Court ruling a timely warning against legislative 'bobtails'

This week's S.C. Supreme Court decision that upheld a portion of a citizen lawsuit that challenged the constitutionality of legislation passed last year couldn't have come at a more opportune time. Two of the governor's pending vetoes up for action in today's wrap-up session cite the S.C. Constitution's prohibition against approving a bill that incorporates more than one subject. The Legislature should take heed and sustain the governor's vetoes. Approval of more legally questionable bills likely will only wind up costing taxpayers even more in court costs.

The governor isn't alone in his contention that one of the bills he recently vetoed, which is aimed at giving energy efficient products a sales tax holiday, has a similar unconstitutional bobtail. At issue is an ethanol blending amendment added to that bill on the Senate floor that has nothing to do with the sales tax. The governor noted in his veto message that one of the authors of that bill, Sen. Glenn McConnell, recognized the bill's constitutional problem and asked to be recorded as voting against it.

The co-author, Sen. Larry Martin of Pickens, tells us that Sen. Brad Hutto of Orangeburg raised the question of germaness but was overruled by the lieutenant governor, who presides over the Senate. Sen. Martin tells us he, too, will vote to sustain the veto rather than pass the bill and invite another lawsuit. While he favors the ethanol blending provision, he said it would be far better to pass a separate bill next year than "to have to pay a lot of legal fees."

The second bill that was challenged by the governor as "a classic example of unconstitutional bobtailing" involves tax-increment financing of affordable housing, which got a last-minute attachment in the Senate that would allow rural water districts to provide sewer services.

The state Supreme Court ruled Monday on a 2007 lawsuit filed by retired Greenville businessman Edward Sloan and the S.C. Public Interest Foundation on bills that became law last year over the governor's veto. Mr. Sloan previously was successful in challenging a 2004 bill that even lawmakers called the "kitchen sink" bill because it contained so many unrelated provisions.

The Sloan lawsuit, just decided, involved challenges to both a statewide bill that included illegal "bobtails" and five pieces of "special legislation" that apply to specific counties. One of those local bills expanded the membership of the Charleston County Aviation Authority to include two lawmakers. Since the advent of "home rule" in the mid-1970s, legislators have been constitutionally restricted — with few exceptions — to statewide legislation.

While the Sloan lawsuit aimed at striking down the entire statewide bill that contained some 70 sections, the court upheld all but two provisions, contending the rest related to the subject of "raising revenue." The two sections that were found invalid involved wine tastings and the creation of the fund to provide loans and grants to those engaged in renewable energy production. The court declined to rule on the five local bills being challenged, concluding the plaintiffs had no legal standing.

While, according to our account, Mr. Sloan's attorney expressed disappointment with the partial victory, Sen. Martin believes the anti-bobtailing message the court has been sending in recent years is beginning to sink in. Once far more flagrant, he said the practice has been "greatly reduced." Still, he said, the Legislature "can do a better job."

Further, he noted, "we're not out of the woods yet," in terms of the Sloan lawsuit. He recognizes that the five local bills still are subject to challenge by anyone in those counties' jurisdictions.

The best way for the legislators to stay out of the woods is to follow the Constitution's guidelines. If they don't, we can only hope for the continued willingness of citizen watchdogs such as Edward Sloan to nip at their heels.