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Senate of the State of South Carolina v. His Excellency McMaster

Supreme Court of South Carolina

November 28, 2018

The Senate of the State of South Carolina, by and through its President Pro Tempore, the Honorable Hugh K. Leatherman, Sr., Petitioner,
His Excellency Henry D. McMaster, in his official capacity as Governor of the State of South Carolina, and Charles M. Condon, Respondents. Appellate Case No. 2018-001455

          Heard November 8, 2018


          John Carroll Moyla, III and Matthew Terry Richardson, both of Wyche P.A., of Columbia; Wade Stackhouse Kolb III, of Wyche P.A., of Greenville; and Andrew J.M. Bentz, pro hac vice, of Columbia, for Petitioner.

          Chief Legal Counsel Richele Keel Taylor and Deputy Legal Counsel Thomas A. Limehouse, Jr., both of Office of the Governor, of Columbia and J. Robert Bolchoz, of Robert Bolchoz, LLC, of Columbia, for Respondents.

          William C. Hubbard, B. Rush Smith, III, A. Mattison Bogan and Carmen Harper Thomas, all of Nelson Mullins Riley & Scarborough, LLP, of Columbia, and Senior Vice President and General Counsel J. Michael Baxley, of Moncks Corner, for amicus curiae, South Carolina Public Service Authority.

          PER CURIAM.

         Petitioner the Senate of the State of South Carolina, by and through its President Pro Tempore, the Honorable Hugh K. Leatherman Sr. (the Senate) initiated this action in the original jurisdiction of this Court pursuant to Rule 245, SCACR. The Senate asks this Court to declare invalid Respondent Governor Henry D. McMaster's (Governor McMaster or Governor) recess appointment[1] of Respondent Charles M. Condon (Condon) to the office of Chairman of the Board of Directors for the Public Service Authority (the Board), pursuant to section 1-3-210 of the South Carolina Code (2005).

         In reaching the conclusions set forth in this opinion, we have not concerned ourselves with the reasons why a branch of government, whether it be the Legislative or the Executive, chooses to act or not act in any given circumstance. Such considerations are inherently political in nature and we have no designs upon intruding into those areas. Our role is to rule upon this controversy with requisite restraint, with a keen eye focused upon our one and only responsibility-to interpret section 1-3-210 in accordance with our rules of statutory construction. Both the Senate and Governor McMaster contend the plain language of this statute unambiguously supports their respective positions. We conclude the pertinent provisions of the statute are ambiguous. We hold Governor McMaster's appointment of Condon during the 2018 recess was valid.


         In this declaratory judgment action, the Senate challenges Governor McMaster's interim appointment of Condon to fill the vacancy created by former Chairman W. Leighton Lord III's December 29, 2017 resignation from the Board. The following facts are not in dispute. Former Chairman of the Board W. Leighton Lord III resigned from his position on December 29, 2017. At that time, the Senate was in recess. The Senate reconvened on January 9, 2018. During the eleven days from Lord's resignation to the date the Senate reconvened, Governor McMaster did not make a recess appointment.

         On March 7, 2018, pursuant to section 58-31-20(A) of the South Carolina Code (2015), Governor McMaster formally nominated Condon to serve as chairman of the Board for the remainder of Lord's unexpired term and for a succeeding full term. On March 13, 2018, the Senate referred Condon's nomination to the Senate Judiciary Committee for consideration. Thereafter, as required by section 58-3-530(14) of the South Carolina Code (2015), the State Regulation of Public Utilities Review Committee (PURC) screened Condon and determined he met the qualifications of section 58-31-20(C) of the South Carolina Code (2015). On May 4, 2018, PURC reported Condon's qualification to the Clerk of the Senate. On May 8, 2018, the Senate Judiciary Committee held Condon's confirmation hearing, but the Senate adjourned on June 28, 2018, without taking final action on Condon's nomination.

         On July 23, 2018, Governor McMaster sent a letter to the Senate advising of his interim appointment of Condon to fill the vacancy created by Lord's resignation. Citing section 1-3-210, Governor McMaster stated he would, during the next regular Senate session, forward a formal appointment of Condon for the Senate's consideration. The Senate objected to Governor McMaster's authority to make this appointment. The Senate and Governor McMaster disagree upon the interpretation of section 1-3-210. Pursuant to Rule 245, SCACR, we granted the Senate's petition for original jurisdiction to review Governor McMaster's interim appointment.


         We first address whether President Pro Tempore Leatherman was authorized to bring this action. Pursuant to section 58-31-20(A), the Governor's power to appoint directors of the Public Service Authority is subject to "the advice and consent of the Senate." There can be no doubt, therefore, the Senate has the power to bring suit to litigate what it perceives to be an infringement of its authority under that section. In particular, the Senate may bring an action seeking a declaration whether the Governor exceeded his power by making a recess appointment under the circumstances we explained above. However, the manner in which that Senate power may be exercised-how any governmental power may be exercised-must be determined by law.

         The Governor's reappointment of Condon occurred after the Senate adjourned. Thus, the Senate itself never had a chance to vote on whether to authorize President Pro Tempore Leatherman to bring this action. In a written response to the Court's inquiry of what provision of law gives the President Pro Tempore the authority to bring an action on behalf of the Senate without specific Senate authorization, counsel stated the President Pro Tempore "is authorized by virtue of his election to that office and through the tradition and practice of the Senate." We know of no provision of law under which "the tradition and practice" of the Senate could support the President Pro Tempore's authority to bring this action. We are concerned, therefore, that the President Pro Tempore is not authorized to bring this action.

         We acknowledge the Court-not the parties-raised this issue, and the Governor does not question the authority of the President Pro Tempore to bring this action. We also acknowledge that similar actions have been brought in the past, and we did not question the authority of the President Pro Tempore to do so. See, e.g., Drummond v. Beasley, 331 S.C. 559, 503 S.E.2d 455 (1998); Williams v. Morris, 320 S.C. 196, 464 S.E.2d 97 (1995). To our knowledge, the issue has never been raised to this Court. However, the limitations on the power of an individual senator to bring an action in furtherance of Senate business are well-established under federal law. In Reed v. County Commissioners of Delaware County, Pennsylvania, 277 U.S. 376 (1928), the Supreme Court of the United States held that Senators of a special committee created by the United States Senate could not sue without express authorization from the Senate to do so. 277 U.S. at 389; see also Alissa M. Dolan & Todd Garvey, Cong. Research Serv., R42454, Congressional Participation in Article III Courts: Standing to Sue 11 (2014) (stating "an institutional plaintiff has only been successful in establishing" the authority to bring suit "when it has been authorized to seek judicial recourse on behalf of a house of Congress"). Lower federal courts have relied on Reed and the proposition for which it stands to dismiss lawsuits brought by individual members of Congress, and even lawsuits brought by committees of the House or Senate, without express authorization by the House or Senate. See, e.g., In re Beef Indus. Antitrust Litig., 589 F.2d 786, 791 (5th Cir. 1979) (requiring dismissal of appeal without any decision on the merits where the House subcommittee chairmen "failed to obtain a House resolution or any other similar authority before they sought to intervene in the . . . case"); see also United States v. Am. Tel. & Tel. Co., 551 F.2d 384, 391 (D.C. Cir. 1976) (finding the House resolution sufficiently authorized the chairman of a subcommittee to represent the House in the lawsuit); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 727 (D.C. Cir. 1974) (noting the Senate Select Committee had authorization to sue and enforce subpoenas against the President pursuant to a Senate resolution expressly authorizing the committee to do so); Comm. on Oversight & Gov't Reform v. Holder, 979 F.Supp.2d 1, 21 (D.D.C. 2013) (finding House committee could initiate an action to enforce subpoena where "the House of Representatives . . . specifically authorized the initiation of [the] action to enforce the subpoena"); Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, 71 (D.D.C. 2008) (concluding the House Committee on the Judiciary could bring civil action where the Committee "ha[d] been expressly authorized by House Resolution to proceed on behalf of the House of Representatives as an institution") (emphasis removed from original).

         Despite these concerns, we will address the merits of the Senate's challenge to the Governor's recess appointment of Condon. In future actions, however, the Court must examine the President Pro Tempore's threshold authority to bring the action. In any given case, such authority could derive from a majority vote of the members of the Senate as to the individual case, or it could derive from a rule or statute granting the President Pro Tempore such authority without the need for specific authorization by vote.


         Section 58-31-20(A) provides, "In the event of a director vacancy due to death, resignation, or otherwise, the Governor must appoint the director's successor, with the advice and consent of the Senate, and the successor-director shall hold office for the unexpired term." Here, Lord resigned during the 2017 recess of the Senate; there is no dispute that section 58-31-20(A) gives Governor McMaster the authority to appoint Lord's successor and gives the Senate the authority to advise and consent in this endeavor. The first question before the Court is whether Governor McMaster had the authority to appoint Condon during the 2018 recess.

         The Governor's authority to make a recess appointment is set forth in section 1-3-210:

During the recess of the Senate, vacancy which occurs in an office filled by an appointment of the Governor with the advice and consent of the Senate may be filled by an interim appointment of the Governor. The Governor must report the interim appointment to the Senate and must forward a formal appointment at its next ensuing regular session.
If the Senate does not advise and consent thereto prior to sine die adjournment of the next ensuing regular session, the office shall be vacant and the interim appointment shall not serve in hold over status notwithstanding any other provision of law to the contrary. A subsequent interim appointment of a different person to a vacancy created by a failure of the Senate to grant confirmation to the original interim appointment shall expire on the second Tuesday in January following the date of such subsequent interim appointment and the office shall be vacant.

         With due focus on the first sentence of the first paragraph of section 1-3-210, the Senate argues the plain language of section 1-3-210 unambiguously authorizes the Governor to make a recess appointment only during the recess in which the vacancy initially arose. Again, in this case, that time frame fell between the date of Lord's resignation, December 29, 2017, and the date the Senate reconvened, January 9, 2018. The Governor did not make a recess appointment during the eleven days remaining in the recess. The Senate claims the 2018 recess appointment was invalid because Governor McMaster's statutory authority to make a recess appointment could be exercised only during ...

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