South Carolina Public Interest Foundation v. South Carolina Transportation Infrastructure Bank

Justice PLEICONES.

I have, in previous decisions, stated my opposition to the “public importance” exception to standing. In my view, standing should not be conferred on a party who cannot allege a particular harm when another potential plaintiff has interests greater than the plaintiffs. See Energy Research Foundation *655v. Waddell, 295 S.C. 100, 102, 367 S.E.2d 419, 420 (1988); Sloan v. Department of Transportation, 379 S.C. 160, 175, 666 S.E.2d 236, 244 (2008) (Pleicones, J., dissenting). I completely agree that the constitutionality of the structure and composition of the board of the South Carolina Public Infrastructure Bank (the board) is of great public importance. Nonetheless, I would conclude that, despite the manifest public importance of the issues raised by Petitioner, the executive branch has a greater interest than Petitioner in seeing that the General Assembly does not intrude on executive powers. Thus, I would hold that Petitioner lacks standing to bring this challenge. I therefore concur in result.

Although the analysis should end with the determination that Petitioner lacks standing to bring this challenge, I address the merits because I disagree with the majority’s analysis.

On the question whether the composition of the board is unconstitutional, we must initially determine whether the board is legislative or executive. In Bramlette v. Stringer, the Court considered the constitutionality of an act, challenged as a violation of the separation of powers, that authorized the Greenville County legislative delegation to determine the amount and method of selling bonds for highway construction and to select the particular roads to be constructed and improved. 186 S.C. 134, 195 S.E. 257 (1938). These functions, the Court found, “are fully discretionary acts, relating exclusively to the executive functions....” Id. at 149-50, 195 S.E. at 264. The board of the Infrastructure Bank here is charged with the power to issue bonds and other debt, determine which projects to fund, and make loans. Thus, the board and its functions are undoubtedly executive.

The Bramlette Court, having identified the functions at issue as executive, unanimously struck down the act, finding that the provisions permitting performance of such acts by a legislative delegation “are clear violations of [the separation of powers mandate], and are therefore null and void.” 186 S.C. at 149-50, 195 S.E. at 264. In the course of its decision, the Court examined those cases in which some “executive” functions had been found permissible as incidental to the legislative function, but it did not discover a fluid boundary between *656the legislative and executive branches.6 Rather, it identified as permissible to the legislative branch “executive” functions so unremarkable as hiring and firing its own accountants engaged in audits of executive bodies. Id. at 146-47, 195 S.E. at 262.

The General Assembly in subsequent years, having been denied the option of creating executive boards composed exclusively of legislators, has created executive boards on which it has designated some, though not all, seats to legislators or to legislative appointees. In Ashmore v. Greater Greenville Sewer District, we rejected this overlap of government branches as well, striking down as unconstitutional an executive board where two of its thirteen members were designated to be legislators. 211 S.C. 77, 44 S.E.2d 88 (1947). The board’s composition is unconstitutional under Ashmore.

Subsequently, however, the Court reversed course and approved some limited seating of legislative members on executive bodies. In State ex rel. McLeod v. Edwards, the Court approved such minority membership, explaining that it was intended to “mak[e] available to the executive department the special knowledge and expertise” of the legislative members. 269 S.C. 75, 83, 236 S.E.2d 406, 409 (1977). While thus seeking to characterize the legislators’ function on the board as incidental to the legislative function, the Edwards Court also found it “[important” that “the General Assembly ha[d] been careful to put the legislative members in a minority position on [the executive body].” Id. at 82-83, 236 S.E.2d at 408-09.

*657In my view, Edwards was wrongly decided because it departed from the Court’s prior adherence to the traditional doctrine of separation of powers requiring clear boundaries between the two branches and disapproving any legislative membership on executive boards. As the Ashmore Court implicitly recognized, any legislative presence on an executive body constitutes legislative exercise of executive powers, since even a single voting member of an executive body may have opportunities to alter the outcome of a number of its decisions. If the true purpose of seating legislators on such bodies were to make their special knowledge and expertise available to the executive department, the power to vote would be unnecessary.

Notwithstanding my disagreement with Edwards and its progeny, even under our current jurisprudence the composition of the board of the Infrastructure Bank is impermissible. In Tall Tower, Inc. v. South Carolina Procurement Review Panel, while it again approved mixed membership on an executive body, the Court articulated the test for a mixed-membership board. 294 S.C. 225, 368 S.E.2d 683 (1987). The Court explained that legislative membership on an executive body is permissible under two conditions: “(1) the legislators should be a numerical minority; and (2) the body should represent a cooperative effort to make available to the executive department the special knowledge and expertise of designated legislators in matters related to their function as legislators.” Id. at 230, 363 S.E.2d at 685-86. The Tall Tower Court considered all possible compositions permitted by the statute for the nine-member body: “Two legislative positions are statutorily guaranteed, with a possibility of four legislators maximum. The five executive appointees will always constitute a majority.” Id. at 230, 363 S.E.2d at 686. Here, two legislative positions are statutorily guaranteed, with a possibility of four legislators maximum, but only three seats are designated for executive officers or appointees.

The majority explains that Tall Tower was concerned only with the number of seats guaranteed to legislators and not with the branch by which members are appointed. I disagree. As is clear from the foregoing quotation, the Tall Tower Court assumed that the General Assembly might appoint legislators to all four seats for which it held appointment power and *658approved the composition only because a majority of executive appointees was guaranteed. In contrast, the board of the Infrastructure Bank is guaranteed always to be dominated by legislative appointees. Moreover, as a practical matter, it defies logic to assert that the board is not controlled by the legislative branch when that branch appoints the majority of its members, regardless whether those members are themselves legislators.

I also respectfully disagree with the suggestion that a constitutional nexus exists for the exercise by legislators of the board’s function in article X, section 13, of our constitution. See Segars-Andrews v. Judicial Merit Selection Commission, 387 S.C. 109, 126, 691 S.E.2d 453, 462 (2010) (approving legislative membership on Judicial Merit Selection Commission as incidental to the constitutionally mandated legislative function of electing judges). Article X, section 13, concerns the creation of state debt and seeks to protect taxpayers by limiting the amount of debt that may be incurred. Robinson v. White, 256 S.C. 410, 416, 182 S.E.2d 744, 747 (1971). In my view, nothing in the wording of this section suggests any constitutional nexus for legislative appointees to participate in the issuance of bonds and indebtedness or select recipients or projects to be financed. The language used in Article X, section 13, in no way suggests deviation from ordinary constitutional procedures designed to separate the legislative and executive functions. See S.C. Const, art. Ill, § 18 (bicameralism); art. IV, § 21 (presentment). It speaks only in terms of the General Assembly enacting legislation to authorize the incurring of debt.7 As the Bramlette Court explained, when the General Assembly sought to permit a delegation of its members to participate in the issuance of bonds,

*659It is conceded that the Legislature itself, in the act, could have specified the amount, and method of selling bonds, and designated the roads to be constructed and improved with the funds. It is well settled that the Legislature may pass any act which is not prohibited by the State or Federal Constitutions. But the act must be complete when it comes from the hands of the Legislature; nothing can be added to, or taken away from, the act [by members of the legislative branch] after it leaves the lawmaking body.... Article 3 of the State Constitution prescribes the procedure for enacting laws. Among other requirements, the act must be passed during a session of the Legislature, by a majority vote of both branches of that body, after having been read three times, and approved by the Governor. All such requirements are mandatory. So any action now on the part of the Greenville County Legislative Delegation, pursuant to said act, cannot amount to the enactment of legislation, and if said act was incomplete when it came from the hands of the Legislature, it cannot be finished by the Greenville County Legislative Delegation in the manner provided for in said act.

186 S.C. 134, 136-37, 195 S.E. 257, 258 (internal citations omitted).

Thus, I would hold that § 11-43-140 violates article I, section 8, of the South Carolina Constitution, and that it is unnecessary to reach the question whether § 11-43-140 violates the dual office holding prohibition of our constitution. Nevertheless, because Petitioner lacks standing to bring this challenge, I concur in result.

. The majority cites to secondary sources as authority for the proposition that South Carolina has traditionally used a commission approach to government rather than to this Court’s precedents, the only real authorities on the interpretation of our constitution’s separation of powers mandate. As the discussion herein demonstrates, in my view these authorities do not interpret that mandate as permissively as does the majority. Moreover, this Court's recent decision in State v. Lang-ford, 400 S.C. 421, 735 S.E.2d 471 (2012), gave no weight to our state’s longstanding tradition of solicitor control of the docket. Notwithstanding that executive and judicial functions necessarily interact when court proceedings are initiated in criminal prosecutions, the Court held that solicitor control of the docket "is not a grey area where some encroachment can be tolerated, but rather a complete invasion into the court’s domain.” Id. at 435, 735 S.E.2d at 478.

. See art. X, § 13(4) ("In each act authorizing the incurring of general obligation debt the General Assembly shall....”); (5) ("If general obligation debt be authorized by (a) two-thirds of the General Assembly; or (b) [referendum] ... there shall be no conditions or restrictions ... except ... those ... imposed in the authorization....”); (6) ("on such terms and conditions as the General Assembly may by law prescribe”); (7) ("under such terms and conditions as the General Assembly may prescribe by law”); (8) (“under terms and conditions which the General Assembly may prescribe by law”); (9) ("The General Assembly may authorize the State or any of its agencies, authorities or institutions to incur indebtedness....”; “upon such terms and conditions as the General Assembly may prescribe by law”) (all emphases added).