Senate of State v. His Excellency Henry D. Mcmaster
Docket: Appellate Case No. 2018-001455; Opinion No. 27851
Court: Supreme Court of South Carolina; November 27, 2018; South Carolina; State Supreme Court
Petitioner Senate of the State of South Carolina, represented by President Pro Tempore Hugh K. Leatherman Sr., seeks a declaration that Governor Henry D. McMaster's recess appointment of Charles M. Condon as Chairman of the Public Service Authority's Board is invalid under section 1-3-210 of the South Carolina Code. The Court maintains a political neutrality, strictly interpreting the statute without delving into the motivations behind governmental actions. Both parties argue that the statute's language supports their viewpoints; however, the Court finds the relevant provisions ambiguous.
The Senate's challenge centers on McMaster's interim appointment of Condon following former Chairman W. Leighton Lord III's resignation on December 29, 2017, while the Senate was in recess. McMaster did not make a recess appointment during the eleven days until the Senate reconvened on January 9, 2018. On March 7, 2018, McMaster formally nominated Condon, which led to a referral to the Senate Judiciary Committee. Despite the State Regulation of Public Utilities Review Committee screening and qualifying Condon, the Senate adjourned on June 28, 2018, without acting on the nomination. Following this, McMaster issued a letter on July 23, 2018, confirming Condon's interim appointment and indicating he would submit a formal appointment for Senate consideration in the next session. The Senate objected to McMaster's authority for this appointment, leading to a dispute regarding the interpretation of section 1-3-210. The Court granted the Senate's petition for original jurisdiction to address this issue, and it will first consider whether President Pro Tempore Leatherman had the authority to initiate the action.
The Governor's authority to appoint directors of the Public Service Authority requires the Senate's advice and consent, granting the Senate the right to litigate perceived infringements of this authority. Specifically, the Senate may seek a declaration on whether the Governor overstepped his powers regarding a recess appointment. However, such actions must adhere to legal frameworks, and the Senate did not have the opportunity to vote on the President Pro Tempore's authority to initiate this action, as the Governor's reappointment occurred after the Senate had adjourned.
Concerns are raised about whether the President Pro Tempore is authorized to act on behalf of the Senate without explicit Senate approval. Although the Governor does not contest this authority, historical precedent shows that the individual power of a senator to pursue legal action related to Senate matters is limited. The Supreme Court has confirmed that senators cannot sue without express authorization from the Senate. This principle has been upheld in lower federal courts, leading to dismissals of cases brought by individual senators or Senate committees lacking such authorization.
The Senate Select Committee has the authority to sue and enforce subpoenas against the President based on a Senate resolution that explicitly grants this power. Citing *Comm. on Oversight. Gov't Reform v. Holder* and *Comm. on Judiciary, U.S. House of Representatives v. Miers*, it is established that House committees can initiate actions to enforce subpoenas if expressly authorized by the House. The Court will assess the Senate's challenge to Governor McMaster's recess appointment of Condon, emphasizing the need to evaluate the President Pro Tempore's authority to bring such actions, which can arise from a Senate majority vote or a pre-existing rule or statute.
Section 58-31-20(A) mandates that when a director vacancy occurs, the Governor must appoint a successor with Senate advice and consent, and the successor serves for the unexpired term. Lord's resignation occurred during the Senate's 2017 recess, and it is agreed that McMaster has the authority to appoint Lord's successor with Senate involvement. The central issue is whether McMaster could appoint Condon during the 2018 recess. Under section 1-3-210, the Governor can make a recess appointment for vacancies arising during the Senate's recess, requiring him to report the appointment to the Senate and seek formal confirmation in the next session. If the Senate does not confirm before sine die adjournment, the office becomes vacant. The Senate contends that section 1-3-210 clearly permits the Governor to make a recess appointment only during the recess when the vacancy occurred, which in this instance was between Lord's resignation on December 29, 2017, and the Senate's reconvening on January 9, 2018. McMaster did not make a recess appointment within this eleven-day period.
The Senate argues that Governor McMaster's 2018 recess appointment is invalid because his authority to make such appointments can only be exercised during the specific recess in which the vacancy originally occurred. They also assert that this appointment violates the separation of powers doctrine. In contrast, Governor McMaster contends that Section 1-3-210 allows him to make recess appointments during any Senate recess in which a vacancy exists, maintaining that his interpretation does not violate separation of powers.
The legal principle guiding the interpretation of statutes emphasizes understanding and effectuating legislative intent, as established in Hodges v. Rainey. Courts should adhere to the plain meaning of clear statutes without altering their meaning. However, statutes must be read holistically, ensuring that all parts work together and no language is rendered superfluous.
Key to the dispute is the interpretation of the phrase "During the recess of the Senate" in Section 1-3-210. The Senate argues that it restricts the Governor's authority to the recess during which the vacancy occurred, while Governor McMaster asserts it only refers to when a recess appointment can be made, thus permitting appointments in any Senate recess. The parties also disagree on the term "occurs," with the Senate interpreting it literally to mean the immediate event of vacancy, thus arguing that failure to appoint during the initial recess results in a forfeiture of that appointment power.
Governor McMaster argues that a vacancy can "occur" during a Senate recess even if it originated prior to the recess, asserting that "occurs" equates to "exists," thereby potentially expanding the Governor's recess-appointment authority. The Recess Appointments Clause of the U.S. Constitution states that the President can fill vacancies during Senate recesses, a provision analogous to South Carolina's section 1-3-210. The interpretation of this clause has been contested in federal courts. Notably, in *National Labor Relations Board v. Noel Canning*, the Supreme Court evaluated whether the President's appointments during a three-day Senate adjournment violated the Recess Appointments Clause. The case arose when Noel Canning challenged the validity of the N.L.R.B.’s actions, arguing that the appointments were invalid due to their timing during a brief recess. The D.C. Circuit ruled that the clause applies only to vacancies that arise during a recess of substantial duration, a view upheld by the Supreme Court, which, while affirming the result, found the definition of "the recess" ambiguous and rejected the D.C. Circuit's interpretation regarding the clause's applicability to short recesses.
The term "the" can signify a specific entity or be used generically or universally, as illustrated by the Constitution, which directs the Senate to select a President pro tempore in the absence of the Vice-President. Historical usage shows that "the recess" has referred to intra-session recesses, supporting a broad interpretation of the Recess Appointments Clause to maintain government functionality during Senate recesses. The Supreme Court determined that the President can make appointments during both inter- and intra-session recesses, asserting that the Senate's capacity to participate in appointments is independent of the language it uses. The Court rejected the narrower interpretation of the phrase "Vacancies that may happen during the Recess of the Senate," stating that "that may happen" encompasses both the initial occurrence of a vacancy and those existing during a recess. The ambiguity of the term "happen" was noted, with historical references from Thomas Jefferson and Attorney General William Wirt indicating multiple interpretations. Ultimately, the Court concluded that a broader reading of the phrase aligns with the Recess Appointments Clause's purpose of sustaining government operations, a view supported by commentary from other federal courts.
The phrase in question indicates that if vacancies exist during a recess, the President is authorized to fill them temporarily. This interpretation aligns with historical judicial views, executive interpretations since 1823, and legislative acceptance. The term "happen" is open to multiple meanings, yet the commonly accepted interpretation supports the President's authority without contradicting the plain meaning rule. Historical practices by early Presidents, such as Washington and Jefferson, demonstrate that recess appointments were made for vacancies that arose during prior Senate sessions. Congress implicitly supports this understanding. A restrictive interpretation that prevents the President from filling vacancies occurring on the last day of a session, while allowing fills immediately after a recess begins, undermines the purpose of the Recess Appointments Clause, which aims to maintain government function. Such a narrow reading could result in significant government paralysis, leaving critical offices, including judicial and cabinet positions, unfilled until the Senate reconvenes. The Second Circuit and New Jersey Supreme Court have emphasized that such interpretations could disrupt the functioning of government and confirm that governors can fill vacancies that arise while the legislature is in session.
The New Jersey Constitution mandates that when a vacancy occurs in certain offices during the recess of the legislature, the governor is empowered to fill that vacancy, with the appointment expiring at the end of the next legislative session unless a successor is appointed sooner. The court examined whether a vacancy that arises during a legislative session is treated as occurring during the subsequent recess if the governor makes an appointment during the session that the legislature does not confirm. The court highlighted the complexity of interpreting the term "happens," noting its implications of unexpected events and the ambiguity of whether a vacancy arises strictly during a legislative recess or due to the timing of the Senate's session. The court referenced related cases, illustrating that the ambiguity in the relevant statute necessitates an interpretation aligned with the legislative intent, which aims for efficient governance by allowing the governor to fill vacancies that exist during a recess. The General Assembly intended for section 1-3-210 to apply to such vacancies to ensure effective government operations.
The document addresses the interpretation of section 1-3-210 regarding the Governor's authority to fill vacancies during Senate recesses. It references the Louisiana Supreme Court case State v. Young, asserting that a vacancy occurring during a legislative session may be filled by the Governor in the subsequent recess. The definition of "occur" from Webster's Dictionary is cited to support this interpretation. The section is interpreted to grant the Governor the power to make recess appointments without regard to when the vacancy arose, as long as it exists during a recess.
A limitation within section 1-3-210 is noted: if a recess appointee is not confirmed by the Senate, the Governor may appoint a different individual during the next recess. This appointment expires on the second Tuesday in January following the recess. The Senate's concern that this interpretation makes the second paragraph redundant is dismissed; the court clarifies that the second paragraph serves to restrict the Governor's ability to reappoint the same individual after Senate rejection.
Finally, the Senate raises concerns about the potential for expanded executive power under this interpretation, fearing the Governor might strategically delay appointments until a recess to circumvent Senate approval. The court, however, maintains that their interpretation does not support such an expansion of power.
The Senate expresses concern that the current appointment process could undermine governmental integrity and violate the separation of powers as mandated by the South Carolina Constitution. Legislative, executive, and judicial powers are to remain distinct, preventing any individual from assuming roles outside their designated department. The Governor lacks inherent appointment authority, which must derive from constitutional or statutory provisions. Historical context reveals ongoing worries regarding potential government dysfunction, as illustrated in the Supreme Court case Noel Canning. The Court emphasized the need for a broader interpretation of the Recess Appointments Clause to ensure the President can appoint officials when Senate recesses create vacancies. Attorney General Wirt highlighted the risks of a narrow interpretation that could result in prolonged vacancies detrimental to public interests. The broader construction aligns with the Constitution's objectives and does not contradict its language. The Senate's interpretation could lead to scenarios where a series of recess appointments by the Governor might bypass Senate confirmation, allowing unchecked governance during recess periods. The General Assembly intended for the Governor to make recess appointments, subject to Senate confirmation in the following session, ensuring accountability and preventing institutional deadlock.
Section 1-3-210 permits the Governor to appoint officials during Senate recesses, addressing potential friction between the legislative and executive branches inherent in the constitutional framework. If the Senate's interpretation were adopted, it could indefinitely delay appointments, undermining governmental functionality, which the General Assembly did not intend. The court confirms that the statute empowers the Governor to make recess appointments while allowing the Senate to reject appointees in the subsequent session, thus maintaining a balance of power. On July 23, 2018, Governor McMaster lawfully appointed Condon as Chairman of the Board, exercising his recess appointment authority without violating the separation of powers doctrine.
The Senate's argument that the Governor lacked authority due to non-confirmation of Condon was conceded during oral arguments, shifting the focus to the authority for recess appointments. Terminology in the Recess Appointments Clause and section 1-3-210, while differing, has been interpreted synonymously in precedent, establishing that vacancies can be filled regardless of when they arose. Thus, the Governor's power to make appointments applies equally to vacancies that occur during Senate sessions or recesses.
