Opposition Brief — Ristow v. South Carolina State Ports Authority
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No. 95-456 “<
SUPREME COURT OF THE UNITED STAd@ES
Supreme Court, U.S.
ames
October Term 1995
FRED W. RISTOW and SUSAN M. RISTOW,
Petitioners,
V.
THE SOUTH CAROLINA STATE PORTS
AUTHORITY AND THE S.S. UNKNOWN,
an unknown ocean going ship,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit
RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
William H. Vaughan, Jr.
Counsel of Record for Respondent
VAUGHAN & LAWRENCE, P.A.
23 Broad Street
Post Office Box 1559
Charleston, South Carolina 29402
(803) 723-3020
Attorneys for Respondent,
The South Carolina State Ports Authority
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847.0477
QUESTIONS PRESENTED
A. Is the opinion and decision in this case
rendered by the Fourth Circuit Court of Appeals in
conformity with the applicable pri. ciples in the opinion
and decision of this Court in Hess v. Port Authority
Trans-Hudson Corporation?
B. Is the "Solvency" factor whether the State’s
purse is vulnerable or is it whether the judgment would be
paid from the account denominated "State Treasury?"
—— = ee oe
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................05.
Damen Or Gerrans... .:.-.......-.0505- i
TABLE OF AUTHORITIES ................-- iv
CONSTITUTIONAL PROVISIONS AND STATUTES
~ “en e 1
STATEMENT OF THE CASE (ERRORS AND
OMISSIONS IN PETITIONER’S
STATEMENT OF CASE) .............0.0005- 2
eR ee 2
Il. | THEINCIDENT IN QUESTION .... 8
SUMMARY OF THE ARGUMENT ............ 9
ee ce cei naesssve 10
A. THE S. C. PORTS AUTHORITY MEETS
THE ELEVENTH AMENDMENT IMMUNITY
pO A eee 10
1. DENIAL OF THE ELEVENTH
AMENDMENT IMMUNITY WOULD BE
AN AFFRONT TO THE DIGNITY OF
SOUTH CAROLINA ............ 11
2. SOUTH CAROLINA’S PURSE IS
WAPRRTEEEEEAD cece cccccsscccee 17
a a a
PAGE
3. THE FOURTH CIRCUIT DECISION
IN THIS CASE IS HARMONIOUS WITH
THAT OF THE HESS CASE ...... 19
4. SIGNIFICANT DIFFERENCES
BETWEEN THE NEW YORK-NEW
JERSEY PORT AUTHORITY AND THE
SOUTH CAROLINA STATE PORTS
PATTIES 6 o's bie PUTS HTS cee 20
B. IS THE "SOLVENCY" FACTOR ISSUE
WHETHER THE "STATE PURSE" IS
INVOLVED, OR IS IT WHETHER THE
ACCOUNT DENOMINATED “STATE
TREASURY" IS INVOLVED? .......... 24
fees errr err ter Sere ree eee 26
Tee POE ois 58k re NE errec eee ees
Pou 0) rey eer rere eer ee Al
TABLE OF AUTHORITIES
PAGE
CASES
473 US. 234,
105 S. Ct. 3142, 87 LEd.2d 171 (1985) ......... 12
873 F.2d 628, (2d Cir. 1989), aff'd on other grds.
495 U.S. 299, 110 S. Ct. 1868, 109 LEd.2d 264
ne ee re ee ee 24
323 U.S. 459, 65 S. Ct. 347, 89 LEd. 389 (1945) .. 19
Commission, 762 F.2d 435 (Sth Cir. 1985) ....... 25
3
513 U.S. __, 115 S. Ct. 394, 130 LEd.2d 245
"2, Babipapipee area eee tae i, 9-11, 13-24, 26
as |
465 U.S. 89, 104 S. Ct. 900, 79 L-Ed.2d 67 (1984) . 12
ink v. Ri _ ao. :
Tie CU PR 6. 40 kc wc o's Se dWnd ochn 9
Vv ity, 27 F.3d 84
yo RE er eae 19, 24
Vv aa * ee
oe 50d ease aes 19, 20, 24, 26
ion, 303 S.C. 544,
Searcy v. Dept. of Education,
402 S.E.2d 486 (Ct. App. 1991) ................ 9
Vv
South Carolina State Ports Authority, 278 S.C. 198,
yr Pie OF 8. RRR aria 15
Fos Na ome aga Ports Authority, (S.C. Tax Commissi
SS ea 15
OTHER AUTHORITIES
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PEED iN 5440 bo ees veces 2, 7, 8, 11
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es Beak tant ip ceacag Pen deeb ras ft? I beg cuca nt cine Chat
i onset aaa cc ee us 2, 4
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$4-3-10 et fea ........'.... 2, 3, 15, 21
ete a a 2, 3, 24
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U.S. CONST. amend. XI
see alae aA
NO. 95-456
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
FRED W. RISTOW and SUSAN M. RISTOW,
Petitioners,
Vv.
THE SOUTH CAROLINA STATE PORTS
AUTHORITY and THE SS UNKNOWN,
an unknown ocean going ship,
Respondents.
On Petition For A Writ of Certiorari
TO THE UNITED STATES COURT OF APPEALS
For The Fourth Circuit
BRIEF IN OPPOSITION OF RESPONDENT,
THE SOUTH CAROLINA STATE
PORTS AUTHORITY
ON SIONS AND
STATUTES INVOLVED
The Constitutional provision involved is the
1
Eleventh Amendment of the United States Constitution:
The Judicial power of the United States
shall not be construed to extend to any suit
in law or equity, commenced or prosecuted
against one of the United States by Citizens
of another State, or by Citizens or Subjects
of any Foreign State.
The statutes involved are quite lengthy, and their
texts are located in the two Appendices. §.C. Code Ann.
§ 54-3-10 et seq. (1976 and Supp. 1992) is found on page
E2 of Petitioners’ Appendix. In Respondent’s Appendix,
the following statutory provisions are found: §.C. Code
Ann. §§ 1-3-240; 2-17-130; 8-13-100; 9-1-10; 9-1-20; 15-78-
10; 15-78-20; 15-78-30; 15-78-40; 15-78-100; 15-78-110; 15-
78-120; 30-4-15; 30-4-20; 30-4-30; 42-7-60; 48-39-150; 54-3-
10; 54-3-20; 54-3-130; 54-3-140; 54-3-150; 54-3-170; 54-3-
610; 54-3-860; 54-3-1010; 54-3-1020; 54-3-1040; and 54-3-
1050.
STA NT OF CAS
Error and Omissions in Petitioner's Statement of Case
I. The Parties
We dispute Plaintiffs’ claim that Ristow is a
stevedore.
The nature and status of the Defendant South
Carolina State Ports Authority ("S.C. Ports Authority") is
the principal issue. The scanty and argumentative
description of the S.C. Ports Authority by the Petitioner is
inadequate.
The S.C. Ports Authority is purely the State of
South Carolina: it has no local interest or control; it has
no private interest, investment, or control; and it involves
no interest of another state or of the federal government.
The Petition erroneously describes the powers of
the S.C. Ports Authority as "highly autonomous." (Petition
P. 51) While its powers are special because of the S.C.
Ports Authority’s special mission, it has no autonomy as
defined in Black’s Law Dictionary 122 (Sth ed. 1979). It
is not independent of the State or self-governing.
The following facts were presented to the Court of
Appeals: The S.C. Ports Authority was created by 1942
Act Number 626 of the South Carolina General Assembly.
This Act is now incorporated in $.C, Code Ann. §§ 54-3-10
to 54-3-1050 (1976 & Supp. 1992). (Relevant portions of
which are reprinted in Respondent’s Appendix.)
The S.C. Ports Authority is governed by a Board,
all the members of which are appointed by the Governor
of the State of South Carolina, with the advice and
consent of the South Carolina Senate. $.C. Code Ann. §
54-3-20 (1976). (App. p. A13) These members can be
removed at any time at the discretion of the governor.
S.C. Code § 1-3-240 (App. p. Al, A27)
The property of the S.C. Ports Authority enjoys the
same immunity from state and local taxes or assessments
as do the other departments and agencies of the State.
S.C. Code Ann. § 54-3-1050 (1976). (App. p. A22, A27)
All net earnings of the S.C. Ports Authority not
necessary or desirable for the operation of its business
shall be and have been held subject to further action of
3
the South Carolina General Assembly. §.C, Code Ann. §
54-3-1020 (1976). (App. p. A21, A25-A28)
The South Carolina General Assembly
appropriated Seven Hundred Fifty Thousand Dollars for
the initial operation of capital and maintenance of the
ports facilities of the S.C. Ports Authority. The General
Assembly of the State of South Carolina made annual
appropriations for the operation of the S.C. Ports
Authority for the years 1942, 1943, 1944, 1945, 1946, 1947,
1948, 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957,
1958, and 1959. (App. pp. A32, A33)
Since 1959, the General Assembly of the State of
South Carolina has made annual appropriations to pay the
principal and interest on general obligation bonds of the
State of South Carolina issued to finance certain capital
improvements for the S.C. Ports Authority. (App. p. 33)
The State of South Carolina has issued a total in
excess of One Hundred Thirty-two Million Dollars worth
of these general obligations bonds. The proceeds of these
bonds were deposited in the State Treasury and were
distributed to the Authority on the direction of the
General Assembly. (App. p. 33)
The employees of the S.C. Ports Authority are
under the State Employees Workers’ Compensation Plan
[S.C. Code Ann. § 42-7-60 (1976, as amended)]}, and the
South Carolina Retirement System (for State employees).
S.C. Code Ann. §§ 9-1-10, 9-1-20 (1976, as amended).
(App. pp. A2, A3, All, A28)
The S.C. Ports Authority is, and has been, engaged
in promoting, developing, constructing, equipping,
4
maintaining and operating the harbors and seaports within
the State, (namely Port Royal, Charleston and
Georgetown) for handling of water-borne commerce from
and to any part of the State and other states or foreign
countries and the fostering of the shipment of freight and
commerce through said ports, whether originating within
or without the State. $.C. Code Ann. § 54-3-130 (1976, as
amended). (App. pp. Al3, A29)
The S.C. Ports Authority has a broad power of
eminent domain and has exercised this power. $.C. Code
Ann. 54-3-150 (1976, as amended). (App. pp. A18, A29)
The S.C. Ports Authority has the power to take
exclusively, occupy, and use and possess (insofar as may be
necessary tO carry out its functions) any area of land
owned by the State of South Carolina, the counties of
Beaufort, Georgetown and Charleston, not in use for State
purposes, including swamps and overflowed lands, bottoms
of streams, lakes, rivers, bays, and the sea and arms
thereof and other waters of the State and riparian rights
thereto pertaining. The S.C. Ports Authority has exercised
this power. S.C. Code Ann. § 54-3-170 (1976, as
Amended). (App. pp. A19, A29-A30)
The general obligation bonds issued by the State of
South Carolina to fund some of the projects of the S.C.
Ports Authority are paid (both interest and principal) from
the general state funds appropriated by the General
Assembly. (App. p. A33)
In addition, revenue bonds have been issued by the
S.C. Ports Authority to fund some of the projects of the
S.C. Ports Authority and are authorized by State law. S.
C. Code Ann. § 54-3-1010 (1976, as Amended). Other
5
agencies of the State issue revenue bonds in the same
manner as does the S.C. Ports Authority. The S.C. Ports
Authority revenue bonds are tax exempt. (App. pp. A34-
A35)
In 1992, the State of South Carolina designated the
S.C. Ports Authority as the agency to acquire the site for
the new BMW pliant in Spartanburg County, and to
perform other obligations of the State to BMW. Thirty-
two Million Dollars were transferred from the State
Treasury to the account of the S.C. Ports Authority to pay
the purchase price of the land. An additional Eight
Million Dollars was transferred to prepare the site for
BMW’s use. The S.C. Ports Authority also used Five
Million Doliars of funds already in its account to provide
additional funds to acquire the property for this plant site.
(App. p. A35)
The S.C. Ports Authority is listed as an agency for
the State in each annual Legislative Manual, and its
operations are included in each annual Comprehensive
Financial Statement of the State of South Carolina. (App.
p. A35)
The S.C. Ports Authority has no stock, no
stockholders, and no private interests in its operations.
(App. p. A35)
The S.C. Ports Authority and its officials and
employees are subject to the State Ethics Act. S.C. Code
Ann. § 2-17-130 and § 8-13-100 (1976, as Amended).
(App. pp. Al, A35)
The S.C. Ports Authority appoints and hires the
Executive Director of the S.C. Ports Authority, and he
6
deat
serves at the pleasure of the board. The Board of the S.C.
Ports Authority supervises the employment of all other
employees of the S.C. Ports Authority. (App. p. A36)
The Staff of the S.C. Ports Authority works with the
staff of the other State agencies on a daily basis. (App. p.
A36)
The S.C. Ports Authority publishes its annual report
in newspapers throughout the State ($.C. Code Ann. § 54-
3-1040), and delivers it to the General Assembly. S.C.
Code Ann. § 54-3-860 (1976, as Amended). (App. pp.
A20, A22, A36)
The S.C. Ports Authority has quasi-police type
controls over the Port (See title 54 of S.C. Code) and must
approve [S.C. Code Ann. § 54-3-610, (1976, as Amended)]
or certify all private piers in the Port of Charleston, and in
other critical areas. [See §§ 48-39-150 (1976, as
Amended)] (App. pp. A12, A20, A36)
Loss claims and legal tort actions against the S.C.
Ports Authority are controlled by the South Carolina Tort
Claims Act. See S.C. Code Ann. §§ 15-78-10, 15-78-20,
15-78-30, 15-78-40, 15-78-100, 15-78-110 (1986, as
Amended). (App. pp. A3-A8) The S.C. Ports Authority is
also subject to the S.C. Freedom of Information Act $.C.
Code Ann. §§ 30-4-15, 30-4-20, 30-4-30 (1976, as
Amended). (App. pp. Al0, All). The S.C. Ports
Authority may hold property either in its name or in the
name of the State. $.C. Code Ann. § 54-3-140 (1976, as
Amended). (App. pp. A15, A36)
In a very real sense, the S.C. Ports Authority is an
agency of the State of South Carolina. It shares in the
7
State’s sovereignty and is completely identified with the
State. Its functions are unquestionably of a governmental
character. It is very much a part of the State. (App. p.
A36)
fl. The Incident in Question
The S. C. Ports Authority disputes the facts of the
incident involved as set forth in the Petition on pages 5
through 8 We acknowledge that Petitioner had an
accident on that day and in the general location, and that
he may have been injured.
The insurer is inaccurately identified as "Lloyds of
London" (Petition p. 7), when the insurer is actually a
group of corporate insurers belonging to the London
Institute of Underwriters. We have no direct information
as to the matters described on page 7 of the Petition. We
are informed and believe that the Adjuster ordered the
proposed settlement check of $75,000.00. When the check
arrived he tendered the check to Petitioners, but
Petitioners refused to accept the check or sign settlement
papers. The Adjusters then advised Petitioners that the
Statute of limitations would run in a few days, and that
they should act promptly. Petitioners’ statement
acknowledges that they checked on the statute before it
ran, but received false information from a party unrelated
to this action. (Pet. App. p. H 3&4.)
The first and second claims alleged in Petitioners’
Complaint are covered by the South Carolina Tort Claims
Act. $.C, Code Ann. § 15-78-110 (1986, as Amended)
provides that any action covered by that Act is barred
unless commenced or a verified claim filed within two
years after the occurrence. S.C. Code Ann. § 15-78-100
requires that the action be brought in the State Circuit
Court in the County where the act or omission occurred.
S.C, Code Ann. § 15-78-20(e) specifically states:
(e) Nothing in this chapter is
construed as a waiver of the State’s or
political subdivision’s immunity from suit in
federal court under the Eleventh
Amendment to the Constitution of the
United States nor as consent to be sued in
any state court beyond the boundaries of
the State of South Carolina.
Petitioners commenced this action in the United
States District Court for the District of South Carolina
almost three years after the incident of December 20,
1988, and Petitioners never filed a verified claim.
(Appendix of Petitioners at D15 and D16). Petitioners
claimed a waiver disallowed under South Carolina Law
(Appendix of Petitioners at D15 and D16, and Rink v.
S.C. __, 422 S.E.2d 747
Richland Memorial Hospital, _
(1992) and Searcy v, Dept. of Education, 303 S.C. 544, 402
S.E.2d 486 (Ct. App. 1991).
SUMMARY OF THE ARGUMENT
The South Carolina State Ports Authority meets the
standards for Eleventh Amendment protection because it
was created by the state and it is operated and controlled
by a state appointed board. There is no private, local, or
other-state interest or control in or over this Authority.
This ey, me ets the tests set forth in Hess v.
513 U.S. __,
115 S. Ct. 394, 130 L Ed. 2d 245 (1994) because the
9
federal courts are here being used by the Ristows in an
attempt to pursue a state law tort claim in violation of the
South Carolina Tort Claims Act, thereby offending the
dignity of the state. This Authority meets the solvency test
in Hess because it has been and continues to be funded by
the state, all of its funds and assets come directly or
indirectly from the state, and its accounts are used as a
state treasury.
South Carolina specifically denies by statute any
waiver of Eleventh Amendment Immunity (S.C, Code §
15-78-20(e)), and designates that such tort actions must be
brought in state court with 2 years after the act or
omission occurred. §.C. Code § 15-78-100.
Vv. ARGUMENT
A. The S.C. Ports Authority meets the Eleventh
Amendment Immunity Tests of Hess
Writing for the Hess Court, Justice Ginsburg
observes that "[t]he Eleventh Amendment largely shields
States from suit in federal court without their consent..."
Hess, 115 S.Ct. at 400. Two purposes are served by this
arrangement: the protection of the State’s dignity and the
protection of the State’s solvency. Id., at 406. Originally,
in protecting the State’s solvency, the Eleventh
Amendment shielded the states from having the federal
courts deplete their treasuries to pay Revolutionary War
debts. Id., at 400. More recently, jurisprudence has held
that the purpose of this shield is "a recognition that the
States, although a union, maintain certain attributes of
sovereignty, including sovereign immunity", "thus
accord[ing] the States the respect owed them as members
10
of the federation", and "“emphasiziing] the integrity
retained by each State in our federal system". Id., at 400.
This Court has directed that "[w]hen indicators of
immunity point in different directions, the Eleventh
Amendment’s twin reasons for being remain our prime
guide." Jd., at 404.
The S.C. Ports Authority meets this Eleventh
Amendment analysis on both counts. To deny the S.C.
Ports Authority sovereign immunity in the federal courts
would damage both the dignity of the State of South
Carolina and its treasury.
1. Denial of Eleventh Amendment Immunity
Would 1 aff gap
South Carolina
This action by Ristow is an apparent move to by-
pass the provisions of the S.C. Tort Claims Act. $.C. Code
Ann. $§ 15-78-10, et seg. Ristow seeks to avoid the forum
specified and designated by that act. §.C. Code Ann. § 15-
78-100(b)(1986). Petitioners’ Brief, at 64. Ristow also
seeks to by-pass its statute of limitations
§§ 15-78-100(a) and 15-78-110 (1986)], and to avoid its cap
on the amount of recovery. S.C. Code Ann., § 15-78-120
(1986). Petitioners’ Brief, at 56. Ristow seeks to gain
these advantages over the citizens of South Carolina who
are bound by the express statutory restrictions placed on
the same types of claims. Thus, Ristow mounts a massive
flank attack on the South Carolina Tort Claims Act using
the federal courts as a vehicle. South Carolina’s integrity
would be compromised if such an attack were successful,
because South Carolina has never consented to power
sharing for its agencies as did the states of New York and
New Jersey. Hess, 115 S.Ct. at 401.
11
The Complaint alleges a claim of negligence against
the S.C. Ports Authority. Torts against the state are
governed by the South Carolina Tort Claim Act. S.C
Code Ann., $§ 15-78-10, et seg. (1986, as Amended). This
act expressly includes state authorities such as the S.C.
Ports Authority . S.C. Code Ann., §§ 15-78-30 and 15-78-
40 (1986, as Amended). Therefore, unlike many of the
older federal cases where Eleventh Amendment immunity
was denied, the state here has provided a forum for
Ristow’s Complaint.
All claims mentioned by the Complaint arose after
passage of the S.C. Tort Claims Act. This Act states that
the General Assembly intended to preserve immunity from
liability and suit in tort except as waived in the Act. S.C.
Code Ann., § 15-78-20(b). The Act further expressly
States that: "[jJurisdiction for any action brought under
this chapter is in the circuit court and brought in the
county in which the act or omission occurred." §.C. Code
Ann., §§ 15-78-100(b). Furthermore, § 15-78-20(e)
specifically disclaims any waiver of the state’s Eleventh
Amendment immunity.
The designation by the state of where suit may be
brought is to be given effect under the Eleventh
Amendment. As stated by this Court, "[a] State’s
constitutional interest in immunity encompasses not merely
whether it may be sued, but where it may be sued."
ital v , 465
U.S. 89, 99, 104 S. Ct. 900, 907, 79 L.Ed.2d 67 (1984)
(emphasis original). It is established law that a state
waiving immunity from suit in its own Courts does not
constitute waiver of the Eleventh Amendment or consent
to submit to jurisdiction in Federal Courts.
Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87
12
L.Ed.2d 171 (1985). Therefore, since the state has
provided a forum for this type of action, this suit should
have been brought in state Court, and was properly
dismissed from federal court.
Many factors combined in the Hess case to show
that denying Eleventh Amendment immunity was not an
affront to the dignity of the States of New York and New
Jersey. Prominent in that case was the fact that the N.Y.-
N.J. Port Authority is a bistate entity. The very structure
of a bistate entity puts it in a different position from a
state agency such as the S.C. Ports Authority. This Court
noted that bistate entities are formed by not one, but
"three discrete sovereigns: two States and the federal
government.” Hess, 115 S.Ct. at 400. The mission of such
entities is to address interests that cross State lines, and
region-wide problems. Id., at 400-401. This Court even
noted that a compact with Congressional consent is a
"means of safeguarding the national interest." Id., at 401.
Therefore, for an entity such as the N.Y.- N.J. Port
Authority, "[s]uit in federal court is not an affront to the
dignity of a Compact Clause entity, for the federal court
... is ordained by one of the entity’s founders." Id., at 401.
"Nor is the integrity of the compacting States
compromised" because under the Constitution, States
agreed to such power sharing and coordination for bistate
entities. Id., at 401. So important is the issue of a bistate
entity, that when one exists, it raises a presumption that
Eleventh Amendment immunity does not exist. Id., at 402.
Obviously, this is a major difference between the
N.Y.- N.J. Port Authority and the S.C. Ports Authority.
The S.C. Ports Authority was created by one state alone.
Its mission is to stimulate water-borne commerce through
13
the harbors and seaports of South Carolina. South
Carolina has neither surrendered nor shared any portion
of its authority over the S.C. Ports Authority with another
state or with the federal government. And Ristow’s claim
is primarily a State Tort action.
The fact that the N.Y.- N.J. Port Authority is a
bistate entity created other problems for it as well. The
Court notes that this means political accountability is
diffuse, and it is without a tight tie to the people of one
state. Id., at 401. The legislation creating the compact
calls it a "joint or common agency", not a State agency.
Id., at 403. The legislation creating the compact has the
effect of insulating the two states from the debts of the
N.Y.- N.J. Port Authority in a way not experienced by a
State Agency. This Court noted that it was conceived as
a "fiscally independent entity financed predominantly by
private funds" which "generates its own revenues, and for
decades has received no money from the States." Id., at
403. The States have even agreed to an annual limit of
$100,000.00 each to help meet only administrative
expenses, if needed, and only with the approval of each
governor. Id., at 403. All of which effectively insulates the
N.Y.-N.J. Port Authority from direct control by any one
State so that it is "two or more steps removed from
popular control." Id., at 401.
In sum, within any single State in our
representative democracy, voters may exercise their
political will to direct state policy; bistate entities
created by compact, however, are not subject to the
unilateral control of any one of the States that
compose the federal system.
Accordingly, there is good reason not to
14
a ae MN ener NeNeeN
amalgamate Compact Clause entities with agencies
of ‘one of the United States’ for Eleventh
Amendment purposes.
Id., at 402.
The factors in Hess which did indicate immunity
were insufficient to overcome the presumption created by
its bistate status. Factors listed in favor of immunity were
state appointments for commissioners, the ability of the
governors to block actions of their Commissioners, and the
ability of both state legislatures (acting together) to
enlarge the powers of the N.Y.- N.J. Port Authority. Id.,
at 402-403. This Court noted that State courts had
repeatedly typed the N.Y.- N.J. Port Authority as a State
agency. Id., at 403. Nonetheless, due to the nature of the
Bistate entity and the relationship thereby created between
the federal government and the States, it was not
disrespectful to the States, nor was there any "genuine
threat to the dignity of New York or New Jersey in
allowing Hess and Walsh to pursue FELA claims —
PATH in federal court..." Id., at 404.
By contrast, the S.C. Ports Authority is a true state
agency. Not only do the enabling statutes (S.C. Code Ann.
$§ 54-3-10, et seg.), and the State courts pm South
uth
Carolina State Ports Authority, 278 S.C. 198, 293 S.E.2d
854 (1982), and South Carolina Tax Commission v. South
(S.C. Tax Commission,
Nov. 9, 1980). Respondent’s App. pp. A23-A26.] refer to
it as such, but the structure and operations of the agency
reflect it. It was created by and is subject to the
legislature of South Carolina. All of its members are
appointed by the State’s governor with the advice and
consent of the Senate. As discussed in detail below, the
15
funds of the S.C. Ports Authority are part of the State’s
funds, and the State uses them accordingly. The State
provides a large part of the S.C. Ports Authority’s budget
through its general obligation bonds, and has placed no
annual restriction on the amount the State will pay toward
its operating expenses. Unlike the Port of New York and
New Jersey, the S.C. Ports Authority does not operate in
a "defined geographic area." Hess, 115 S.Ct. at 398. The
S.C. Ports Authority’s domain is the entire State, with
foreign trade zones in Greenville and Richland counties
(the upper and mid sections of the State) and an inland
port in Spartanburg County, not to mention the three
coastal ports in Charleston, Georgetown, and Beaufort
Counties. Board members are appointed from all over the
State, and there is no requirement here that they live
within proximity to a Port. In short, the S.C. Ports
Authority was created to serve the entire State of South
Carolina by acting as an engine for its industry, agriculture,
and business, and it has done just that.
Furthermore, as discussed above and unlike the
States of New York and New Jersey, the State of South
Carolina has specificatly reserved control over the S.C.
Ports Authority as to legal claims by expressly reserving its
Eleventh Amendment immunity. And unlike Hess where
the claims arose under federal law [(FELA); Hess, 115
S.Ct, at 401], the claim of Ristow is basically a state law
action, a tort claim.
Whereas the legislation creating the Port of New
York and New Jersey has the effect of distancing that
entity from State control, the legislation creating South
Carolina’s Port Authority has the opposite effect. Unlike
the N.Y.- N.J. Port Authority, the S.C. Ports Authority is
not "two or more steps removed from popular control."
16
Id., at 401. To the contrary, South Carolina has jealously
guarded this agency, knowing what its mission means to
the State. For all of these reasons, denial of Eleventh
Amendment immunity would indeed be an affront to the
dignity of the State of South Carolina.
2. South Carolina’s Purse is Vulnerable
After determining there was no affront to the
dignity of the States of New York and New Jersey, Articles
Ill and I'V of the Hess opinion dealt with the "vulnerability
of the purse" requirement. This Court determined that
the N.Y.- N.J. Port Authority operation did not make the
purse of its parent states vulnerable because of its long
history of paying its own way. Hess, 115 S.Ct. at 405. The
opinion states that agencies that "place heavy fiscal tolls on
their founding States" (Id., at 405), or a state agency that
"depends for its existence on a state-provided ’financial
safety net of broad dimension”, or "[w]here an agency is
so structured that, as a practical matter, if the agency is to
survive, a judgment must expend itself against ‘state
treasuries, common sense and the rationale of the eleventh
amendment require that sovereign immunity attach to the
agency." Id., at 405.
For its first eighteen years, operating costs of the
S.C. Ports Authority were paid by annual appropriation by
the S.C. General Assembly. (App. p. A32) Since that
time, the S.C. Ports Authority has financed much of its
capital expenses by general obligation bonds which pledge
the full faith and credit of the State. (App. P. A33) The
principal and interest on these bonds is paid by annual
appropriations of the South Carolina General Assembly.
(App. p. A33) This was not the situation in the Hess case.
Hess, 115 S.Ct. at 399. Furthermore there has been a
17
deposit of substantial general state funds in the account of
the S.C. Ports Authority, thereby making the S.C. Ports
Authority account a state treasury and making South
Carolina’s situation very different from that of the Hess
case. In Hess, the N.Y.- N.J. Port Authority had received
no funds from its parent states since 1934, Id., at 405, and
the states’ role in its financing was described as: "if the
Authority is ever in need of financial support, the states
will be there to provide it." Hess, 115 S.Ct. at 398.
The S.C. Ports Authority’s continued financial
support from the State, its ability to tap the State’s
Treasury, and its ability to pledge the State credit puts it
into the category of State agencies held entitled to
Eleventh Amendment immunity. Id., at 405.
Any judgment against the S.C. Ports Authority
would be paid with state funds, or by the sale of state
property, or by insurance whose premiums were paid with
state funds. All funds available to the Authority come or
came from the state treasury, from rental of state
property, or from fees charged for services rendered by
State employees.
Ironically, had Ristow commenced this action in the
prescribed court and within the prescribed time, any
judgment would have been against the S. C. Ports
Authority account at a time when it contained $40 Million
of general state funds for the BMW project. (App. p.
A35) None of the cases cited by Ristow contain the
commingling of state funds which are present in this case.
While the accouit labeled "State Treasury" was protected,
state funds and state property were not.
If the General Assembly decided to abolish the S.C.
18
Ports Authority, no person or body could claim the
property or the funds then in the name of the S.C. Ports
Authority against the state. Applying an "actual financial
analysis", everything in the S.C. Ports Authority’s name
belongs to the state, and Ristow’s action is one for
recovery of money from the state. "And when the action
is in essence one for the recovery of money from the state,
the state is the real, substantial party in interest and is
entitled to invoke its sovereign immunity from suit...."
Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389
(1945). Ristow’s suggested interpretation of the Eleventh
Amendment is unrealistically narrow and technical.
3. ircui iSi j is ca is
H ith that of the Hess Case,
In the first ruling on this case [Ristow v. South
ity 27 F.3d 84 (4th Cir. 1994),
hereinafter "Ristow I"], the Fourth Circuit held: "[i]t is
clear that the Ports Authority owes its very existence and
current financial position to the state’s coffers." Ristow I,
27 F.3d at 86; and "[t]he state’s withdrawal of excess Ports
Authority funds and its commingling of state funds with
those of the Ports Authority in transactions like the BMW
transaction are a strong indication that the funds of the
Ports Authority belong to the state and that a tort
recovery out of those funds would constitute one from the
State treasury." Id., at 86.
The first and second decisions of this case by the
Fourth Circuit treat the responsibility of the State treasury
as the most important factor. Ristow I, at 868, and Ristow
v. S. C State Ports Authority, _ F.3d __ (4th Cir. 1995)
(Hereinafter "Ristow IJ," and reprinted in Petitioners’
19
Appendix at A1.)
In Ristow I], the Circuit Court concluded:
Ristow II,
18.
4.
All of this convinces us that, unlike
Port Authority Trans-Hudson, the entity
considered in Hess, the Ports Authority is
not self-sufficient. It is true that a judgment
against the Ports Authority cannot be legally
enforced against the state. The praciical
effect of South Carolina’s treatment of the
fiscal affairs of the Ports Authority, however,
definitively implicates the state treasury.
Obviously, the legislature will not be able to
withdraw net revenues "not necessary or
desirable for operation" if the Ports
Authority’s operational funds have been
depleted by judgments against it. Likewise,
to the extent that a judgment would deplete
its resources, the Ports Authority would be
unable to utilize earnings for necessary
capital improvements, and so would
continue to depend on the state treasury for
these required expenditures. To deny
Eleventh Amendment immunity in these
circumstances would ignore economic
reality.
F.3d___ (4th Cir. 1995), Pet. App. at A15-
There are important differences between the facts
and the applicable law in the Hess case and the facts and
applicable law in the case at hand.
a. The defendant in Hess was a separate
railway corporation established by the Bistate Port
Authority of New York and New Jersey (hereinafter
"N.Y.-N.J. Port Authority"). Hess, 115 S.Ct. at 397 and
399. The N.Y.-N.J. Port Authority was created by a
compact between the parent states and signed by the
United States. Id., at 398 and 401. It was formed as a
device for dealing with regional interests and as a means
of safeguarding national interests. Id., at 401. As a signer
of the charter, the United States was also a founder of the
N.Y.-N.J. Port Authority. Id., at 401 and 404. It is noted
in Section II of the Hess opinion that such bistate bodies
occupy a significantly different position under the federal
system than do the states themselves. Id., at 400.
The S.C. Ports Authority is not a bistate Authority
operating under such a charter. The United States did not
sign its charter and was not one of its founders. Both the
operating and the capital costs of the S.C. Ports Authority
were paid by the S.C. General Assembly for its first 18
years of operation. (App. p. A32) Since that time, the
General Assembly directed the issuance of $132 million of
general obligation bonds to pay for S.C. Ports Authority’s
capital improvements, and it continues to pay principal
and interest on these bonds. (App. p. A33) The S.C.
Statutes make no provision for private investment in the
S.C. Ports Authority. S.C. Code Ann., §§ 54-3-10 et seg.
b. In Hess, the claim was a federal FELA claim
rather than a State law claim. Id., at 401. This, plus the
bistate status of the N.Y.-N.J. Port Authority, removed the
affront to the dignity of the States. Id., at 401.
In the case at hand, the basic claim is in
"negligence", which under South Carolina law is
permissible against the S.C. Ports Authority only under the
S.C. Code Ann. §§ 15-78-
10 et seg. (1986). In Hess, the plaintiff could have
brought the actions in State court, but in the case at hand
the claim of the appellants (hereinafter "Ristow") is barred
by the applicable South Carolina statute of limitations.
S.C. Code Ann. § 15-78-100 (1986). The Tort Claims Act
is the exclusive remedy, and the Eleventh Amendment is
not waived. S.C. Code Ann. 15-78-20(e)( 1986).(App.pp.A3-
AS)
c. Hess creates a legal test for bistate entities,
such as the N.Y.- N.J. Port Authority, which would not
apply to State agencies like the S.C. Ports Authority. The
existence of a bistate entity creates a presumption that the
entity does not qualify for Eleventh Amendment immunity.
Hess, 115 S.Ct. at 402. To overcome that presumption,
the entity must show that "there is good reason to believe
that the States structured the new agency to enable it to
enjoy the special constitutional protection of the States
themselves, and that Congress concurred in that purpose."
Id., at 402 and 404. This is a heavy burden to overcome,
and one which the N.Y.- N.J. Port Authority was not able
to meet. Nonetheless, South Carolina statutes and the
practices of the State of South Carolina demonstrate that
even these more stringent requirements accurately
describe the situation of the S. C. Ports Authority.
d. The N.Y.- N.J. Port Authority did not rely
22
On its parent states for financial support. It was conceived
as a financially independent entity, Hess 115 S. Ct. 398.,
The N.Y.- N.J. Port Authority sent its profits to the states
to finance projects which the states would otherwise
finance themselves. Hess, 115 S.Ct. at 405. The N.Y.-
N.J. Port Authority last received funds from its states in
1934. Id., at 405. The N. Y.- N. J. Port Authority was to
be funded primarily by private investment Id., at 403.
The States agreed to pay only $100,000 per year per state
to finance operations "until the revenues from operations
- are adequate to meet all expenditures." Id., at 399.
South Carolina statutes nowhere state or suggest
that the S.C. Ports Authority is to be independent. The
State has issued One hundred, thirty two million
($132,000,000.00) dollars worth of general obligation bonds
to pay for the capital improvements for the S.C. Ports
Authority and continues to pay principal and interest on
such bonds. (App. p. A33) The operating costs for the
first eighteen years of operations of the S.C. Ports
Authority were paid by appropriations from the South
Carolina General Assembly. (App. p. A32) In 1992, $40
million dollars of State General Funds were deposited in
the account of the S.C. Ports Authority, and were
distributed by the S.C. Ports Authority for a state project.
Pet. App., at Al5, n. 7. (App. p. A35) The State of
South Carolina continues to supply funds and capital to
the S.C. Ports Authority. The amount of General
Obligation bonds issued to fund the S.C. Ports Authority
increased substantially while this action was in process.
Pet. App. at Al4.
e. The N.Y.- N.J. Port Authority is controlled
by a board of commissioners, half of whom are selected by
each state. Hess, 115 S.Ct. at 399. The governor of each
23
state may veto the actions of Commission members
appointed by that state. Id., at 399.
All of the members of the governing board of the
S.C. Ports Authority are appointed by the governor of
South Carolina with the approval of the South Carolina
Senate. $.C. Code Ann., § 54-3-20 (1976, as Amended).
These members are removable, at his discretion, by the
governor of the State. $.C. Code Ann. § 1-3-240 (1993, as
Amended). While it is true that the governor of South
Carolina does not have veto power over the actions of the
Board, this is the only significant difference between the
Hess and the Ristow situation in which the case for
Eleventh Amendment immunity is less favorable for South
Carolina.
f. The statutes of New York and New Jersey
have been determined to consent to litigation in the
federal courts of cases against the N.Y.- N.J. Port
Authority. Hess, 115 S.Ct. at 400, and
Authority Trans-Hudson Corporation, 873 F.2d 628 (2d
Cir. 1989), aff'd on other grds, 495 U.S. 299, 110 S.Ct.
1868, 109 L.Ed.2d 264 (1990). By comparison, $.C, Code
Ann. § 15-78-20(e) expressly disclaims any waiver of the
Eleventh Amendment. $.C, Code Ann. § 15-78-20(e) (a
portion of the S.C. Tort Claims Act) sets the Tort Claims
Act and the South Carolina courts as the sole remedy.
B. ' : "
" ys. Vv 9
The S. C. Ports Authority has shown that its funds
are all state funds and that any judgment achieved in cases
like this would be paid with state funds mixed with funds
24
from insurance procured with state funds. Petitioners
appear to contend that unless the payment must come
from the account labeled "State Treasury," Eleventh
Amendment protection is denied. Surely constitutional
provisions should not be so narrowly construed.
The statutes creating the Authority gave it the right
to have accounts in its own name and to deposit state
funds therein. Section 54-3-1020 (App. p. 21). Indeed,
State funds are occasionally deposited in the Authority’s
account in addition to those necessary for its operating or
capital expenses (App. p. A35)
We note an important technical error on page 28
of Petitioners’ Brief on the "treasury" issue. Petitioner
erroneously cites Jacintoport Corp. v. Greater Baton
Rouge Port Commission, 762 F. 2d. 435 (Sth Cir. 1985) as
a "single state [entity]." Louisiana does not have a "State
Ports Authority." the Fifth Circuit held properly that the
Greater Baton Rouge Port Commission was a local
subdivision, even though it had a slice of state power Id p.
437 and 438, and concluded "[T]he object of the
Authority’s concern is local under the standards set forth
by McQuillan, and because it acts for the special
advantage of the Baton Rouge Port, it follows that the
Commission is performing a proprietary, or local, rather
than governmental or statewide, function." Id p. 443. The
S. C. State Ports Authority is the authority for all of South
Carolina’s ports and its function is statewide.
The source of all the South Carolina State Ports
Authority funds and property is the State, and funds
earned utilizing state employees and state property. Its
account is a "state treasury."
25
In modern state governments, state funds are held
in many accounts. To ignore this situation is, as said in
Ristow I], to "ignore economic reality." Ristow II, Pet.
App. at A18.
VI. CO USION
The South Carolina State Ports Authority is not a
marginai case but an agency of the State. It involves no
special questions as to local or private interest. The
Fourth Circuit reconsidered its earlier opinion in the light
of Hess and affirmed it. This court should deny the
Petition for Certiorari and affirm the Respondent’s
Eleventh Amendment immunity from suits in federal
Court.
Respectfully Submitted,
Vaughan & Lawrence, P.A.
William H. Vaughan, Jr.
23 Broad Street
Post Office Box 1559
Charleston, South Carolina, 29402
(803) 723-3020
Attorneys for Respondent
South Carolina State Ports Authority
26
AR ABa Ras 30 Ribas te tne Pre
NO. 95-456
IN THE SUPREME COURT OF
THE UNITED STATES
October Term, 1995
FRED W. RISTOW and SUSAN M. RISTOW,
Petitioners,
VS.
THE SOUTH CAROLINA STATE PORTS
AUTHORITY AND THE S.S. UNKNOWN,
an unknown ocean going ship,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals for
the Fourth Circuit
APPENDIX
William H. Vaughan, Jr.
Vaughan & Lawrence, P.A.
23 Broad Street, Post Office Box 1559
Charleston, South Carolina 29402
(803) 723-3020
Attorneys for Respondent, the
South Carolina State Ports Authority
INDEX TO APPENDIX
S.C, CODE:
Section 1-3-240
Section 2-17-130
Section 8-13-100
Section 9-1-10
Section 9-1-20
Section 15-78-10
Section 15-78-20
Section 15-78-30
PAGE
Administration of the
Government (Governor and
Lieutenant Governor-Removal of
officers by Governor) ....... Al
General Assembly (Lobbyists
and Lobbying) ..........-.- Al
Public Officers and Employees
(Ethics, Conduct, Campaign
Practices and Disclosures) ... Al
Retirement Systems
(Definitions) .........+.... A2
Retirement Systems (South Carolina
Retirement System created) .. A3
Civil Remedies and Procedures
(South Carolina Tort Claims
po ere Pere eee eee ee A3
Civil Remedies and Procedures
(South Carolina Tort Claims
Act-Legislative Findings; declaration
of public policy; extent of, and
construction of, waiver of
ee A3
Civil Remedies and Procedures
(South Carolina Tort Claims Act-
eo | errr rr ere ee A6
INDEX TO APPENDIX
Section 15-78-40
Section 15-78-100
Section 15-78-110
Section 15-78-120
Section 30-4-15
Section 30-4-20
Civil Remedies and Procedures
(South Carolina Tort Claims Act-Tort
liability of State , agency, political
subdivision or governmental entity,
NEED 6 bn tse cbesseeess A7
Civil Remedies and Procedures
(South Carolina Tort Claims Act-
When and where to institute
a a Oe ay ey ae ee A8
Civil Remedies and Procedures
(South Carolina Tort Claims Act-
Statute of Limitations) ...... A8
Civil Remedies and Procedures
(South Carolina Tort Claims Act-
Limitation on liability; prohibition
against recovery of punitive or
exemplary damages or prejudgment
interest; signature of attorney
on pleadings, motions, or other
ST Go cUh eet enee b's A9
Public Records (Freedom of
Information Act-Findings and
ee A10
Public Records (Freedom of
Information Act-Definitions) A10
8 AGRE. Ce CA BAL 4
RLM Nite ae Bena bs PR ABS. he
INDEX TO APPENDIX
Section 30-4-30
Section 42-7-60
Section 48-39-150
Section 54-3-10
Section 54-3-20
Section 54-3-130
Section 54-3-140
Section 54-3-150
Section 54-3-170
Public Records (Freedom of
Information Act-Right to
| eee eer eee ee ee All
Funds (State Workers’ Compensation
Fund-Officers and Employees
COD ikea bead feirdes All
Environmental Protection and
Conservation (Coastal Tidelands and
We i aK sisi Sees Al2
South Carolina State Ports Authority
(Creation and membership of State
Ports Authority.) ......... A12
South Carolina State Ports Authority
(Appointment and terms of members;
eee ee eee Al3
South Carolina State Ports Authority
(Purposes of Authority.) .... A13
South Carolina State Ports Authority
(Powers of Authority.) ..... -Al5
South Carolina State Ports Authority
(Acquisition of property.) ... Al8 —
South Carolina State Ports Authority
(Use of certain State
SUORTTOAD ik a wee RD Al19
INDEX TO APPENDIX
Section 54-3-610 | South Carolina State Ports Authority
(Powers of Authority as to erection
or removal of wharves, docks and
other structures.) ......... A20
Section 54-3-860 South Carolina State Ports Authority
(Authority shall report annually to
General Assembly.) ....... A20
Section 54-3-1010 South Carolina State Ports Authority
(Issuance of bonds.) ....... A20
Section 54-3-1020 South Carolina State Ports Authority
(Disbursement of funds;
Sf ee A21
Section 54-3-1040 South Carolina State Ports Authority
(Annual financial statement.) A22
Section 54-3-1050 South Carolina State Ports Authority
(Property of Authority exempt from .
ES PTT CRT ET ere A22
Other Items:
South Caroling Tax Commission v. South Caroline State
Ports Authority, (S.C. Tax Commission, Nov. 9, 1980)A23
Affidavit of William M. Lawrence, chief financial officer
for Respondent (dated April 24, 1992) ......... A27
Supplemental Affidavit of William M. Lawrence, chief
financial officer of Respondent (dated May 27, 1993)A31
§ 1-3-240. Removal of officers by Governor.
(B) Any person appointed to a state office by a
Governor, either with or without the advice and consent of
the Senate, other than those officers enumerated in
subsection (C), may be removed from office by the
Governor at his discretion by an Executive Order
removing the officer.
§ 2-17-130. Penalties For violations of provisions of this
chapter.
(B) A member of the General Assembly, the
Governor, the Lieutenant Governor, any other statewide
constitutional officer, any public official of any state agency
who engaged in covered agency actions, or any of their
employees who wilfully violate the provisions of this
chapter is guilty of a misdemeanor and, upon conviction,
must be fined not more than two thousand five hundred
dollars or imprisoned for not more than one year, or both.
So - d loyees (Ethics
Act)
§ 8-13-100. Definitions.
As used in Articles 1 through 11:
(25) "Public employee" means a person employed by
the State, a county, a municipality, or a_ political
Al
; RC cena eae
subdivision thereof.
(27) “Public official" means an elected or appointed
official of the State, a county, a municipality, or a political
subdivision thereof, including candidates for the office.
"Public official" does not mean a member of the judiciary
except that for the purposes of campaign practices,
campaign disclosure, and disclosure of economic interests,
a probate judge is considered a public official and must
meet the requirements of this chapter.
South Carolina - Retirement Systems
§ 9-1-10. Definitions.
The following words and phrases as used in this
chapter, unless a different meaning is plainly required by
the context, shall have the following meanings:
(1) "Retirement System" or "System" shall mean the
South Carolina Retirement System established
under § 9-1-20;
(5) “Employer” shall mean the State, a county board of
education, a district board of trustees, a city board
of education, the board of trustees or other
managing board of any State-supported college or
educational institution, or any other agency of the
State by which a teacher or employee is paid; the
term "employer" also includes a _ county,
municipality, or other political: subdivision of the
State, or any agency or department thereof, which
has been admitted to the System under the
provisions of § 9-1-470....
A2
eS SS SaaS ee
§ 9-1-20. South Carolina Retirement System created;
System shall have powers and privileges of
corporation; purposes of System.
A retirement system is hereby established and placed
under the management of the State Budget and Control
Board for the purpose of providing retirement allowances
and other benefits for teachers and employees of the State
and political subdivisions or agencies or departments
thereof. The System so created shall have the power and
privileges of a corporation and shall be known as the
South Carolina Retirement System, and by such name all
of its business shall be transacted, all of its funds invested
and all of its cash, securities and other property held.
u lina Tort s Act
§ 15-78-10. Short title.
This chapter may be cited as the "South Carolina Tort
Claims Act".
§ 15-78-20. Legislative findings; declaration of public
policy; extent of, and construction of,waiver
of immunity.
(a) The General Assembly finds that while a
private entrepreneur may be readily held liable for
negligence of his employees within the chosen ambit of his
activity, the area within which government has the power
to act for the public good has been without limit and,
therefore, government did not have the duty to do
everything which might have been done. The General
Assembly further finds that each governmental entity has
financial limitations within which it must exercise
A3
authorized power and discretion in determining the extent
and nature of its activities. Thus, while total immunity
from liability on the part of the government is not
desirable, see McCall v. Batson, neither should the
government be subject to unlimited nor unqualified
liability for its actions. The General Assembly recognizes
the potential problems and hardships each governmental
entity may face being subjected to unlimited and
unqualified liability for its actions. Additionally, the
General Assembly recognizes the impossibility of insuring
for acts retrospectively. The General Assembly seeks an
orderly transition to the recognition of individuals’ rights
against the tortious sovereign as defined herein.
Consequently, it is declared to be the public policy of the
State of South Carolina that the State, and its political
subdivisions, are only liable for torts within the limitations
of this chapter and in accordance with the principles
established herein. It is further declared to be the public
policy of the State of South Carolina that to insure an
orderly transition from sovereign immunity to qualified and
limited liability that the General Assembly intends to
provide for liability on the part of the State and its
political subdivisions only from July 1, 1986, forward in
prospective fashion. No governmental entity which was not
insured at the time of the injury for which compensation
is sought is liable under this chapter and those which were
insured are liable only to the extent provided herein.
Liability for acts or omissions under this chapter is based
upon the traditional tort concepts of duty and the
reasonably prudent person’s standard of care in the
performance of that duty.
(b) The General Assembly in this chapter intends
to grant the State, its political subdivisions, and employees,
while acting within the scope of official duty, immunity
from liability and suit for any tort except as waived by this
chapter. The General Assembly additionally intends to
AG
provide for liability on the part of the State, its political
subdivisions, and employees, while acting within the scope
of official duty, only to the extent provided herein. All
other immunities applicable to a governmental entity, its
employees, and agents are expressly preserved. The
remedy provided by this chapter is the exclusive civil
remedy available for any tort committed by a
governmental entity, its employees, or its agents except as
provided in $15-78-70(b).
(c)(i) As to those causes of action that arise or
accrue prior to the effective date of this act, the
General Assembly reinstates sovereign immunity on
the part of the State, its political subdivisions and
employees, while acting within the scope of official
duty provided that sovereign immunity’ will not bar
recovery in any case of action ‘arising or accruing
on or before the effective date of this act if the
defendant maintained liability insurance coverage.
(ii) In such cases involving governmental health
care facilities, as defined in § 15-78-30(j), recovery
shall not exceed the limits of the liability insurance
coverage up to a maximum recovery of five
hundred thousand dollars.
(iti) In all other such cases recovery shall not
exceed the limits of the liability insurance coverage.
(d) Nothing in this chapter affects liability based
on contract nor does it affect the power of the State or its
political subdivisions to contract.
(¢) Nothing in this chapter is construed as a waiver
of the state’s or political subdivision’s immunity from suit
in federal court under the Eleventh Amendment to the
Constitution of the United States nor as consent to be
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sued in any state court beyond the boundaries of the State
of South Carolina.
(f) The provisions of this chapter establishing
limitations on and exemptions to the liability of the State,
its political subdivisions, and employees, while acting
within the scope of official duty, must be liberally
construed in favor of limiting the liability of the State.
§ 15-78-30. Definitions.
(a) "Agency" means the individual office, agency,
authority, department, commission, board, division,
instrumentality, or institution, including a state-supported
governmental health care facility, school, college,
university, or technical college, which employs the
employee whose act or omission gives rise to a claim
under this chapter.
(b) "Claim" means any written demand against the
State of South Carolina or a political subdivision for
money only, on account of loss, caused by the tort of any
employee of the State or a political subdivision while
acting within the scope of his official duty.
(c) Prior to January 1, 1989, "Employee" means
any officer, employee, or agent of the State or its political
subdivisions, including elected or appointed officials, law
enforcement officers, and persons acting on behalf or in
service of a governmental entity in the scope of official
duty, whether with or without compensation....
(d) "Governmental entity” means the State and its
political subdivisions.
(e) "State" means the State of South Carolina and
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SER ee ID aT ee SE OE TE mek
any of its offices, agencies, authorities, departments,
commissions, boards, divisions, instrumentalities, including
the South Carolina Protection and Advocacy System for
the Handicapped, Inc., and institutions, including state
supported governmental health care facilities, schools,
colleges, universities, and technical colleges.
(f) "Loss" means bodily injury, disease, death, or
damage to tangible property, including lost wages and
economic loss to the person who suffered the injury,
disease, or death, pain and suffering, mental anguish, and
any other element of actual damages recoverable in
actions for negligence, but does not include the intentional
infliction of emotional harm.
(g) "Occurrence" means an unfolding sequence of
events which proximately flow from a single act of
negligence.
(h) "Political subdivision" means the counties,
municipalities, school districts, a regional transportation
authority established pursuant to Chapter 25 of Title 58,
and an operator as defined in item (8) of § 58-25-20 which
provides public transportation on behalf of a regional
transportation authority, and special purpose districts of
the State and any agency, governmental health care
facility, department, or subdivision thereof.
(i) "Scope of official duty” or "scope of state
employment” means (1) acting in and about the official
business of a governmental entity and (2) performing
official duties.
§ 15-78-40. Tort liability of State, agency, political
subdivision, or governmental entity,
generally.
The State, an agency, a political subdivision, and a
governmental entity are liable for their torts in the same
manner and to the same extent as a private individual
under like circumstances, subject to the limitations upon
liability and damages, and exemptions from liability and
damages, contained herein.
§ 15-78-100. When and where to institute action;
requirement of special verdict specifying
proportionate liability of multiple
defendants.
(a) Except as provided for in Section 15-3-40, an
action for damages under this chapter may be instituted at
any time within two years after the loss was or should have
been discovered. Provided, that if a claim for damages was
filed and disallowed or rejected an action for damages
filed under this chapter, based upon the same occurrence
as the claim, may be instituted within three years after the
loss was or should have been discovered.
(b) Jurisdiction for any action brought under this
chapter is in the circuit court and brought in the county in
which the act or omission occurred.
(c) In all actions brought pursuant to this chapter
when an alleged joint tortfeasor is named as party
defendant in addition to the governmental entity, the trier
of fact must return a special verdict specifying the
proportion of monetary liability of each defendant against
whom liability is determined.
§ 15-78-110. Statute of limitations.
Except as provided for in Section 15-3-40, any action
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brought pursuant to this chapter is forever barred unless
an action is commenced within two years after the date
the loss was or should have been discovered; provided,
that if the claimant first filed a claim pursuant to this
chapter then the action for damages based upon the same
occurrence is forever barred unless the action is
cominenced within three years of the date the loss was or
should have been discovered.
§ 15-78-120. Limitation on Liability; prohibition against
recovery of punitive or exemplary damages
or prejudgment interest; signature of
attorney on pleadings, motions, or other
papers.
(a) For any action or claim for damages brought under
the provisions of this chapter, the liability shall not exceed
the following limits:
(1) Except as provided in Section 15-78-120(a)(3), no
person shall recover in any action or claim brought
hereunder a sum exceeding two hundred fifty thousand
dollars because of loss arising from a single occurrence
regardless of the number of agencies or political
subdivisions involved.
(2) Except as provided in Section 15-78-120(a)(4),
the total sum recovered hereunder arising out of a single
occurrence shall not exceed five hundred thousand dollars
regardless of the number of agencies or political
subdivisions or claims or actions involved.
(b) No award for damages: under this chapter shall
include punitive or exemplary damages or interest
prior to judgment.
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§ 30-4-15. Findings and purpose.
The General Assembly finds that it is vital in a
democratic society that public business be performed in an
open and public manner so that citizens shall be advised
of the performance of public officials and of the decisions
that are reached in public activity and in the formulation
of public policy. Toward this end, provisions of this
chapter must be construed so as to make it possible for
citizens, or their representatives, to learn and report fully
the activities of their public officials at a minimum cost or
delay to the persons seeking access to public documents or
meetings.
§ 30-4-20. Definitions.
(a) "Public body" means any department of the State,
any state board, commussion, agency, and authority, any
public or governmental body or political subdivision of the
State, including counties, municipalities, townships, school
districts, and special purpose districts, or any organization,
corporation, or agency supported in whole or in part by
public funds or expending public funds, including
committees, subcommittees, advisory committees, and the
like of any such body by whatever name known, and
includes any quasi-governmental body of the State and its
political subdivisions, including, without limitation, bodies
such as the South Carolina Public Service Authority and
the South Carolina State Ports Authority....
(b) "Person" includes any individual, corporation,
partnership, firm, organization or association.
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(c) "Public record” includes all books, papers, maps,
photographs, cards, tapes, recordings, or other
documentary materials regardless of physical form or
characteristics prepared, owned, used, in the possession of,
or retained by a public body....
(d) "Meeting" means the convening of a quorum of the
constituent membership of a public body, whether corporal
or by means of electronic equipment, to discuss or act
upon a matter over which the public body has supervision,
control, jurisdiction or advisory power.
§ 30-4-30. Right to inspect or copy public records;
fees; notification as to public availability of
records; presumption upon failure to give
notice.
(a) Any person has a right to inspect or copy any
public record of a public body, except as otherwise
provided by § 30-4-40, in accordance with reasonable rules
concerning time and place of access.
Sou - W : ion Fund
§ 42-7-60. Officers and employees covered by article.
Notwithstanding anything to the contrary contained in
§ 42-1-130, the provisions of this article apply to all
officers and employees of the State and of any county,
municipality, or other political subdivision thereof or any
agency or institution of the State which has elected to
participate under this article under the provisions. of §
42-7-50....
All
- vi n and
Conservation Act
§ 43-39-150. Approval or denial of permits; appeal to
Council.
(A) In determining whether a permit application is —
approved or denied the Department shall base its
determination on the individual merits of each application,
the policies specified in §§ 48-39-20 and 48-39-30 and be
guided by the following general considerations:
(2) The extent to which the activity would
harmfully obstruct the natural flew of
navigable water. If the proposed project is
in one or more of the State’s harbors or in
a waterway used for commercial navigation
and shipping or in an area set aside for port
development in an approved management
plan, then a certificate from the South
Carolina State Ports Authority declaring the
proposed project or activity would not
unreasonably interfere with commercial
navigation and shipping must be obtained by
the Department prior to issuing a permit.
uth u
§ 54-3-10. Creation and membership of State Ports
Authority.
The South Carolina State Ports Authority is hereby
created consisting of a governing body of nine members,
hereafter referred to as the Authority.
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§ 54-3-20. Appointment and terms of members;
vacancies.
The members of the board shall be appointed by the
Governor, with the advice and consent of the Senate, for
terms of seven years each and until their successors shall
have been appointed and have qualified. In the event of
a vacancy, however caused, a successor shal] be appointed
in the manner of original appointment for the unexpired
term.
§ 54-3-130. Purposes of Authority.
The Authority is created as an instrumentality of the
State for the accomplishment of the following general
purposes, all or any of them, which are intended to
broaden and not to restrict any other powers given to it in
this chapter, namely:
(1) To develop and improve the harbors or
seaports of Charleston, Georgetown and
Port Royal for the handling of water-borne
commerce from and to any part of the State
and other states and foreign countries;
(2) To acquire, construct, equip, maintain,
develop and improve such harbors or
seaports and their port facilities;
(3) To foster and stimulate the’ shipment of
freight and commerce through such ports,
whether originating within or without the
State, including the investigation and
handling of matters pertaining to all
transportation rates and rate structures
affecting the same;
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(4)
(5)
(6)
(7)
(8)
To cooperate with the United States of
America, and any agency or any
department, corporation or instrumentality
thereof in the maintenance, development,
improvement and use of such harbors and
seaports im connection with and in
furtherance of the war operations and needs
of the United States;
To accept funds from any of the counties of
Beaufort,Charleston or Georgetown, and to
use them in such manner, within the
purposes of the Authority, as shall be
stipulated by the county and to act as agent
or instrumentality for any of such counties in
any matter coming within the general
purposes of the Authority;
To act as agent for the United States of
America or any agency, department,
corporation or instrumentality thereof, in
any matter coming within the purposes or
powe:s of the Authority;
To cooperate and act as co-assurer with the
city of Augusta, Georgia, and the Georgia
State Ports Authority in furtherance of the
river development project known as the
Savannah River Project Below Augusta;
To promote, develop, construct, equip,
maintain and operate a harbor or harbors
within this State on the Savannah River, and
in furtherance thereof have all of the
powers, purposes and authority given by law
to the Authority in reference to the harbors
and seaports of Charleston, Georgetown and
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(9)
Port Royal; and
In general to do and perform any act or
function which may tend to or be useful
toward the development and improvement
of such harbors and seaports of this State
and to the increase of water-borne
commerce, foreign and domestic, through
such harbors and seaports.
§ 54-3-140. Powers of Authority.
In order to enable it to carry out the purposes of this
chapter, the Authority:
(1)
(2)
(3)
Shall have the powers of a body corporate,
including the power to sue and be sued, to
make contracts and to adopt and use a
common seal and alter it as may be deemed
expedient;
May rent, lease, buy, own, acquire, mortgage
and dispose of such property, real or
personal, as the Authority may deem proper
to carry, out the purposes and provisions of
this chapter, all or any of them;
May acquire, construct, maintain, equip and
operate wharves, docks, ships, piers, quays,
elevators, compresses, refrigeration storage
plants, warehouses and other structures and
any and all facilities needful for the
convenient use of the same in the aid of
commerce, including the dredging of
approaches thereto and the construction of
belt line roads and highways and bridges
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and causeways thereon and other bridges
and causeways necessary or useful in
connection therewith and shipyards, shipping
facilities and transportation facilities incident
thereto and useful or convenient for the use
thereof, including terminal railroads;
(4) May acquire, construct, maintain, operate
and contract to operate in any of said
counties airports, seaplane bases, naval
bases and any other facilities necessary or
useful in carrying out the purposes of this
chapter and of the Authority;
(5) Shall appoint and employ and dismiss at
pleasure such employees as may be selected
by the board of the Authority and fix and
pay the compensation thereof;
(6) Shall establish an office for the transaction
of its business in the City of Charleston and
such other offices within and without the
State as may be deemed by the board to be
necessary or useful in carrying out the
purposes of this chapter;
(7) May create and operate such agencies and
departments as the board may deem
necessary or useful for the furtherance of
any of the purposes of this chapter;
(8) May pay all necessary costs and expenses
involved in and incident to the formation
and organization of the Authority and
incident to the administration and operation
thereof and all other costs and expenses
reasonably necessary or expedient in
A16
(9)
(10)
(11)
carrying out and accomplishing the purposes
of this chapter;
May apply for and accept loans and grants
of money from any Federal agency for any
and all of the purposes authorized in this
chapter and expend such moneys in
accordance with the directions and
requirements attached thereto or imposed
thereon by any such Federal agency and
give such evidences of indebtedness as shall
be required by any such Federal agency,
except that no indebtedness of any kind
incurred or created by the Authority shal!
constitute an indebtedness of the State, or
any political subdivision thereof, and no
such indebtedness shall involve or be
secured by the faith, credit or taxing power
of the State, or any political subdivision
thereof;
May act as agent for the United States of
America or any agency, department,
corporation or instrumentality thereof, in
any matter coming within the purposes or
powers of the Authority;
May adopt, alter or repeal its own bylaws,
rules and regulations governing the manner
in which its business may be transacted and
in which the powers granted to it may be
enjoyed and may provide for the
appointment of such committees, and the
functions thereof, as the Authority may
deem necessary or expedient in facilitating
its business;
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a
(12) May do any and all other acts and things in
this chapter authorized or required to be
done, whether or not included in the general
powers in this section mentioned;
(13) May do any and all things necessary to
accomplish the purposes of this chapter; and
(14) May promulgate rules and regulations
governing the use of or doing business on
the Authority’s property or facilities,
including the adoption of safety standards
and insurance coverage or proof of financial
responsibility, and may provide for the
licensing of persons, firms or corporations
using or doing business on such property or
facilities, and for license fees to cover the
expense thereof. Licenses may be revoked
after notice and hearing by the Authority jor
wilful breach of or failure to comply with
such rules and regulations.
But the Authority shall not engage in shipbuilding
except upon the unanimous vote of its members.
§ 54-3-150. Acquisition of property.
For the acquiring of rights-of-way and property
necessary for the construction of terminal railroads and
structures, including railroad crossings, airports, seaplane
bases, naval bases, wharves, piers, ships, docks, quays,
elevators, compresses, refrigerator storage plants,
warehouses, and other riparian and littoral terminals and
structures and approaches to them and transportation
facilities needful for their convenient use and belt line
roads and highways, causeways, and bridges and other
A18
|
bridges and causeways, and for the acquiring of property
necessary for the river development project known as the
Savannah River Project Below Augusta, and for the
acquiring of property necessary for the development of a
harbor or harbors within this State on the Savannah River,
the Authority may purchase them by negotiation or may
condemn them. The power of eminent domain shall apply
not only to all property of private persons or corporations
but also as to property already devoted to public use.
§ 54-3-170. Use of certain State property.
The Authority may take, exclusively occupy, use and
possess, in so far as may be necessary for carrying out the
provisions of this chapter, any areas of land owned by the
State and within the counties of Beaufort, Charleston and
Georgetown, not in use for State purposes, including
swamps and overflowed lands, bottoms of streams, lakes,
rivers, bays, the sea and arms thereof and other waters of
the State and the riparian rights thereto pertaining. When
so taken and occupied, due notice of such taking and
occupancy having been filed with the Secretary of State,
such areas of land are hereby granted to and shall be the
property of the Authority. For the purposes of this section,
the meaning of the term "use" shall include the removal of
material from and the placing of material on any such
land. In case it shall be held by any court of competent
jurisdiction that there are any lands owned by the State
which may not be so granted, then the provisions of this
section shall continue in full force and effect as to all other
lands owned by the State. The provisions of this section
are subject to all laws and regulations of the United States
with respect to navigable waters.
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§ 54-3-610. Powers of Authority as to erection or
removal of wharves, docks and other
structures.
The Authority may fix the lines along the bay and
harbor of Charleston and the rivers and creeks flowing
therein within which riparian owners may erect wharves,
docks and other proper erections and fixtures for
commercial, manufaciuring or any other purposes. The
Authority may cause the removal of any wharf, dock,
wreck or other structure that may obstruct navigation or
that may, in its opinion, be injurious to said bay, harbor,
rivers or creeks, at the expense of the owner or the person
causing the obstructions. But the rights of any owner of a
wharf whose lines have heretofore been fixed by grant or
by authority of State legislation are in no wise to be
disturbed.
§ 54-3-860. Authority shall report annually to General
Assembly.
The Authority shall annually report to the General
Assembly the amounts received for fees, harbor or port
charges, fines and penalties and the disbursement thereof
and also generally its acts and doings under this article.
§ 54-3-1010. Issuance of bonds.
As a means of raising the funds needed from time to
time in the acquisition, construction, equipment,
maintenance and operation of any facility, building
structure, terminal railroad or any other matter or thing
which the Authority is herein authorized to acquire,
construct, equip, maintain or operate, all or any of them,
the Authority may issue bonds, payable both as to
A20
principal and interest from the revenues to be derived
from the operation of all or any part of its properties and
facilities, and the powers and authority granted to
counties, cities, school districts and other political
subdivisions of the State are hereby extended to and made
available to the Authority. All revenue bonds issued by the
Authority to obtain funds for the acquisition, construction,
equipment, maintenance and operation of its properties
and facilities shall be issued in accordance with the
provisions of §§ 6-21-10 to 6-21-570 and all conditions,
restrictions and limitations imposed by said §§ 6--21-10 to
6-21-570 as amended, shall be observed by the Authority
in the issuance of such bonds, except as follows:
(1) A pledge of the net revenues derived from the
operation of its properties and facilities, all or any
of them, rather than its gross revenues, may be
made; and
(2) Free service may, in the discretion of the Authority,
be afforded to the United States of America, or
any agency, department, corporation or
instrumentality thereof by any property or facility of
the Authority to acquire, construct, equip, maintain
and operate which funds were obtained from the
revenue bonds purchased and held by a Federal
agency, provided such free service is with the
consent and at the request of the Federal agency
then holding the whole of such revenue bonds.
§ 54-3-1020. Disbursement of funds; surplus.
All funds of the Authority shall be deposited in a
bank or banks to be designated by the Authority. Funds of
the Authority shall be paid out only upon warrants signed
by the treasurer of the Authority and countersigned by the
A21
chairman or the acting chairman. No warrants shall be
drawn or issued disbursing any of the funds of the
Authority except for a purpose authorized by this chapter
and only when the account or expenditure for which they
are to be given in payment has been audited and approved
by the Authority. Any and all net revenues or earnings not
necessary or desirable for the operation of its business
shall be held subject to the further action of the General
Assembly.
§ 54-3-1040. Annual financial statement.
At least once in each year the Authority shall publish
once in some newspaper published in Charleston County
a complete detailed statement of all moneys received and
disbursed by the Authority during the preceding year. Such
statement shall also show the several sources from which
such funds were received and the balance on hand at the
time of publishing the statement and shall show the
complete financial condition of the Authority.
§ 54-3-1050. Property of Authority exempt from taxation.
The property of the Authority shall not be subject to any
taxes Or assessments thereon.
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STATE OF SOUTH CAROLINA BEFORE THE
SOUTH CAROLINA TAX COMMISSION
IN RE:
A Finding of the Tax Status of Certain
Property of the South Carolina State Ports
Authority.
FINDINGS OF FACT
The Authority was created by the General
Assembly as an instrumentality of the State to develop its
harbors and seaports for use in commerce. Section 54-3-
10, et seq.
The Authority holds title to certain land situate in
Charleston County that is leased or its use licensed to
others. The Assessor of Charleston County, acting under
the authority os Section 12-37-220A(1), has concluded that
certain parcels or tracts of land are taxable. The South
Carolina Constitution provides an exemption for property
owned by the State when used exclusively for public
purposes. Section 12-37-220A(1) provides that the county
tax assessor and the Tax Commission shall declare such
nonexclusive use and we thus consider the question in that
light.
Basically, the use of the various parcels or tracts
can be consolidated into two groups. One would be the
property of the Authority that is leased or licensed for use
in commerce originating, ending or passing through the
Authority’s port or harbor terminal by private business.
This would include the Authority’s property on which the
goods in commerce may be temporarily stored, collected
or assembled. The other group would consist of property,
A23
the use of which is not related to the Authority’s duty or
purpose; in example, property that is leased to others and
used for private vehicle parking spaces.
The State is not in the business of transporting the
goods in commerce. It only furnishes the facilities through
which commerce is conducted by private business. The
dock and terminal correctly were not considered taxable,
notwithstanding use of the same by private business. One
would not argue that a public highway is taxable because
private utilities use a part of the same. the evidence
before us establishes that the property that is leased or
licensed for commerce purposes results in a decided
benefit for che State. The Authority by providing the
property is assured of greater cargo tonnage, of shorter
dock time for the ocean-going vessels and of the
responsibility of loss or theft of the goods. It thus appears
to our satisfaction that this constitutes a public purpose
and within the duties and powers considered by the
General Assembly when the Authority was created.
"The courts have, as a rule, been reluctant
to attempt to define public purpose as
contrasted with a private purpose, but have
generally left each case to be determined on
its own peculiar circumstances. As a
general rule a public purpose has for its
objective the promotion of the public health,
safety, morals, general welfare, security,
prosperity, and contentment of all the
inhabitants or residents, or at least a
substantial part thereof. Legislation does
not have to benefit all of the people in
order to serve a public purpose. At the
Same time legislation is not for a private
A24
i ila
purpose as contrasted with a public purpose
merely because some individual makes a
profit as a result of the enactment."
Anderson v. Baehr, 265 S.C. 153, 217 S.E.
2d 43.
We thus find that the property of the Authority is exempt
from taxation when leased or licensed to others for actual
use in commerce.
The other property of the Authority is not used in
connection with its purpose. It is property not presently
needed by the Authority and is held for future use.
Generally, and as a convenience, it is leased to others for
a private use and for purposes not connected with
commerce; in example, as parking space for vehicles. We
find that this property is subject to taxation in that such
use is not for an exclusively public purpose.
CONCLUSION
We conclude that the property of the south
Carolina State Ports Authority that is leased or its use
licensed to others for use in the business of actually
moving or storing goods for transportation in commerce is
used exclusively for a public purpose. Any private benefit
would be incidental.
We further conclude that property that is owned by
the Authority and leased to others and not actually used
in moving or storing goods for transportation in commerce
is taxable.
The Assessor of Charleston County should identify
such property and enter the same upon the records of
Charleston County for tax purposes.
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AND IT IS SO FOUND AND ORDERED.
SOUTH CAROLINA TAX COMMISSION
Robert C. Wasson, Chairman
John H. LaFitte, Jr., Commissioner
Charles N. Plowden, Commissioner
Columbia, South Carolina
November 18, 1980
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STATE OF SOUTH CAROLINA )
) AFFIDAVIT
COUNTY OF CHARLESTON )
PERSONALLY APPEARED before me,
WILLIAM M. LAWRENCE, who, upon oath duly sworn,
States and affirms as follows:
1. My name is William M. Lawrence, and I am the
chief financial officer of the South Carolina State Ports
Authority and have custody and control of the records of
the South Carolina State Ports Authority. I have been
employed by the South Carolina State Ports Authority in
executive and administrative positions since 1974. Based
on the records of the South Carolina State Ports Authority
and my own experience, I certify as follows:
a. That the South Carolina State Ports
Authority was created by 1942 Act Number 626 of the
South Carolina General Assembly. This Act is now
incorporated in S. C. Code Ann. § 3-10 to -1050 (1976 &
Supp. 1988).
b. That the South Carolina State Ports
Authority is governed by a Board, the members of which
are appointed by the Governor of the State of South
Carolina, with the advice and consent of the South
Carolina Senate.
c. That the property of the South Carolina
State Ports Authority enjoys the same immunity from state
and local taxes or assessments as do the other
departments and agencies of the State.
d. All net earnings of the South Carolina
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State Ports Authority not necessary or desirable for the
operation of its shall be and have been held subject to
further action of uie South Carolina General Assembly,
and the South Carolina State Ports Authority has paid into
the State Treasury a total in excess on One and One-half
Million Dollars ($1,500,000.00) of such net earnings since
its creation.
e. The General Assembly of the State of
South Carolina made annual appropriations of the
operation of the South Carolina State Ports Authority for
the years 1942, 1943, 1944, 1945, 1946, 1947, 1948, 1949,
1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957, 1958, and
1959.
f. Since 1959, the General Assembly of the
state of South Carolina has made annual appropriations to
pay the principal and interest on generel obligation bonds
of the State of South Carolina issued to finance capital
improvements for the South Carolina State Ports
Authority.
g. The State of South Carolina has issued a
total in excess of One Hundred Million Dollars
($100,000,000.00) worth of General Obligation Bonds to
finance capital improvements for the South Carolina State
Ports Authority. The proceeds of these bonds were
deposited in the State Treasury and were distributed to
the South Carolina State Ports Authority on the direction
of the General Assembly.
h. The employees of the South Carolina
State Ports Authority are under the South Carolina State
Employees Workers’ Compensation Act and the State
Employees Retirement Plan.
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i. The South Carolina General Assembly
appropriated Seven Hundred Fifty Thousand Dollars
($750,000.00) for the initial operation of capital and
maintenance of the port facilities of the South Carolina
State Ports Authority.
j. The State of South Carolina, through the
South Carolina State Ports Authority, is, and has engaged
in promoting, developing, constructing, equipping,
maintaining and operating the harbors and seaports within
the State, mamely Port Royal, Charleston, and
Georgetown, and works of internal improvements incident
thereto, including the acquisition and construction,
maintenance and operation of terminal facilities.
k. The South Carolina State Ports Authority
was created and is and has been acting as an
instrumentality of the State for the accomplishment of
general purposes which include development and
improvements of the harbors or seaports of Port Royal,
Charleston, and Georgetown for handling of water-borne
commerce from and to any part of the State and other
states or foreign countries and the fostering of the
shipment of freight and commerce through said ports,
whether originating within or without the state.
]. The South Carolina State Ports Authority
has a broad power of eminent domain and has exercised
this power.
m. The South Carolina State Ports
Authority has the power to take exclusively, occupy, use,
and possess insofar as may be necessary to carry out its
functions, any area of land owned by the State of South
A29
Carolina, the counties of Beaufort, Georgetown, and
Charleston, not in use for State purposes, including
swamps and overflow of lands, bottoms of streams, lakes,
rivers, bays, and the sea and arms thereof and other
waters of the State and riparian rights thereto pertaining
and the said South Carolina State Ports Authority has
exercised this power.
n. The South Carolina State Ports Authority
is an agency of the State of South Carolina, is in a real
sense a part of the State and shares in its sovereignty, and
is completely identified with the State and the
performance of its functions which are unquestionably of
a governmental character.
2. I have given this statement freely and
voluntarily, and it is true and correct to the best of my
knowledge and belief.
Dated this the 24th day of April, 1992.
/s/ William M. Lawrence
William M. Lawrence
Chief Financial Officer
South Carolina State
Ports Authority
SWORN AND SUBSCRIBED
before me this the 24th
day of April, 1992.
/s/
Notary Public South Carolina
My Commission Expires: Sept. 24, 2001
A30
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
FRED W. RISTOW and __) Civil Action No. 2:91-3677-2J
SUSAN M. RISTOW,
and the SS Unknown,
an unknown ocean
going ship,
)
his wife, )
)
Plaintiffs, ) SUPPLEMENTAL
) AFFIDAVIT IN
v. ) SUPPORT OF
) MOTION TO
SOUTH CAROLINA ) DISMISS
STATE PORTS )
AUTHORITY, an )
agency of the State )
of South Carolina, )
)
)
)
)
)
Defendants.
PERSONALLY APPEARED before me,
WILLIAM M. LAWRENCE, who, upon oath duly sworn,
States and affirms as follows:
1. My name is William M. Lawrence, and I am the
chief financial officer of the South Carolina State Ports
Authority and have custody and control of the records of
the South Carolina State Ports Authority. I have been
employed by the South Carolina State Ports Authority in
executive and administrative positions since 1974. Based
on the records of the South Carolina State Ports Authority
and my own experience, I certify as follows:
A31
a. That the South Carolina State Ports
—_—Authority was cicated by 1942 Act Number 626 of the
South Carolina General Assembly. This Act is now
incorporated in S. C. Code Ann. §§ 54-3-10 to 54-3-1050
(1976 & Supp. 1992).
b. That the South Carolina State Ports
Authority is governed by a Board, all of the members of
which are appointed by the Governor of the State of
South Carolina, with the advice and consent of the South
Carolina Senate.
c. That the property of the South Carolina
State Ports Authority enjoys the same immunity from state
and local taxes or assessments as do the other
departments and agencies of the State.
d. All net earnings of the South Carolina
State Ports Authority not necessary or desirable for the
operation of its business shall be and have been held
subject to further action of the South Carolina General
Assembly, and the South Carolina State Ports Authority
has paid into the State Treasury a total in excess of One
Million Five Hundred Thousand Dollars of such net
earnings since its creation.
e. The South Carolina General Assembly
appropriated Seven Hundred Fifty Thousand and no/100
($750,000.00) Dollars for the initial operation of capital
and maintenance of the port’s facilities of the South
Carolina State Ports Authority. The General Assembly of
the State of South Carolina made annual appropriations
for the operation of the South Carolina State Ports
Authority for the years 1942, 1943, 1944, 1945, 1946, 1947,
1948, 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1957,
A32
1958, and 1959.
f. Since 1959, the General Assembly of the
state of South Carolina has made annual appropriations to
pay the principal and interest on general obligation bonds
of the State of South Carolina issued to finance certain
capital improvements for the South Carolina State Ports
Authority.
g- The State of South Carolina has issued a
total in excess of One Hundred Thirty-two Million and
no/100 ($132,000,000.00) Dollars worth of general
obligation bonds to finance certain capital improvements
for the South Carolina State Ports Authority. The
proceeds of these bonds were deposited in the State
Treasury and were distributed to the South Carolina State
Ports Authority on the direction of the General Assembly.
h. The employees of the South Carolina
State Ports Authority are under the State Employees
Workers’ Compensation Plan S.C. Code §§ 42-7-10 et seq.
and the South Carolina Retirement System (for State
employees) S.C. Code §§ 9-1-10 et seq.
i. The State of South Carolina, through the
South Carolina State Ports Authority, is, and has engaged
in promoting, developing, constructing, equipping,
maintaining and operating the harbors and seaports within
the State, namely Port Royal, Charleston, and
Georgetown, and works of internal improvements incident
thereto, including the acquisition and construction,
maintenance and operation of terminal facilities.
j. The South Carolina State Ports Authority
was created and is and has been acting as an
A33
instrumentality of the State for the accomplishment of
general purposes which include development and
improvements of the harbors or seaports of Port Royal,
Charleston, and Georgetown for handling of water-borne
commerce from and to any part of the State and other
states or foreign countries and the fostering of the
shipment of freight and commerce through said ports,
whether originating within or without the State.
k. The South Carolina State Ports Authority
has a broad power of eminent domain and has exercised
this power. (S.C. Code § 54-3-150, 1976, as amended.)
]. The South Carolina State Ports Authority
has the power to take exclusively, occupy, use, and possess
insofar as may be necessary to carry out its functions, any
area of land owned by the State of South Carolina, the
counties of Beaufort, Georgetown and Charleston, not in
use for State purposes, including swamps and overflow of
lands, bottoms of streams, lakes, rivers, bays, and the sea
and arms thereof and other waters of the State and
riparian rights thereto pertaining and the said South
Carolina State Ports Authority has exercised this power.
S. C. Code § 54-3-170 (1976 Supp. 1992.)
m. The general obligation bonds issued by
the State of South Carolina to fund some of the projects
of the South Carolina State Ports Authority are paid (both
interest and principal) from the general funds
appropriated by the General Assembly.
n. The revenue bonds issued by the South
Carolina State Ports Authority to fund some of the
projects of the South Carolina State Ports Authority are
authorized by State law S.C. Code §54-3-100. Other
A34
|
agencies of the State issue revenue bonds in the same
manner as does the South Carolina State Ports Authority.
The South Carolina State Ports Authority revenue bonds
are tax exempt.
oe. In 1992, the State of South Carolina
designated the South Carolina State Ports Authority as the
agency to acquire the site for the new BMW plant in
Spartanburg County and to perform other obligations of
the State to BMW. Thirty-two Million and No/100
($32,000,000.00) Dollars weze transferred from the State
Treasury to the account of the South Carolina State Ports
Authority to pay the purchase price of the land. An
additional Eight Million and No/100 ($8,000,000.00)
Dollars was transferred to prepare the site for BMW’s use.
The South Carolina State Ports Authority also used Five
Million and No/100 ($5,000,000.00) Dollars of its funds to
provide additional funds to acquire the property for this
plant site.
p. The South Carolina State Ports Authority
is listed as an agency of the State in each annual
Legislative Manual, and its operations are included in each
annual Comprehensive Financial Statemen. of the State of
South Carolina.
q. The South Carolina State Ports Authority
has no stock, no stockholders, and no private interests in
its operations.
r. The South Carolina State Ports Authority
and its officials and employees are subject to the State
Ethnics [sic - Ethics] Act. S.C. Code §§ 2-17-5 et seq. and
8-13-100 et seq.
A35
s. The South Carolina State Ports Authority
appoints and hires the Executive Director of the Authority,
and he serves at the pleasure of the Board. The Board of
the authority supervises the employment of all other
employees of the Authority.
t. The staff of the South Carolina State
Ports Authority works with the staff of the other State
agencies on a daily basis.
u. The South Carolina State Ports Authority
publishes its annual report in newspapers throughout the
State (S.C. Code § 54-3-1040) and delivers it to the
General Assembly. (S.C. Code § 54-3-860).
v. The South Carolina State Ports Authority
has quasi-police type controls over the Port (See title 54
of S.C. Code) and must approve (S.C. Code § 5-3-610 et
seq.) or certify all private piers in the port of Charleston
and in other critical areas. (See §§ 48-39-110 and 48-39-
150.)
w. Lost [sic - Loss] claims and legal actions
against the South Carolina State Ports Authority are
controlled by the South Carolina Tort Claims Act. S.C.
Code § 15-78-10 et seq., and the South Carolina State
Ports Authority is subject to the S.C. Freedom of
Information Act S.C. Code 30-4-10 et seq.
x. The South Carolina State Ports Authority
is an agency of the State of South Carolina, is in a real
sense a part of the State and shares in its sovereignty, and
is completely identified with the State and the
performance of its functions which are unquestionably of
a governmental character.
A36
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2. I have given this statement freely and
voluntarily, and it is true and correct to the best of my
knowledge and belief.
Dated this the 27th day of May, 1993.
/s/ William M. Lawrence
William M. Lawrence
Chief Financial Officer
South Carolina State
Ports Authority
SWORN AND SUBSCRIBED
before me this the 27th
day of May, 1993.
/s/ Jani ,
Notary Public South Carolina
My Commission Expires: Sept. 24, 2001
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.