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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1872%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 947

## Text

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was repealed five years ago because of an infirmity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
ep. C.. FR. BF GU ssciniceatecsincsinctneisnaetbisinnsnlante 10
CONSTITUTIONAL PROVISIONS
Ans CR, HE, Fak BR iniienctevsinteniniiaianemapeanta 5
BA, COMME, BIE, Ty GF ccncsescsnisssscnnes rene pednncnntonchanenieensinnnssaente 2
Jie. CARE, CRE, TF 5 ccnicseressseiminiclncninenenveianienia passim
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

A-1

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.

A-3

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1872%3A3. Public record. Not legal advice.