Ziegler v. Dorchester County , 426 S.C. 615 ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gerard E. Ziegler; Brenda Barrington III; James Stephen
Greene, Jr.; William A. Harbeson; David Messinger;
South Carolina Public Interest Foundation; and
Dorchester County Taxpayers Association, individually,
and on behalf of all others similarly situated, Appellants,
v.
Dorchester County; Dorchester County Council; Charles
D. Chinnis, George H. Bailey, Sr., Jay Byars, Willie R.
Davis, Carroll S. Duncan, Larry Hargett and William R.
Hearn, Jr., in their official capacities as members of
Dorchester County Council, Respondents.
Appellate Case No. 2018-000395
Appeal from Dorchester County
Edgar W. Dickson, Circuit Court Judge,
Opinion No. 27885
Heard October 18, 2018 – Filed May 8, 2019
REVERSED
W. Andrew Gowder, Jr., of Austen &Gowder, LLC, of
Charleston and Michael T. Rose, of Mike Rose Law
Firm, PC of Summerville, for Appellants.
Steve A. Matthews, of Haynsworth Sinkler Boyd, PA, of
Columbia, for Respondents.
James G. Carpenter, Jr., of Greenville , for Amicus
Curiae, Edward D. Sloan, Jr.
JUSTICE HEARN: This case concerns the validity of a referendum question—
passed during the 2016 elections—which granted the Dorchester County Council
authority to issue up to $30 million in bonds for library facilities and up to $13
million for recreational facilities. Finding there was no indication the voters did not
understand it, the circuit court determined it was not improper. Because the question
contained two separate bond proposals and required voters to support both or neither,
we hold it was unlawful.
FACTUAL BACKGROUND
On July 18, 2016, the Dorchester County Council passed an ordinance
ordering a referendum to be held during the November 8, 2016, elections. The
referendum sought to determine whether the county would be authorized to issue no
more than $43,000,000 in general obligation bonds to construct new library and
recreational facilities. The question as written in the ordinance and to be placed on
the referendum was:
Shall Dorchester County, South Carolina be authorized to issue general
obligation bonds in an amount not to exceed $30,000,000 for funding
the acquisition of land and the design and construction of new library
facilities in Summerville and North Charleston and general obligation
bonds in an amount not to exceed $13,000,000 for funding recreational
facilities, including the development of the Dorchester County
Courthouse Park in St. George, the Ashley River Park and the Pine
Trace Natural area in Summerville, and the development of hiking,
biking and pedestrian trails, together with associated infrastructure, at
various locations throughout the County?
On September 8, 2016, then-State Senator Paul Thurmond requested an
Attorney General's Opinion on the legality of the wording of the Dorchester County
bond referendum, as he believed a separate vote was required for each specific
different purpose for which bonds are to be issued. On September 30, 2016, the
Attorney General's Office issued an opinion agreeing with Senator Thurmond. The
opinion concluded that "a court would likely determine neither the Constitution nor
the General Assembly intended to give county council the authority to combine
multiple separate issues for bond issuance into one referendum question."
On October 3, 2016, the Appellants—residents of Dorchester County, the
Dorchester County Taxpayers Association, and the South Carolina Public Interest
Foundation—sent the Attorney General's Opinion to the County. Appellants
requested the County correct the question by separating the parks and libraries issues
into two different questions to be voted on separately, or cancel the referendum.
They also filed a complaint in circuit court seeking: (1) a declaratory judgment that
including two questions in one referendum question was unconstitutional, violated
South Carolina law and the intent of the General Assembly, violated public policy,
and, as a result, the issuance of any bonds and any other action taken based on the
results of the referendum would be null and void; (2) a permanent injunction
enjoining Dorchester County from conducting the referendum; and (3) costs and
attorneys' fees. No hearing was held prior to the election. In fact, no hearing was
held until August 24, 2017.
The question remained on the ballot as written and the referendum was held
as scheduled. The referendum passed with just over 60% of the vote. The
Appellants did not file an amended complaint after the referendum was held.
Respondents—Dorchester County and the individual members of the Dorchester
County Council—filed a motion for judgment on the pleadings under Rule 12(c) of
the South Carolina Rules of Civil Procedure.
The circuit court granted Respondents' motion. The court determined the
issue was the intent of the bond question and whether the voters of Dorchester
County understood its results, and concluded there were no factual allegations to
suggest they did not. Appellants filed a Rule 59(e) motion, which was denied.
Appellants appealed to the court of appeals, but the case was transferred to this Court
pursuant to Rule 204(a) of the South Carolina Appellate Court Rules. To date, the
bonds have not been issued.1
ISSUE
1
While South Carolina courts will not reach the merits absent a justiciable
controversy, we find such a controversy is present here. Jowers v. S.C. Dep't of
Health & Envtl. Control, 423 S.C. 343, 353, 815 S.E.2d 446, 451 (2018).
Did the referendum question containing proposals to authorize bonds for
library facilities and for recreational facilities comply with South Carolina law?2
STANDARD OF REVIEW
Whether reviewing a grant of summary judgment or a judgment on the
pleadings, we apply the same legal standards as the trial court. Rodarte v. Univ. of
S.C., 419 S.C. 592, 600, 799 S.E.2d 912, 916 n.11 (2017). We review questions of
law de novo. Town of Summerville v. City of North Charleston, 378 S.C. 107, 110,
662 S.E.2d 40, 41 (2008).
DISCUSSION
Article X, subsection 14(4) of the South Carolina Constitution authorizes
political subdivisions, such as counties, to incur general obligation bonded
indebtedness for a "public purpose" that is also a "corporate purpose."3 S.C. Const.
art. X, § 14(4). Title 7 of the South Carolina Code applies to all elections in South
Carolina. S.C. Code Ann. § 7-1-40 (1976). Section 7-13-400 provides, "[t]he form
of ballot in an election on the issuance of bonds . . . shall be a statement of the
question or questions" and must permit the voter to vote "In favor of the question"
or "Opposed to the question." S.C. Code Ann. § 7-13-400 (1976).
We addressed the legality of the form of a bond referendum question in a
similar context over 100 years ago. In Ross v. Lipscomb, 83 S.C. 136, 65 S.E. 451(1909), "a majority of the freeholders of the town of Gaffney" signed a petition
"asking for an election to be ordered to vote $125,000 bonds for the extension of the
electric lights and waterworks and the installation of a sewerage system." 83 S.C. at
137, 65 S.E. at 452. In an election conducted pursuant to the petition, a majority of
2
Appellants contend the circuit court erred in granting a judgment on the pleadings
because there was a factual issue as to whether the question was misleading. Lowery
v. Shirley, 234 S.C. 279, 282, 107 S.E.2d 769, 772 (1958). We find the question of
law dispositive, and as a result, we need not decide this issue. Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).
3
Appellants argue the singular language of this provision requires counties to incur
bonded indebtedness for a single purpose at a time. Respondents contend Section
2-7-30 of the South Carolina Code requires singular nouns to include plural forms.
Because we find the question unlawful on separate grounds, we need not pass upon
this issue. Futch, 335 S.C. at 613, 518 S.E.2d at 598.
Gaffney voters were in favor of the issuance of the bonds. 83 S.C. at 138, 65 S.E.
at 452. As a result, the town council passed an ordinance authorizing and directing
the issuance of coupon gold bonds to the amount not exceeding $125,000. Id.However, the board of public works "failed and refused" to sell the bonds. 83 S.C.
at 139, 65 S.E. at 452.
Thereafter, petitioners—members of the Gaffney town council—sought a writ
of mandamus requiring the board to sell the bonds. 83 S.C. at 142, 65 S.E. at 454.
We noted, "The first ground of objection" by the board of public works "is 'that said
election, and the bonds issued in pursuance thereof, are invalid and unsalable, and
that the proposition submitted to the voters did not separately state the items, nor the
amount of bonds to be issued, for the extension of the electric lights, for the extension
of the waterworks, and for the installation of a sewerage system.'" 83 S.C. at 143,
65 S.E. at 454.
We held,
The intention of the Legislature was that there should be separate and
distinct statements as to the amount of the bonds for electric lights and
waterworks and as to the amount of those for establishing a sewerage
system, and that the question of issuing bonds for the extension of the
electric lights and waterworks presented an entirely different
proposition from that of issuing bonds for establishing a sewerage
system. Therefore the failure to give notice of the amounts,
respectively, of the proposed bonds, and the failure to submit the
different propositions separately, to the voters, rendered the election
illegal and the bonds invalid.
83 S.C. at 143-44, 65 S.E. at 454. Although we interpreted a statute in reaching our
decision, we also noted that "even if the manner in which the different propositions
were submitted to the voters is considered apart from the statute, the same result
would follow." Id. at 144, 65 S.E. at 454. This is because "when several distinct
and independent propositions for the issuing of bonds by a municipality are
submitted to the qualified voters of the town or city, provision should be made in the
submission for a separate vote upon each. They cannot be lawfully combined as a
single question." Id.4
4
The General Assembly later adopted a statute specifically authorizing
municipalities to incur bonds for water, sewage, and lighting plants in a single
question. Act No. 462, 1918 S.C. Acts 801; S.C. Code of Laws § 4422 (1922).
Here, we agree with the circuit court that the referendum question was not
misleading. Indeed, it was quite clear that, if a voter wanted to authorize up to $30
million in funding for library facilities, he must also vote to fund up to $13 million
for recreational facilities. Libraries and recreational facilities are distinct for funding
purposes.5 See S.C. Code Ann. § 4-9-30(5)(a) (Supp. 2017) ("each county
government . . . shall have the following enumerated powers . . . : to assess property
and levy ad valorem property taxes . . . and make appropriations for functions and
operations of the county, including, but not limited to, appropriations for . . .
recreation; . . . libraries"); see also id. §§ 4-9-35, 38-39. As a result, the referendum
question contained two separate questions, and therefore, it was not possible to vote
"in favor" of one and "opposed" to another. S.C. Code Ann. § 7-13-400.
Our precedent and the statutory requirements for referendum questions render
the question here unlawful. While Respondents argue Home Rule6 delegated the
authority to administer county bond referenda to local governments, they have cited
no authority overruling Ross. Section 5-7-30 of the South Carolina Code grants
municipalities broad power to enact regulations, resolutions, and ordinances, so long
as they are not inconsistent with the Constitution and general law of the State. S.C.
Code Ann. § 5-7-30 (Supp. 2017). We hold the rule requiring separation of distinct
county bond propositions into different referendum questions—espoused in Ross
and reflected in Section 7-13-400—is part of this general law.
We find additional support for our holding in Eugene McQuillin's The Law of
Municipal Corporations, which we have cited as persuasive authority. See S.C. Dep't
of Transp. v. Revels, 411 S.C. 1, 9, 766 S.E.2d 700, 704 (2014). To wit:
If there are two or more separate and distinct propositions to be voted
on, each proposition should be stated separately and distinctly, so that
a voter may declare his or her opinion as to each matter separately . . . .
However, the statute did not overrule the Court's decision in Ross or apply to other
subjects.
5
Respondents contend the single purpose of the referendum was to increase the
county's debt limit. Notably, however, this purpose was not presented to the voters,
as it does not appear in the referendum question.
6
See, e.g. S.C. Const. art. VIII.
Elections are invalid where held under such restrictions as to prevent
the voter from casting his or her individual and intelligent vote on the
object or objects sough to be attained. The object of the rule preventing
the submission of several and distinct propositions to the people united
as one in such a manner as to compel the voter to reject or accept all, is
to prevent rejection of popular or necessary propositions that are joined
with other measures that are not so popular or necessary. . . . This may
be done on a single ballot, but the ballot must state each proposition
separately, so that the voter may be able to express his or her will with
reference to each question.
15 Eugene McQuillin, The Law of Municipal Corporations § 40:9 (2016).
Contrary to Respondents' assertions, our holding today does not require
municipalities to obtain and issue separate bonds for each project they seek to
undertake; nor does it impact the Capital Project Sales Tax Act.7 We hold only that
a ballot referendum proposing bonded indebtedness must contain a single question
for each proposal to which voters can respond affirmatively or negatively.
CONCLUSION
Based on the foregoing, we REVERSE the circuit court's decision and
REMAND for entry of judgment consistent with this opinion.
BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.
7
S.C. Code Ann. § 4-10-300 et seq. (Supp. 2012).