Opposition Brief — Campbell v. Hilton Head No. 1 Public Service District

No. 03-130

ee

OFFICE OF THE CLI@K

IN THE

SUPREME COURT OF THE UNITED STATES

IRWIN J. CAMPBEL

L, J. C. LAWYER, BACKUS

FERGUSON, AND THOMAS HANAHAN, III,

HILTON HEAD NO. 1

PETITIONERS,

V o

PUBLIC SERVICE DISTRICT

AND BEAUFORT COUNTY, SOUTH CAROLINA,

RESPONDENTS.

On Petition For A Writ Of Certiorari

To The Supreme Court Of South Carolina

RESPONDENTS’

BRIEF IN OPPOSITION

STEVE A. MATTHEWS

Counsel of Record

BENJAMIN T. ZEIGLER

SARAH P. SPRUILL

HAYNSWORTH SINKLER

BoyD, P.A.

1201 Main Street

22™ Floor

Columbia, South Carolina

29201-3226

803.779.3080

Attorneys for Respondent

Hilton Head No. 1

Public Service District

STEPHEN P. HUGHES

MARY BASS LOHR

HOWELL, GIBSON

AND HUGHES, P.A.

25 Rue du Bois,

Lady’s Island

Beaufort, South

Carolina 29907

843.522.2400

Attorneys for

Respondent

Beaufort County

QUESTIONS PRESENTED BY PETITION FOR CERTIORARI

1. Should this Court undertake certiorari review, in order

to make a pronouncement on the issue of the

justiciability in State courts of claims invoking the

Republican Guarantee Clause (U.S. Const., art. IV, § 4)

through 42 U.S.C. § 1983, in the present case in which

that issue has not been argued or briefed by any party,

and was not ruled on by the State court below?

2. Should this Court undertake certiorari review, under the

Republican Guarantee Clause, of a State statute that

was repealed five years ago because of an infirmity

under its own State constitution, in order to make a

pronouncement as to:

a. Whether the Republican Guarantee Clause requires

some specific level of direct elective representation

in the body authorized under State law to impose a

limited property tax for purposes of defraying the

cost of providing water and sewer service?

b. Whether, if so, the level of direct and indirect

representation afforded to the tax-paying property

owners of Respondent Hilton Head No. 1 Public

Service District (the “District”) fell short of that

requirement?

c. Whether, if it did fall short, the necessary remedy

would require increasing taxes and/or other charges

on various subsets of the people who had paid the

allegedly improper tax, in order to refund the taxes

to themselves and/or other subsets of the people

who had paid the allegedly improper tax?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED BY PETITION FOR CERTIORARI... 1

TABLE OF CONTENYS .i:n:sicisonmcoeneadenes ii

TABLE OF AUTHORETURD on.ccivesccsuiinsssenssmataaihamattemasaensth Vv

ADDITIONAL OPINIONS BELOW. ..............cc:cccsscceeeseeeeseeeeeees |

ADDITIONAL STATUTE INVOLVED .................sseeeseseceeeeeseees l

STATEMENT ......0:0:s0vsssssesnssosssiaeseee ae 2

REASONS FOR DENYING THE PETITION...............000:00000008 7

The question of justiciability is not appropriate for

certiorari review in this Case. ...................c:cceeeeeeseeeees 7

Neither the record nor the ruling below has presented

the question of justiciability, and that question is

therefore not suited for judicial review under the rules

and precedents of (iis COUR. isisssinisnsnnaiateteenn 7

The Petitioners’ position on justiciability is not

contrary to that assumed by the court below; and the

Petitioners therefore have no direct interest in a review

of that position. General interest or curiosity is not

sufficient to invoke a writ of certiorari. .................068 9

There is no significant conflict between the approach

of the South Carolina Supreme Court and other courts

that would call for certiorari review.............c:cceeeeee 11

the question of representational requirements under

the republican guarantee clause for limited water-

and-sewer taxation as authorized by an elected state

legislature is not appropriate for certiorari review in

CURIS CABE. ...0.0...000c.cccesrocccccccsssescccnvoesrcossesensccsccssonnsorserses 11

This issue is not “an important question of federal

law” that calls for certiorari review pursuant to Sup.

| Be BO visnsssncceceisveusrshsonnssenensesneussuaresieyersssenesnenesen owe

The statute that Petitioners claim offended the

Republican Guarantee Clause has been repealed,

making this a classic example of “episodic” and

“isolated significance” not appropriate for

CEYLIOVATI TEVIEW. ......sssssecescssesserseessssnnecessssaseececees 12

Neither the record nor the Petition point to any

other State that utilizes taxing mechanisms like that

formerly used by South Carolina in the District; nor

do they point out any circumstances that would

cause such situations, if they exist, to evade regular

Judicial reView.....scccccsesesessererseerereeseneeseenenensenseses 14

The decision of the South Carolina Supreme Court

was correct on the METIts. ..........cscceseeeesesreeereeereeeees 14

The language of the Republican Guarantee Clause

compels the decision reached by the South Carolina

Supreme Court. «2.0... - acahasaialeenneanvainaseiaioatals 15

The original understanding of the Republican

Guarantee Clause compels the decision reached by

the South Carolina Supreme Court... 16

ill

The precedent of this Court compels the decision

reached by the South Carolina Supreme Court. ... 18

The representation afforded to residents of the

District by the Enabling Act was adequate to meet

the representational requirements, if any, of the

Republican Guarantee Clause. .......cccccccccseeseeeeeees 20

There is no contrary precedent. ........c.cccsccesseeseees 21

The South Carolina Supreme Court correctly

declined to unscramble the eggs of prior years'

financial results, since all residents were affected by

the allegedly improper tax and those same residents

would be the source of any refunds.............00000000+ 23

INS ser tevkitircmscitaspaiddenesiarnonene euesescassnsenenteenansctisenteace 24

TABLE OF AUTHORITIES

CASES

Adams vy. Clinton, 90 F.Supp.2d 35 (D.D.C. 2000) .......... 20

Adams v. Robertson, 520 U.S. 83 (1997)..........cccsesssesseeeeees 8

Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481

READ. Fat CHIT Ditncssccsncistngeeontiiennaessanaibiaassehadenaaaaaam 8

District of Columbia v. Brooke, 214 U.S. 138 (1909) ...... 20

District of Columbia v. Sweeney, 310 U.S. 631 (1940).... 12

Heald v. District of Columbia, 259 U.S. 114 (1922)........ 19

Illinois v. Gates, 462 U.S. 213 (1983) ou... ecceseeceessneeeeeees 8

Kelley v. Metropolitan County Board of Education of

Nashville and Davidson County, 836 F.2d 986 (6" Cir.

PET Dw invesittssnstinncnseninicutioamiininniaeaaiaaaame 4, 21, 22, 23

Loughborough v. Blake, 18 U.S. (5 Wheat.) 317, 5 L.Ed.98

CI cavatinhivrncsdiceidsadceadiaiamniainaaandaalaaae 18, 19

Morrison v. Watson, 154 U.S. 111 (1894)... eee 8

New York v. United States, 505 U.S. 144 (1992).............. 11

Parsons v. District of Columbia, 170 U.S. 45, (1897)...... 20

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S.

PRE iitsiicctiichstevinenalieaemnnamna 10, 12, 14

State ex. rel. Huddleston v. Sawyer, 932 P.2d 1145 (Or.

1997), cert. denied 522 U.S. 994 (1997).........cecsceeeseees 10

State v. Manussier, 921 P.2d 473 (Wash. 1996), cert.

Gontad SIO UD. Se CFG) secaneniinieranrnvretiidiiinn 10

VanSickle v. Shanahan, 511 P.2d 223 (Kan.1973)..... 17, 21

Webb v. Webb, 451 U.S. 493 (1981) ..ccccsssssssesssesssecsseesssees 8

STATUTES

Be Os B BI cisestcssciesscssvessaleniceacenaaie l

BE UB. © Feet evisssnnveisstiievveasndemaaaaia i

ACT NO. S97, EFOS BA... ACT ZIG eseccssssescraenvenpioteinnnensns 2

ALT NO. SIO, FSP BLS ACTS BSG wiceesesenscovessscnveseies passim

in CIE 6S BEE 6 cesiessesecsisdorionevisbpocconmuensnsnasmnenomecdie: 2

OTHER AUTHORITIES

The Federalist, Jacob E. Cooke, ed. (Wesleyan University

PRONE, TSG), BOD. Fig Be Be 8 ercesecerveceincescsncniases 16, 17, 21

WILLIAM Morrow, A REPUBLIC, IF YOU CAN KEEP IT:

CONSTITUTIONAL POLITICS AND PUBLIC POLICY (Prentice

FR, HOGUP sidinrciosererrasicimeinlieemnmmemannditia 20

RULES

BU ER. Bie DG eicctacininvescsssccsnnistnirnanepemaaannmalis 8, 10, 11

PU A: Bhs. TED cskneisssccecosesesectguisenitetanuntnabesamaninaniiie 3

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CONSTITUTIONAL PROVISIONS

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vi

ADDITIONAL OPINIONS BELOW

In addition to the State court opinions cited in the

“Opinions Below” section of the Petition For Writ of

Certiorari, there have been two federal court orders in this

case (referenced in the “Statement” section of the Petition).

They are Campbell v. Hilton Head No. 1 Public Service

District, 114 F.Supp.2d 482 (D.S.C. 1999), and Lawyer v.

Hilton Head Public Service District No. 1, 220 F.3d 298

(4" Cir. 2000), which affirmed the District Court opinion to

the effect that the plaintiffs’/Petitioners’ lawsuit in federal

court was barred by the Tax Injunction Act, 28 U.S.C. §

1341 and the comity doctrine, in light of the fact that

adequate review of plaintiffs’/Petitioners’ claims were

available in State court.

ADDITIONAL STATUTE INVOLVED

This case centers on the constitutionality under the

federal Republican Guarantee Clause of a South Carolina

statutory provision that was repealed over five years ago.

That statute directly authorized a particular governing body

of a South Carolina political subdivision to participate in

the determination of a property tax levy. The Petitioners

seek a ruling that such authorization, and hence the

statutory provision containing it, violated the Republican

Guarantee Clause and that they are entitled to a refund of

taxes collected under that statutory provision in the years

prior to its repeal.

The statute, ACT No. 596, 1969 S.C AcTs 1036 (the

“Enabling Act’), created the Respondent District to provide

water and sewer service to an area of Hilton Head Island,

that, according to the legislative findings in Section 1 of the

l

Enabling Act, was experiencing rapid growth and

development.

The pertinent text of the Enabling Act, as it relates

to the makeup of the governing commission, the levy of

taxes, and the financial accountability of the District, is set

forth in Appendix A hereto.

_ In Weaver v. Richland County Recreation District,

328 S.C. 83, 492 S.E.2d 79 (S.C. 1997), the South Carolina

Supreme Court ruled that participation, by a political

subdivision’s governing commisson that is constituted in

the manner set out in Section 3 of the Enabling Act, in a

taxing mechanism such as that found in Section 4.17 of the

Enabling Act, was contrary to the explicit language of S.C.

Const. art. X, § 5. Following that decision, the South

Carolina legislature (the “General Assembly”) replaced the

offending Section 4.17 with a tax imposed directly by the

elected General Assembly.’ As noted in the Petition, the

Petitioners are not challenging the new statute or its taxing

mechanism. Pet. at 4.

The Weaver decision was rendered on October 13,

1997. As noted in the Petition (Pet. at 3), Weaver

recognized the likely financial disruption to local

governments constituted like the Richland County

Recreation District or the Respondent District here, and

gave the General Assembly until December 31, 1999 (i.e.,

two annual legislative sessions), to correct the problem.

The General Assembly did correct the problem at its very

next legislative session, by enacting ACT No. 397, 1998

S.C. ACTS 2389 on June 10, 1998, now codified at S.C.

CODE § 6-11-271.

ST’.TEMENT

The “Statement” set forth in the Petition is generally

accurate, except as noted below.

I. The most important omission in Petitioners’

“Statement” is its failure to state “when the federal

questions sought to be reviewed were raised” and “the

method or manner of raising them,” as required by this

Court’s Rules, Sup. Ct. R. 14.1(g)(i).

A. The primary issue raised by the Petitioners for

this Court’s review is the question of the

justiciability in State courts of individual claims

i arising under the Republican Guarantee Clause

through 42 U.S.C. § 1983. That question has not

been raised, briefed or argued by any party in this

case. The only mention of justiciability to date in

this case (other than now the Petition) was in the

final footnote of the opinion of the South Carolina

Supreme Court. That footnote simply noted that the

iaw relating to justiciability has some open

questions. The South Carolina Supreme Court did

not attempt to analyze or rule on those open

questions. Instead, it had made those questions

irrelevant to this case by having proceeded directly

to the merits and having found that, regardless of

justiciability, there was no meritorious claim

involved.

B. The secondary issue raised by Petitioners, going

to the merits of the case, is whether the Republican

Guarantee Clause imposes a requirement that the

governing bodies of tax-imposing political

3

subdivisions must afford some particular level of

elective representation, and if so what that level

would be. The first mention of the Republican

Guarantee Clause in this case was on November 28,

2001, three and one-half years into the case, at the

hearing on the plaintiffs’/Petitioners’ motion for

summary judgment before the State trial court.

That mention was made in a quotation from Kelley

v. Metropolitan County Board of Education o

Nashville and Davidson County, 836 F.2d 986 (6°

Cir. 1987) that was contained in a memorandum

delivered at the hearing to the trial judge and to

Respondents’ counsel by plaintiffs/Petitioners in

support of their motion.”

' The plaintiffs/Petitioners originally asserted a

number of widely disparate claims (ranging from fraud to

racial discrimination to self-dealing to unjust enrichment to

conversion to violations of the South Carolina Unfair Trade

Practices Act to Takings Clause violations to a rate

structure contrary to the terms of federal grants, efc.). With

regard to the District’s taxing mechanism, the

plaintiffs/Petitioners asserted that the State law violation

entitled them to a federal remedy, without identifying any

federal right. See, e.g., Opening Brief of Appellants

[Petitioners here], before U.S. Court of Appeals for the

Fourth Circuit, at pp. 2, 8, 11: dated December 22, 1999, in

the proceedings that culminated in the decision cited in the

section hereof captioned “Additional Opinions Below.”

The plaintiffs/Petitioners dismissed their last two other

remaining claims at the hearing on summary judgment, at

the same time that they first mentioned the Republican

Guarantee Clause.

4

Il. The second set of important omissions from the

Petitioners’ “Statement” relates to their description of the

taxing mechanism of which they complain. Rather than

acknowledging the extent to which the residents of the

District did have representation, both direct and indirect, in

that process, the Petitioners simply characterize the process

as “taxation without representation,” thereby begging one

of the primary questions that this Court will have to answer

if it accepts the case. The key omissions in the description

of the taxing mechanism, as established by the Enabling

Act, are as follows.

A. The members of the governing commission

must all be “residents of the District.” Enabling Act,

Section 3. Consequently, they themselves were always

subject to whatever taxes they imposed.

B. The taxing power was limited in two ways.

1. The tax rate was capped at 10 mills. Under

South Carolina law, 1 mill is 1/1,000" of the

assessed value of the taxed property; and the

assessed value is a small percentage of

appraised fair market value (e.g., 4% for owner-

occupied real property). S.C. Const. art. X, §

1(3). Thus, for an owner-occupied home worth

$100,000, the annual cap of 10 mills would

equal $40.

2. The taxing power could be exercised only

for the limited public purpose of the

governmental operations of a water and sewer

district. Enabling Act, Section 4.17. It was not

available for general governmental purposes

outside of the District’s mandate.

. The taxing mechanism, including the limitations

on rate and authorized purpose, was authorized by the

General Assembly, an elected body that clearly had the

power to tax the District directly for its governmental

purposes (as in fact it now does under the new taxing

mechanism, as to which the Petitioners expressly

disclaim any challenge under the federal or South

Carolina Constitution). The General Assembly was

also regularly apprised of what use was being made of

the taxing power (see Enabling Act, Section 8), and had

the power (subject, of course, to the usual constraints

on its legislative power imposed by the South Carolina

Constitution) to step in and modify or eliminate the

taxing power of appointed special purpose district

commissions (as in fact it did-in response to Weaver).

D. The local legislative delegation from Beaufort

County (which has the power to nominate members for

the District’s governing commission (Enabling Act,

Section 3)) and the Governor (who has the power to

appoint such nominees (ibid.)) are both elected

officials, in whose elections the residents of the District

are fully entitled to participate.

E. The County Auditor and the County Treasurer,

who were the officials charged by the Enabling Act

with the implementation of the limited tax set by the

District’s governing commission (Enabling Act, Section

4.17), are elected officials, in whose elections the

residents of the District are fully entitled to participate.

REASONS FOR DENYING THE PETITION

The issues raised by Petitioners do not merit certiorari

review by this Court.

a THE QUESTION OF JUSTICIABILITY IS NOT

APPROPRIATE FOR CERTIORARI REVIEW IN THIS CASE.

A. Neither the record nor the ruling below has

presented the question of justiciability, and that

question is therefore not suited for judicial review

under the rules and precedents of this Court.

The parties have not raised, addressed, briefed or

argued the issue of justiciability at any point in the

proceedings below. No court below has yet ruled on the

issue of justiciability.

The only mention of justiciability to date in this

case was in a concluding, inconsequential footnote of the

South Carolina Supreme Court opinion, after all the heavy-

lifting of the analysis had been completed. Pet.App. at 9a.

That footnote merely acknowledged the existence of some

open questions surrounding the concept of justiciability of

Republican Guarantee Clause claims. But the South

Carolina Supreme Court had made those questions

irrelevant to this case by having proceeded directly to the

merits and having found that, regardless of justiciability,

there was no meritorious claim involved. Consequently,

although noting the questions, the South Carolina Supreme

Court neither analyzed nor answered them. Rather, it in

essence assumed justiciability arguendo, and concluded

that plaintiffs/Petitioners had no claim in any event.

Because the State court below did not analyze or

rule on this issue, it does not meet any of the usual criteria

for evaluating certiorari petitions set out in Sup. Ct. R. 10,

each of which criteria requires that “a state court of last

resort . . . has decided” the issue for which review is

sought. [Emphasis added. ]

In cases such as this, where there “was never ‘any

real contest’ upon the point” for which appellate review is

sought, this Court has consistently ruled that, “absent the

adversarial dispute necessary to apprise the state court of

the arguments . . . , we will not decide the question... .”

Illinois v. Gates, 462 U.S. 213, 223 (1983). See also

Adams v. Robertson, 520 U.S. 83, 88 (1997); Bd. of Dirs. of

Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 550, n.

9 (1987); Webb v. Webb, 451 U.S. 493, 500 (1981);

Morrison v. Watson, 154 U.S. 111, 115 (1894).

Thus, by their Petition, the Petitioners invite this

Court to enter and perhaps settle a putative dispute in which

the parties here and the several courts below have stood in

the role of disinterested observers and non-combatants.

This is manifestly not the case for resolving such a dispute.

B. The Petitioners’ position on justiciability is not

contrary to that assumed by the court below; and the

Petitioners therefore have no direct interest in a review

of that position. General interest or curiosity is not

sufficient to invoke a writ of certiorari.

Because the plaintiffs/Petitioners, by bringing this

action, actually sought a ruling on the merits, they are in no

way aggrieved by the South Carolina Supreme Court’s

having accepted justiciability of their claim, even if that

acceptance was only arguendo. Affirming justiciability

would not advance the Petitioners’ cause: the merits have

already been addressed and ruled upon. Denying

justiciability would, obviously, be a distinct, new mortal

blow to the Petitioners’ cause.

Consequently, rather than asserting any direct

interest in this Court’s resolution of some or all of the

justiciability questions, the Petitioners attempt to leverage a

review of justiciability issues (and from there a review of

the merits issues) from the interesting nature of

justiciability concerns. However:

A federal question . . . may be ‘of substance’

in the sense that, abstractly considered, it

may present an intellectually interesting and

solid problem. But this Court does not sit to

satisfy a scholarly interest in such issues.

Nor does it sit for the benefit of the

particular litigants. .. . ‘Special and

important reasons’ imply a reach to a

problem beyond the academic or the

episodic. This is especially true where the

issues involved reach _ constitutional

9

dimensions, for then there comes into play

regard for the Court's duty to avoid decision

of constitutional issues unless avoidance

becomes evasion.

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S.

70, 74 (1955), referring to this former Sup. Ct. R. 19, the

predecessor to the current Sup. Ct. R. 10.

Moreover, the features of the justiciability

landscape that Petitioners find so interesting appear to be

not quite so inviting to jurists charged with responsibilities

beyond those of litigants. As noted in subsection “C” of

this argument below, a number of courts have avoided

justicibiality issues by first determining whether there is an

otherwise meritorious claim that would warrant the

extensive analysis that developing an_ elaborate

justiciability jurisprudence would require. In addition, the

Petitioners note that two State supreme courts, Washington

and Oregon, “have called upon this Court to further clarify

the doctrine of nonjusticiability of Guarantee Clause

Claims brought by private parties seeking to challenge state

action.” Pet. at 17. What the Petition does not note,

however, is that certiorari was sought from this Court in

each of those two cases, and in each case was denied. See

State v. Manussier, 921 P.2d 473 (Wash. 1996), cert.

denied 520 U.S. 1201 (1997); and State ex. rel. Huddleston

v. Sawyer, 932 P.2d 1145 (Or. 1997), cert. denied 522 US.

994 (1997).

In any event, regardless of how interesting the

questions tied up in justiciability may be, or how important

in other cases, justiciability is not now an issue necessary to

the proper decision of this case: nor would it become such,

10

unless this Court were to reverse the South Carolina

Supreme Court’s decision with respect to the merits.

C. There is no significant conflict between the

approach of the South Carolina Supreme Court and

other courts that would call for certiorari review.

Far from being some sort of jurisprudential outlier

that needs reigning in by this Court in the area of

justiciability of Republican Guarantee Clause claims, the

South Carolina Supreme Court’s approach was entirely

consistent with that which the Petitioners attribute te this

Court and to other lower courts. The Petitioners include

cases from the Second, Fifth, Seventh, Ninth and Tenth

Circuit Courts of Appeal in “[a] number of decisions [that]

have taken the tack of this Court in [New York v. United

States, 505 U.S. 144 (1992)]: even while expressing some

concems about justiciability, they have ruled on the merits

of the underlying Guarantee Clause claim.” Pet. at 12-13.

That is exactly what the South Carolina Supreme Court has

done here.

II. THE QUESTION OF REPRESENTATIONAL

REQUIREMENTS UNDER THE REPUBLICAN GUARANTEE

CLAUSE FOR LIMITED WATER-AND-SEWER TAXATION AS

AUTHORIZED BY AN ELECTED STATE LEGISLATURE IS NOT

APPROPRIATE FOR CERTIORARI REVIEW IN THIS CASE.

A. This issue is not “an important question of federal

law” that calls for certiorari review pursuant to Sup.

Ct. R. 10.

~ 1. The statute that Petitioners claim offended the

Republican Guarantee Clause has been repealed,

11

making this a classic example of “episodic’’ and

“isolated significance” not appropriate for certiorari

review.

As noted earlier, this Court in Rice v. Sioux City

Memorial Park, supra, stated that questions, however

interesting, that are of merely “episodic” importance are

not appropriate for certiorari review. 349 U.S. at 74. The

offending statute here having been repealed, the question

presented by this case is quintessentially episodic and not

subject to repetition.

This Court has on several occasions considered the

propriety of granting certiorari review in cases remarkably

similar to the present one.

In District of Columbia v. Sweeney, 310 U.S. 631

(1940), a challenge to a tax in the District of Columbia, this

Court rejected a petition for a writ of certiorari, stating

succinctly: “Petition for writ of certiorari to the Court of

Appeals for the District of Columbia denied in view of the

fact that the tax is laid under a statute which has been

repealed and the question is therefore not of public

importance.” That is exactly the situation in the present

case.

Also, Rice v. Sioux City Memorial Park, supra,

although involving interesting and knotty constitutional

issues different from those in the present case, was

nonetheless very similar to the present case in its

procedural dynamics. In Rice, the plaintiff challenged on

federal constitutional grounds an Iowa State court ruling

that rejected her claim for damages. While the case was

pending, Iowa’s legislature enacted a statute that outlawed

12

the conduct that she complained of and afforded monetary

damage relief to injured parties. The new right to damages,

however, was expressly not extended to actions pending at

the time of enactment, so that the individual plaintiff then

before this Court was without relief. After initially

granting certiorari review because of the interesting issues

involved, the Court on rehearing dismissed the writ of

certiorari as improvidently granted, reasoning as follows.

This Iowa statute bars the ultimate question

presented in this case from again arising in

that State.

Had the statute been properly brought to our

attention and the case thereby put into

proper focus, the case would have assumed

such an isolated significance that it would

hardly have been brought here in the first

instance. On the one hand, we should

hesitate to pass judgment on Iowa for

unconstitutional action, were such to be

found, when it has already rectified any

possible error. On the other hand, we should

not unnecessarily discourage such remedial

action by possible condonation of this

isolated incident. Moreover, the evident

difficulties of the case suggest that, in the

absence of compelling reason, we should not

risk inconclusive and divisive disposition of

a case when time may further illumine or

completely outmode the issues in dispute.

13

Rice v. Sioux City Memorial Park, supra, 349 U.S. at 72,

76-77 (footnote omitted).

2. Neither the record nor the Petition poini to any

other State that utilizes taxing mechanisms like that

formerly used by South Carolina in the District; nor do

they point out any circumstances that would cause such

situations, if they exist, to evade regular judicial

review.

The statute having been repealed, it is clear that the

situation complained of will not arise again in South

Carolina. Nor is there any indication that it is arising in

other States. If such a showing were made, however, there

would still be no reason to leap-frog the usual judicial

process and make pronouncements in advance of allowing

the courts of those States to handle any such issues in the

first instance. See Rice v. Sioux City Memorial Park,

supra, 349 U.S. at 76. As noted elsewhere in this brief, the

Petitioners have not been able to produce even a single case

in which a court invalidated a state or local taxing

mechanism as violative of the Republican Guarantee

Clause, even though disgruntled taxpayers have had over

two centuries to litigate the Republican Guarantee Clause.

Clearly this is not a question crying out for ultimate judicial

resolution.

B. The decision of the South Carolina Supreme Court

was correct on the merits.

The sole question presented to the South Carolina

Supreme Court on the Republican Guarantee Clause was:

Did the Republican Guarantee Clause of the federal

Constitution prohibit the republican and popularly-elected

14

General Assembly from delegating to the District’s

commission a limited authority to set an annual property

tax rate of up to ten mills for operational purposes, where

the members of the commission are drawn from the local

populace, nominated by the elected local legislators, and

appointed by the elected governor, and where the millage

rate thus set is thereupon levied by the elected county

auditor and collected by the elected county treasurer, all in

the context of performing and financing the State’s

sovereign police responsibility for health and sanitation in a

confined geographical area?

I. The language of the Republican Guarantee Clause

compels the decision reached by the South Carolina

Supreme Court.

The Petitioners contend that the Republican

Guarantee Clause is essentially a private cause of action for

an individual seeking to overturn a taxation mechanism

created by a State’s elected legislature. The clear language

of the provision rejects that position. It is, after all, a

guarantee to the States. It does not deny authority to a

State’s elected republican governmental institutions, such

as the General Assembly, the ability to order that State’s

affairs, including the ability to delegate a limited taxing

power. Moreover, the clause relates to the form of a State’s

government, not the content of particular legislative

enactments by which a particular State’s republican

government creates, and delegates limited authority to, its

own political subdivisions.

The taxing mechanism challenged by Petitioners

was not a part of the State’s “form of government,” but was

in fact contrary to it; and the State’s form of government

15

was sufficient to protect itself, as it did in Weaver and the

prompt legislative aftermath. The taxing mechanism was

completely defunct as of June 10, 1998, without any

prompting either from these plaintiffs/Petitioners or from

the mechanisms of federal law. Rather, it was the State’s

own mechanisms of accountability for enforcing its own

requirements regarding the proper make-up of taxing

entities that eliminated the practice -- the very essence of a

republican form of government at work and working well.

2. The original understanding of the Republican

Guarantee Clause compels the decision reached by the

South Carolina Supreme Court.

In a case relied upon by the plaintiffs/Petitioners in

their brief to the South Carolina Supreme Court, the Kansas

Supreme Court (quoting and paraphrasing James Madison

in Federalist Paper No. 39, wrote:

A republican form of

government is a government

administered by

representatives chosen or

appointed by the people or by

their authority. Madison says

it is a “government which

derives all its powers directly

or_ indirectly from the great

body of the people, and is

administered by persons

holding their offices during

pleasure, for a limited period,

or during good behavior.”

[Emphasis added. ]

16

VanSickle v. Shanahan, 511 P.2d 223, 243 (Kan.1973).

Elsewhere in Federalist Paper No. 39, Madison

stated:

It is sufficient for such a

government, that the persons

administering it be appointed,

either directly or indirectly by

the people....

The Federalist, Jacob E. Cooke, ed. (Wesleyan University

Press, 1961), No. 39, p. 251. [Emphasis added.]

Madison went on to point out how the constitutions

of several states and the new federal Constitution all

comported with that Republican Guarantee principle, even

though (1) the chief magistrates of several states and the

President of the new federal government were not elected

by the people but were appointed by elected bodies, (2)

judges in several-states and in the new federal government

were not directly elected but were appointed by elected

bodies, and (3) members of the new Senate of the United

States were not directly elected but were appointed by

elected bodies. Jbid. at pp. 251-252.

Thus, governmental powers can, in full conformity

with the Republican Guarantee Clause, be exercised by

appointed officials in whose appointment the general public

has only an indirect role. That is exactly the situation here.

__ The Petition claims as a reason for granting

certiorari the South Carolina Supreme Court’s

“methodological mis-step” of not adequately considering

17

the original meaning of the Republican Guarantee Clause.

- Pet. at 22-24. But all of the material referred to above, as

well as Chief Justice Marshall’s discussion of the Founding

Generation’s understanding of the concept of representation

in taxation (from Loughborough v. Blake, 18 U.S. (5

Wheat.) 317 (1820), discussed below) were before the

South Carolina Supreme Court in the briefs of the parties.

Also before the South Caroiina Supreme Court was the

order of the trial court, whose handling of original intent

issues quite acceptable. Pet. at 5. Petitioners do mention

two particular sources that they feel are particularly

informative (though without any discussion of why that

might be). Those two sources are the 1628 Petition of

Right and the Declaration of Rights of William and Mary,

1689, 2 W. & M., ch. 2, art. 4. Pet. at 23. The problem for

Petitioners in urging that the South Carolina Supreme Court

should have considered those materials is that the

Petitioners never made that argument nor presented those

materials to the courts below. Those sources have never

been mentioned in this case prior to the Petition.

3. The precedent of this Court compels the decision

reached by the South Carolina Supreme Court.

In Loughborough v. Blake, 18 U.S. (5 Wheat.) 317,

5 L.Ed.98 (1820), Chief Justice John Marshall, himself a

veteran of the American Revolution that has been solemnly

invoked by the Petitioners through much of the history of

this case, spoke for a unanimous Court in holding that

Congress had the power to tax residents of the District of

Columbia despite their lack of representation.

Chief Justice Marshall also addressed the original

understanding of the importance of the “taxation without

18

representation” concept to the Founding Generation. The

historical animosity against “taxation without

representation,” relied upon by the Petitioners throughout

this case, had nothing to do with limited delegations by

elected public bodies to appointed local officials of taxing

power for limited local public purposes. Instead, Marshall

said, that historical animosity was directed against

“requiring a continent, with an immense population, to

submit to be taxed by a government having no common

interest with it, separated from it by a vast ocean, restrained

by no principle of apportionment, and associated with it by

no common feelings.” 18 U.S. at 324. The difference

between the British Stamp Act and tea taxes on the one

hand and the creation of water and sewer districts by the

South Carolina General Assembly on the other hand is, as

the Supreme Court stated in Loughborough, “too obvious

not to present itself to the minds of all.” Jbid.

A century later, in Heald v. District of Columbia,

259 U.S. 114 (1922), the Court remained unanimous in an

opinion by Justice Brandeis:

Residents of the District lack the suffrage

and have politically no voice in the

expenditure of the money raised by taxation.

.... Itis sufficient to say that the objection

[to that practice] is not sound. There is no

constitutional provision which so limits the

power of Congress that taxes can be

imposed only upon those who have political

representation. [Emphasis added; citations

omitted. ]

19

Id., 259 US. at 124. See also District of Columbia v. Brooke,

214 U.S. 138 (1909); Parsons v. District of Columbia, 170

U.S. 45, (1897); and Adams v. Clinton, 90 F.Supp.2d 35

(D.D.C. 2000).

Thus, there is no generalized constitutional or other

federal law prohibition against “taxation without

representation.” To sustain the position of the Petitioners one

would have to be willing to assert that the federal government

itself does not have a republican form of government. To

make such an assertion would surely shock the Founding

Generation, whose understanding is invoked by the

Petitioners, and would be contrary to perhaps the most

famous summary of the efforts of the Constitutional

Convention that we have -- Benjamin Franklin’s assertion, in

response to Mrs. Powell’s question as to the form of the new

government: “A republic, madam, if you can keep it.”

WILLIAM Morrow, A REPUBLIC, IF YOU CAN KEEP IT:

CONSTITUTIONAL POLITICS AND PUBLIC POLICY, pp. 1-2

(Prentice Hall, 2000).

4. The representation afforded to residents of the

District by the Enabling Act was adequate to meet the

representational requirements, if any, of the Republican

Guarantee Clause.

If there is any representational requirement

embodied in the Republican Guarantee Clause, it was

satisfied by the taxing mechanism here at issue. The

General Assembly had delegated a limited taxing power for

a limited public purpose to a body whose members were all

drawn from the limited locality and were all themselves

subject to any taxes that they might impose. Each member

of that body was appointed by the Governor (who is elected

20

by the people of South Carolina at large, including voters in

the District), on the recommendation of the local legislative

delegation (who are individually elected by voters in the

local area, including voters in the District). The taxes were

implemented by officials elected by voters in the County

(including voters in the District). The General Assembly

was kept apprised of the District’s financial operations,

including taxation issues. The General Assembly retained

the right to amend or remove the taxing power held by

special purpose district commissions, and in fact did so

when it was determined that the mechanism violated a

specific provision of the State constitution.

5. There is no contrary precedent.

Throughout this case, the Petitioners were not able

to produce even a single case in which a court invalidated a

state or local taxing mechanism as violative of the

Republican Guarantee Clause, even though disgruntled

taxpayers have had over two centuries to litigate the

Republican Guarantee Clause.

The cases relied upon by Petitioners for their dicta

do not advance the Petitioners’ cause, but rather

significantly undercut it.

VanSickle v. Shanahan, supra, concurs in

Madison’s Federalist Paper No. 39 discussion regarding the

permissibility of indirect representation.

Kelley v. Metropelitan County Board of Education

of Nashville and Davidson County, 836 F.2d 986 (6" Cir.

1987) was a school desegregation case in which the federal

district court had ordered a particular allocation of the

21

desegregation remedy’s costs as between the state and its

political subdivisions -- contrary to what the state

legislature had determined as the appropriate allocation of

such costs. The United States Court of Appeals for the

Sixth Circuit condemned that interference with the local

financial decisions of the elected state legislature of

Tennessee by an unelected federal district judge, and

discussed the history of “taxation without representation”

in the context of reversing the lower court’s unwarranted

assumption of power over local finances.

Kelley in no way prohibits or even suggests

prohibiting a state legislature from delegating to a political

subdivision, through which the state exercises its police

power related to water and sanitation, the ability to set the

level of a limited property tax for funding those activities.

Further, the case provides no basis for ordering the District

to cause its existing sources of revenue -- current taxpayers

and ratepayers -- to refund prior taxes to a small subset of

those taxpayers. Indeed, Kelley strongly cautions against

such judicial interference and in favor of the approach

taken by the South Carolina Supreme Court in Weaver -- to

allow the elected representatives of all the people of the

State (inclvding District taxpayers) to deal with this

problem which affects a number of special purpose districts

around the State. As stated by the court in Kelley, in

language that highlights the similarity of this aspect of the

two cases: “(W]e are talking about two political entities, a

state and one of its political subdivisions, each of which has

done wrong (as have subdivisions not now before us), and

where the men and women representing the electorate of

the state as a whole -- an electorate that includes the voters

of all the subdivisions -- have chosen” how to handle the

issue. Kelley, 836 F.2d at 998.

22

At best, Kelley is authority that the Republican

Guarantee Clause protects the taxing prerogatives of state

legislatures. There is nothing in Kelley to suggest that the

Republican Guaranty Clause guarantees individuals the

right to be free from taxes that are authorized and limited

but not directly quantified by their elected representatives.

6. The South Carolina Supreme Court correctly

declined to unscramble the eggs of prior years’

financial results, since all residents were affected by the

allegedly improper tax and those same residents wouid

be the source of uny refunds.

The South Carolina Supreme Court was altogether

correct in declining to fashion an entirely novel federal

cause of action in order to remedy an alleged wrong that it

had already fully considered and adjudicated and that had

already resulted in timely and effective corrective action by

the General Assembly.

Essentially, the plaintiffs/Petitioners and _ their

asserted class -- a small subset of all persons who paid the

challenged property taxes to the District -- were asking that

all the other taxpayers (who suffered the same alleged

“wrong”) be required to pay damages to the plaintiff class

through their current taxes, fees, charges, and water and

sewer rates; because, after all is said and done, those other

taxpayers are the only source of funds that the District has.

Like the Kelley court, the South Carolina Supreme

Court favored a legislative solution over a judicial solution

in such matters of state and local tax and finance. The

South Carolina General Assembly provided that solution

and decided to make it prospective -- not attempting to

23

unscramble the eggs of past years’ rates, charges, taxes and

degrees of benefit provided. The plaintiffs/Petitioners

sought to have the South Carolina Supreme Court ignore

that legislative determination and undertake a judicial

unscrambling of those eggs. The South Carolina Supreme

Court quite properly declined that invitation.

CONCLUSION

For the reasons stated above, the Petition For Wnt

Of Certiorari should be denied.

Respectfully submitted,

STEVE A. MATTHEWS

Counsel of Record

BENJAMIN T. ZEIGLER _

SARAH P. SPRUILL

HAYNSWORTH SINKLER BOyD, P.A.

1201 Main Street, 22" Floor

Columbia, South Carolina 29201-3226

803.779.3080

Attorneys for Respondent Hilton Head

No. I Public Service District

STEPHEN P. HUGHES

MARY BASS LOHR

HOWELL, GIBSON AND HUGHES, P.A.

25 Rue du Bois, Lady’s Island

Beaufort, South Carolina 29907

843.522.2400

Attorneys for Respondent Beaufort

County

24

APPENDIX A

Excerpted Sections of ACT No. 596, 1969 S.C AcTs 1036,

styled “AN ACT TO CREATE HILTON HEAD No. 1 PUBLIC

SERVICE DISTRICT ON HILTON HEAD ISLAND IN BEAUFORT

CouNTY; iv DEFINE ITs AREA; TO ESTABLISH A

GOVERNING COMMISSION THEREFOR; TO PRESCRIBE THE

FUNCTIONS AND POWERS OF THE DISTRICT AND OF ITS

COMMISSION; TO MAKE PROVISION FOR THE BORROWINGS

BY THE DISTRICT, INCLUDING THE ISSUANCE OF NOT

EXCEEDING ONE MILLION FIVE HUNDRED THOUSAND

DOLLARS OF GENERAL OBLIGATION BONDS OF THE

DISTRICT; TO PRESCRIBE THE TERMS AND CONDITIONS

UNDER WHICH MONEYS MAY BE BORROWED By THE

DIsTRICT AND TO MAKE PROVISION FOR PAYMENT

THEREOF”

SECTION 3. To be governed by a commission. Such

district shall be operated, managed and governed by a

commission to be known as “Hilton Head No. 1 Public

Service District Commission.” The commission shall

consist of five residents of the district who shall be

qualified electors of the district, such commissioners to be

appointed by the Governor upon the recommendation of a

majority of the Legislative Delegation of Beaufort County,

including the Senators of the district. The original

appointment shall be for a term of one year for two

appointees, for two years for the third and fourth appointees

and for three years for the fifth appointee, and in all cases

those persons holding office shall continue to hold office

until their successors have been appointed and quality. All

of the terms shall begin as of the effective date of this act.

Upon the termination of the term of office of any

commissioner, a successor shall be appointed by the

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Governor, upon the recommendation of a majority of the

Legislative Delegation of Beaufort County, including the

Senators of the district, for terms of three years. Any

vacancy occurring in the office of commissioner by reason

of death, resignation or otherwise, shall be filled for the

remainder of the unexpired term by appointment by the

Governor, upon the recommendation of a majority of the

Legislative Delegation of Beaufort County, including the

Senators of the district.

SECTION 4. Powers.--The commission shall be

empowered as follows:

17. In addition to the taxes authorized by paragraph

(e) of Section 5 [for repayment of bonds, the validity of

which tax is not challenged by the Petitioners], the district

may levy, annually, an ad valorem tax of not exceeding ten

mills for corporate purposes. The commission shall

annually. notify the Beaufort County Auditor and the

Beaufort County Treasurer of the tax levy millage to be

assessed against the real and personal property in the

district, whereupon such public officers of Beaufort County

shall assess and collect the tax as requested and the

treasurer shall hold the funds and disburse them as directed

by the commission, including deposits to the commission’s

operating account as provided in paragraph 5 above. All

such taxes shall constitute a lien upon the property against

which they are levied, on a parity with the lien of county

taxes, and the provisions of law relating to penalties for the

nonpayment or tardy payment of county taxes, and the

provisions relating to sale of property for delinquent county

taxes shall apply to taxes levied pursuant to this act.

SECTION 8. Bids and audits.--The commission shall

advertise for bids prior to letting contracts for the

construction of any buildings or facilities, or purchase of

equipment, involving an expenditure of more than one

thousand dollars.

The financial affairs of the commission shall be

subject to detailed audit by a firm of independent certified

public accountants, with such audits to be made annually,

and the audit reports thereof being promptly provided to the

foreman of the Beaufort County Grand Jury, the Beaufort

County Treasurer, each member of the Beaufort County

Legislative Delegation, including the Senators of the

district, and to any bondholder of the district requesting a

copy of them. Any taxpayers of the district may obtain a

copy of the reports on payment of the reasonable cost of

reproducing a copy of such audit reports.

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