COLUMBIA — Asked to referee between the state's GOP-controlled Senate and the Republican governor, S.C. Supreme Court justices suggested Thursday they quit squabbling and work together to address a crisis involving billions of taxpayer dollars.
Senate President Pro Tem Hugh Leatherman, acting on the Senate's behalf, sued Gov. Henry McMaster in August. The lawsuit accuses the governor of overstepping his authority by appointing former Attorney General Charlie Condon to lead Santee Cooper's governing board without the Senate's permission.
As fallout from the massive nuclear project failure in Fairfield County mounted, McMaster named Condon interim chairman in July after the Senate failed to confirm the governor's pick before the Legislature adjourned in June.
"The answer to this problem is you need to play better together," Chief Justice Don Beatty told McMaster's attorney. "Both sides know exactly what they’re doing."
Justice John Few was particularly critical of the Senate's failure to vote. Condon's nomination never made it to the Senate floor.
After Few accused senators of choosing to "do nothing" for six months, Senate attorney Andrew Bentz reminded him the nomination came in March.
"So they only had, what, three months? OK. I know that’s probably putting the Senate under a burden ... when $8 billion of taxpayer dollars are at stake. I know that’s difficult, but they probably could have done it," Few sarcastically shot back.
The utility’s former chairman, Leighton Lord, resigned last December amid a public feud with McMaster over last year's abandonment of a reactor project at the V.C. Summer Nuclear Station.
The Legislature spent the bulk of this year’s session debating what to do about the debacle. South Carolina Electric & Gas, the project's majority owner, and Santee Cooper jointly spent $9 billion before abruptly halting construction in July 2017.
State law dating to 1868 allows a governor to make appointments without senators' approval if a vacancy occurs in an office when the Legislature's not in session. Much of Thursday's hearing involved the meaning of "occurs."
"We're playing English class here," Justice George James said to laughter.
Leatherman contends McMaster gave up his ability to make a recess appointment when he didn't do so in the 11 days between Lord's departure and the session's start in January. McMaster argues the vacancy still existed when the session ended, due to Senate inaction.
Attorneys for both sides warned justices of setting a precedent that would worsen shenanigans in the future.
Justice John Kittredge called it a Catch-22 dilemma, as a ruling for either branch of government could potentially make life miserable for not only the losing side but also for the people of South Carolina.
"You indicate the 'parade of horribles' that would happen to the Senate and its authority if we give the governor the authority to make this appointment," he told Bentz. "Either way we go, there’s going to be that push and pull. If we deny the governor the authority to make it, the Senate can hold his authority hostage."
Few asked whether such a purely political question is something the "courts shouldn't stick their nose into."
Bentz said the case was not about who has more power, but "protecting the people's liberty" by ensuring a separation of powers.
"I don’t think anybody up here disagrees with your point that it is our role to interpret the structure of government," Few responded. "My comment was not playful. It is not our role to referee the bad behavior of its participants."
Few also took issue with Bentz's contention that government efficiency, while nice, is not what's important in the case.
Few asked, "So, if there were a crisis — just for example ... would that not weigh on the practical reality of the governor’s desire and ability" to fill the vacancy?
The lawsuit's filing in August came minutes before the first meeting of a panel the Legislature created to consider the fate of South Carolina's only state-owned utility, which racked up $4 billion in debt on the failed project. That represents about half of the utility's total debt.
McMaster has advocated selling Santee Cooper, or at least some of its assets, saying that may be the only way its customers can get any pocketbook relief. Under state law, only the Legislature can approve selling any parts of the utility.
McMaster contends Condon, a longtime ally, will bring needed impartiality to Santee Cooper’s board, as he’s unconnected to any previous decisions leading to the debacle.
While the state's high court agreed to take the case directly, when the justices will rule is unknown.