South Carolina Public Interest Foundation v. Lucas ( 2016 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
South Carolina Public Interest Foundation and Edward
D. Sloan, Jr,. individually, and on behalf of all others
similarly situated, Petitioners,
v.
James H. "Jay" Lucas, as Speaker of the S.C. House of
Representatives, Henry D. McMaster, as President of the
S.C. Senate, and The State of South Carolina,
Respondents.
Hugh K. Leatherman, Sr., in his capacity as President Pro
Tempore of the South Carolina Senate, Intervenor.
Appellate Case No. 2015-001443
IN THE ORIGINAL JURISDICTION
Opinion No. 27638
Heard March 22, 2016 – Filed May 18, 2016
PROVISO STRICKEN
James G. Carpenter, Esquire, of Carpenter Law Firm, PC,
of Greenville, for Petitioners.
Michael J. Anzelmo, and Blake Terence Williams, both
of Nelson Mullins Riley & Scarborough; Richard L.
Pearce, Patrick G. Dennis, and Charles Fennell Reid, all
of Columbia, for Respondent James H. "Jay" Lucas, Jr.;
Attorney General Alan McCrory Wilson and Deputy
Solicitor General J. Emory Smith, Jr., both of Columbia,
for Respondents State of South Carolina and Lieutenant
Governor Henry D. McMaster.
Kenneth M. Moffitt and Edward Houseal Bender, both of
Columbia, for Intervenor Hugh K. Leatherman, Sr.
CHIEF JUSTICE PLEICONES: We agreed to hear this constitutional challenge
to the 2015-16 Appropriations Act in our original jurisdiction.1 Petitioners
contend, and we agree, that the inclusion of Proviso 84.182 in that act violates the
"one subject" requirement found in S.C. Const. art. III, § 17. As explained below,
we hold that where the general appropriations act contains a section that is not
germane to the purpose of that act, i.e., one that does not "reasonably and
inherently relate to the raising and spending of tax monies," that section may be
excised by a court. In so doing, we modify our holding in Am. Petroleum Inst. v.
South Carolina Dep't of Rev., 382 S.C. 572, 677 S.E.2d 16 (2009).3
1
The dissent would hold that whether the 2015-16 Appropriations Act violates the
State Constitution is too insignificant a matter to warrant this Court's exercise of its
original jurisdiction, and would therefore dismiss the petition. Moreover, the
dissent would base this dismissal on petitioners' motives, and not on the merits,
thereby permitting petitioners to refile in circuit court. The dissent fails to
appreciate that were this case to be decided in the circuit court, that court would be
bound by stare decisis and would be required to strike the Act in its entirety. Am.
Petroleum Inst. v. South Carolina Dep't of Rev., 382 S.C. 572, 677 S.E.2d 16
(2009). The circuit court could not alter that remedy any more than can the
petitioners by their pleadings. The consequences of such a ruling would call into
question the ability of the state to meet its fiscal obligations. Unlike the dissent,
we find that the public interest requires we exercise our original jurisdiction to
decide this case in an expeditious manner. Rule 245, SCACR; See Carnival Corp.
v. Historic Ansonborough Neighborhood Ass'n, 407 S.C. 67, 753 S.E.2d 846 (2014).
2
2015 Act No. 91, Part 1B, § 84, Proviso 84.18.
3
The dissenting opinion maintains that we can avoid deciding a constitutional issue
here by simply proclaiming the Proviso invalid. We disagree. The Proviso,
FACTS
South Carolina Code Ann. § 57-1-410 (Supp. 2015) provides for the appointment
of an administrative official denominated the Secretary of Transportation. This
statute, enacted as § 5 of 2007 Act No. 114, reads:
The Governor shall appoint, with the advice and consent of the
Senate, a Secretary of Transportation who shall serve at the
pleasure of the Governor. A person appointed to this position
shall possess practical and successful business and executive
ability and be knowledgeable in the field of transportation. The
Secretary of Transportation shall receive such compensation as
may be established under the provisions of Section 8-11-160
and for which funds have been authorized in the general
appropriations act.
The next section of 2007 Act No. 114 provided:
Unless extended by subsequent act of the General Assembly,
the Governor's authority to appoint the Secretary of the
Department of Transportation pursuant to Section 57-1-410
terminates and is devolved upon the Department of
Transportation Commission effective July 1, 2015. All other
provisions regarding the rights, powers, and duties of the
secretary shall remain in full force and effect.
2007 Act No. 114, § 6.
Proviso 84.18 purports to suspend the 2015 termination/devolution provision of
2007 Act No. 114, § 6, for the fiscal year, i.e., until June 30, 2016, thus leaving
intact the appointment authority given to the Governor in § 5.
standing alone, is not invalid. Rather the issue before the Court is whether the
inclusion of the Proviso in the Appropriations Act renders the Act violative of
S.C. Const. art. III, § 17. That is the constitutional issue we cannot "decline to
reach." Once the Act is found to violate the Constitution, the question of the
appropriate remedy for that constitutional violation is necessarily before the Court.
Petitioners seek a declaration that the inclusion of Proviso 84.18 in the
appropriations act violates art. III, § 17. This section of our state constitution
provides:
§ 17. One subject.
Every Act or resolution having the force of law shall relate to
but one subject, and that shall be expressed in the title.
Article III, § 17 has three objectives:
"(1) to apprise the members of the General Assembly of the
contents of an act by reading the title; (2) to prevent legislative
'log-rolling',4 and (3) to inform the people of the State of the
matters with which the General Assembly concerns itself." Am.
Petroleum Inst. v. South Carolina Dep't of Revenue, 382 S.C.
572, 576, 677 S.E.2d 16, 18 (2009).
Sea Cove Dev., LLC v. Harborside Comm. Bank, 387 S.C. 95,
101, 691 S.E.2d 158, 161 (2010).
"Log-rolling" is defined as a "legislative practice of including several propositions
in one measure . . . so that the Legislature . . . will pass all of them, even though
these propositions may not have passed if they had been submitted separately."
Am. Petroleum at 577, 677 S.E.2d at 18, citing Blacks Law Dictionary 849 (7th ed.
1999).
The crux of petitioners' art. III, § 17 challenge is that the subject matter of Proviso
84.18, suspension of the appointment power found in 2007 Act No. 114, § 6, is
neither germane to, nor does it provide the means, methods, or instrumentalities
for, effectuating the purpose of the general appropriations act, i.e. the raising or
expenditure of revenue. See, e.g., Hercules, Inc. v. S.C. Tax Comm'n, 274 S.C.
137, 141-2, 262 S.E.2d 45, 47-48 (1980). As such, petitioners argue that the
4
Other terms used for this practice are 'bobtailing,' see, e.g., Keyserling v. Beasley,
322 S.C. 83, 470 S.E.2d 100 (1996), and 'hodgepodge.' See, e.g., Arthur v.
Johnston, 185 S.C. 324, 194 S.E. 151 (1937).
inclusion of Proviso 84.18 in the 2015-16 Appropriations Act violates S.C. Const.
art. III, § 17. We agree.
The Court has decided a number of cases involving a challenge to a provision of
the annual appropriations act as violative of art. III, § 17. In the following cases,
the "log-rolling" challenge was denied because the challenged section was found to
be germane to the purpose of the act:
1. Giannini v. S.C. DOT, 378 S.C. 573, 664 S.E.2d 450 (2008)
(reenactment of Tort Claims Act Caps are reasonably and
inherently related to raising and spending of tax monies).
2. Town of Hilton Head Island v. Morris, 324 S.C. 30, 484
S.E.2d 104 (1997) (requirement that local governments
remit real estate transfer fees to the state).
3. Keyserling v. Beasley, 322 S.C. 83, 470 S.E.2d 100 (1996)
(provisions creating a committee to negotiate new contracts
and fees for waste disposal and to repeal an earlier law
thereby allowing landfill to continue to accept out-of-state
waste and associated fees).
4. State Farm Mut. Auto. Ins. Co. v. Smith, 281 S.C. 209, 314
S.E.2d 333 (1984) (insurance commission to collect a
fee/tax from automobile insurers).
5. Powell v. Red Carpet Lounge, 280 S.C. 142, 311 S.E.2d 719
(1984) (altering definition of machines subject to licensing
fee).
6. Hercules, Inc. v. S.C. Tax Comm'n, 274 S.C. 137, 262
S.E.2d 45 (1980) (suspension of tax assessment statute of
limitations).
7. Caldwell v. McMillan, 224 S.C. 150, 77 S.E.2d 798 (1953)
(proviso permitting Highway Department to build a kitchen
and lease the space to a restaurateur).
8. State ex rel. Roddey v. Byrnes, 219 S.C. 485, 66 S.E.2d 33
(1951) (issuance of state bonds; school construction; sales
and use tax).
9. Crouch v. Benet, 198 S.C. 185, 17 S.E.2d 320 (1941) (bonds
to build additional facilities).
In the following cases, however, provisions of the appropriations act were found to
violate art. III, § 17 because their content was not germane to the raising or
spending of tax monies:
1. Ex parte Georgetown Water & Sewer Dist., 284 S.C. 466,
327 S.E.2d 654 (1985) (permitting referendums in special
purpose districts to decide method of electing members
and/or nature of budget).
2. Maner v. Maner, 278 S.C. 377, 296 S.E.2d 533 (1982)
(amendments to act creating the Court of Appeals).
3. S.C. Tax Comm'n v. York Elec. Coop., 275 S.C. 326, 270
S.E.2d 626 (1980) (Uniform Disposition of Unclaimed
Property Act giving state custody of certain unclaimed
property).
We agree with petitioners that Ex parte Georgetown, supra, Maner, supra, and
York Elec. Coop., supra, dictate that we hold that the inclusion of Proviso 84.18 in
the 2015-16 Appropriations Act violates the log-rolling prohibition found in art.
III, § 17. The provision at issue in Ex parte Georgetown, like Proviso 84.18, was
concerned with the manner in which the governing body of a state entity would be
selected. Like Proviso 84.18, Maner involved administrative, not monetary
matters. Finally, in York Elec. Coop., the Court found the Unclaimed Property Act
was not revenue providing, but instead merely procedural. We find that the
suspension of the devolution of the Secretarial selection authority from the
Governor to the Commission is a matter of administration and procedure involving
the method of choosing an official.
Intervenor Leatherman argues, however, that because the Secretary necessarily has
some discretion in making significant fiscal decisions on behalf of DOT, any
legislation touching on the selection of the individual vested with this authority is
properly included in the appropriations act. Article III, § 17, however does not
sweep this broadly: "The test applied in York and Hercules, both of which involved
appropriations acts, was whether the challenged legislation was reasonably and
inherently related to the raising and expenditure of tax monies." Maner, 278 S.C.
at 382, 296 S.E.2d at 536. The right to appoint the Secretary, whatever that
officer's authority to expend agency funds, does not meet this test. The suspension
of the appointment authority in Proviso 84.18 does not "reasonably and inherently"
relate to the raising or spending of tax money and is therefore not germane to the
purpose of the appropriations act.
Respondent Lucas takes a different approach and suggests a new analytical
approach to art. III, § 17 challenges to legislation contained in an appropriations
act. He suggests that the scope of the 2015-16 Appropriations Act was expanded
beyond mere fiscal concerns by the words "the operation of state government" in
its title. The full title of the Appropriations Act is:
AN ACT TO MAKE APPROPRIATIONS AND TO
PROVIDE REVENUES TO MEET THE ORDINARY
EXPENSES OF STATE GOVERNMENT FOR THE
FISCAL YEAR BEGINNING JULY 1, 2015, TO
REGULATE THE EXPENDITURE OF SUCH FUNDS,
AND TO FURTHER PROVIDE FOR THE OPERATION
OF STATE GOVERNMENT DURING THIS FISCAL
YEAR AND FOR OTHER PURPOSES.
First, we are not convinced that the title is susceptible of a reading that separates
"operation of state government" from fiscal issues. Further, if Respondent Lucas
were correct, and 2015 Act No. 91 embraces both appropriations and the entire
"operation of state government," it would ipso facto violate the "one subject"
requirement of art. III, § 17.
Respondent Lucas next argues the Court should not read Proviso 84.18 "in
isolation" but rather in the context of all of Proviso 84, citing Keyserling, supra.
We find his reliance on this decision is misplaced. Keyserling was a challenge to
two parts of a section of the 1995 Appropriations Act. See 1995 Act No. 145, Part
11, § 79. Section 79, which addressed the Barnwell low-level radioactive waste
landfill, contained four parts:
(A) added a statute imposing a tax on low-level out-of-state
waste;
(B) amended a statute to create a committee to negotiate a new
waste disposal compact, with the committee authorized to
negotiate new fees;
(C) required a part of all revenues generated by the landfill be
remitted to the General Fund; and
(D) repealed a statute which established the original waste
disposal compact.
Subsections (B) and (D) were challenged as not related to revenue raising and
therefore violative of art. III, § 17. The Court rejected the challenges, holding that
(B) was germane as it authorized a committee to negotiate new fees and that (D),
by repealing the existing compact, permitted the landfill to continue to accept out-
of-state waste, thereby generating funds while the new compact and new fees were
negotiated under (B). The Court concluded: "Without these sections, [the landfill]
will not generate the amount of revenues sought by the General Assembly."
Keyserling at 87, 470 S.E.2d at 102.
Respondent Lucas relies on language from Keyserling which "rejects Petitioners'
claim that we should read the provisions of Section 79 in isolation, requiring each
provision to relate directly to appropriations." Id. at 88, 470 S.E.2d at 103.
(emphasis supplied). In Keyserling, subsection (B) did not directly relate to
appropriations as it authorized the commission to negotiate the new fees, but did
not itself set that amount, and subsection (D) did not directly set a fee, but by
deleting a statute, permitted a fee to continue to be collected. While neither section
directly raised revenue, both were nonetheless "reasonably and inherently" related
to revenue raising, and were necessary to make the whole of Section 79 effective.
Other examples of provisions in appropriations acts that did not directly relate to
revenue raising or spending, but were nonetheless found to be reasonably and
inherently related to this purpose, are: (1) a provision that defined the machines
subject to a license fee but did not itself set that fee, Powell, supra; (2) a proviso
that suspended a statute of limitations so as to permit a tax assessment to continue
to be collected, Hercules, supra; and (3) a subsection which authorized the
building of a cafeteria and a contract with a restaurateur, without directing the
amount that could be spent. Caldwell, supra.
While a provision in the appropriations act need not directly relate to spending
revenue, Keyserling, supra, it must "reasonably and inherently" relate to this
purpose. Hercules, supra. Moreover, the "viewed in isolation" language from
Keyserling is addressed to a "stand-alone" section of the appropriations act
concerned with one isolated issue: adding, deleting, and amending statutes to
permit the continued operation of a revenue-generating landfill. Here, the
challenge is to a single proviso included in a section of the appropriations act
containing a large agency's entire budget. We find "the stand alone" passage in
Keyserling cited by Respondent Lucas does not apply so as to make Proviso 84.18
germane to the Appropriations Act. Moreover, if Respondent Lucas were correct,
then the appropriations act could include any item, however tangentially related to
an agency's operations, so long as that item were included in that agency's budget
section. Such a rule would effectively exempt the appropriations act from the
ambit of art. III, § 17. The language of the constitution and our precedents,
however, require that the general appropriations act, like every other "Act or
resolution having the force of law" relate only to "one subject." S.C. Const. art. III,
§ 17.
The issue is whether Proviso 84.18, suspending the termination of the Governor's
appointment power, is reasonably and inherently related to the raising and
spending of tax monies. See Town of Hilton Head, supra, 324 S.C. at 35, 484
S.E.2d at 107. We hold that it is not, and thus its inclusion in the Appropriations
Act renders that Act violative of art. III, § 17. See Ex parte Georgetown, supra;
Maner, supra; York Elec. Coop., supra.
Having determined that the inclusion of Proviso 84.18 in the Appropriations Act
violates art. III, § 17, the next question is the appropriate remedy. Prior to 2009,
the Court took the view that when certain provisions of an act violated the "one
subject" rule, the Court could strike down the offending provision(s) and leave
standing the germane part of the legislation. This remedy has been applied in
appropriations act challenges. E.g., Ex parte Georgetown, supra. In 2009,
however, in a case not involving the appropriations act, we held that if the
constitutional "one subject" requirement were violated, then the entire act must be
struck down. Am. Petroleum, supra.
Pursuant to Am. Petroleum, we could find that because Proviso 84.18 violates art.
III, § 17, we must strike the entire 2015-2016 Appropriations Act. As explained
below, however, we find this drastic remedy is not necessary when the offending
language is included in the general appropriations act.
It is well settled that the purpose of the appropriations act is the raising and
spending of revenue. E.g., Crouch, supra (1941); State ex rel. Roddey, supra,
(1951). The intent of the General Assembly in enacting an appropriations act is
clear and we would not be in the position of usurping the General Assembly's
prerogative to determine an act's "proper subject" when the legislation at issue is
the appropriations act since the only items which are germane to that subject are
those that "reasonably and inherently relate to the raising and spending of tax
monies." See Plowden v. Beattie, 185 S.C. 229, 240, 193 S.E. 651, 656 (1937)
("The appropriations act is the one "big piece" of legislation to occupy the time of
the legislature at each session of the General Assembly, and is probably the most
studied bill . . . ."). Accordingly, we modify our decision in Am. Petroleum, supra
and now hold that when deciding an art. III, § 17 challenge to the annual
appropriations act, we have the authority to excise any provision that is not
germane to fiscal issues.
CONCLUSION
We hold that the inclusion of Proviso 84.18 in 2015 Act No. 91 violates art. III, §
17, and order that Proviso 84.18 be stricken from the Act. As a result, the
authority to appoint the Secretary of Transportation devolved from the Governor to
the Department of Transportation Commission effective July 1, 2015 pursuant to
2007 Act No. 114, § 6.
PROVISO STRICKEN.
BEATTY, KITTREDGE and HEARN, JJ., concur. FEW, J., dissenting in a
separate opinion.
JUSTICE FEW: I respectfully do not join the majority opinion. In my view, this
case does not present a question of sufficient public interest to justify this Court
hearing it in our original jurisdiction. See Key v. Currie, 305 S.C. 115, 116, 406
S.E.2d 356, 357 (1991) ("Only when there is an extraordinary reason such as a
question of significant public interest or an emergency will this Court exercise its
original jurisdiction."). Though this Court already granted the petition to hear the
case, the Court has dismissed such petitions in the past when it became clear the
case was not appropriate for original jurisdiction. See, e.g., Milton v. Richland
Cty., Op. No. 2015-MO-046, slip op. at 5 (S.C. Sup. Ct. filed August 5, 2015)
(after finding "Petitioner has failed to demonstrate a justiciable controversy," the
Court "dismiss[ed] this matter in our original jurisdiction as it is not appropriate for
our review"). I would dismiss the petition.
This case is a companion to one in which the same petitioners contend the transfer
of authority to appoint the Secretary of Transportation—from the Governor to the
Department of Transportation—is unconstitutional under the separation of powers
requirement set forth in article I, section 8 of the South Carolina Constitution. In
the companion case, Petitioners seek to prevent the transfer of authority from
occurring, contending the authority must remain with the Governor because the
Department of Transportation is an executive branch department. In this case,
however, striking Proviso 84.18 of the 2015-2016 Appropriations Act5 accelerates
that transfer of authority. Thus, the relief Petitioners seek in this case is
inconsistent with the relief they seek in the companion case. By granting relief, we
bring about the very event Petitioners seek to prevent in the companion case—the
transfer of authority to appoint the Secretary away from the Governor.
However, if Proviso 84.18 is effective, the transfer has not yet occurred, and
Petitioners' separation of powers challenge in the companion case is not ripe for
judicial determination. Thus, by granting Petitioners the relief they seek here, we
enable them to seek relief in the companion case that would otherwise not be ripe.
That is what this case is about. While I do not suggest there is anything improper
in Petitioners' motives, Petitioners clearly did not bring this case to accelerate the
timing of an event they contend is unconstitutional. Rather, this case was filed
only to prevent a finding in the companion case that the challenge to that transfer is
5
Act No. 91, 2015 S.C. Acts 429, 916.
not ripe. In my opinion, acknowledging this assists us in understanding the
controversy before us and better enables us to evaluate the public interest at stake.
In an unpublished opinion in the companion case—issued simultaneously with this
opinion—we deny without explanation the relief Petitioners seek there. S.C. Pub.
Interest Found. v. Rozier, Op. No. 2016-MO-019 (S.C. Sup. Ct. filed May 18,
2016). In that opinion, the Court states only, "After careful consideration of the
briefs, and after oral argument, we find no merit to petitioners' challenge and
therefore decline to issue the declaratory relief they seek." Rozier, slip op. at 2.
Therefore, this Court issues its opinion in this case for the purpose of determining a
companion case is ripe, so the Court may deny relief in the companion case
without any explanation. This is not the type of "significant public interest" that
warrants this Court's exercise of its original jurisdiction.
As to the merits of the majority opinion, I do not agree that this Court should adopt
a new rule in this case that "when deciding an art[icle] III, [section] 17 challenge to
the annual appropriations act, we have the authority to excise any provision that is
not germane to fiscal issues." Such a broad proclamation of law is not necessary to
resolve the controversy before the Court. See generally In re McCracken, 346 S.C.
87, 92, 551 S.E.2d 235, 238 (2001) (reciting "this Court's firm policy to decline to
rule on constitutional issues unless such a ruling is required"); Fairway Ford, Inc.
v. Cty. of Greenville, 324 S.C. 84, 86, 476 S.E.2d 490, 491 (1996) (reciting the
"firm policy of declining to reach constitutional issues unnecessary to the
resolution of the case before us"). See also Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450-51, 128 S. Ct. 1184, 1191, 170 L. Ed. 2d 151,
161 (2008) (reciting "the fundamental principle of judicial restraint that courts
should neither 'anticipate a question of constitutional law in advance of the
necessity of deciding it' nor 'formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied'" (quoting Ashwander v.
TVA, 297 U.S. 288, 346-347, 56 S. Ct. 466, 483, 80 L. Ed. 688, 711 (1936)
(Brandeis, J., concurring))).
The new rule the Court adopts is not necessary because this case poses a narrow
question: whether the transfer of authority to appoint the Secretary occurred on
July 1, 2015—as originally contemplated by section 6 of Act 114 of 2007—or has
been delayed to July 1, 2016—as provided in Proviso 84.18. The question can be
further narrowed into two sub issues: (1) whether Petitioners have proven a
violation of article III, section 17, and (2) if so, the remedy this court should
impose for the violation. The majority makes this point, stating, "Once the Act is
found to violate the Constitution, the question of the appropriate remedy for that
constitutional violation is necessarily before the Court." See supra note 3. Here,
the majority determined a constitutional violation occurred. Turning then to
remedy, the "appropriate remedy for that constitutional violation" should be
narrowly tailored to fit the question before the Court. In my opinion, the Court
may fully answer the question before it and completely resolve the controversy
Petitioners presented by merely stating the Proviso did not extend the transfer of
authority. It is not appropriate to consider the remedy of invalidating the entire
2015-2016 Appropriations Act because answering that broad legal question is not
necessary to resolve the narrow controversy before us.
Moreover, Petitioners' complaint does not seek a declaration as to the
constitutionality or enforceability of the entire Appropriations Act. Generally, if a
plaintiff asks only for a narrow remedy, there is no reason for a court to decide
whether to grant a more drastic remedy. Petitioners ask in their complaint only
that we "declare that Proviso 84.18 violates [article III, section 17], and therefore is
null and void."6 Thus, it is not necessary in this case to decide whether the remedy
should include a declaration that the entire Appropriations Act is unconstitutional.
No party has requested such a remedy, and such a remedy is not necessary to
resolve the controversy before us. Rather, to answer the very narrow question
before the Court in this case, we need make only this very narrow ruling—because
the Proviso violates the one-subject limitation, it is not effective to delay the
transfer of authority to appoint the Secretary of Transportation.
The importance of the restraint I propose is illustrated by what the majority
considers the necessity to "modify our decision" of only seven years ago in
American Petroleum Institute v. South Carolina Department of Revenue, 382 S.C.
572, 677 S.E.2d 16 (2009), an opinion that describes itself as a "depart[ure] from
recent precedent" of only one year before that—South Carolina Public Interest
Foundation v. Harrell, 378 S.C. 441, 663 S.E.2d 52 (2008). Am. Petroleum, 382
S.C. at 579, 677 S.E.2d at 19-20. In my opinion, even the rule announced in
American Petroleum was unnecessary to resolve the controversy before the Court
6
In their reply brief, Petitioners include a heading stating, "Ruling the Entire Act
Unconstitutional . . . Can Be an Appropriate Remedy." However, they make no
argument that doing so enables the relief they actually seek—ensuring the issues
raised in the companion case are ripe for judicial determination.
in that case.7 I believe this Court should adhere in this case to its "firm policy of
declining to reach constitutional issues unnecessary to the resolution of the case
before us." Fairway Ford, 324 S.C. at 86, 476 S.E.2d at 491. By doing so, we
might find it unnecessary to change the law so frequently.
For the reasons explained, I respectfully dissent.
7
In American Petroleum, the Court considered a challenge to an act containing
four sections—one providing a sales tax exemption for "certain energy efficient
products," one providing a sales tax exemption for "sales of handguns, rifles, and
shotguns during the 'Second Amendment Weekend,'" one regarding the blending of
fuel with ethanol and having nothing to do with any sales tax exemption, and one
providing the effective date. 382 S.C. at 575, 677 S.E.2d at 17. The challenge was
brought by the American Petroleum Institute, and related only to the fuel blending
provision—not the sales tax exemptions. 382 S.C. at 576, 677 S.E.2d at 18. The
controversy before the court, therefore, involved whether the businesses
represented by the Petroleum Institute and the intervenor South Carolina Petroleum
Marketers Association must comply with the fuel blending provision. The
controversy had nothing to do with the payment of sales taxes on energy efficient
products or firearms. To resolve the controversy before the Court, therefore, it was
not necessary to determine the constitutionality of any sales tax exemption.
Nevertheless, the Court proceeded to make the broad proclamation that it was
"constrained" to declare the entire act unconstitutional. 382 S.C. at 578, 677
S.E.2d at 19.