THE STATE OF SOUTH CAROLINA
In The Court of Appeals

APPEAL FROM RICHLAND COUNTY
Court of Common Pleas

James R. Barber, III, Circuit Court Judge

C.A. No.  03-CP-40-3645

Edward D. Sloan, Jr.,....................................................................................... Appellant,

v.

Inez Moore Tenenbaum, Superintendent of Education,........................... Respondent.

FINAL BRIEF OF RESPONDENT

Shelly Bezanson Kelly
M. Jane Turner
State Department of Education
1429 Senate Street
Columbia, South Carolina 29201
(803) 734-8783
Attorneys for Respondent

 

TABLE OF CONTENTS

 TABLE OF AUTHORITIES

CASES

STATUTES

STATEMENT OF ISSUES ON APPEAL

1.  DID THE TRIAL COURT PROPERLY CONCLUDE THAT ACT 195 OF 2004, 2004 S.C. ACT 1898, COMPLIES WITH ARTICLE III, § 17 OF THE SOUTH CAROLINA CONSTITUTION, WHICH REQUIRES THAT STATE STATUTES RELATE TO ONE SUBJECT AND THAT THE SUBJECT BE EXPRESSED IN THE TITLE?

2.  DID THE TRIAL COURT PROPERLY CONCLUDE THAT THE REPEAL OF S.C. CODE ANN. § 59-3-60 THROUGH ACT 195 OF 2004, 2004 S.C. ACTS 1898, RENDER MOOT APPELLANT’S CAUSE OF ACTION TO ENJOIN COMPLIANCE WITH § 59-3-60?

STATEMENT OF THE CASE

Edward D. Sloan, Jr., brought this declaratory judgment action on July 25, 2003, asking the court to enjoin the Superintendent of Education, Inez Tenenbaum, to produce the report identified in S.C. Code Ann. § 59-3-60 (2004).  Ms. Tenenbaum filed a motion to dismiss the Complaint on the basis of standing on September 12, 2003, which the court denied by order of March 2, 2004.  Ms. Tenenbaum did not appeal the March 2, 2004, Order.

Effective January 1, 2005, the legislature repealed § 59-3-60 through Act 195, 2004 S.C. Acts 1898.  Mr. Sloan amended his complaint on July 7, 2005, asking the court to find that Act 195 is unconstitutional.  A trial on the amended complaint was conducted before the Honorable James R. Barber, III, on April 11, 2006.  Judge Barber issued an Order on April 27, 2006, ruling that Act 195 is constitutional, that § 59-3-60 is repealed, and that Appellant’s action to enjoin compliance with § 59-3-60 is moot.  Mr. Sloan filed this appeal on June 1, 2006.

FACTS

The Defendant is the elected State Superintendent of Education whose duties are set forth generally in Title 59 of the South Carolina Code.  One of those duties, enumerated in S.C. Code Ann. § 59-3-60 (2004) (now repealed), required an annual report to the South Carolina General Assembly showing:

(1)	The whole number of pupils registered and the number enrolled as defined in § 59-63-450 in the free common schools of this State during the year ending the thirtieth day of the last preceding June and the number in each county registered and the number enrolled as defined in said section during the same period;
(2)	The number of whites and the number of colored, of each sex, attending the schools;
(3)	The number of free schools in the State;
(4)	The number of pupils studying each of the branches taught;
(5)	The average wages paid to teachers of each sex, and to the principals of schools and departments in the schools;
(6)	The number of schoolhouses erected during the year and the location, material and cost thereof;
(7)	The number previously erected, the material of their construction, their condition and value and the number with the grounds enclosed;
(8)	The counties in which teachers’ institutes were held, and the number attending the institutes in each county; and
(9)	Such other statistical information as he may deem important, together with such plans as he may have matured and the State Board of Education may have recommended for the management and improvement of the school fund and for the more perfect organization and efficiency of the free public schools.

All State institutions of higher learning shall make an annual report on or before the first day of September of each year to the State Superintendent of Education, embracing a detailed account of the operations of such institutions, including the expenditure of the public moneys for the current scholastic year.  The State Superintendent of Education shall include such reports in his annual report to the General Assembly.

In or about 1993, then-State Superintendent of Education Barbara Nielsen discontinued the issuance of the report because the State Budget and Control Board no longer provided funding for the publication, much of the information was obsolete, and the remainder of the information was published elsewhere by the Department.  (R. p. 50, line 1-p. 53, line 13.)  The information determined to be obsolete had not been included in the report for many years prior to 1993.  (R. p. 55, lines 5-24.) It had become obsolete in terms of its meaningfulness or usefulness, such as the pay of teachers by sex, the number of students studying the “branches” taught, and the counties in which teacher institutes were taught.  (R. p. 53, line 11-p. 57, line 23.)  Teachers now are paid on a state-mandated salary schedule that is not based on sex; schools now are defined by elementary, middle, and secondary levels, not branches; and teacher institutes are now accredited colleges and universities.  (R. p. 53, line 11-p. 57, line 23.)  The remaining information can be found in various Department publications that are maintained on the Department’s website, as well as at the State Library.  (R. p. 52, lines 12-17, p. 56, lines 3-15, & p. 73, line 17-p. 76, line 10.)

On January 1, 2005, Act 195, 2004 S.C. 1898 of the General Assembly took effect.  Act 195 amended S.C. Code Ann. § 59-25-115, relating to criminal record checks for student teachers, and repealed S.C. Code Ann. §§ 59-3-50, 59-3-60, and 59-3-70, relating to statistical reports to be issued by the Department of Education.  The four statutes addressed in Act 195 are related to public education, are found in Title 59 – the public education title of the S.C. Code, and are mentioned specifically in the title to Act 195.  Prior to its passage, Act 195 was reviewed, debated, and considered by the House and Senate committees responsible for legislation related to public education.  (R. p. 66, lines 1-13.)

ARGUMENTS

S.C. Constitution, Article III, § 17 states that “every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.”  In Sloan v. Wilkins, 362 S.C. 430, 608 S.E.2d 579 (2005), the South Carolina Supreme Court stated that Article III, § 17 of the S.C. Constitution should be “liberally construed as to uphold an Act if practicable.  Doubtful or close cases are to be resolved in favor of upholding an Act’s validity.  Article III, § 17 does not preclude the legislature from dealing with several branches of one general subject in a single act.”  Id. at 438, 583.

In the often-cited case, DeLoach v. Scheper, 198 S.C. 21, 198 S.E. 409 (1938), the South Carolina Supreme Court articulated the standard for Constitutional review of a state statute, holding that “it is the duty of the judiciary to uphold the constitutionality of a Statute unless its invalidity is manifest beyond reasonable doubt, and unless it is clearly violative of some provision in the Constitution.”  Id. at 411.  (Emphasis added).  Though the DeLoach Court recognized the need for Article III, § 17 to assure that members of the General Assembly and the public are apprised of the contents of an Act and to prevent legislative log-rolling, the Court noted a distinction between the object of a law and the subject of the law, stating “[v]ery few enactments have but one object and purpose in mind.”  Id . at 412.  As noted by Appellant, the S.C. Supreme Court in Poulnot v. Cantwell, 129 S.C. 171, 123 S.E. 651 (1924), previously defined the term “subject,” for purposes of Article III, § 17, as “the thing legislated about, or the matter or matters upon which the legislation operates, to accomplish a definite object, or objects reasonably related one to another.”  In Poulant, the Court found no violation of the requirements of Article III, § 17.

Applying this standard, the S.C. Supreme Court has held repeatedly that the State Appropriations Act may include many topical areas and be in compliance with Article 17’s “one subject” requirement, as long as the areas relate generally to the finances of the state.  See, e.g., State v. Charron, 351 S.C. 319, 569 S.E.2d 388 (2002); Hercules, Incorporated v. South Carolina Tax Commission, 274 S.C. 137, 262 S.E.2d 45 (1980).  Finding Act 201, the 1985 General Appropriations Act, 1985 S.C. Acts 793, to be constitutional, the Court noted in Charron that “[a] legislative enactment will be declared unconstitutional only when its invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the constitution.”  Charron at 391.

In Sloan, 362 S.C. 430, the State Supreme Court concluded that Act 187 of 2004, 2004 S. C. Acts 1844, the Life Sciences Act, violated Article III, § 17 because it covered a wide range of subjects unrelated to Life Sciences, including venture capital investments, a culinary program at Trident Technical College, and a law school at South Carolina State University.  Act 195 is clearly distinguishable from the Life Science Act.  The provisions of Act 195 either amend or repeal statutes within one title of the South Carolina Code, Title 59, the public education title.  Like the statute found to be constitutional in DeLoach, The Beaufort County Supply Bill for 1938-1939, the subject of Act 195, public education, has within it many objects.  The issuance of educational reports by the same agency that administers the fingerprint review of teachers is an example of different, albeit related “objects” within the general framework of public education.  Of note, one of the statutes repealed by Act 195, S.C. Code Ann. § 59-3-60, involved statistical reports required to be submitted to the State Superintendent of Education by institutions of higher education.  Those same institutions have the teacher education programs addressed in another area of Act 195.

With regard to Article 17’s requirement that the subject be addressed in the title of the act, the title of Act 195 reads in its entirety:

AN ACT TO AMEND SECTION 59-25-115, CODE OF LAWS OF SOUTH CAROLINA, 1976,

RELATING TO AN APPLICANT FOR INITIAL EDUCATION CERTIFICATION BEING REQUIRED TO UNDERGO A STATE FINGERPRINT REVIEW, SO AS TO PROVIDE THAT A PERSON ENROLLED IN A TEACHER EDUCATION PROGRAM MUST BE ADVISED BY THE COLLEGE OR UNIVERSITY THAT HIS PRIOR CRIMINAL RECORD COULD PREVENT HIS TEACHER CERTIFICATION, PROVIDE THAT BEFORE BEGINNING FULL-TIME CLINICAL TEACHING EXPERIENCE A PERSON SHALL UNDERGO A STATE AND NATIONAL CRIMINAL RECORDS CHECK TO BE REVIEWED BY THE STATE DEPARTMENT OF EDUCATION AND THE STATE BOARD OF EDUCATION, PROVIDE THAT THE COSTS ASSOCIATED WITH THE FBI BACKGROUND CHECKS ARE THOSE OF THE APPLICANT, PROVIDE THAT THE INFORMATION COULD AFFECT HIS FITNESS TO TEACH AND THAT HE MAY BE DENIED THE OPPORTUNITY TO COMPLETE HIS CLINICAL TEACHING EXPERIENCE, PROVIDE THAT A TEACHER EDUCATION CANDIDATE MAY REQUEST RECONSIDERATION AFTER ONE YEAR, AND PROVIDE THAT A GRADUATE OF A TEACHER EDUCATION PROGRAM APPLYING FOR INITIAL TEACHER CERTIFICATION MUST HAVE COMPLETED THE FBI FINGERPRINT PROCESS WITHIN EIGHTEEN MONTHS OF FORMALLY APPLYING; AND TO REPEAL SECTIONS 59-3-50, 59-3-60, AND 59-3-70, ALL RELATING TO STATISTICAL REPORTS REQUIRED BY THE SUPERINTENDENT OF EDUCATION.

The title clearly puts the General Assembly and the public on notice that the bill sought to repeal S.C. Code Ann. §§ 59-3-50, 59-3-60 and 59-3-70.  The title also describes those code sections as relating to statistical reports required of the State Superintendent of Education.  As a bill, Act 195 was considered and debated in public meetings of the education committees of both the House and the Senate.  Unlike the case of Charleston v. Oliver, 16 S.C. 47 (1881) and subsequent cases cited by Appellant, the title of Act 195 clearly states each and every object addressed in the Act, to include specific mention of the repeal of § 59-3-60.

Considering the high standard the S.C. Supreme Court requires be applied in reviewing the constitutionality of an act, and in light of the foregoing authority, Act 195 does not violate the one subject requirement and the requirement that the subject be expressed in the title.  Accordingly, the trial court properly concluded that Act 195 is constitutional and that Act 195 effectively repealed S.C. Code Ann. § 59-3-60.

Counsel for Appellant conceded at trial that should Act 195 be found to be constitutional, his cause of action to enjoin compliance with § 59-3-60 is moot.  (R. p. 46, line 22-p. 47, line 3.)  As discussed above, Act 195 complies with the requirements of Article III, § 17 of the S.C. Constitution.

CONCLUSION

For the reasons stated above, this Court should uphold the trial court’s conclusion that Act 195 of 2004, 2004 S.C. Act 1898, complies with Article III, § 17 of the South Carolina Constitution, that S.C. Code Ann. § 59-3-60 is repealed, and that Appellant’s action to enjoin compliance with § 59-3-60 is moot.

                                                                        Respectfully submitted,

 

                                                                        ________________________________

                                                                        Shelly Bezanson Kelly
                                                                        M. Jane Turner
                                                                        State Department of Education
                                                                        1429 Senate Street
                                                                        Columbia, South Carolina 29201
                                                                        (803) 734-8783
                                                                        Attorneys for Respondent

January 31, 2007