Beaufort County v. South Carolina State Election Commission

Justice HEARN.

Respectfully, I concur in part and dissent in part. While I agree with the majority that the plain language of Section 7-11 — 20(B)(2) of the South Carolina Code (Supp.2010) is limited only to the 2008 election cycle, I believe the majority misapplies our precedents concerning appropriations provisos and erroneously concludes Provisos 79.6 and 79.12 suspend this temporal limitation. I would therefore find no requirement that either the State Election Commission or the county *379election commissions conduct the 2012 Presidential Preference Primary.

I note at the outset that this case involves a non-binding presidential preference primary, rather than general elections and regular primaries which are unquestionably core functions of our State government. Hence, presidential preference primaries are excepted from the general statutes mandating the State and county commissions conduct primaries. See S.C.Code Ann. § 7-13-15(A)(2), (B)(1) (Supp.2010). I therefore begin with the premise that the State Commission and county commissions have no involvement in these preference primaries absent specific statutory authority.5

It has long been the law in this State that an appropriation act “has equal force and effect as a permanent statute” and can suspend the operation of a general law while it is in effect. Plowden v. Beattie, 185 S.C. 229, 236, 193 S.E. 651, 654 (1937). However, there must be an “irreconcilable conflict” between the appropriation and the general law before the latter is temporarily suspended. Id. We must therefore attempt to harmonize the statute and the budget proviso, for “ ‘[i]f, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part, or wholly, as the case may be.’ ” State ex rel. McLeod v. Mills, 256 S.C. 21, 26, 180 S.E.2d 638, 641 (1971) (quoting State ex rel. Buchanan v. Jennings, 68 S.C. 411, 415, 47 S.E. 683, 684 (1904)). Furthermore, “[i]t is well settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result.” Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 109, 536 S.E.2d 372, 375 (2000).

A review of the cases from our jurisprudence where a proviso has suspended a general law all involve precise and direct conflicts that are incapable of being harmonized. In Buchanan, the General Assembly passed an act setting the salary of a circuit judge at $3,000 per year. 68 S.C. at 412, 47 *380S.E. at 683. The next day, the General Assembly approved an appropriation which set a judge’s salary at $3,500 per year. Id. As there was no possible way to harmonize this conflict, this Court held the appropriation suspended the statute. Id. at 415, 47 S.E. at 684. Similarly, in Brooks v. Jones, 80 S.C. 443, 61 S.E. 946 (1908), the General Assembly set the annual salary of the clerk of the Supreme Court at $800 by statute, but later passed an appropriation setting his salary at $1,000 per year. Id. at 448-49, 61 S.E. at 947 (Jones, J., concurring in part and dissenting in part). Once again, the Court held the appropriations bill could not be reconciled and suspended the operation of the statute. Id. at 449, 61 S.E. at 947.6 The issue in Plowden was identical, with an appropriations bill changing (this time lowering) the salary for the Auditor of Clarendon County. 185 S.C. at 234, 193 S.E. at 653-54. After citing Brooks, id. at 236-37, 193 S.E. at 654-55, the Court held the appropriation act prevailed, id. at 241-42, 193 S.E. at 657. Finally, McLeod cited Buchanan, Brooks, and Plowden to hold that an appropriation’s reduction of a salary set by statute controlled as long as the appropriation was in effect. 256 S.C. at 26-28, 180 S.E.2d at 640-42. Thus, in order for the majority’s position to be correct, the provisos must be completely at odds with the general law.

As a threshold matter, I note that the majority and the parties themselves mistakenly identify the source of the perceived conflict with the provisos as being section 7-11-20(B)(2). As the majority correctly holds, that section by its very terms does not operate past the 2008 election cycle. Thus, the current budget provisos cannot conflict with the language “[f]or the 2008 election cycle” — or indeed any language in section 7-ll-20(B)(2) — because it is not in effect for the 2011-2012 fiscal year. In other words, the notion that the provisos can suspend the temporal limitation in section 7-11-20(B)(2) is spurious because it is impossible to suspend some*381thing that is no longer in effect, as a prerequisite to finding a conflict is the existence of something to conflict •with. Any conflict therefore must be between the provisos and the law as it currently stands, which is that the political parties themselves are responsible for the primaries.7 See S.C.Code Ann. § 7-ll-20(B)(l) (Supp.2010).

When the provisos are read together with the current law, I find no conflict. Proviso 79.6 states that filing fees from the political parties seeking to hold primaries “may also be utilized [by the State Commission] to conduct the 2012 Presidential Preference Primary elections.” 2011 Act No. 73, Pt. 1 B § 79.6 (emphasis added). Proviso 79.12 provides that the State Commission is “authorized to carry forward and use funds originally appropriated for Ballot Security to conduct the 2012 Presidential Preference Primary elections.” Id. § 79.12 (emphasis added). Rather than infringing at all on the responsibility of the political parties to conduct and run their primaries, Provisos 79.6 and 79.12 merely grant the State Commission the authority to participate should it choose to do so. Because the provisos complement the current law, I would hold that each should be given full effect. Thus, the responsibility for conducting the 2012 Presidential Preference Primary falls on the political parties, only to be supplemented by the State Commission in its discretion. Moreover, there is nothing in the provisos which would require the county commissions, or the State Commission for that matter, to shoulder the economic burden of a presidential preference primary. It is clear to me that the provisos envisioned different roles for the State and county commissions in 2012 than in 2008, and they provide no basis for us to resurrect and breathe new life into section 7-ll-20(B)(2).

*382It is true that the General Assembly often uses the words “may” and “authorize” in various appropriations, and I agree that the recipient of those funds can be mandated to use them for a particular purpose. But for that to be true, a mandate must already exist. If not, all provisos would be converted into express commands that the funds appropriated must be spent. The fallacy in this case of concluding these permissive provisos are part of a mandate that the State Commission conduct the upcoming primary is the assumption that there is already a valid and existing mandate. The majority recognizes that outside of the provisos, no such mandate exists for 2012. Because the plain language of the provisos is purely permissive, I accordingly decline to read any compulsory terms into them. Finding otherwise is directly contrary to the cases holding we follow the plain language of a statute and that a general law is suspended only to the extent there is an “irreconcilable conflict.”8

Not surprisingly, the majority fails to identify just what conflict requires the suspension of the temporal limitation. While an appropriations bill can certainly speak to other issues than salaries, I believe our prior cases are instructive because they illustrate just how irresoluble a conflict must be in order to suspend a general law. Commands to pay different salaries cannot be reconciled or harmonized, and therefore this Court correctly held in all of those cases that the salary provided for in the appropriations bill, be it higher or lower than that already provided by statute, controlled. No such conflict exists here. Had the provisos never been enacted, there would be no authority for either the State or county commissions to conduct the 2012 Presidential Preference Primary since the prior mandate imposed by section 7-11-20(B)(2) was limited to just “the 2008 election cycle.” Consistent with years of prior practice and statutory authority, it is *383therefore the responsibility of the political parties to conduct the upcoming primary. Provisos 79.6 and 79.12, merely authorize the State Commission — and only the State Commission as they do not speak about the county commissions at all — to participate. These are readily harmonized, and I decline to read anything more into the provisos or out of the statute.

In support of its position, the majority turns to the statement of the Governor in her veto of the provisos and the General Assembly’s override of that veto. However, the resolution of this important question turns solely on the impact of the provisos themselves, not on their veto by the Governor or the legislative override of that veto. Indeed, the fact that the majority must resort to such extrinsic aids is proof that the perceived conflict is not as self-evident as the majority suggests. In my view, holding that a subsequently enacted proviso supersedes a prior law is an extraordinary measure to be undertaken only when the conflict is clear on its face. I am also not persuaded that we should speculate as to what the override meant based on the limited record before us. Cf. CFRE, LLC v. Greenville Cnty. Assessor, 395 S.C. 67, 716 S.E.2d 877 (2011) (Shearouse Adv. Sh. No. 29 at 28-29) (holding that where the failure of the General Assembly to enact certain legislation could work equally to the advantage of both parties, it is error to rely on it).

The majority also writes that absent a suspension, the State Commission could carry over funds to do something it is not authorized to do, which would be an absurd result. However, the provisos themselves are sufficient to confer upon the State Commission the ability to participate in the 2012 primary even if section 7-ll-20(B)(2) is no longer in effect. Thus, there is no absurd result because it can carry over funds for an authorized act. However, whether it and the county commissions are required to do so is an entirely different question. Because the provisos neither mention the county commissions nor speak in mandatory terms, I believe it is error to insert these requirements into section 7-11-20. See Berkebile v. Outen, 311 S.C. 50, 55-56, 426 S.E.2d 760, 763 (1993) (stating it is “improvident to judicially engraft extra requirements into legislation which is clear on its face”).

*384As a final matter, I note that the majority is permitting Respondents to accomplish judicially what they either could not or would not do legislatively, despite repeated attempts. In enacting section 7-ll-20(B)(2), a bill was proposed that would have eliminated any references to the 2008 election cycle. S. 1279 117th Gen. Assem. (S.C.2008). Another bill was introduced in 2011 that would have done the same. S. 794 119th Gen. Assem. (S.C.2011). In rejecting these proposals, the General Assembly manifested its intent that mandatory involvement on the part of the State and county commissions was limited to 2008. See Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 385 & n. 13, 556 S.E.2d 357, 361 & n. 13 (2001) (noting that the General Assembly’s failure to enact two acts contemporaneous with the act in question is evidence that the provisions in the failed bills were not meant to be included). While the General Assembly very well could have required this again in 2012, either through another statutory amendment or the budget provisos, it did not do so.

In conclusion, I would hold that Provisos 79.6 and 79.12 merely grant the State Commission the authority to participate in the 2012 Presidential Preference Primary.9 However, I do not believe this grant of authority revives section 7 — 11— 20(B)(2) because that provision was, by its terms, limited to the 2008 election cycle. Moreover, what the provisos permit the State Commission to do is not what the statute required the State and county commissions to do during the 2008 election cycle. While the counties should work with the political parties to ensure the smooth operation of the primary and access to polling places, I would hold that there is no statutory mandate that they conduct the primary at their own expense. Most assuredly, I would not place an even greater financial burden on the counties by permitting the inclusion of advisory questions on the primary ballot, and on that issue, I concur with the majority.

BEATTY, J., concurs.

. This is not to suggest that preference primaries are not elections. They are elections and accordingly are subject to state and federal laws concerning the electoral process. Nevertheless, they are subject to a different set of statutory procedures under our Code than regular primaries.

. Chief Justice Pope and Acting Justice Gary simply adopted the order of the circuit court, which is not included in the Reporter. Brooks, 80 S.C. at 448, 61 S.E. at 947. Justice Jones, joined by Justice Woods, agreed that the appropriation could suspend the general law, and his vote made this the holding of the Court. See id. at 449, 61 S.E. at 947. (Jones, J., concurring in part and dissenting in part). His only disagreement was whether the appropriation could operate retroactively. Id. at 450, 61 S.E. at 947.

. As to the majority's contention that we must compare the provisos to section 7-11-20(B)(2) because the latter is part of the permanent laws of this State, I believe the Code Commissioner’s designation as such is of no moment. This subsection, by its very terms, is specifically limited to the 2008 election cycle and therefore does not survive following that election as posited by the majority. Moreover, contrary to the majority’s suggestion, I do not believe that section 7-11-20(B) is inapplicable in its entirety. Instead, the only portion no longer in effect is what is limited to 2008, namely the requirements contained in subsection (B)(2). The remainder of the statute remains in effect and grants the political parties full authority to conduct the primary.

. While the General Assembly did include language in the appropriations bill stating conflicting provisions in the general law are suspended, that is nothing more than a recognition of the general rule. Nothing in this portion of the bill speaks to section 7-11-20(B)(2). Thus, the General Assembly did not "expressly provide[ ] that the temporal limitation in section 7-11-20(B)(2) must be suspended during the current fiscal year” as the majority contends. Rather, the General Assembly merely provided generally that to the extent there is any conflict with the provisos, the provisos control.

. In light of my resolution of this question, I would not reach the issue of the sufficiency of the funds appropriated for the presidential preference primary. However, if I were to reach it, I would agree with the majority that it presents a nonjusticiable political question.