State Supreme Court to hear half-cent tax appeal June 10

May 15, 2003

By SULLY WHITE
SPECIAL TO THE JOURNAL

    The S.C. Supreme Court has set a date to hear the appeal of complainants in the lawsuit against the Charleston County Council and the Charleston County Election Commission regarding the half-cent sales tax referendum held last November.
     The case, which has been combined with a similar suit against the county by W.J. "Joey" Douan, will be heard June 10 in Columbia.
     Among the complainants in the larger lawsuit are Folly Beach City Councilman Bob Linville; state Rep. Wallace Scarborough, R-James Island; James Island Mayor Mary Clark and Town Councilmen Joe Qualey, Bill Wilder, Parris Williams and Bill Woolsey; James Island Public Service District Commissioner Eugene Platt; and James Island's representative on Charleston City Council, Robert George.
     At stake in the court battle are millions of dollars that officials had counted on for improving local roads and keeping the CARTA bus system running.
     Charleston County voters approved the half-cent sales tax referendum Nov. 5 by about 600 votes. Civic leaders such as Charleston Mayor Joseph P Riley, Mount Pleasant Mayor Harry Hallman and North Charleston Mayor Keith Summey joined forces to work in support of the referendum, saying it would provide the much-needed money for road and infrastructure improvements, help preserve green space, and provide critical operating funds for buses from CARTA (the Charleston Area Regional Transportation Authority).
     The tax was projected to raise about $1.3 billion over the next 25 years.
     Sales tax opponents have focused on two main concerns about the referendum.
     First, they say the referendum question on the ballot was phrased in such a way that it promoted a "yes" vote for the tax.
     In addition, the opponents say, some 50,000 yellow fliers printed by county staff and distributed at polling places across the county violate the law. The fliers detailed the sales tax questions voters would see on the ballot.
     Sales tax opponents point out that while one side of the flier used appropriate language to clarify the lengthy ballot questions, the other side gave a breakdown of the approved and unapproved uses for the potential tax revenue, even though only a handful of those projects had been approved and the majority were basically a "wish list."
     Those protesting the sales tax vote likened the flier to campaign literature being distributed at a polling place to tell voters what a candidate would do if elected. If the flier is found to be campaign material, it would violate the state law that campaigning can be done no closer than 200 feet to a polling place.
     Other complainants in the larger lawsuit include Mount Pleasant Town Councilman Larry Carr; Charleston City Councilmen Larry Shirley and Henry Fishburne; A.C. Mitchum, a North Charleston City Council member; and individuals Ann Rounds, Jaroslaw Burbello, Warick Jones and Patricia Jones.
     Originally the larger group's lawsuit and the Douan suit went separately before the Charleston County Election Commission to seek a reconsideration of the referendum vote.
     The appeals were denied, and the complainants then took their case to the state Election Commission, which produced a 4-4 vote. The tie vote automatically upheld the county-level decision, sending the case to the S.C. Supreme Court.
     Trent M. Kernodle of the Kernodle, Taylor & Root law firm is representing the larger group of complainants. Douan is being represented by attoney Tommy Goldstein.
     Kernodle said there is a state ethics law that forbids governments to use their resources, time or money to influence the outcome of a referendum.
     "The government in Charleston County wanted to pass the half cent tax and it was that government that had ultimate control over running the election," he said. "That body of government was responsible for posing the question, phrasing the question and handing out campaign literature that was not content-neutral.
     "The last person to get a voter's ear has a hand up. This campaign literature had a wish list on the back of it. A candidate running for election could never do that. In fact," he said, "campaigning can be done no closer than 200 feet from the polling place."
     Kernodle said that no one has claimed ultimate responsibility for the literature that was handed out inside the polling place, but he also said that he's learned that explicit instructions were sent to the county election commission that poll workers were to hand out the leaflets.
     "If the government can get away with this," said Kernodle, "they will push it even farther next time because there will be no limits. ... There will never be a clear rule."
     Kernodle said he expects the state Supreme Court to announce its decision later in the summer.