What makes a ‘constitutional officer’? Creation in constitution

04/16/2014 4:39 PM

04/16/2014 4:40 PM

Back when he was supporting it, Rep. James Smith told me that legislation he and 80-some other House members sponsored to let House Speaker Bobby Harrell and Senate President Pro Tem John Courson appoint a special prosecutor to displace the attorney general in ethics investigations of “constitutional officers” applied to legislators. ( My column today explains this in greater detail.)

We use the term in the vernacular to refer to the nine statewide officers who are elected despite the fact that most of them should be appointed. But as Rep. Smith noted, House and Senate seats also are created by the state constitution, and can’t be abolished without amending the constitution. That, he argued, makes them constitutional.

Hockey feathers, sputtered the speaker, who sent out a news release that same day declaring: “Just like members of the Judiciary, members of the General Assembly are not constitutional officers. There is no ambiguity to the fact that this bill in no way applies to the Legislature, implying otherwise is simply inaccurate political spin. The constitution clearly defines and lists our state’s constitutional officers in Article VI Section 7. If someone wishes to amend the bill to make this fact unequivocally clear, they can easily do so.”

Well, not so fast.

Article VI, Section 7, does indeed list most of those officers we refer to as “constitutional officers,” saying that “There shall be elected by the qualified voters of the State a Secretary of State, an Attorney General, a Treasurer, a Superintendent of Education, Comptroller General, Commissioner of Agriculture, and an Adjutant General who shall hold their respective offices for a term of four years, coterminous with that of the Governor.”

But it doesn’t call them “constitutional officers.” Neither does Article VI, Section 4, which refers to the other two people we consider “constitutional officers”: the governor and lieutenant governor.

Perhaps the fact that he has no legal training helps explain why Speaker Bobby Harrell saw words in the constitution that aren’t actually there. But while Mr. Smith is an attorney, who is developing quite a practice in election law, I still wanted an authority that’s a little more authoritative before I declared the speaker’s declaration without merit. And I found several:

Black’s Law Dictionary defines a constitutional officer as “A government official whose office is created by a constitution, rather than by a statute; one whose term of office is fixed and defined by a constitution.”

A 1962 S.C. attorney general’s opinion quotes the definition of a constitutional officer from an old Supreme Court case as follows: “When the Constitution creates an office and fixes the term thereof and prescribes the mode of filling it, the legislature is without power to abolish the office, or remove or suspend the officer, unless authority for such action can be found in the Constitution.”

In fact, S.C. Supreme Court opinions through the years — indeed, the decades — consistently use the term “constitutional officer” to define offices established in the constitution. Not just those statewide officials … or legislators … or judges. As far back as 1873, the Supreme Court identified a clerk of court as a “constitutional officer.”

More recently, in a 1999 Home Rule case, then-Associate Justice Jean Toal wrote for a unanimous court that “Since the 1800s, the Sheriff has been a constitutional officer in South Carolina.”

Mr. Harrell might well be correct in suggesting that the sponsors of the emasculate-the-attorney-general legislation didn’t intend to allow their special prosector to investigate — nor not investigate — legislators. But it’s hard to make the case that the legislation wouldn’t do that.

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