Local Govt. Law
How do you get service on a municipal corporation in SC?
SCRCP Rule 4(d)(6) Governmental Subdivisions: Upon a municipal corporation, county or other governmental or political subdivision subject to suit, by delivering a copy of the summons and complaint to the chief executive officer or clerk thereof.
i. If not served in this manner, municipal body can file a Rule 12(d)(6) motion stating that the process was improperly served.
FOIA – contextual question – overview
Purpose: §30-4-15 vital to democratic society that public business be performed in open and public manner so that citizens shall be advised of the performance of public officials and the decision that are reached in public activity and in the formulation of public policy. (P. 149)
All public information is available and only that which is specifically excluded by statute will be inaccessible. (§30-4-40 details matters exempt from disclosure).
i. Balance public’s right to access government information with equally strong concern that some info should not be available (i.e. individual’s personal info, info. that would compromise contemplated government action)
ii. US Sup. Court held no absolute right to gain access to government info under 1st and 14th amendment
iii. Open meetings—First Amendment does require that certain types of government proceedings be open to public (ex. criminal trials)
1. TEST as to whether constitutional right to government proceeding: (1) historically open to press and public? And (2) whether public access plays a significant and positive role in functioning of the particular process under review
a. §30-4-60-all meetings of public bodies shall be open.
2. Exceptions to open meetings: personnel discussions, negotiations, discussions in preparation for litigation, executive sessions of General Assembly
a. §30-4-70-details meetings which may be closed.
How long does a person have to respond to a FOIA request?
§ 30-4-30(c) Must give an answer w/in 15 days as to determination and its reasons for that determination. If no answer within 15 days, considered to be approved.
Eminent domain procedure – does it vary? (general policy point of view)
Page 137, §28-2-220(A) says you have two options—must elect between:
1. 28-2-240- Go to trial after rejection of amount tendered. OR
2. 28-2-250- Use appraisal panel after rejection of amount tendered.
How is a condemnation act commenced? (The Service)
Pg. 139; §28-2-280 Form and content of condemnation notice.
i. Condemnation Notice Must be Captioned: CONDEMNATION NOTICE, TENDER OF PAYMENT, and if applicable, AND NOTICE TO APPOINT APPRAISER
Pg. 139-140 Details Right to institute action, election of procedure, condemnation notice, acceptance or rejection of offer tendered in notice, how to file condemnation notice, deposit of amount of compensation, filing fees, notice of filing, right to take possession, abandonment of action.
How long does a land owner have to file a separate lawsuit challenging condemnors right to take?
Service of a “condemnation notice” – p. 140
i. §28-2-280(7)—“An action challenging the condemnor’s right to acquire the property must be commenced in a separate proceeding in court of common pleas within 30 days of the service of this condemnation notice, or the landowner will be considered to have waived the challenge.”
How do you determine whether a condemnee can get attorney fees?
P. 145, §28-2-510: The PayDay
If a private party wins, they get atty fees – how do you know who “prevails”? Look to highest amt testified on behalf of landowner, and highest amt testified by govt. If jury is in favor of landowner or if jury splits, and picks the number in the middle, then govt pays atty costs. – 28-2-510. (Bad incentive for govt. to go to trial.)
i. Ex. Landowner says $100,000; Govt. Says $40,000; If Verdict is $70,000 or more (140/2), then Landowner gets paid.
A landowner who prevails may recover his reasonable litigation expenses by serving on the condemnor and filing with the clerk of court an application therefore within 15 days after the entry of the judgment…along with an itemized statement from an atty or expert witness.
Govt. only gets fees paid if landowner brings bad faith claim.
How a city council takes action:
Page, 22. §5-7-260: Laundry list of things required to be done by ordinance. (Berkley Electric Co. Op. v. Town of Mt. Pleasant)
Page 22. §5-7-270—form and procedures for introducing and passing ordinances.
i. Remember, must be read twice, on two separate days, with six days in between each reading.
May a person who’s denied access under FOIA receive attorney fees?
No – 30-4-100 p. 1172 supp. à if court orders equitable relief as it considers appropriate
If a person or entity seeking such relief prevails, he or it may be awarded reasonable atty fees and other costs of litigation. If such person or entity prevails in part, the court may in its discretion award him or it reasonable atty fees or an appropriate portion thereof.
Does 42 USC 1983 create substantive federal rights?
No, “Section 1983 itself creates no rights; rather it provides a method for vindicating federal rights elsewhere conferred.” Doe v. Broderick, 225 F.3d 440, 447 (4th Cir. 2000).
Can those actions (§1983) be brought in state and federal courts?
The SC Supreme court ruled in Stanley v. Kirpatrick what the plaintiff is required to plead: (Moore v. City of Cola)
race, religion, or alienage.
As long as there is a legitimate purpose and it bears a reasonable relationship to its goal, then the municipality is acting within its means.
Scrutiny & Presumption of Validity
Every legislative act must be presumed constitutional and should be declared unconstitutional only when its invalidity is manifest beyond a reasonable doubt.
Elements of cause of action brought under §1983—
a plaintiff must plead 3 elements—
i. an official policy or custom
ii. that causes the plaintiff to be subjected to
iii. a denial of a constitutional right
Look to Handout
Forms of municipal govt. in SC
The four forms are: Council form; Council-Supervisor form; Council-Administrator form; and Council-Manager form.
Know something about the non-delegation doctrine:
Delegation concept—states that we call “home rule” states® took authority away from legislature and gave it back to municipalities (other states’ municipalities have to point to express authority to act
Look at City of Beaufort v. Beaufort-Jasper County Water & Sewer Authority for definition of Non-Delegation Doctrine:
i. “a municipal corporation or other corporate political entity created by state law, to which police power has been delegated, may not divest itself of such power by contract or otherwise.
ii. Can’t give away powers—particularly when it winds up binding future governing boards and councils who have not yet been elected.
Look to answers on Question 15.
Also, in Non-regulatory Takings cases, S.C. Looks for these as context:
ii. Public Purpose
iv. Affirmative Conduct by Govt.
In Regulatory Takings Cases, look at just: 1) Acts of Govt. & 2) The Taking. Synchronizes SC with Federal Law.
General question on boundary change law:
Look to Condon case.