/opinions/HTMLFiles/SC/25635.htm

THE STATE OF SOUTH CAROLINA
In The Supreme Court

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Irvin W. Campbell, J. C. Lawyer, Backus Ferguson, and Thomas Hanahan, III, on behalf of themselves and all others similarly situated, Respondents

v.

Hilton Head No. 1 Public Service District and Beaufort County South Carolina, Appellants.

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Appeal From Beaufort County
Perry M. Buckner, Circuit Court Judge

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Opinion No. 25635
Heard February 20, 2003 - Filed April 28, 2003

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REVERSED

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Steve A. Matthews and Benjamin T. Zeigler, of Haynsworth Sinkler Boyd, P.A., of Columbia, Stephen P. Hughes and Mary Bass Lohr, of Howell, Gibson & Hughes, of Beaufort, for Appellants.

A. Camden Lewis, Mary G. Lewis, and Ariail E. King, of Lewis, Babcock & Hawkins, L.L.P., of Columbia; Joel D. Bailey, of The Bailey Law Firm, P.A., of Beaufort, for Respondents.

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JUSTICE WALLER: This is a direct civil appeal. On cross-motions for summary judgment, the trial court granted summary judgment for respondents and also granted respondents request for class certification. Appellants appeal both decisions. We reverse.

FACTS [1]

In 1969, the Legislature created appellant Hilton Head No. 1 Public Service District (the District) as a special purpose district to supply water and sewer services to the northern portion of Hilton Head Island. The District is governed and managed by a commission whose members are appointed by the Governor upon the recommendation of the Beaufort County legislative delegation. Prior to this Courts decision in Weaver v. Recreation Dist., 328 S.C. 83, 492 S.E.2d 79 (1997), the District levied taxes on property within the Districts service area. Appellant Beaufort County collected the taxes.

In Weaver, we ruled that the statute which authorized the recreation districts appointed commission to levy a property tax violated the State Constitutions provision forbidding taxation by unelected officials. [2] The general holding from Weaver is that any legislative delegation of taxing authority to an appointed body unconstitutionally permitted taxation without representation. Id. The Weaver Court, however, ordered only prospective relief, stating the following:

We are cognizant of the disruptive effect todays holding could have on the financial operation of numerous special purpose districts, local commissions and boards throughout this state. Accordingly, in order to give the General Assembly an opportunity to address this problem, we hold this decision shall be applied prospectively beginning December 31, 1999.

Id. at 87-88, 492 S.E.2d at 82. In response, the Legislature passed legislation in 1998 that removed the taxing power from appointed bodies such as the Districts commission. See S.C. Code Ann. 6-11-271 (Supp. 2002).

The individual respondents in the instant action represent people who own real and/or personal property located in the District, paid taxes on the property in the years 1995 through 1998, and did not receive water or sewer service from the District. [3] On June 1, 1998, respondents filed their lawsuit. The case has a tortured procedural history; [4] however, respondents only remaining cause of action is a 42 U.S.C. 1983 claim based on an alleged violation of the United States Constitution. [5]

The trial court granted summary judgment in favor of respondents finding that taxation without representation is a violation of the federal Constitution. Specifically, the trial court found that the privilege of no taxation without representation is embodied in Article IV, section 4 of the federal constitution, which guarantees a republican form of government. The trial court noted it was taxation without representation that spurred on the American Revolution, and therefore could not accept appellants argument that the federal constitution did not forbid taxation without representation. In addition, the trial court granted respondents motion for class certification.

ISSUES

1.	Did the trial court err in finding that taxation without representation violates the Republican Guarantee Clause of the United States Constitution?
2.	Did the trial court err in certifying the class?

DISCUSSION

Respondents argued to the trial court that taxation without representation is not permitted under the United States Constitution. Respondents reasonably continue to contend that this founding principle of our nation necessarily is embodied in the federal constitution. Appellants, on the other hand, argue the trial court erred in finding the Republican Guarantee Clause prohibits taxation without representation. Moreover, appellants do not suggest that our nation has abandoned its founding principles, but rather argue that the limited delegation of taxing power that occurred prior to Weaver in no way violated a right guaranteed by the federal constitution. After reviewing the relevant authorities, we agree with appellants, and reverse the trial courts decision.

The Republican Guarantee Clause of the federal Constitution provides as follows: The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence. U.S. Const. art. IV, 4. By its express terms, this clause does not guarantee against taxation without representation.

Furthermore, [a]lthough it may surprise innumerable generations of American schoolchildren and adults who have studied the American [R]evolution and the Boston Tea Party, there is firm Supreme Court precedent to support taxation without representation. Samuel B. Johnson, The District of Columbia and the Republican Form of Government Guarantee, 37 How. L.J. 333, 337 (1994); see also Emily M. Calhoun, The First Amendment and Distributional Voting Rights Controversies, 52 Tenn. L. Rev. 549, 574 (1985) (The Court has refused to transmute the Revolutionary slogan no taxation without representation into a constitutional principle.).

Indeed, the United States Supreme Court (USSC) has repeatedly rejected the contention that the federal constitution guarantees no taxation without representation. For instance, in Heald v. District of Columbia, 259 U.S. 114 (1922) (Brandeis, J.), residents of the District of Columbia challenged a property tax which Congress levied, arguing it subjected them to taxation without representation. The USSC clearly stated: There is no constitutional provision which so limits the power of Congress that taxes can be imposed only upon those who have political representation. Id. at 124.

Likewise, in Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820) (Marshall, C.J.), residents of the District of Columbia challenged the right of Congress to impose a direct tax on the District. They argued that Congress right to legislate on matters related to the District must be limited by that great principle which was asserted in our revolution, that representation is inseparable from taxation. Id. at 324. However, Chief Justice Marshall, writing for a unanimous Court, noted that it was obvious the situation was completely different from that complained of during the Revolution, and held that Congress possesses, under the constitution, the power to lay and collect direct taxes within the District of Columbia. Id. at 324-25. [6]

Heald and Loughborough remain good law. Recently, a three-judge panel of the federal district court rejected a claim by residents of the District of Columbia that they had a right to vote for Congress. Adams v. Clinton, 90 F.Supp.2d 35 (D.D.C.), affd, 531 U.S. 941 (2000). As part of the extensive discussion on the plaintiffs various constitutional claims, the Adams court reviewed Heald and Loughborough, as well as other authorities that have rejected the cry of no taxation without representation. Id. at 55. Interestingly, the court commented as follows on Loughborough:

If there were a Justice who would have been particularly sensitive to this reprise of the Revolutionary War battle cry of no taxation without representation, surely it would have been Marshall-- who served as a company commander at Valley Forge. See Jean Edward Smith, John Marshall: Definer Of A Nation 62-65 (1996). Nonetheless, speaking for a unanimous Court, Marshall held that Congress had the power to tax residents of the District of Columbia despite their lack of representation.

Id. The USSC affirmed Adams.

Respondents rely on Kelley v. Metropolitan County Bd. of Educ. of Nashville and Davidson County, 836 F.2d 986 (6^th Cir. 1987), cert. denied, 487 U.S. 1206 (1988), in support of their argument. In Kelley, the court held that the federal district court erred in ruling that the state of Tennessee, as opposed to the local school board, should bear certain costs of school desegregation. In dicta, the Kelley court commented as follows:

In language of majestic simplicity, our Constitution provides that The United States shall guarantee to every State in this Union a Republican Form of Government.... U.S. Const. Art. IV, 4. A republican form of government, as Madison suggested in Number Ten of the Federalist Papers, is a Government in which the scheme of representation takes place. (Emphasis supplied.) In few (if any) areas of government is Madisons scheme of representation more important than it is in the area of government finance and taxation. A principal cause of our Revolutionary War, after all, was the imposition of taxes without representation. The concept that taxation without representation is tyranny was one for which a number of the Framers had put their very lives on the line. Our Constitution was not adopted to perpetuate the evil that led us to break our ties with the British Crown.

Id. at 997. Kelley, however, is inapposite to the issue in the instant case. The Kelley court was concerned with a federal judge apportioning state money the court felt was more appropriately done by the legislative branch. Kelley did not resolve the issue of whether there is an independent, federal right to no taxation without representation.

Accordingly, while the American Revolution may have been spurred on by the rallying cry no taxation without representation, the federal Constitution that was subsequently drafted contained no express provision guaranteeing that as a right. In contrast, this Court has interpreted the South Carolina constitution as clearly prohibiting taxation without representation. See, e.g., Weaver, supra. Respondents simply cannot rest on the Weaver holding for their federal section 1983 claim. Because we find there is no independent, federal right found in the Republican Guarantee Clause prohibiting taxation without representation, respondents have no available section 1983 action against appellants. [7]

We therefore hold the trial court erred in granting summary judgment to respondents; instead, summary judgment should have been granted in appellants favor. Given this conclusion, we need not address the issue of whether the trial court erred in certifying a plaintiff class.

REVERSED.

TOAL, C.J., MOORE, BURNETT, JJ., and Acting Justice John W. Kittredge, concur.

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