The South Carolina supreme court has been asked to weigh in on a controversial and constitutionally dubious new law which governs the way local governments in the Palmetto State are allowed to impose fees on their citizens.
My news outlet wrote extensively on this issue back in June – urging lawmakers not to pass the law in question.
Why not? Because the legislation – Act 236 of 2022 – gave local governments across the state of South Carolina near unlimited authority to raise taxes on citizens under the pretense of implementing so-called “user fees.”
In other words, the law made it easier for these “fiscal conservatives” to continue nickel-and-diming taxpayers while at the same time claiming to have “never raised taxes” on them while campaigning fo reelection.
It’s a bait-and-switch, people. A shell game. But, sadly, such duplicity is par for the course from South Carolina’s so-called “Republican-controlled” legislature – which under the leadership of House speaker pro tempore Tommy Pope and clerk Charles Reid broke its own rules to revive this bill and push it through the left-leaning chamber.
Helluva team, those two …
Anyway, in addition to opening the floodgates to new taxes, Act 236 retroactively “blessed” multiple previous tax hikes … err, fee increases … which were illegally approved by local governments. As I pointed out at the time, such retroactive blessing was (is) prima facie unconstitutional.
As usual, though … lawmakers failed to follow the rule of law. They just made it up as they went along.
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To recap: According to S.C. Code of Laws § 6-1-300, a service or user fee must refer to a “charge required to be paid in return for a particular government service or program made available to the payer that benefits the payer in some manner different from the members of the general public not paying the fee.”
In other words, local governments cannot raise fees to fund things that are supposed to be paid with taxes.
Unfortunately for taxpayers, they have been doing that for years.
Last year, the supreme court rebuked this practice in its Burns v. Greenville County decision (.pdf). Not only that, the court called out local politicians for their repeated attempts to flout this law.
“Local governments, for obvious reasons, want to avoid calling a tax a tax,” justice John W. Kittredge wrote. “I am hopeful that today’s decision will deter the politically expedient penchant for imposing taxes disguised as ‘service or user fees.’ I believe today’s decision sends a clear message that the courts will not uphold taxes masquerading as ‘service or user fees.’”
According to the motion (.pdf) filed this week, Act 236 “directly overturns (the) court’s unanimous decision” in the Burns case.
“Legislative amendments like this – which seek to reverse a Supreme Court decision and strip South Carolina citizens of vested rights – are unconstitutional because they violate the separation of powers doctrine embedded in … the South Carolina Constitution.”
Of the legislature’s attempt to retroactively bless illegal fee hikes dating back to the mid-1990s, the motion blasted that move as “an unconstitutional invasion of (the) court’s authority.”
I concur … wholeheartedly.
Supporters of the new law have told me taxpayers are at greater risk of financial harm due to the many lawsuits filed against local governments over their improper assignation of fees. According to them, I am in the pocket of the trial lawyers on this issue.
I do not doubt the cost of these lawsuits will be immense, but I would humbly suggest the proper remedy is not shredding the state constitution – but rather throwing out the bums who habitually violated it. Oh, and the bums at the State House who engaged in a ham-fisted attempt to cover their tracks.
I know it takes a lot for the judicial branch of government in South Carolina to summon the temerity to challenge its legislative overlords, but in this case they have a clear obligation under the law and the constitution.
THE PLEADING …20220810-Petition-for-Original-Jurisdiction-Filed
ABOUT THE AUTHOR …
Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children.
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