granting Sloan public importance standing in order to consider whether the statute that governs the composition of the South Carolina Transportation Infrastructure Bank’s Board of Directors is constitutional
How later courts described this case
- granting Sloan public importance standing in order to consider whether the statute that governs the composition of the South Carolina Transportation Infrastructure Bank’s Board of Directors is constitutional
- issue of whether statute governing composition of board of directors of state infrastructure bank was unconstitutional fell within public interest exception
- "We granted Sloan's petition to bring a declaratory judgment action in our original jurisdiction challenging the constitutionality of section 11-43-140."
Written by the judges who cited it.
The opinion
Justice KITTREDGE.
I join Justice Hearn’s excellent and scholarly majority opinion. I write separately to set forth my understanding of the constitutional issues involved, as I, unlike Justice Pleicones, would recognize differences in the analytical frameworks of the two constitutional challenges. In short, I would not conflate the dual-office and separation of powers challenges.
Concerning the dual-office holding challenge, the South Carolina Constitution contains several provisions prohibiting dual-office holding. See S.C. Const, art. Ill, § 24 (“No person *660 is eligible to a seat in the General Assembly while he holds any office or position of profit or trust under this State....”); S.C. Const, art. XVII, § 1A (“No person may hold two offices of honor or profit at the same time....”); S.C. Const, art. VI, § 3 (“No person may hold two offices of honor or profit at the same time.”). Respondents concede, as they must, that service on the South Carolina Transportation Infrastructure Bank’s (Bank) Board of Directors is an office. The Bank’s Board of Directors has extensive power to “select and assist in financing major qualified projects by providing loans and other financial assistance to government units and private entities for constructing and improving highway and transportation facilities necessary for public purposes including economic development.” S.C.Code Ann. § ll-43-120(C) (Supp. 2011).
I concur with the majority’s recognition that the “ex officio” or “incidental duties” exception “may be properly invoked only where there is a constitutional nexus in terms of power and responsibilities between the first office and the ‘ex officio’ office.” Segars-Andrews v. Judicial Merit Selection Comm’n, 387 S.C. 109, 126 , 691 S.E.2d 453, 462 (2010). I agree that article X, section 13 of our constitution provides the necessary nexus between the General Assembly and membership on the Bank’s Board of Directors. It is this constitutional nexus between the legislative office and service on the Bank’s Board of Directors that, in my judgment, provides an objective framework and requires this Court to reject Petitioners’ constitutional dual-office holding challenge.
Because the constitution is controlling, I would not adopt a framework that would have the effect of upholding a legislative enactment that purports to shield a member of the General Assembly from the dual-office holding prohibitions. Similarly, I agree with the majority that a dual-office holding claim is not resolved by considerations of degrees of board or commission membership, such as minority representation. Rather, the issue posed is straightforward — it is either a constitutionally prohibited dual office or it is not. That is precisely why we explained in Segars-Andrews that “because the Legislature is impressed by our constitution with sole responsibility for the election and re-election of judges[,] ... service on the [Judicial Merit Selection Commission] by one *661 who holds an office in the executive or judicial branch would violate the constitutional ban on dual-office holding.” 387 S.C. at 126 , 691 S.E.2d at 462 . It is the presence or absence of the constitutional nexus, and nothing more, that should answer the dual-office holding question.
In light of the South Carolina Constitution of 1895, I also join the majority in rejecting Petitioners’ separation of powers claim. I commend Justice Hearn for her excellent recitation of the importance of the separation of powers doctrine in our country’s founding. This Court’s jurisprudence often recognizes, in glowing terms, the sanctity of the separation of powers doctrine in our democratic republic. See State ex rel. McLeod v. McInnis, 278 S.C. 307, 312 , 295 S.E.2d 633, 636 (1982) (observing that the separation of the branches of government “prevents the concentration of power in the hands of too few, and provides a system of checks and balances”); State ex rel. McLeod v. Yonce, 274 S.C. 81, 84 , 261 S.E.2d 303, 305 (1979) (holding that under separation of powers the “legislative department makes the laws; the executive department carries the laws into effect, and the judicial department interprets and declares the laws”).
Yet, as the majority articulates, “South Carolina ... is somewhat singular in the extensive involvement of the legislature in the powers. of the executive and judiciary.” The majority further refers to South Carolina’s “collaborative governance where the General Assembly wields extensive power.” The majority is entirely correct to acknowledge the legislative dominance that prevails under the South Carolina Constitution of 1895. While article I, section 8 of our constitution contains the familiar separation of powers provision, the balance of the constitution is replete with provisions expressly granting broad powers to the legislative branch. It is for this reason that I believe, under our unique constitutional structure, a separation of powers challenge under article I, section 8 cannot be resolved by merely ascertaining whether the legislative branch is exercising an executive function. Here, the South Carolina Constitution expressly grants power to the legislature, such that legislative service on Bank’s Board of Directors does not offend separation of powers.
TOAL, C.J., concurs.