Journal of the House of Representatives
of the Second Session of the 111th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 9, 1996

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Printed Page 3950 . . . . . Tuesday, May 21, 1996
S. 1366--RECALLED FROM THE

COMMITTEE ON JUDICIARY

On motion of Rep. JENNINGS, with unanimous consent, the following Bill was ordered recalled from the Committee on Judiciary.

S. 1366 -- Senator Holland: A BILL TO AMEND SECTION 58-23-80, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PENALTIES FOR VIOLATING CERTAIN MOTOR VEHICLE CARRIER LAWS, SO AS TO PROVIDE THAT CORPORATE OFFICERS, AGENTS, OR EMPLOYEES OR OTHER PERSONS OPERATING AS A PASSENGER CARRIER WHO VIOLATE OR WHO AID AND ABET IN THE VIOLATION OF CERTIFICATION AND REGISTRATION REQUIREMENTS ARE GUILTY OF A MISDEMEANOR AND ARE SUBJECT TO SPECIFIED PENALTIES FOR VIOLATION, AND TO PROVIDE THAT CORPORATE OFFICERS, AGENTS, OR EMPLOYEES OR OTHER PERSONS OPERATING AS A CARRIER OF HOUSEHOLD GOODS OR AS A CARRIER OF HAZARDOUS WASTE FOR DISPOSAL WHO VIOLATE OR WHO AID AND ABET IN THE VIOLATION OF CERTIFICATION AND REGISTRATION REQUIREMENTS ARE GUILTY OF A MISDEMEANOR AND ARE SUBJECT TO OTHER SPECIFIED PENALTIES FOR VIOLATION; AND TO REPEAL SECTION 15-9-340 OF THE 1976 CODE RELATING TO SERVICE OF PROCESS ON MOTOR VEHICLE CARRIERS.

OBJECTION TO RECALL

Rep. GOVAN asked unanimous consent to recall H. 3490 from the Committee on Judiciary.

Rep. TUCKER objected.

OBJECTION TO RECALL

Rep. MEACHAM asked unanimous consent to recall H. 4593 from the Committee on Labor, Commerce and Industry.

Rep. FELDER objected.

OBJECTION TO RECALL

Rep. LIMBAUGH asked unanimous consent to recall S. 1247 from the Committee on Judiciary.

Rep. SCOTT objected.

Printed Page 3951 . . . . . Tuesday, May 21, 1996
OBJECTION TO RECALL

Rep. GOVAN asked unanimous consent to recall H. 4050 from the Committee on Ways and Means.

Rep. H. BROWN objected.

H. 3170--DEBATE ADJOURNED

Rep. H. BROWN moved to adjourn debate upon the Senate amendments to the following Joint Resolution until Thursday, May 23, which was adopted.

H. 3170 -- Reps. Govan, Simrill, Inabinett, Lloyd and Hines: A JOINT RESOLUTION TO AUTHORIZE THE BUDGET AND CONTROL BOARD TO INCUR A LIMITED AMOUNT OF DEBT FOR A PERIOD NOT TO EXCEED EIGHT MONTHS FOR THE STATE HOUSE RENOVATION PROJECT AND TO REQUIRE THAT THE DEBT BE RETIRED FROM APPROPRIATIONS AUTHORIZED FOR THE STATE HOUSE RENOVATION PROJECT IN FISCAL YEAR 1996-97.

H. 3915--INTERRUPTED DEBATE

The Senate amendments to the following Bill were taken up for consideration.

H. 3915 -- Education and Public Works Committee: A BILL TO AMEND SECTION 59-103-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE STATE COMMISSION ON HIGHER EDUCATION, SO AS TO REVISE THE MEMBERSHIP OF THE COMMISSION AND THE MANNER IN WHICH THE MEMBERS ARE SELECTED; TO ADD SECTION 59-103-45 SO AS TO PROVIDE THAT THE COMMISSION ON HIGHER EDUCATION SHALL ESTABLISH PROCEDURES FOR THE TRANSFERABILITY OF UNDERGRADUATE COURSES BETWEEN TWO-YEAR AND FOUR-YEAR INSTITUTIONS, COORDINATE WITH THE STATE BOARD OF EDUCATION THE APPROVAL OF CERTAIN SECONDARY EDUCATION COURSES, AND REVIEW UNDERGRADUATE ADMISSION STANDARDS FOR IN-STATE AND OUT-OF-STATE STUDENTS; TO AMEND SECTION 59-103-60, RELATING TO RECOMMENDATIONS OF THE COMMISSION ON HIGHER EDUCATION TO THE BUDGET AND CONTROL BOARD AND THE GENERAL ASSEMBLY, SO AS TO INCLUDE THE GOVERNOR'S OFFICE AS A RECIPIENT OF SUCH RECOMMENDATIONS AND DELETE THE BUDGET AND

Printed Page 3952 . . . . . Tuesday, May 21, 1996
CONTROL BOARD, AND PROVIDE THAT THE HOUSE WAYS AND MEANS COMMITTEE AND THE SENATE FINANCE COMMITTEE AS WELL AS THE BUDGET AND CONTROL BOARD MAY REFER TO THE COMMISSION CERTAIN REQUESTS OF INSTITUTIONS OF HIGHER LEARNING; TO AMEND SECTION 59-103-90 RELATING TO THE PROFESSIONAL STAFF OF THE COMMISSION, SO AS TO PROVIDE THAT THE EXECUTIVE DIRECTOR SHALL BE APPOINTED BY THE COMMISSION TO SERVE AT ITS PLEASURE WITH NO GRIEVANCE RIGHTS, AND TO PROVIDE THAT THE OTHER PROFESSIONAL STAFF COMPLEMENT OF THE COMMISSION SHALL BE ESTABLISHED BY THE EXECUTIVE DIRECTOR RATHER THAN THE COMMISSION; AND TO CREATE A JOINT LEGISLATIVE COMMITTEE TO STUDY THE GOVERNANCE, OPERATION, AND STRUCTURE OF HIGHER EDUCATION IN SOUTH CAROLINA.

Rep. COOPER moved to adjourn debate upon the Senate amendments until Wednesday, May 22.

Rep. QUINN moved to table the motion, and demanded the yeas and nays, which were taken resulting as follows:

Yeas 90 ; Nays 3

Those who voted in the affirmative are:

Allison              Anderson             Bailey
Baxley               Boan                 Breeland
Brown, G.            Brown, J.            Brown, T.
Byrd                 Cain                 Carnell
Cato                 Cromer               Dantzler
Delleney             Easterday            Felder
Fulmer               Gamble               Hallman
Harrell              Harris, J.           Harvin
Hines, J.            Hines, M.            Howard
Hutson               Inabinett            Jennings
Keegan               Kelley               Keyserling
Kinon                Kirsh                Klauber
Knotts               Koon                 Law
Lee                  Limbaugh             Limehouse
Littlejohn           Lloyd                Loftis
Marchbanks           Martin               Mason
McAbee               McCraw               McKay
McMahand             McTeer               Meacham
Printed Page 3953 . . . . . Tuesday, May 21, 1996
Moody-Lawrence       Neal                 Neilson
Quinn                Rhoad                Rice
Richardson           Riser                Robinson
Sandifer             Scott                Seithel
Sharpe               Shissias             Simrill
Smith, D.            Smith, R.            Spearman
Stoddard             Stuart               Tripp
Trotter              Tucker               Waldrop
Walker               Wells                Whatley
Whipper, L.          Whipper, S.          White
Wilder               Wilkins              Wofford
Wright               Young                Young-Brickell

Total--90

Those who voted in the negative are:

Cooper               Cotty                Davenport

Total--3

So, the motion to adjourn debate was tabled.

POINT OF ORDER

Rep. QUINN: "I would like to raise a Point of Order. I would like to raise the Point of Order that under Article 3, Section 17, the Bill must relate to only one subject and that subject must be printed in the title. The body of this Bill deals solely with the lease or merger of MUSC and several hospitals under their control and nothing in the title relates to MUSC or the hospitals that are in the Bill. The title of the Bill deals with the SC Higher Education Commission, it revises membership and changes some of the structure of the Commission. I just think that this is in violation of that Article."

SPEAKER WILKINS: "Anyone else want to be heard?"

Rep. FELDER: "Mr. Speaker, in the body of the amendment that was passed in the Senate, there is a reference to the Commission on Higher Education, and it is a paragraph that refers to that. The record in the Senate Journal will reflect that all through the process of passage of the amendment, that the elected senators and the presiding officer always entertained motions that the title would be amended as well as, when it was passed. This, then, comes from the Senate to us with an error in drafting and made by someone who is not an elected official, and it comes

Printed Page 3954 . . . . . Tuesday, May 21, 1996
here. And it comes, it was read across the desk with no Point being made as to the nonconformity of the title with the body of the amendment that was passed. Even if that is constitutionally correct, it comes too late as it should have been made, the Point, when it became property of the House because once it was read across the desk, and was placed on our calendar without objection or without a Point of Order being raised, it then takes it's place under our Rules under Senate Amendments to a House Bill. Under our Rules, the only things, there are only three things that can happen to this, one being that we could concur, two being that we could non-concur, or three, amend it. And once we amended it, it would leave here and go immediately back to the Senate. It can't be referred to a Committee because to do that would disregard the purpose of the Rule on the Calendar and the special wording in the Rules, and that is that once we get a Senate Amendment, we can concur or non-concur. Had the Point been made when it was read across the desk, it would have more validity and more pertinence to the question before the Body. If,..."

SPEAKER WILKINS: "Let me address that, can I address that?"

Rep. FELDER: "Yes sir."

SPEAKER WILKINS: "About the Point being made too late, I think that would put too much of a burden on the Body for the Senate to amend the Bill and the title of the Bill to be somewhat, but not exactly the same as the body, and to come over and put that burden on the body to object the minute it is read across the desk. There has been no action by the House on the Bill other than to adjourn debate. We haven't sent it to a committee. The committee hasn't taken any action on it. There was a Point of Order sustained by the former Speaker, on a question about whether or not the Senate could appropriate funds, in a Bill that originated in the Senate, and in that question, he ruled that the Point of Order was raised too late, but at that time, the Bill had in effect gone to a Committee, been worked on in Committee, amended by the Committe and brought back to the floor and he ruled that, in that case, that the Point of Order was too late. But I think to require Mr. Quinn, in this case, to make his Point when the Bill has only been read across the desk would place an unreasonable burden on the Body for all Bills that come back across from the Senate. So, I am not pursuaded by the argument that it was made too late, neither am I pursuaded by the fact that you tell me that it is a scrivener's error."

Rep. FELDER: "Alright, so, even though I respectfully disagree with you, Mr. Speaker, I feel like if you look in the body of the amendment itself, it refers to a reference in there that money that is appropriated will go back to the Commission on Higher Education which then corrects the

Printed Page 3955 . . . . . Tuesday, May 21, 1996
scrivener's error. I think it is putting too much of a burden on the Body of this House to allow Mr. Quinn to take advantage of a mistake of someone who is employed somewhere in this process, not an elected official, not a person that is bound by the Rules, to go outside of the Rules, and take advantage of a mistake, and then, to thwart the will of the Body not to vote on a subject matter that comes before it under the Rules. He can't refer it to a committee. If we could refer it to a committee, fix the mistake and bounce it right back, we would do it. We can't do that. There is no way a motion to recommit or to commit to a committee is proper. Because the only three things that can happen under our Rules is to concur, non-concur, or amend."

SPEAKER WILKINS: "So, your argument basically is that it does not violate Article 3, Section 17 in your opinion?"

Rep. FELDER: "Absolutely."

SPEAKER WILKINS: "Alright sir, does anyone else want to be heard on the Point of Order? Mr. Cromer?"

Rep. CROMER: "I just wanted to say that it was my understanding that it wasn't, I think I agree with Mr. Felder, but as far as the scrivener's error part, the title having to technically comform to correct the content underneath that title, that happens automatically upon ratification, not on each step of the way down the line."

SPEAKER WILKINS: "Sometimes it does and sometimes it doesn't."

Rep. CROMER: "Yes sir, but I was just going to caution that a ruling that it must in each instance might jeopardize us in future things that we do."

SPEAKER WILKINS: "The Bill before it, the Senate Amendments on Page 22, House Bill 3170, in that instance, the Senate not only amended the body of the Bill, but also amended the title."

Rep. CROMER: "O.K."

SPEAKER WILKINS: "Sometimes it is done and sometimes, as Mr. Felder says, it simply has in the body of the Bill `to amend title to conform.' That is the case in this situation. Anyone else want to be heard on the Point of Order? Miss Seithel, do you want to be heard on the Point of Order? Anyone else? Mr. Martin?"

Rep. MARTIN: "Mr. Speaker, it would appear to me that the Section of the Constitution or Article of the Constitution quoted by Mr. Quinn refers itself to every `Act' instead of `Bill' and I would say that his Point of Order is not ripe for your consideration or for anyone's consideration at this time as to the constitutionality of it because it is, in fact, a piece of pending legislation, which is not an Act, as defined by our Rules of this

Printed Page 3956 . . . . . Tuesday, May 21, 1996
House. Therefore, it is not ripe to be considered as to the constitutionality under an Article of the Constitution. That is my first point."

SPEAKER WILKINS: "Do you want me to address that?"

Rep. MARTIN: "Yes sir."

SPEAKER WILKINS: "The Constitution reads every Act or Resolution and there have been cases that have interpreted what Article 3, Section 17 does and in most of those cases, as in the recent case of Keyserling vs. Beasley, which is about 30 days old now, they mentioned the word `Bill' and they referred to `Bills,' and I think the cases that have now interpreted the Article, constitutional provision, has certainly interpreted it to mean that it applies to `Bills.' So, I am not pursuaded that his Point of Order is premature and that you have to wait for the Bill to be ratified and become an Act before he could bring an action on the constitutionality or have a legitimate objection on the constitutional issue."

Rep. MARTIN: "Well, let me say, not to linger the Point, but to point out to you in the cases that you have read, that they may use the word `Bill' in discussing it, but I don't think that there is a case that has ever been decided in these state courts that has decided a constitutional question concerning a pending piece of legislation. And, I don't think that the cases that you cite specifically find in Article 3, Section 17, where it states every Act or Resolution means a `Bill,' as defined, by the Rules of the House. And the Rules of the House clearly recognize that there is a legal distinction between a Bill and an Act. And since we are not in court, and still in the legislative process, and you are his honor, in the greatest since of the word, that the House Rules also apply. The Supreme Court doesn't take into account the House Rules and the House Rules themself indicate...It leaves us in a position I think, would set a bad precedent because we would be considering the constitutionality of a pending piece of legislation before we ever passed it. And, I don't know if that has ever been done in South Carolina."

SPEAKER WILKINS: "Well, if you look at Mason's on Page 37, sources of rules and procedures, and they list them in order of priority and the first priority is constitutional provisions, then they have a paragraph that states, judicial decisions, to the extent that they are an interpretation of rules are given the same priority as the constitutional provisions. There is also precedent that constitutional provisions take precedent over the rules of legislative bodies. I am not sustaining Mr. Quinn's Point of Order, I am just saying that your distinction of Act and Bill is not pursuasive. Furthermore, there are numerous House precedents where previous Speakers have ruled upon Points of Order based upon constitutional provisions."

Printed Page 3957 . . . . . Tuesday, May 21, 1996
Rep. MARTIN: "I understand that, but I would ask you to consider as I go on, that the cases that you have cited have not, as I understand them, gone to interpret the Rules of the House, but nevertheless, if we talk about the fact that we ought to be in court, determining the constitutionality of it, then we have got to be guided by some extent by the cases that have been handed down by the court, then, I would suggest to you that again, the Point of Order raised by Mr. Quinn should be denied. Obviously, there are numerous cases that deal with the issue, but I think the one that is most pertinent to us now is the Dantzler case, which I am sure you have with you, I don't have the information."

SPEAKER WILKINS: "It is 94 S.E. 2nd 117."

Rep. MARTIN: "That's it. It has to do with once the, the manner in which the courts should interpret clauses of the Constitution and the general purpose for why they would interpret the way they do. I think that is very appropriate for what we are doing here. It states that the number one reason is the purpose of the section and it refers to Article 3, Section 17, is to prevent deception of the public and to prevent a search of the matter not germane to the general subject. Obviously, that is not a problem here, because Mr. Quinn knows exactly what the general subject of the legislation is, even though the title has not been conformed by the clerks or the scrivener's over in the Senate, as it was passed by the Senate. So, nobody in this Body, including Mr. Quinn, is being deceived in any way by the legislation that we are about to take up. What they are attempting to do is to raise this technical point to prevent an open debate and vote on the legislation itself, and it then goes, to state further, that this section is to be construed with great liberality, as it relates to the constitution and to the laws passed by it. And, if we are taking the approach that we are determining the constitutionality of it, then I would think that if you were to construe that section with great liberality, then you would have to deny Mr. Quinn's Point of Order. It states further, that the requirement should not be enforced in any narrow or technical spirit, and I think, obviously that the court stated in that case, that the plantiff certainly knew the purpose of the Act. I think in this instance that Mr. Quinn, in raising the Point of Order, certainly knows the purpose of the Act, the wording of the Act and that you should deny the Point of Order based if for no other reason, on the fact that the courts have told you. And, as you say, that you have to be guided by what they have told you, you should construe it with great liberality, and I would hope that you would do that?"

SPEAKER WILKINS: "Anyone else?"

Printed Page 3958 . . . . . Tuesday, May 21, 1996
Rep. QUINN: "I don't want to linger on every Point that has been made and there seems to be a lot of them brought up against it. First of all, the public notice issue, I think they are not talking about me. We often think of ourselves as important up here, but I think that this Article is really more for the protection of the public, and I think, if someone were to come up here, and not know what the Bill was or where it was, and wasn't a member of the Body, then they would have no idea of where it is. In several court cases, they have ruled that the purpose of this is to give an opportunity for the public to be heard as well. But, I would say that is not really your place, Mr. Speaker. We can't judge issues of about who has heard about it or not. You have to stick to the Consitution, I think, and I think that in terms of the arguments here, the only thing that they really said is that they kind of bring up the germaneness issue. I think Mr. Felder did earlier. That is really not the point of the Article. The Article says that it can only relate to one subject matter and I have several court cases, and I know you have them, too, that say that basically, if the title is broader than the body of the Bill, we are o.k. But, if the body of the Bill is broader than the title, then we are in trouble. That is what has happened here, Mr. Speaker. In terms of your ruling here, the dangerous precedent really relates to allowing vehicles just to be struck and sent over here without any real careful consideration. And, that is what is going to happen. We are going to start having appropriations bills that are crafted in the Senate."

SPEAKER WILKINS: "I don't think my ruling is going to affect that. If my ruling is that you are correct in your Point of Order, then in the next Bill that they want to change, they will simply amend the title. It won't procedurally change anything. They will continue to amend our Bills and simply strike the titles and amend to conform, and we will have the same thing to deal with. So, I don't think, long term, my ruling will have any effect on the procedure. We will just have to change that if we change the House Rules and what we can take up after we receive it from the Senate. We might want to consider that next year."

Rep. QUINN: "And that maybe, but in terms of this, there is no doubt. If you look at the title, it is somewhat ironic."

SPEAKER WILKINS: "Don't you think the title in this case is broader than the body?"

Rep. QUINN: "Absolutely not."

SPEAKER WILKINS: "You don't?"

Rep. QUINN: "No sir. They very specifically hold this title to restructuring the membership of the SC Higher Education Commission. And I think, by virtue of that detail that they are destroying the ability to

Printed Page 3959 . . . . . Tuesday, May 21, 1996
argue that this is of but one subject. There is nothing in this Bill that has to do with that one provision. It is almost absurd that they have to be consulted. It has no bearing on it whatsoever. I think, ultimately, when you start talking about the hospitals and the effect that the Bill has on the state facilities, then it is totally separate from the SC Higher Education Commission. Now, I think even if it was, and I think that that is more important than germaneness, not the tail of one subject in the Article."

SPEAKER WILKINS: "Anything else? Mr. Felder?"

Rep. FELDER: "Mr. Speaker, Mr. Quinn makes an excellent argument that makes my Point and I appreciate it and that is, that the title is broader than the amendment that was passed and we have ample precedent where we have received things that have passed the Senate that are exactly like this and what has happened here, Mr. Speaker I thought the argument was being made more towards germaneness, but if germaneness isn't a question, which he concedes it isn't, then he can't argue public notice, because we have adjourned debate on this matter for two weeks so the extensive public hearing held in just a matter of, a week before it came over here. No kidding, there is no way that the public doesn't have notice. We all have had notice to the point that we know everything about it. I thought he was proceding under saying it was not germane, and if germaneness isn't the question, then he argues himself right back to the Point that it is a technical question that he has asked you to construe narrowly. If in fact, you did agree with him that his Point is correct constitutionally, then you become an arbator and a judge, a constitutional judge rather than the Speaker of the House of Representatives."

SPEAKER WILKINS: "I don't think it is my job to decide whether or not the proper notice, or the concerns expressed in the cases regarding the reasons for this Article, so that no one is blind sided. I don't think that it is my job to decide that. Obviously, if that is all you had to do, then you could take a Bill that dealt with peanuts, strike it all, create a new court system, and write everybody a letter and say here is what I did and satisfy that. So, I don't think that notice is something that I can decide, whether proper notice, although obviously, I don't think anyone is surprised by what we are talking about and everybody has known about it. The Press certainly has given it ample coverage. I think what Mr. Quinn is saying is that the title and the body of the Bill are not the same subject and therefore violate Article 3, Section 17, even though you are to liberally construe that and even though close calls go in favor of the Article being sustained. I'm getting ready to rule. I think he is saying that it is not the same subject and it violates the one subject rule in that the title of the Bill

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