#SealMageddon: Attorney General’s Opinion Sought

Joshua Putnam asks Alan Wilson to weigh in on controversy …

South Carolina’s attorney general will soon have a chance to weigh in on #SealMageddon – a mushrooming scandal with the potential to invalidate potentially hundreds of laws passed by the S.C. General Assembly over the past decade-and-a-half (at least).

Exclusively unearthed by this news site last Thursday, #SealMageddon has raised questions regarding the validity of an as-yet-unknown number of acts and resolutions passed by the state’s legislative branch – laws which failed to receive a constitutionally required executive branch seal (or stamp).

The onus for this scandal falls squarely on the lap of South Carolina’s secretary of state Mark Hammond – who has habitually failed to perform his constitutional duty of affixing the “Great Seal of the State” onto acts and resolutions passed by the S.C. General Assembly.

Hammond’s failure – which is sadly emblematic of our state’s chronic ineptitude – is a big deal.

Why?  Because Article III, Section 18 of South Carolina’s constitution (.pdf) states that no act or joint resolution of the state’s legislative branch shall have the “force of law” unless it has “had the Great Seal of the State affixed to it.”

Cut and dried?  It sure sounds that way …

So far, we know of more than 100 laws or resolutions passed in 2003 and 2004 which were not affixed with the seal.  Hundreds of other pieces of legislation are also reportedly lacking the constitutionally mandated imprimatur – including the law which removed the Confederate Flag from the grounds of the State House two years ago as well as the massive gasoline tax hike that passed the legislature earlier this year.

Legislative leaders discovered Hammond’s failure more than three months ago – and chose to keep it a secret.  They also reportedly came up with a “fix” they were hoping to push through the legislature in January, although it’s not immediately clear what sort of retroactive remedy they believed was available to them – especially as it relates to acts and resolutions that were originally passed in previous legislative sessions.

State representative Joshua Putnam – who was instrumental in bringing this issue to light – is submitting a letter to S.C. attorney general Alan Wilson this week asking his office to issue an opinion on the matter.

Here is the key passage from Putnam’s letter (.pdf) …

The essential legal questions for your office to address are (a) what are the Constitutional requirements that a Bill or Joint Resolution must satisfy in order to receive the force of law within our state; (b) whether a Bill or Joint Resolution at the time it is without the Great Seal of the State affixed to it is considered constitutional and/or carry the force of law; (c) Whether there is a time requirement that the Great Seal of the State must be affixed to a Bill or Joint Resolution; (d) can the Great Seal of the State be affixed to a Bill and Joint Resolution that originated within a prior legislative session.

Wilson’s opinion will obviously represent an important first step in this process – but whatever position his office takes in regard to the dispute, the ultimate arbiter of the issue will be the South Carolina Supreme Court (which just welcomed a pair of strict constructionist judges to its ranks).

Our view?

Since breaking this story last week we’ve been giving this issue a lot of thought.  And the more we’ve thought about it, the more we’ve come to accept the view that – regardless of the consequences of this interpretation – acts and resolutions from prior legislative sessions which lack the seal are invalid.

Ideological orientations aside, this debate is about the rule of law.  Simply put: Either the constitution is the law of the state … or it isn’t.  And at this stage of the game, the only way for the vast majority of these laws to be endowed with statutory authority is to argue in some form or fashion that the constitution is no longer the law of the state.

Stay tuned.  We are working on a piece which articulates our view of this situation in further detail.

In the meantime, we look forward to seeing what Wilson’s office has to say on the matter …



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