioners to the Richland County Council.

The commissioners’ argument is 1) that the Home Rule provision of the state constitution prohibits the Legislature from passing laws that apply to just one county, as the one changing control of the Recreation Commission did, and 2) that this law doesn’t apply anyway because it transfers the legislative delegation’s appointment power to the County Council, when in fact it’s the governor who has the appointment power.

The second argument can probably be dismissed easily. The Supreme Court has consistently ruled that in cases such as these, the governor’s appointment power is ministerial and the delegation has de facto power; that explains why none of the Richland County legislators raised an objection to the way the bill was worded. The fact that delegations actually make the appointments that the law says the governor makes is so completely accepted that in one case cited in the lawsuit, the Supreme Court itself referred to a bill that it said “granted the Newberry County Council, rather than the legislative delegation, power to make the appointments.”

At first blush, the argument about the constitution is less clear. It seems at once both like a ridiculous argument and a slam-dunk case. At second blush ... well, we’ll get there in a moment.

It seems ridiculous because the purpose of Home Rule was to do precisely what Richland County legislators voted this spring to do — let the County Council run the county government, instead of meddling in county business themselves.

The case seems like a slam-dunk because the constitution is unequivocal: “No laws for a specific county shall be enacted ....”

This contradiction has led to some bizarre rulings. In the 1991 Newberry County case, the court said the bill transferring appointment power from the legislative delegation to the County Council “is exactly the type of special legislation which is prohibited by Sections 1 and 7 of Article VIII of the South Carolina Constitution as it was not intended that after the ratification of the constitutional amendment, the General Assembly could repeatedly inject itself into local affairs.”

Huh? In other words, the constitution was designed to make sure the General Assembly did not “repeatedly inject itself into local affairs” — even in order to extract itself from its previous injection into local affairs. Shades of 1984, where war is peace, love is hate and freedom is slavery.

The court understood that under this interpretation, the only way the Newberry County legislative delegation could stop meddling in the Newberry County Water and Sewer Authority was by convincing the Legislature to relinquish control of all special purpose districts. It even took the extraordinary step of calling on the Legislature “to exercise its authority and its responsibility in promoting home rule by divesting itself of the regulation and operation of county governments and by devolving such powers on all individual counties.”

This is where things get really convoluted. One member of the court strongly dissented, saying the Newberry law was the type of “one-shot legislation” the court had early on allowed the Legislature to pass in order to transition into Home Rule. A subsequent ruling had limited the scope of the “one-shot” exception to the initial establishment of county governments, and the majority in Newberry used that later decision to say, essentially, that any legislative meddling that remained after county councils were established could never be eliminated. But the one dissenter said it was clear that the Newberry act did relate to “the establishment of initial county governments” unless the court “relies on the Act’s form over its function.”

That dissent is important because it was written by Jean Toal, who made that same argument when the issue came back before the court later. Today, Ms. Toal is chief justice and one of only two justices who were on the court the last time it took up one of these cases. So it’s anyone’s guess which legal interpretation will prevail if the Richland County case makes it to the high court.

Justice Toal’s Newberry dissent noted that the purpose of the prohibition on local laws “was to establish ‘home rule’ by greatly reducing the power of the legislature over county governments” and that the law in question “was designed in good faith to further that goal.”

In her rational world view, since it would be “onerous, if not impossible” to pass a law that applied to the entire state, the Legislature must have intended to allow local laws until no legislative interference remained.

That makes perfectly good sense — unless legislators passed Home Rule knowing full well that, at least as it applied to legislators’ special little governments, it was completely unworkable. And knowing our legislators, I can’t dismiss either possibility.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.