McConnell v. Haley , 393 S.C. 136 ( 2011 )

Chief Justice TOAL, Justice BEATTY, and Justice HEARN.

Petitioner asks this Court, in its original jurisdiction, to declare an executive order issued by respondent to be an unconstitutional violation of the separation of powers and to enjoin, temporarily and permanently, the implementation and effects of the executive order. We grant the petition for original jurisdiction, dispense with further briefing, and stay the executive order.

The South Carolina General Assembly adopted a sine die resolution on June 1, 2011, providing for the extension of the regular 2011 annual session after adjournment at 5:00 p.m. on June 2, 2011. The resolution requires the General Assembly to reconvene on June 14, 2011, and continue in session no later than July 1, 2011. In addition, the resolution sets forth the matters which the General Assembly may consider during the extended session. On June 2, 2011, respondent issued an executive order requiring an extra session of the General Assembly to convene at 10:00 a.m. on June 7, 2011.

South Carolina Const, art. I, § 8 provides: “the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.” The executive order challenged by petitioner was issued pursuant to S.C. Const, art. IV, § 19. That section provides, “[t]he Governor may on extraordinary occasions convene the General Assembly in extra session.” (emphasis added). The term “extraordinary occasions” is not defined by the Constitution.

State constitutional provisions will not be construed to impose limitations beyond their clear meaning. Segars-Andrews v. Judicial Merit Selection Comm’n, 387 S.C. 109, 691 S.E.2d 453 (2010). Because there is no indication in the Constitution as to what constitutes an “extraordinary occasion” to justify an extra session of the General Assembly, this matter must be left to the discretion of the Governor and this Court may not review that decision. See Farrelly v. Cole, 60 Kan. 356, 56 P. 492 (1899).

However, S.C. Const, art. IV, § 19 limits the Governor’s power to convening only an “extra” session of the General Assembly. Although the General Assembly is currently in recess, it has not adjourned sine die and, therefore, is still in its annual session. Under these specific facts, respondent cannot convene an “extra” session of the General Assembly since it is currently in session. To do so would interrupt the annual session and would violate the General Assembly’s authority to set its calendar and agenda and would constitute a violation of the separation of powers provision. See S.C. Const, art. Ill, § 9 (the General Assembly has the authority to recede for a time period from its regular annual session); S.C.Code Ann. § 2-1-180 (2005) (the General Assembly may extend its regular annual session). Respondent may only convene an extra session of the General Assembly after the sine die adjournment.¹ Accordingly, we grant the request to permanently stay and enjoin the executive order dated June 2, 2011.

KITTREDGE, J., dissenting in a separate opinion in which PLEICONES, J., concurs.

1 . If an extra session is properly convened, there is no requirement that the General Assembly act on the bills referred to by respondent. Although the Governor may convene the extra session, she may not dictate the manner in which the General Assembly proceeds at that session or the topics considered. Farrelly v. Cole, supra.