Board of Trustees v. State

718 S.E.2d 210, 395 S.C. 276, 2011 S.C. LEXIS 283

• Court: Supreme Court of South Carolina
• Decided: August 29, 2011
• Docket: 27035
• Status: Published

Opinions

Justice KITTREDGE.

This case is before this Court in its original jurisdiction. Plaintiff Board of Trustees of the School District of Fairfield County (Board), Defendants State of South Carolina and the Legislative Delegation of Fairfield County (collectively, the State), and Defendant-Intervenors House of Representatives and the Senate (collectively, the General Assembly), jointly petition this Court to determine the constitutionality of Act 308 of the South Carolina Acts of 2010 (Act 308). The Board raises two challenges to the constitutionality of Act 308. First, the Board asserts the General Assembly did not override the Governor’s veto of Act 308 in accordance with Article IV, section 21 of the South Carolina Constitution. Second, the Board asserts Act 308 is impermissible special legislation in violation of Article III, section 34 of the South Carolina Constitution. Because we find the General Assembly did not override the Governor’s veto of Act 308 in accordance with our constitution, we enter judgment for Plaintiff, the Board.

I.

Procedural Background

In January and February of 2010, the South Carolina General Assembly passed Act 308, which transferred the oversight of financial operations of the Fairfield County School District from its board of trustees to a finance committee to be appointed by the Fairfield Legislative Delegation. Governor Sanford vetoed Act 308 on February 24, 2010. On March 2, 2010, the House of Representatives voted to override the Governor’s veto by a vote of 33 to 10. At the time of the vote, a quorum (or majority) of the House was present. Specifically, 120 representatives were present for roll call, although only 43 representatives voted on the matter. H.R.J. Res. 135, 118th Gen. Assem., 1st Reg. Sess. (S.C.2010). On March 4, 2010, the Senate voted 1 to 0 to override the Governor’s veto. S.J. Res. 135, 118th Gen. Assem., 1st Reg. Sess. (S.C.2010). On that day, although a quorum of the Senate was present, only Fairfield County Senator Creighton Coleman voted. The 1 to 0 vote was in accordance with a purported “long-held precedent in the Senate where members do not vote on legislation affecting solely one county, also known as local legislation.” Id.

On August 27, 2010, the Board filed a complaint against the State in circuit court challenging the constitutionality of Act 308. The circuit court granted the Board a temporary restraining order. The General Assembly then moved to intervene, after which the Board and the State jointly petitioned this Court to take the case in its original jurisdiction. We granted the original jurisdiction petition.

II.

Article IV, section 21 of the South Carolina Constitution

Article IV, section 21 of the constitution provides that if the Governor vetoes a bill or resolution, the bill or resolution is returned with objections to the originating house, and:

If after such reconsideration two-thirds of that house shall agree to pass it, it shall be sent, together with the objections, to the other house, by which it shall be reconsidered, and if approved by two-thirds of that house it shall have the same effect as if it had been signed by the Governor.

S.C. Const, art. IV, § 21 (emphasis added).

The question before the Court is: what does the constitutional mandate “two-thirds of that house shall agree” mean? This Court’s precedent and a plain reading of this unambiguous constitutional provision combine to compel a construction that the two-thirds requirement means two-thirds of a quorum “shall agree.” Indeed, that has been the General Assembly’s longstanding understanding and application of its veto override authority, until relatively recently.

A.

We begin with the acknowledgement that absent a constitutional mandate providing otherwise, each house in the General Assembly determines its rules of procedure free from interference from the judicial and executive branches. S.C. Const, art. Ill, § 12. We further note the premise that, absent a constitutional provision to the contrary, the legislature acts and conducts business through majority vote. The South Carolina Constitution provides “a majority of each house shall constitute a quorum to do business.... ” S.C. Const. art. Ill, § 11. Yet, the people of South Carolina, through their constitution, have established certain areas that require a supermajority of the legislature to act. The constitutional grant of legislative authority to override a governor’s veto is one such example. See also S.C. Const. art. XV, § 1 (“The affirmative vote of two-thirds of all [Representatives] elected shall be required for an impeachment.”); art. XV, § 2 (“No person shall be convicted except by a vote of two-thirds of all [Senators] elected.”); art. XVI, § 1 (requiring two-thirds “of the members elected to each House” to approve a constitutional amendment); art. XVI, § 3 (requiring “two-thirds of the members elected to each branch of the General Assembly” to call a constitutional convention).

In Smith v. Jennings, 67 S.C. 324, 45 S.E. 821 (1903), this Court considered the meaning of the legislature’s constitutional veto override authority juxtaposed to other constitutional provisions requiring a supermajority:

While the Constitution, in article 3, § 3, declares that the House of Representatives shall consist of 124 members, it also declares, in section 11, art. 3, that a majority of each house shall constitute a quorum to do business. A quorum, therefore, possesses the power of the whole body in all matters of business wherein the action of a larger proportion of the entire membership is not clearly and expressly required. So, ordinarily, when a quorum is present acting, the House is present, acting in all its potentiality. When the Constitution speaks of “two-thirds of that house” as the vote required to pass a bill or joint resolution over the veto of the Governor, it means two-thirds of the house as then legally constituted, and acting upon the matter. Whenever the framers of the Constitution intended otherwise, the purpose was expressly declared, as in article 15, § 1, “a vote of two-thirds of all members elected shall be required for an impeachment,” and in article 16, § 1, where, in proposing amendments to the Constitution, “two-thirds of the members elected to each house” must agree thereto. Questions like this arose under the Constitution of 1868, and were decided in accordance with the view we take. Morton, Bliss & Co. v. Comptroller General, 4 S.C. 462; Bond Debt Cases, 12 S.C. 285 [ (1879) ]. See also, Cooley’s Constitutional Limitations (5th ed.) p. 170; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636 [ (1836) ]. As the house at the time of the passage of the joint resolution was lawfully constituted, with 85 members present, and, as 60 of these voted for its passage, the vote was “two-thirds of that house,” in the sense of section [21], art. 4, of the Constitution.

Id. at 328-329, 45 S.E. at 823.

We interpret Smith v. Jennings to manifestly require two-thirds of a quorum to override a governor’s veto.¹ We find further support for our view in the authorities favorably cited in Smith v. Jennings, including Morton, Bliss & Co. v. Comptroller General, 4 S.C. 430 (1873). In Morton, Bliss, we were asked to determine, in the context of bills creating public debt, whether the constitution required “two-thirds of a quorum of each House, or ... two-thirds of the whole membership of each House.” Id. at 462. The Court emphasized that a quorum is authorized to act in the name of the body² and “if the rule is that of two-thirds, then two-thirds of such quorum must concur for effective action.” Id. at 463 (emphasis added). The Court concluded “that a vote of two-thirds of the members present at the time the vote was taken satisfies the requirements of the Constitution.” Id. at 467 (emphasis added).

Cooley on Constitutional Limitations, referenced in Morton, Bliss, correctly states the rule in light of the unambiguous language in article IV, section 21:

For the vote required in the passage of any particular law the reader is referred to the constitution of his State. A simple majority of a quorum is sufficient, unless the constitution establishes some other rule; and where, by the constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended.

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 169-70 (5th ed. 1883) (emphasis added).

B.

We are further persuaded that the constitutional two-thirds voting requirement demands that we reject the General Assembly’s view that it lawfully overrides a governor’s veto with a vote of 1 to 0 when a quorum is present. The constitution allows the legislative branch to override the executive branch — but that legislative power is limited and circumscribed by the heightened vote requirement.³ We described the significantly important check and balance inherent in the two-thirds requirement in Morton, Bliss:

The object of this provision was to create a check, operating directly on the respective Houses of the General Assembly, tending to limit the exercise of the power of creating public debt to cases where its expediency was determined as the result of a clear and solid judgment of the legislative body. Experience had shown that a mere majority does not necessarily express a conviction of that nature, but often depends on a mere accident, that, according to its occurrence, at one time or another, may reverse the conclusions of the deliberating body.... These' considerations have led to constitutional provisions requiring, in certain cases, that a greater number than a mere majority should unite where acts of a certain class of a more important character than the ordinary subjects of legislation are involved.

Morton, Bliss, 4 S.C. at 462-63.

C.

Plaintiff has provided research detailing well over one thousand veto override votes by one or both houses since our decision in Smith v. Jennings. For generations, the General Assembly followed Smith v. Jennings and the clear constitutional requirement — two-thirds of a house in article IV, section 21 means two-thirds of the quorum. The data shows that beginning in 1980, the House of Representatives began the practice of overriding local bills with less than two-thirds of a quorum. It appears that practice became customary in the House of Representatives by the mid-1980s.

The data further reveals that in the 104 years following Smith v. Jennings, the Senate never declared any bill, statewide or local, to be overridden with less than two-thirds of a quorum, except for once in 1989 and once in 2006. Beginning in 2008, the Senate changed its posture and the vast majority of local bills passed as overrides were enacted without obtaining the vote of two-thirds the quorum. We conclude that what the General Assembly contends is a “long-held precedent in the Senate” is not as rooted as the General Assembly represents.⁴

In support of their defense of the veto override, the State and General Assembly offer parliamentary manuals, Mason’s Manual of Legislative Procedure and Jefferson’s Manual of Parliamentary Practice, which generally construe the quorum requirement in terms of “present and voting.” The ability of the General Assembly to determine its procedural rules, however, is constrained where the constitution mandates a particular procedure. The parliamentary manuals cited by the State and General Assembly are replete with the recognition that their general rules may apply “in the absence of a contrary provision.” See, e.g., Mason’s Manual of Legislative Procedure § 503.3 (“Under the generally accepted rules of parliamentary procedure in the absence of a contrary provision____”); Mason’s § 512.3 (a two-thirds vote requirement “unless otherwise specified, means two-thirds of the legal votes cast, not two-thirds of the members present (emphasis added). We observe that article IV, section 21 of the constitution specifies otherwise. In short, these parliamentary authorities cannot be invoked to trump a constitutional provision.⁵

In sum, the two-thirds mandate in article IV, section 21 of the South Carolina Constitution requires two-thirds of a quorum. Assuming full membership, the minimum quorum in the House of Representatives is 63 and the minimum quorum in the Senate is 24; two-thirds of those numbers would be 42 Representatives and 16 Senators, respectively. Here, a quorum was present in each house. We hold the veto override votes of 33 to 10 in the House of Representatives and 1 to 0 in the Senate fell short of the constitutionally mandated two-thirds requirement. Accordingly, we hold the Governor’s veto of H. 4431 was sustained and enter judgment for Plaintiff. Having rendered judgment for Plaintiff, the Court need not reach the Article III, section 34 special legislation challenge.

JUDGMENT FOR PLAINTIFF.

PLEICONES and HEARN, JJ., concur. BEATTY, J., concurring in a separate opinion. TOAL, C.J., dissenting in a separate opinion.

1 . That requirement was met in Smith v. Jennings, as a quorum was present with 85 House members and 60 of those "voted for its passage.” Id. at 329, 45 S.E. at 823.

2 . The full quorum discussion in Morton, Bliss is as follows:

[O]ur Constitution fixes the quorum competent to transact business on a numerical basis. A majority of each House is competent to transact all business not embraced in certain special provisions requiring for action the concurrence of a greater number of votes than the number required to constitute such quorum, [citation omitted] A quorum is, then, when competent to act for all legal interests and purposes, the 'Senate,' or the 'House,' as the case may be; and whatever authority is conferred on the bodies designated by such names, or upon the General Assembly as a whole, must be regarded as fully vested, for all actual purposes, in the quorum thus constituted.... It would follow that provisions ascertaining the mode in which the body should divide, in order to complete action in any given case, whether by a mere majority or by a still greater proportion, must be inteipreted primarily as applicable to the body as legally organized at the time such action is taken. If the rule is the mere majority rule, then a majority of the quorum present and acting is intended; if the rule is that of two-thirds, then two-thirds of such quorum must concur for effective action.

Id. at 463.

3 . See also James L. Underwood, The Constitution of South Carolina, Volume 1: The Relationship of the Legislative, Executive, and Judicial Branches 86 (1986) (stating the executive veto serves as a check and balance against the General Assembly's plenary power).

4 . Similarly, the dissent’s efforts to support the 1 to 0 veto override fall short. The dissent posits that the General Assembly has been "voting on bills and joint resolutions" in reliance on our precedent “for over a century.” We agree. As established above, the General Assembly for generations followed the clear language of our constitution (”[i]f ... two-thirds of that house shall agree to pass [the override]”) in its efforts to override a governor's veto. The historical practice of the General Assembly has, in fact, mirrored our Morton, Bliss and Smith v. Jennings precedent requiring that "two-thirds of [a] quorum must concur for effective action.” Today we adhere to stare decisis and reject the General Assembly’s recently adopted practice, which circumvents and violates the constitutionally mandated two-thirds requirement for overriding a governor’s veto.

5 . Mason’s and other parliamentary resource manuals provide default rules in the absence of specific requirements "otherwise.” In a sense, these parliamentary resource manuals fill in gaps. See Mason’s § 37.1 (“All matters of procedure not governed by constitutional provisions ... are governed by the rules of the general parliamentary law.”). But when the constitution unambiguously declares the process to be followed, and there are no gaps to be filled, as is the case here, the constitution controls. See Mason's § 6.2 ("A constitutional provision regulating procedure controls over all other rules of procedure.”); Mason’s § 7.1 ("Constitutional provisions prescribing exact or exclusive time or methods for certain acts are mandatory and must be complied with.”); Mason's § 12.1 ("A legislative body cannot make a rule that evades or avoids the effect of a rule prescribed by the constitution governing it....").