Wednesday, Aug. 29, 2007

Suit asks court to consider Budget and Control Board with open mind

IF OUR STATE Supreme Court has been looking for an opening to overturn one of its most vacuous precedents — a precedent none of the current justices had a hand in establishing — a new lawsuit challenging the constitutionality of the Budget and Control Board may just provide it.

The maddening thing about the precedent is that when you dig down to its foundation, you find that it has none. Really. The court has ruled on at least four occasions that the five-member board is constitutional, but the three most recent rulings did little more than cite the original ruling as reason to say it’s OK for two legislators to have a hand, along with the governor, comptroller general and treasurer, in running an executive branch agency.

That initial 1967 decision rejecting a kitchen-sink challenge to industrial revenue bonds dismissed the separation of powers argument without giving any reason. It almost reads as though the court got so caught up in dismissing the other challenge to the board — the absurd claim that it violates the dual officeholding provision — that it forgot to address the other challenge. Yet this is the basis of four decades of jurisprudence.

Since then, the court has grabbed at some pretty thin straws to justify the position — the new suit argues that it has “essentially side-stepped the constitutional issue through the application of uncontrolling precedent and generalized judicial doctrines.” In the most recent ruling cited in the suit, in 1977, the court all but said the precedent makes no sense, but it dutifully adhered to it nonetheless.

If this were a debate, it would be over: The court would see that there is no stable underpinning for the previous rulings and see just as clearly that, absent those previous rulings, there is no way to reconcile the board with the constitution. But that’s not the way things work in court. “Because you said so before” is one of the most respected arguments a lawyer can make to a court, and courts generally feel constrained to yield to it unless they can point to a significant change of circumstances.

Now a group closely affiliated with Gov. Mark Sanford, ChangeSCNow, thinks it has found an out for the court. The last time around, in their attempt to justify the precedent they were upholding yet again, the justices put in some language that could be read as setting conditions on the constitutional label: They noted that “the General Assembly has been careful to put the legislative members in a minority position” on the board and that including the legislators “apparently represents a cooperative effort” to help rather than usurp the executive branch.

“In a very real sense,” Greenville attorney Keith Munson argues in the petition for original jurisdiction filed earlier this month, “the 1977 Court sent two ‘shots across the bow’ as a warning to the General Assembly that navigating within the waters of the executive branch was constitutionally dangerous unless the General Assembly (1) was careful to maintain its minority influence, and (2) conducted itself as a cooperative assistant to the executive branch and not a usurper of executive function.” (To read the lawsuit, go to thestate.com/168/ and click on “Brad Warthen’s Blog,” to the right.)

The suit argues that “the General Assembly has not been careful to keep its influence on the Board in the minority” and that “events since 1977 call into question the assumption that the participation by the members of the General Assembly on the Budget & Control Board (an executive body) are merely cooperative.”

Exhibit A is the Legislature’s election earlier this month of then-Rep. Converse Chellis to fill out the unexpired term of Thomas Ravenel, who resigned as state treasurer after being indicted on federal cocaine charges. The suit uses news and editorial coverage from around the state (including some of my writing) to bolster the argument that Mr. Chellis’ election tipped control of the board over to the Legislature.

The lawsuit offers the court a couple of options short of declaring the board unconstitutional: prohibit the two legislative members from voting until after the 2010 election, when the majority will once again be statewide elected officials; or declare Mr. Chellis’ election a violation of those legislative restraint requirements in the 1977 ruling.

Neither seems to me like a likely remedy. Although they follow the grand S.C. tradition of incrementalism, I suspect our court would consider them a bit too ... shall we say, creative.

A constitutional law expert who agrees that the precedent is wrong tells me this suit seems too long on politics and too reluctant to take on the issue directly. Whether the plaintiffs can correct that or not, it seems a good bet that this is a case where the justices will either take the safe course and stick with a shaky but well-established precedent, or do what their predecessors should have done back in 1967 — declare that giving legislators a role in the day-to-day running of a state agency violates the constitution’s directive that the executive and legislative branches must be forever separate.

There’s room to rule either way. Let’s hope this is a court that’s willing to say a precedent that lacks any legal or logical basis is not deserving of respect.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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