Hamilton v. Fulgham

Justice BEATTY.

I respectfully dissent. In my view, construction of the relevant statutes clearly leads to the conclusion that the *642legislative intent is that county boards of elections shall not be involved in municipal elections unless invited to do so by a particular municipality. County board involvement is limited to the extent of authority granted by the municipality. The authority granted to the county board of elections is required to be evident in ordinances passed by both municipal and county governing bodies.5

I find no ambiguity in the statutes or statutory scheme. Appeals from municipal election commissions are heard in the circuit court. S.C.Code Ann. § 5-15-140 (2004). Appeals from county boards of elections are heard by the South Carolina State Elections Commission. S.C.Code Ann. § 7-17-60 (2004). The Legislature is presumed to know that it authorized county boards to conduct municipal elections when requested and agreed upon. Yet, section 7-17-60 does not include an exception for municipal elections appeals.

The decision that the State Elections Commission did not have jurisdiction disregards two points:

1) This is an appeal of a county board’s decision to the State Election Commission, and there is no authority for the appeal of the county board’s decision to the circuit court. The State Elections Commission has subject matter jurisdiction to hear appeals from county boards.
2) The conundrum created by section 7-17-30. Bluffton does not have an elections commission to hear protests or contests. Section 7-17-30 prohibits county boards from deciding protests and contests of municipal election. Under the majority’s construction, Bluffton could transfer all aspects of its elections process to the county board except for protests and contests. Yet, section 5-15-145 authorizes a municipality to discontinue its elections commission when it transfers all of its election functions to the county board.

*643In my view, the legislative intent is that section 7-17-30’s bar to county boards deciding municipal election protests is not applicable to cases where the municipality has transferred its elections authority to the county board. Congruently, section 5-15-140 is not applicable and any appeal should be to the State Elections Commission not to the circuit court. Moreover, this is not an appeal from a municipal election commission. Section 5-15-140 only applies to appeals from municipal elections commissions.

The Town of Bluffton’s elections were conducted by the Beaufort County Board of Elections and Registration. Any appeal should be taken to the State Elections Commission. It is clear that the State Elections Commission has jurisdiction to hear appeals from county boards of elections.

A holding that the State Election Commission lacked jurisdiction due to an ambiguous statutory scheme is to create ambiguity where there is none and, thus, complicates an otherwise clear and simple election process.

I would dismiss certification as improvidently granted.

PLEICONES, J., concurs.

. The record before us does not contain a Town of Bluffton ordinance authorizing the County Board of Elections and Registration to conduct Bluffton's elections. This is problematical to Appellant's case given this Court is not allowed to take judicial notice of a municipal ordinance. Instead, the ordinance must be proved before the lower court or tribunal. Steinberg v. South Carolina Power Co., 165 S.C. 367, 163 S.E. 881 (1932). Arguably, the county board’s decision should be vacated.