Alexander v. Barnwell County Hospital

498 B.R. 550, 2013 WL 5203531, 2013 U.S. Dist. LEXIS 131677
CourtDistrict Court, D. South Carolina
DecidedSeptember 13, 2013
DocketCivil Action No. 1:12-02265-JMC
StatusPublished
Cited by9 cases

This text of 498 B.R. 550 (Alexander v. Barnwell County Hospital) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Barnwell County Hospital, 498 B.R. 550, 2013 WL 5203531, 2013 U.S. Dist. LEXIS 131677 (D.S.C. 2013).

Opinion

ORDER AND OPINION

J. MICHELLE CHILDS, District Judge.

This matter is before the court by way of an appeal by Appellant Don Alexander (“Appellant”) from an order filed by the United States Bankruptcy Court for the District of South Carolina (the “Bankruptcy Court”) on May 23, 2012, and a motion to dismiss the appeal by Appellee Barnwell County Hospital (the “Hospital”).1 (See ECF Nos. 1, 5-1, 21.) Appellant appeals the Order (the “Order”) Confirming Debt- or’s First Amended Plan for Adjustment of Debts (the “Plan”) pursuant to Chapter 9 of the United States Bankruptcy Code (“Chapter 9”2).3 Appellant filed an appeal of the Order, asserting that the Plan should not have been confirmed by the Bankruptcy Court because (1) members of the Hospital’s Board of Trustees (the “Board”), who authorized the Chapter 9 filing, were serving on the Board in violation of the dual office holding prohibitions of S.C. Const. Art. VI § 3 and Art. VII § 1A, and (2) the Hospital was not authorized under South Carolina law to bring a Chapter 9 petition. (ECF No. 7.) The Hospital opposes the appeal and has also moved to dismiss the appeal on the ground of mootness. (ECF Nos. 8, 21.) For the reasons set forth below, the court GRANTS the Hospital’s motion to dismiss and DISMISSES the appeal as moot.

I. RELEVANT BACKGROUND

This proceeding arises out of the Chapter 9 filing in the Bankruptcy Court by the Hospital on October 5, 2011. (ECF No. 21-2 at 1 ¶ 2.) The Hospital is a general medical and surgical hospital located in Barnwell, South Carolina. U.S. News & World Report, http://health.usnews.com/ best-hospitals/area/sc/barnwell-county-hospital-6370048 (last visited Sept. 13, 2013). A detailed summary of the Hospital’s background is set forth in the Bankruptcy Court’s findings of fact, which this court will not set aside unless clearly erroneous:

Debtor {ie., the Hospital) was created in 1953 by act of the South Carolina Legislature to provide hospital facilities for Barnwell County. 1953 S.C. Acts 298. The Legislature created the Barnwell County Hospital and Nursing Home Board (“Original Board”) and charged it [553]*553with the responsibility to construct a hospital and establish all rules and regulations for its operations and management. Id.
Thereafter, the legislature enacted the Home Rule Act of 1975, S.C.Code Ann. § 4-9-10, et seq. (1986 & Supp. 1998). Pursuant to the Act, Barnwell County adopted the pure Council form of government. Under this form of government, both legislative and executive functions are under the purview of the County Council. The citizens of the County select and vote for those who will serve on the County Council, and whose powers and duties are outlined in part in S.C.Code Ann. § 4-9-30(5) and (6). Section 4-9-30(6) specifically enumerates the powers of the County Council, which include those necessary and proper to provide and manage services for local public purposes. Section 4-9-30(14) also gives the Council the power to enact ordinances for the implementation and enforcement of the powers so conferred.
The County Council abolished the Original Board, took title to all assets of the Barnwell County Hospital and Nursing Home, and entered a contract with an outside group to manage the hospital. See Ordinance No. 1986-26. (“The Barnwell County Council shall assume responsibility for the operation, management and control of the Barnwell County Hospital and Nursing Home as of the effective date of this ordinance.”) By Ordinance No. 1988-35, as amended by Ordinance Nos. 1993-62, 1999-139, 2003-176, and 2003-178, the County created the Board of Trustees of Barnwell County Hospital. The ordinances provided the Board with the authority and responsibility to make all rules and regulations for the operation and management of the Debtor. The ordinances also require regular reports to the County Council and authorize the Board to adopt budgets subject to the approval of the Council.
Appointments on the Board are made by the County Council. Seven of those representatives are recommended by the County Council members and two representatives are from the Barnwell County Hospital Medical Staff, with one of those two members being appointed by direct election of the medical staff.
Ordinance No. 2003-176 provides that the County Council may remove a board member by majority vote “for any reason or no reason at all.” Any removed board member may be replaced by the nominating procedure set forth in the ordinances.
Rule 6.01 of the Barnwell County Council Rules of Procedure provides the following: Members of Council have the authority pursuant to various ordinances of the County Council to appoint members from their District to various committees, boards and agencies established by County Council. To the extent that any ordinance of County Council requires that committee appointments of each member to be approved by the remainder of Council, that portion of those ordinances are hereby repealed. Each member of County Council is hereby entitled to appoint qualified electors of their District to committees, boards and agencies of the County, without the advice and consent of the remaining members of Council. If a councilperson seeks to appoint a qualified elector to a committee, board or agency from outside of their District, that appointment is subject to the advice and consent of County Council.
On April 26, 2011, the County Council met in a Special Meeting. Pursuant to Rule 6.01 and Ordinance No. 1988-35, as amended by Ordinance Nos. 1993-62, 1999-139, 2003-176, and 2003-178, by [554]*554unanimous vote, seven members of the Board were replaced with the County Council members, who appointed themselves to the Board for their respective districts.
On September 27, 2011, the Board adopted a resolution to authorize the commencement and prosecution of this bankruptcy case. [Doc. No. 5].
On October 5, 2011, Debtor filed a voluntary petition seeking relief under chapter 9 of the Bankruptcy Code.

(ECF No. 5-1 at 27-29.)

Prior to filing its Chapter 9 petition, the Hospital executed an Asset Purchase Agreement (the “Original APA”) with SC Regional Health System, LLC, on September 29, 2011, for the purchase of substantially all of the Hospital’s assets.4 (ECF No. 24-2 at 3 ¶ 2.) After the Hospital’s Chapter 9 petition was filed, several former members of the Board (including Appellant) filed an action in state court identified as Alexander v. Houston, C/A No. ll-CP-06-476 (the ‘Alexander State Court Action”). (ECF No. 21-2 at 2 ¶ 3.) Plaintiffs in the Alexander State Court Action sought a declaration that the Barn-well County Council (the “BCC”) violated a state constitutional prohibition against dual office holding when its members assumed positions as members of the Board. Id.; see also ECF No. 3-5 at 12-24. In response to the complaint filed in the Alexander State Court Action, the BCC filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, arguing that “the claim presented a non justiciable political question, and the dual office prohibition was not violated by what it termed a ‘vertical’ duality.” Quoting Alexander v. Houston, 403 S.C.

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Bluebook (online)
498 B.R. 550, 2013 WL 5203531, 2013 U.S. Dist. LEXIS 131677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-barnwell-county-hospital-scd-2013.