S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Charleston County
School District, Respondent,
v.
Charleston County
Election Commission
and State of South
Carolina Election
Commission, of whom
State of South Carolina
Election Commission is Appellant.
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 24980
Heard June 23, 1999 Filed August 2, 1999
REVERSED
Attorney General Charles M. Condon, Deputy
Attorney General Treva G. Ashworth, Assistant and
Deputy Attorney General J. Emory Smith, Jr., all of
Columbia, for appellant.
Robert N. Rosen, Donald B. Clark, and Daniel F.
Blanchard, all of Rosen, Goodstein, and Hagood, of
Charleston, for respondent.
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
WALLER, A.J.: The circuit court, at the request of the Charleston
County School District (District), issued a writ of mandamus directing the
Charleston County Election Commission (County Commission) to post and
distribute a supplemental ballot handout to voters at each precinct during a
$350 million school bond referendum. The South Carolina State Election
Commission (State Commission) appeals. We reverse.
FACTS
District's Board of Trustees adopted a resolution in January 1998
calling for a $350 million bond referendum to build or renovate 76 schools.
District directed County Commission to conduct an election March 28, 1998.
The ballot form prepared by District for placement on electronic
voting machines consisted of text the length of twelve typewritten pages. The
ballot form stated the question,1 then briefly listed specific renovations and
additions that would occur at each school. County Commission, after consulting
with State Commission, informed District the ballot form as proposed was too
long to fit on the machines. Neither District nor County Commission wanted
to use paper ballots.
After further discussion, County Commission agreed to place a
summarized version of the question on the machines containing only the
question and a list of affected schools. County Commission also agreed to post
and distribute to voters at each precinct a twelve-page supplemental ballot
handout (titled "Official Ballot Handout") containing the complete list of specific
1 The question stated:
Shall the Board of Trustees of Charleston County School District,
South Carolina, be empowered to issue general obligation bonds of
the School District in the aggregate principal amount not to exceed
$350,000,000, the proceeds of which shall be used for the purpose
of repairing, renovating and adding school facilities and classrooms,
including 'specifically the projects listed below, and the
implementation of the Community Review Panel as approved by
the Board of Trustees on January 20, 1998?
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
renovations and additions, along with the total estimated amount to be spent
at each school. The Charleston County seal was placed at the top of the first
page of the handout, a change that was informally approved only by County
Commission's chairman. District printed 190,000 copies of the handout at a
cost of $12,000. District also sought and obtained election pre-clearance from
the United States Department of Justice in accordance with the Voting Rights
Act of 1965.
County Commission reversed its position at a meeting March 10,
1998. County commissioners stated in affidavits that State Election
Commission Chairman Sam Howell's statements against distributing the
handout, letters and comments from state legislators opposing the handout, and
changes made by District in the handout, including the addition of the county
seal, prompted them to refuse to distribute it. Commissioners believed the
handout violated S.C. Code Ann. § 7-25-180 (Supp. 1998), which prohibits the
distribution of "campaign literature" within 200 feet of any polling place.
District filed a complaint and a motion seeking a writ of mandamus
and mandatory injunction under Rule 65(f), SCRCP. District's complaint
included a declaratory judgment action pursuant to S.C. Code Ann. º 15-53-30
(1976). County Commission and State Commission opposed District's request.
The circuit court granted the motion for a writ of mandamus and ordered
County Commission to post and distribute the handout. The order did not
address the declaratory judgment action. County Commission complied with
the order. A majority of voters rejected the bond referendum.
STANDARD OF REVIEW
"Mandamus is somewhat of a hybrid proceeding. It is not a suit in
tort, nor is it a suit in contract; it is not strictly a law case, nor is it one in
equity. It is based on the theory that an officer charged with a purely
ministerial duty can be compelled to perform that duty in case of refusal."
Lombard Iron Works & Supply Co. v. Town of Allendale, 187 S.C. 89,95-96,196
S.E. 513, 516 (1938). Whether to issue a writ of mandamus lies within the
sound discretion of the trial court, and an appellate court will not overturn that
decision unless the trial court abuses its discretion. Jolly v. Marion Nat'l Bank,
267 S.C. 681, 685-86, 231 S.E.2d 206, 208 (1976); Linton v. Gaillard, 203 S.C.
19, 23, 25 S.E.2d 896, 898 (1943). An abuse of discretion arises where the trial
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
court was controlled by an error of law or where its order is based on factual
conclusions that are without evidentiary support. Tri-County Ice and Fuel Co.
v. Palmetto Ice Co., 303 S.C. 237,242,399 S.E.2d 779,782 (1990). In reviewing
a decision on a mandamus petition, an appellate court will not disturb the
factual findings of the trial court when those findings are supported by any
reasonable evidence. De Pass v. Broad River Power Co., 173 S.C. 387, 3952 176
S.E. 325, 328 (1934).
ISSUES
1. Is this appeal moot?
2. Does State Commission have standing to appeal
this case?
3. Did the circuit court err in issuing a writ of
mandamus directing County Commission to post
and distribute a supplemental ballot handout?
DISCUSSION
1. MOOTNESS
District contends the Court should not hear this appeal because the
case is moot. The handout was posted and distributed, the referendum failed,
and no one appealed the outcome of the election. We disagree.
"This Court will not pass on moot and academic questions or make
an adjudication where there remains no actual controversy. Mootness has been
defined as follows: 'A case becomes moot when judgment, if rendered, will have
no practical legal effect upon existing controversy. This is true when some
event occurs making it impossible for [the] reviewing Court to grant effectual
relief."' Byrd v. Irmo High School, 321 S.C. 426,431,468 S.E.2d 861,864 (1996)
(citations omitted). A court may take jurisdiction, despite mootness, if "the
issue raised is capable of repetition but evading review."' Id., (citing In Interest
of Darlene C., 278 S.C. 664, 6615, 301 S.E.2d 1362 137 (1983)).
We choose to decide this appeal even though this particular case is
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
moot. The same situation could arise again and it is unlikely an appellate court
would resolve such a case before an election was held.
2. STANDING
District asserts State Commission lacks standing to adjudicate the
rights of County Commission, which is not a party to this appeal, before this
Court. State Commission is not responsible for conducting local elections, but
merely provides advice and technical assistance, District contends. We
disagree.
To have standing, one must have a personal stake in the subject
matter of the lawsuit, i.e., one must be a real party in interest. Glaze v.
Grooms, 324 S.C. 249, 255,478 S.E.2d 841, 845 (1996); Townsend v. Townsend,
323 S.C. 309) 474 S.E.2d 424 (1996). "A real party in interest is one who has a
real, material, or substantial interest in the subject matter of the action, as
opposed to one who has only a nominal or technical interest in the action."
Anchor Point Inc. v. Shoals Sewer Co., 308 S.C. 4222 428, 418 S.E.2d 546, 549
(1992).
State Commission has standing to pursue this appeal because it has
significant duties regarding ballot forms which give it a real and substantial
interest in this case. E. ., S.C. Code Ann.§ 7-13-320 (1976 & Supp. 1998)
(ballot standards and specifications); S.C. Code Ann. § 7-13-325 (Supp..1998)
(develop regulations and forms on candidate's name as it appears on ballot);
S.C. Code Ann. §§ 7-13-330 and -335 (1976 & Supp. 1998) (arrangement of
names and offices on ballot); S.C. Code Ann. § 7-13-340 (1976) (prepare and
distribute all state and national ballots); S.C. Code Ann. § 7-13-400 (1976) (form
of ballot for bond referendum or other question); S.C. Code Ann. § 7-13-610
(Supp. 1998) (preparation of certain primary ballots); S.C. Code Ann. § 7-13-
611 (Supp. 1998) (establishing sample "official ballot" and giving State
Commission power to promulgate regulations on county and state ballots); S.C.
Code Ann. § 7-13-1360(c) and -1370 (1976) (prescribe form and arrangement of
ballot labels and ballot cards used in vote recorders); S.C. Code Ann. § 7-13
1490 (1976) (promulgate regulations on use of vote recorders).
Furthermore, State Commission may appeal because District
named it as a party in its complaint and motion, and the circuit court named it
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
as a party in its order. See Rule 201(b), SCACR ("[o]nly a party aggrieved by
an order, judgment, or sentence may appeal").
3. WRIT OF MANDAMUS
State Commission asserts the circuit court erred in issuing a writ
of mandamus because (1) no established right exists to the use of a handout in
a bond referendum; (2) any decision on the use of a handout was for County
Commission to make, not District; (3) District had an adequate remedy at law
because it could have delayed the election to resolve the handout issue; and (4)
a supplemental ballot handout on a bond referendum is not authorized by
statute or case law.
District contends mandamus was proper because (1) District has the
authority to write the question to be placed on the ballot form, and County
Commission must merely carry out its ministerial duty by conducting the
election as ordered; (2) District did not have time before the election to engage
in protracted litigation to enforce its rights; (3) no statute prohibits
supplemental ballot handouts; and (4) the handout was not forbidden
"campaign literature," but was merely the full, unbiased text of the public
measure at issue and was permissible under the statutes and this Court's
precedent.
"The writ of mandamus is the highest judicial writ known to the
law.... The primary purpose or function of a writ of mandamus is to enforce an
established right, and to enforce a corresponding imperative duty created or
imposed by law. It is designed to promote justice, subject to certain well-defined
qualifications. Its principal function is to command and execute, and not to
inquire and adjudicate." Willimon v. City of Greenville, 243 S.C. 82, 86-87, 132
S.E.2d 1691170-71 (1963).
Accordingly, to obtain a writ of mandamus requiring the
performance of an act, the applicant must show (1) a duty of the opposing party
to perform the act, (2) the ministerial nature of the act, (3) the applicant's
specific legal right for which discharge of the duty is necessary, and (4) a lack
of any other legal remedy. Redmond v. Lexington County School Dist. No. Four,
314 S.C. 431) 4371 445 S.E.2d 441) 445, (1994) (citing Willimon v. City o
Greenville, supra). In analyzing these factors, it must be emphasized that
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COUNTY ELECTION COMMISSION
"[w]here for any reasons the duty to perform the act is doubtful, the obligation
is not regarded as imperative, and the applicant will be left to his other
remedies. So when the statute prescribing the duty does not clearly and
directly create it, the writ will not lie.... Mandamus will not issue to enforce
doubtful rights." Gardner v. Blackwell, 167 S.C. 313, 321, 166 S.E. 338, 341
(1932). The duty to perform an act must be indisputable and plainly defined.
Central South Carolina Chapter, Society of Professional Journalists v. United
States District Court, 551 F.2d 559, 562 (4th Cir. 1977).
We hold that the circuit court abused its discretion in issuing a writ
of mandamus because none of the four factors is met in this case. The circuit
court's decision was controlled by an error of law.
First, District has not shown that County Commission or State
Commission has a plainly defined duty to post and distribute a supplemental
ballot handout on a bond referendum. District has cited no statute or case, and
we have found none, requiring County Commission to distribute the handout.
See Gardner v. Blackwell, supra (this Court refused to issue writ of mandamus
in its original jurisdiction to force election officials to prepare a single ballot
listing national candidates because no statute required it).
Second, we agree with District that the general duty of organizing
and conducting the election is a ministerial act. It would have been proper for
the circuit court to issue a writ of mandamus directing County Commission to
organize and conduct a bond referendum ordered by District if County
Commission had refused to do so. See S.C. Code Ann. § 59-71-40 (1990) (after
District orders the bond referendum and notifies County Commission, " [i]t shall
thereupon become the duty of the commissioners of election to conduct the
election so ordered"); Killian v. Wilkins, 203 S.C. 74, 26 S.E.2d 246 (1943) (after
vacancy was created when no candidates were elected because citizens failed to
properly register to vote in duly called election, Court issued writ of mandamus
directing holdover town officials to organize a special election as required by
statute); Easler v. Maybank , 191 S.C. 511, 5 S.E.2d 288 (1939) (after Court
declared void an election of school trustees, Court had power to compel election
by issuing writ of mandamus to governor under statute authorizing the
election).
In this case, however, County Commission met promptly to begin
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COUNTY ELECTION COMMISSION
organizing the election after District approved the resolution calling for the
bond referendum. The ministerial act at issue is not the general duty of
organizing and conducting the election; the ministerial act at issue is whether
County Commission has a specific duty to distribute a supplemental ballot
handout upon District's order.
It also would have been proper for the circuit court to issue a writ
of mandamus directing County Commission to place the question approved by
District on the ballot if County Commission had refused to do so. District has
the ultimate authority to determine the form of the ballot as it pertains to the
substantive content of the question placed on the ballot. Neither State
Commission nor County Commission has any unilateral authority to shorten or
change the wording of a question to fit a particular ballot form. State
Commission and County Commission, subject to statutory guidance, control the
form of the ballot only as it pertains to physical characteristics of the ballot such
as space limitations and the arrangement of names and issues. See 29 C.J.S.
Elections §§ 155-56 (1965) (act of having ballots printed is ministerial, and
officials must follow statutes regarding form and content of ballots).
If District had insisted on keeping the question it originally
proposed, then County Commission would have been required to conduct an
election with paper ballots because the question was too lengthy to place on the
voting machine ballot. That proved unnecessary in this instance because
District and County Commission worked together to prepare a shorter question
that would fit on the voting machine ballot.
Third, District has not cited any statute or case, and we have found
none, demonstrating it has a clearly established right to force County
Commission to distribute the supplemental ballot handout.
Fourth, District had another legal remedy. This case could have
been resolved under the Uniform Declaratory Judgments Act. S.C. Code Ann.
§§ 15-53-10 to -140 (1976 & Supp. 1998); Rule 57, SCRCP. "Any person ...
whose rights, status or other legal relations are affected by a statute ... may
have determined any question of construction or validity arising under the . .
.statute ... and obtain a declaration of rights, status or other legal relations
thereunder." S.C. Code Ann. § 15-53-30 (1976). This case presented a
justiciable controversy. See Graham v. State Farm Mut. Auto. Ins. Co., 319
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COUNTY ELECTION COMMISSION
S.C. 69, 459 S.E.2d 844 (1995) Justiciable controversy exists when a concrete
issue is present, there is a definite assertion of legal rights and a positive legal
duty which is denied by the adverse party).
The only supplemental ballot handout local election officials are
explicitly authorized by statute to distribute is an explanation of a proposed
constitutional amendment. See S.C. Code Ann. § 7-13-2110 and -2120 (1976).
The record reveals that similar handouts, proper or not, have been used in other
elections.2
The Court has held that the question which appears on a voting
machine ballot is not required to contain the entire text of a proposed measure.
The summarized question must explain the measure "plainly, fairly, and in
such words that the average voter may understand its character and purpose."
Stackhouse v. Floyd, 248 S.C. 183, 193, 149 S.E.2d 437, 443 (1966); accord
Fleming v. Royal, 145 S.C. 438, 143 S.E. 162, 166 (1928) (" [i] t is not necessary
to set forth at length in the ballot the full terms of the [constitutional]
amendment, if the notice gives sufficient information to the electors"); 29 C.J.S.
Elections § 170 (question on ballot is sufficient if it identifies the matter and
shows its character and purpose without misleading or deceiving voters); 26
Am.Jur.2d Elections § 313 (1996) (same). The Court, however, has not decided
whether a governing body may force local election officials to distribute a
supplemental ballot handout containing the full text of a proposed measure
when a summary of the measure is placed on a voting machine ballot.
In light of our decision that the circuit court erred in issuing the
writ of mandamus, we decline to address the propriety of this supplemental
2 A letter written by State Commission Executive Director James F.
Hendrix to District's counsel explains that the handout proposed by District "is
similar to what we have done in general elections when there are large numbers
of amendments on the ballot and what has been done in other referenda when
the question exceeds the capacity of the voting system being used." At the
circuit court hearing on the mandamus motion, State Commission's counsel
conceded supplemental ballot handouts have "been used in the past and not just
[with] constitutional amendments, [b]ut that doesn't mean they were in
compliance with the law."
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CHARLESTON COUNTY SCHOOL DISTRICT v. CHARLESTON
COUNTY ELECTION COMMISSION
ballot handout. This case presents a practical problem - complex or lengthy
measures that will not fit on ballot forms used in modern voting machines. We
suggest the Legislature may wish to address the matter of supplemental ballot
handouts such as the one at issue in this case.
CONCLUSION
We decide this appeal, even though this particular case is moot,
because the issue is capable of repetition yet evading review. State Commission
has standing to pursue the appeal because it has significant duties regarding
ballot forms. We reverse the circuit court because it abused its discretion in
issuing a writ of mandamus when there was no plainly defined duty or clearly
established right to post and distribute a supplemental ballot handout.
REVERSED.
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.
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