Lawsuits and Legislative Leadership
| Publication year | 2019 |
| Pages | 26 |
By Wm. Grayson Lambert & Bradley S. Wright
When SCE&G and Santee Cooper announced that they were stopping construction of the new nuclear facilities at the V.C. Summer Nuclear Generating Station in July 2017, people anticipated that there would be fallout: political, business, and legal. As for the legal fallout, major events like this almost always lead to litigation. And that litigation frequently requires courts to wrestle with difficult legal questions.
This instance was no different. In addition to the myriad constitutional challenges to the Base Load Review Act,[1] an unforeseen legal question arose. That question involved the governor's recess-appointment power and the authority of the South Carolina Senate president pro tempore to bring a lawsuit on behalf of the Senate.[2]
The recess appointment of the Santee Cooper Board chair
Here's how this question arose. Santee Cooper, officially known as the South Carolina Public Service Authority, is a public body with the statutory authority to produce, distribute, and sell electric power around the Cooper, Santee and Congaree Rivers.[3] Its board consists of 12 governors, each of whom is "appointed by the Governor with the advice and consent of the Senate."[4]
Santee Cooper was a 45% partner with SCE&G in the V.C. Summer project. In the aftermath of the decision to stop work on two new reactors at V.C. Summer, Santee Cooper and SCE&G were in the middle of a political firestorm.[5] Part of this included Santee Cooper Board Chair Leighton Lord resigning on December 29, 2017 (after a dispute with Governor Henry McMaster over whether the governor could remove him).[6]
By the time the Senate reconvened on January 9, 2018, Governor McMaster had not made a recess appointment to fill Lord's spot as chair of the Santee Cooper Board.[7] During the Senate's session, the governor nominated Charles M. Condon (the former attorney general) to chair the board.[8] The Senate referred Condon's nomination to the Judiciary Committee, which held a hearing, but the Senate did not take final action on Condon's nomination before it adjourned on June 28.[9]
After the Senate adjourned, the governor, invoking his authority to make recess appointments under S.C. Code § 1-3-210, appointed Condon as the interim chair of the San-tee Cooper Board.[10] Senator Hugh Leatherman then fled suit in the South Carolina Supreme Court’s original jurisdiction, challenging the appointment.[11]
The Legal Arguments Raised by the Parties
The dispute between the governor and Senator Hugh Leatherman focused on the language of § 1-3-210. That provision states, “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.”[12]
According to Senator Leather-man, the plain meaning of § 1-3-210 allows the governor to fill only a vacancy that arises during a particular recess. In other words, if a vacancy wasn’t filled during the recess in which it arose, the governor cannot fill it during the next recess.[13] He also claimed that history and the structure of the South Carolina Constitution were on his side.[14]
The governor, unsurprisingly, had a different take on § 1-3-210. Under his reading, this section had no temporal limitation, and its plain language made clear that the governor had authority to fill a vacancy during any recess, regardless of when the vacancy arose.[15]
The legal issue the parties didn’t raise
Before the Court reached the question of § 1-3-210, it first raised sua sponte the issue of whether Senator Leatherman even had the authority to bring the lawsuit. The Court recognized that the Senate may bring an action to right a perceived “infringement of its authority” to advise and consent on nominees to the Santee Cooper Board under § 58-31-20(A).[16] Yet “the manner in which” the Senate brings that action “must be determined by l a w.” [17] The Court was unconvinced that Senator Leatherman’s invocation of the Senate’s “tradition and practice” was sufficient to authorize his lawsuit.[18]
Despite its concerns about whether Senator Leatherman was authorized to bring the lawsuit, the Court nevertheless went on to decide the merits of the case. The Court ultimately agreed with the governor’s interpretation of § 1-3-210, having explored the meaning of “occur” and analyzed cases from other states.[19] The Court did, however, comment that “[i]n future actions,” it would have to “examine the President Pro Tempore’s threshold authority to bring the action.”[20]
Decisions from other jurisdictions suggest the Court’s concerns are valid
As the supreme court noted in Senator Leatherman’s case, the issue of a senator’s authority to bring a lawsuit on behalf of the Senate is an open question in South Carolina. But other jurisdictions have addressed this question, and they have repeatedly held that an individual legislator may bring an action on behalf of the body only if the body has authorized that action.
Some of these cases were cited by our Supreme Court. For instance, the Court pointed to Reed v. County Commissioners of Delaware County, Pennsylvania,[21] in which the U.S. Supreme Court held that a group of U.S. senators, as part of a special committee to investigate election fraud, was not authorized by the U.S. Senate “to invoke the power of the judicial department.”[22] Our state Supreme Court also cited United States v. American Telephone & Telegraph Co., in which the D.C. Circuit concluded that a congressman who chaired a subcommittee was authorized to intervene in litigation on behalf of the House” after the House passed a resolution specifically authorizing the congressman to intervene and providing funds for outside counsel.[23]
Other cases, not cited by the South Carolina Supreme Court, reinforce its concern about Senator Leatherman’s authority to bring the lawsuit. In Raines v. Byrd,[24] for example, four U.S. senators and two congressmen challenged the constitutionality of the Line Item Veto Act, which Congress had passed and President Bill Clinton had signed. The U.S. Supreme Court concluded that these six members of Congress lacked standing, and at the end of its analysis, the Court “attach[ed] some importance to the fact that [the six members] ha[d] not been authorized to represent their respective Houses of Congress in this action.”[25]
This rationale has led other courts to hold that a legislator lacked standing when not authorized by the body to bring a claim...
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