The Doctrine of Standing in South Carolina: A Survey and Critique
By
By
Grant Majors[1]*
II. Understanding Standing 666
A. Standing in Federal Courts—“No Concrete Harm, No Standing” 667
B. Standing in South Carolina Courts—No Harm, No Problem 670
2. Constitutional Standing 673
3. The Public Importance Exception 677
III. Standing Against the Public Importance Exception 689
1. The Legal Interest Requirement 690
2. Public Nuisance and the “Special Damage” Requirement 693
A. Following Ohio, Eliminating the Exception 705
It is clearly the job of courts to exercise “judicial power.”[3] But what does this mean? Are the courts open to anyone who wants to lodge a complaint or state an objection to another’s act? Both federal and state courts have answered this question with a resounding “no.” They recognize that some type of restraint must exist on who can bring an action. But what restraints exactly, and on what basis do they exist? This is the question standing seeks to answer. “[S]tanding is the key that opens access to the . . . courts.”[4]
But the doctrine of standing—encompassing who can access the judicial system and under what circumstances—has been plagued by confusion since its inception. In 1988, Professor Steven Winter observed that “[i]t is almost de rigueur for articles on standing to quote Professor Freund’s testimony to Congress that the concept of standing is ‘among the most amorphous in the entire domain of public law.’”[5]
Over time, the Supreme Court of the United States has constructed a firm standing doctrine, which it maintains is required by the “case or controversy clause” in Article III of the Constitution.[6] A key aspect of this doctrine is its insistence that the person seeking a federal court’s intervention suffer (or allege) a concrete and particularized injury.[7] In other words, “No concrete [and particularized] harm, no standing.”[8] This inexorable demand has been the focus of much controversy, with some arguing that it is ahistorical and unfairly limits access to the courts, and others suggesting that it is rooted in history and constitutional structure.[9]
At the same time, each state has developed its own approach to standing, as states are free to do.[10] While some states have applied the Supreme Court’s model to govern the justiciability of their own disputes, others have developed distinct approaches.[11] South Carolina is one such state. Over time, South Carolina has developed three distinct grounds for standing: statutory standing, whereby a statute confers standing; “constitutional standing,” whereby a plaintiff satisfies the Article III standing test elucidated by the Supreme Court; and the “public importance exception,” whereby the issue itself confers standing.[12]
The public importance exception purports to allow a plaintiff who has not suffered a particularized injury to nonetheless bring suit when the issues implicated are of sufficient public importance and when resolution is needed for future guidance.[13] This doctrine is far from pellucid: both the South Carolina Supreme Court and observers have noted that it is “the subject of much confusion and misapplication.”[14] Despite this, it remains in use as a basis for granting standing.[15]
This Note seeks (1) to provide an updated,[16] clarified taxonomy of South Carolina public importance standing jurisprudence, and (2) to suggest that South Carolina should narrow its public importance exception to standing. Part I outlines current federal and South Carolina standing doctrine and then sketches a genealogy of the cases establishing the public importance exception. Part II raises several concerns about the public importance exception, at least in its current form. (As a preview, standing is primarily a question of proper parties, but South Carolina’s exception focuses instead on the merits of the claim at issue.)[17] Finally, Part III considers several alternatives to the public importance exception, proposing a more limited and less amorphous version of standing.
This Note is not intended to provide a comprehensive or conclusive account of public importance standing. It seeks instead only to cast more light on South Carolina’s standing doctrine and to meaningfully chip away at the “vastly understudied” issue of state public interest standing models[18] by suggesting that the public importance exception, as it is currently used, contains significant weaknesses.
Sections A and B review federal and South Carolina standing rules in their current form. Section C traces the development of the public importance exception in South Carolina.
As stated earlier, the Supreme Court consistently maintains that the words “case” and “controversy” in Article III contain substantive limits on who can bring a claim.[20] “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art[icle] III’s requirements.”[21]
For this reason, the Court has built a three-pronged test of standing: for a plaintiff’s case to be heard in court, he must demonstrate (1) that he has either suffered or likely will suffer a particularized and concrete injury in fact, (2) that the defendant’s challenged conduct caused the injury, and (3) that a favorable judicial decision will likely redress the injury.[22]
As is clear from the words of the test itself, the linchpin of this analysis is the injury requirement.[23] No injury in fact, no standing. The Court has defined an injury in fact as “‘an invasion of a legally protected interest’ that is,” among other requirements, “concrete and particularized.”[24]
For an injury to be particularized means that it “must affect the plaintiff in a personal and individual way.”[25] For an injury to be concrete,[26] it must be “de facto” and “real.”[27] In TransUnion LLC v. Ramirez, the Supreme Court clarified that legislatures can’t concoct “concrete” injuries by inventing private causes of action; rather, concrete injuries must be either “tangible” (such as a financial or physical injury) or closely analogous to a common-law tort.[28]
Furthermore, the Supreme Court has consistently refused to grant standing to those who assert a generalized grievance rather than a particularized injury. The 1937 case of Ex parte Levitt provides an early example of this rule. In that case, the plaintiff, as a citizen and member of the bar, argued that Justice Hugo Black’s appointment was precluded by the Constitution’s Ineligibility Clause.[29] Part of the Court’s opinion is reproduced below:
The motion papers disclose no interest upon the part of the petitioner other than that of a citizen and a member of the bar of this Court. That is insufficient. It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public. The motion is denied.[30]
This rule—that a plaintiff must show a “direct injury” rather than a generalized grievance—has been reiterated time and time again.[31] The Court has used this rule both to turn away plaintiffs who asserted no true injury and to turn away those who asserted no injury distinct from that suffered by the public as a whole.[32]
Debate has long raged over whether the Court’s stringent demand for a “concrete” injury, as explained by Spokeo and TransUnion, is constitutionally correct.[33] But for purposes of this Note, it suffices to focus on the broader constitutional rule, more broadly accepted,[34] that standing hinges on whether the plaintiff is a proper party: only a particularly-situated plaintiff can bring a case. A plaintiff is a proper party if he complains that he individually has suffered some sort of “injury,” whether that be through a factual injury (as the Court has required) or through a statutory cause of action (as some critics would prefer).
Although the Court has pinned this injury requirement to the text of Article III,[35] Justice Antonin Scalia (a major proponent of the injury requirement)[36] candidly acknowledged that this was a marriage of convenience, not the product of textual exegesis.[37] The fundamental basis for standing, according to the Court, is the Court’s limited role within the constitutional separation of powers.[38] The Court has explained that it is neither a “continuing monitor” of other branches’ actions[39] nor a “Council of Revision” with “power to invalidate laws at the behest of anyone who disagrees with them.”[40] For example, in Lujan, Justice Scalia noted that untrammeled access to the courts would impinge the President’s constitutional duty to “take Care that the Laws be faithfully executed.”[41]
This approach reflects the Supreme Court’s long-held view that constitutional separation of powers principles require that federal courts’ function be limited, not plenary. In 1792, only four years after the Constitution’s ratification, litigants asked a panel including Chief Justice Jay, riding circuit, to process veterans’ pensions pursuant to an act of Congress.[42] The Court refused, explaining “[t]hat neither the legislative nor the executive branches can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner[, and t]hat the duties assigned to the circuit courts by this act are not of that description.”[43] Famously, Justice Jay also refused to provide an advisory opinion to President George Washington.[44] And in the seminal case of Marbury v. Madison, the Supreme Court recognized that “[t]he province of the court is, solely, to decide on the rights of individuals.”[45]
South Carolina acknowledges three official grounds by which a litigant can gain access to its courts: statutory standing, constitutional standing, and the public interest exception.[47] Unlike federal standing, standing in South Carolina is not explicitly tied to any component of its constitution.[48] When plaintiffs lack standing, South Carolina courts lack subject matter jurisdiction.[49]
“Statutory standing exists, as the name implies, when a statute confers a right to sue on a party.”[50]
Statutory standing, “perhaps the simplest, most straightforward type of standing,” asks a single question: does a statute give the plaintiff the right to sue?[51] If so, there is no need to ask whether constitutional standing or the public importance exception applies.[52] For example, in Bevivino v. Town of Mount Pleasant Board of Zoning Appeals, a group of plaintiffs challenged the Board’s decision to approve the construction of a telecommunications tower.[53] Once the court decided that a statute authorized the plaintiffs to sue, it deemed it unnecessary to consider the Board’s alternate arguments that the plaintiffs lacked constitutional and “public importance” standing.[54]
A statutory standing analysis “is an exercise in statutory interpretation.”[55] Courts “look to the language of the controlling statutes to determine if [the plaintiff] has standing.”[56] And the General Assembly may confer standing even on plaintiffs who would otherwise have no legally protected interest in the outcome of the litigation.[57] Consider Fowler v. Beasley, where a group of plaintiffs sued to enjoin a gubernatorial appointee, allegedly chosen through procedures that violated the Freedom of Information Act (“FOIA”), from being seated.[58] In that case, the defendant argued that the plaintiffs lacked standing since they had “no personal stake in the outcome.”[59] The Supreme Court of South Carolina summarily rejected this argument, simply noting that because FOIA “permits any citizen to apply . . . for injunctive relief, . . . respondents have standing.”[60]
“When no statute confers standing, the elements of constitutional standing must be met.”[61]
The South Carolina Court of Appeals first used the phrase “constitutional standing” in 2006.[62] The South Carolina Supreme Court followed suit two years later.[63] But the leading case on constitutional standing is generally thought to be Sea Pines Association for the Protection of Wildlife v. S.C. Department of Natural Resources, decided by the South Carolina Supreme Court in 2001.[64] In that case, several conservation advocacy organizations opposed a plan for the lethal reduction of white-tailed deer on Hilton Head Island.[65] In its analysis, the court summarily announced that the test of standing would be the three-prong test set forth in Lujan.[66] “Lujan set forth the ‘irreducible constitutional minimum of standing,’”[67] the court explained. Turning to the facts, the court decided that while the plaintiffs’ claimed aesthetic interest was indeed legally protected, their injury was neither particularized—they “presented no evidence [that] their opportunity to view . . . the deer would be diminished”—nor actual or imminent—the plaintiffs had not shown that reducing the deer population would cause them to view fewer deer each day.[68] In sum, the court denied the plaintiffs standing “because they failed to satisfy the three-pronged Lujan test.”[69]
The Sea Pines court wasn’t the first to apply Lujan to disputes in South Carolina: a month prior, the Court of Appeals had done so in a claim brought by conservation organizations opposing the filing of particular subdivision plats.[70] In setting forth the prongs of Lujan as the governing rules, the court in that case wrote that “[t]he United States Supreme Court has established the . . . requirements to show standing.”[71] And it noted disapprovingly that where a plaintiff challenges government action merely because of its alleged illegality, it is “‘substantially more difficult’ to establish standing.”[72] Turning to the facts, the court noted that the plaintiffs had not shown that the filing of plats would cause them any individualized injury—none of their members had testified about any injury, and they had alleged only conjectured future harm.[73] It concluded, like Sea Pines, by holding that “the League does not have standing under the three-pronged Lujan test.”[74]
This abrupt adoption of the Lujan rule triggered confusion in the following years. In 2003, the South Carolina Court of Appeals wrote, in what appeared to be dictum, “A party seeking to establish standing must prove the ‘irreducible constitutional minimum of standing.’”[75] In 2005, a commentator noted that it was unclear whether Sea Pines was intended to constitute “a fundamental change” to South Carolina’s standing rules.[76] What’s more, it was unclear “whether these constitutional requirements [were] a part of the United States Constitution or a part of the South Carolina Constitution.”[77] (The supreme court cleared this up in 2008 by specifying that “constitutional standing” refers to “[t]he principle of standing under the United States Constitution, [] ‘part of the case-or-controversy requirement of Article III.’”[78])
During the following years, courts continued to issue opinions with sweeping constitutional language, signaling a tightening of standing rules. In 2006, the South Carolina Court of Appeals noted that “Our supreme court has articulated a stringent standing test . . . . A party seeking to establish standing must prove the ‘irreducible constitutional minimum of standing.’”[79] In that case, a nursing home facility company sued its competitor, along with the South Carolina Department of Health and Environmental Control (“SC DHEC”), alleging that SC DHEC had improperly granted permission to build beds, leaving (according to the plaintiff) fewer beds available for the plaintiff’s facilities in the future.[80] The court concluded that because the nursing home failed to show that it had been denied any beds as a result of the defendants’ acts, it “failed to carry its burden of proving it suffered an injury in fact” and thus could not “satisfy the Lujan standing requirements.”[81]
In 2007, Chief Justice Jean Toal, in a lone concurrence, wrote, “We have used [Lujan’s] boundaries of federal constitutional standing to outline the requirements of the minimum a plaintiff must show in order to bring an action in a South Carolina court.”[82]
It’s unclear whether South Carolina’s constitutional standing rulings have always been consistent with federal standing rules—and with each other. For example, in Joseph v. South Carolina Department of Labor, Licensing, & Regulation, the South Carolina Supreme Court declared that two physicians had constitutional standing to challenge a provision that referrals between physical therapists (“PT”s) were not prohibited.[83] The court gave three reasons for finding standing for the physicians: (1) the plaintiffs had “an interest in how the PT system works and in their ability to employ PTs;” (2) the physicians were using the suit as a vehicle to challenge a prior precedent, and “[t]he ability to challenge precedent is a paramount principle of our judicial system;” and (3) suits brought under the Declaratory Judgment Act should be “liberally construed.”[84] But all three of these justifications fail under the constitutional standing rules that South Carolina had formerly articulated. The first rationale—the physicians’ important interest—is necessary but not sufficient; the plaintiffs in Sea Pines and Beaufort Realty Co. had also asserted legally cognizable interests but lost because they didn’t show injury to those interests.[85] The second and third rationales depart from the Article III standing doctrine that the court purported to follow.[86] In dissent, then-Justice Donald Beatty protested that this case constituted a “marked departure from” earlier decisions that had stringently required a showing of injury.[87]
One curious component of the Beaufort Realty/Sea Pines duo is the courts’ failure to explain why Article III has any bearing on the South Carolina Constitution. This makes South Carolina an outlier: “State courts almost uniformly begin any standing analysis by highlighting the inapplicability of the case-or-controversy requirement outside federal courts.”[88] South Carolina, in contrast, has purported to apply the case-or-controversy requirement to disputes before it, without explaining its reason for doing so. This was not for a dearth of plausible explanations. For example, courts could have pointed to South Carolina’s long history of requiring factual injuries.[89] They could have argued that the structural justifications for federal standing apply with equal force on the state level.[90] They could have even chosen to actually constitutionalize an injury requirement, as the South Carolina Supreme Court has gestured to.[91]
“[T]he public importance exception may provide standing where the elements of constitutional standing are not met.”[93]
South Carolina’s public importance exception has been described as “the subject of much confusion and misapplication,”[94] as “a favorite of plaintiffs,”[95] and as the proper subject of judicial “cautio[n].”[96] Courts have variously characterized it as an “exception” to standing (obviously),[97] a “conferr[al]” of standing,[98] a “relax[ation]” of the traditional standing requirements,[99] and a means by which an uninjured plaintiff can “step into the shoes of someone who has” suffered an injury.[100] Notwithstanding these various characterizations, what is clear is that the public interest exception requires of the plaintiff no concrete or particularized injury;[101] indeed, it does not require any nexus between the plaintiff and the challenged conduct.[102] As opposed to the traditional conception of standing, which is concerned with the nature of the parties, the public importance exception is concerned with the nature of the issue—namely, issues of public importance which the court feels inclined to weigh in on. The purpose of this exception, according to the South Carolina Supreme Court, is to promote “accountability and the concomitant integrity of government action.”[103]
Under the classic, two-prong formulation of the test, debuted in 1999, a plaintiff may be granted standing “when an issue is [(1)] of such public importance as to [(2)] require its resolution for future guidance.”[104] In that case, a group of Charleston doctors sued to enjoin the issuance of certain tax-exempt bonds for the construction of a medical care facility.[105] The plaintiffs argued statutory standing—that they were “interested parties” under a relevant statute. Instead of embarking upon statutory interpretation,[106] the South Carolina Supreme Court explained that “the issuance of the hospital bonds clearly impacts a profound public interest—the public health and welfare” and that “by virtue of the immense public interest at stake here, Doctors have standing to bring the present action, and any further determination of imminent prejudice is unnecessary.”[107]
Though Baird inaugurated a new regime of public interest standing,[108] it did not create the doctrine ex nihilo. Instead, it cited a 1976 case that could fairly be deemed the true progenitor of South Carolina public interest standing: Thompson v. South Carolina Commission on Alcohol and Drug Abuse.[109] In that case, several law enforcement officers sued an executive agency for declaratory and injunctive relief against a law directing municipalities to encourage voluntary alcohol-addiction treatment programs instead of pursuing disorderly-conduct prosecutions.[110] The agency argued that the officers lacked standing because they had no “substantial interest in the subject matter.”[111] In a unanimous per curiam opinion, the South Carolina Supreme Court dispensed with this argument in a single sentence:
While it is the general rule . . . that public officials may not contest the validity of a statute, the rule is not an inflexible one and we are of the opinion that the questions involved are of such wide concern, both to law enforcement personnel and to the public, that the court should determine the issues in this declaratory judgment action.[112]
The court cited no precedent for its bold decision to decide “questions . . . of . . . wide concern” in derogation of the “general rule.”[113]
This “questions of wide concern” standing doctrine lay dormant for twelve years, uncited in any reported appellate opinions.[114] But leading up to Baird, courts began to look at Thompson with greater interest: beginning in 1986, Thompson was cited in at least five reported pre-Baird opinions for the proposition that matters of “public concern” could confer standing.[115]
But in those cases between Thompson and Baird (and indeed in Baird itself), the court was wary of trusting “public concern” with the entire weight of standing, as Thompson had done. Instead, it took a belt-and-suspenders approach by pairing the public-concern analysis with an analysis of whether the plaintiff had a sufficient interest in the litigation.[116] With Baird on the books, though, the public importance exception was soon up and running in full force. Nine months after Baird, the South Carolina Court of Appeals described the public importance doctrine as an “exception” to standing.[117] In that opinion, a temporary employee claimed that her employer had failed to provide written notice of her rights as required by law.[118] The court began by deciding that the plaintiff lacked standing as she had “failed to demonstrate any injury to her.”[119] Despite this, the court decided to “address the merits of Stern’s claim to edify the Department as well as temporary agencies statewide.”[120] Why? Because “temporary agencies are proliferating throughout the state and will continue to do so.”[121] Thus, it was “unnecessary” to “leave them in a constant state of flux or confusion about . . . notification requirements.”[122]
Public importance standing has undergone several iterations since Baird. Though the South Carolina Supreme Court articulated a two-prong test in that case,[123] subsequent decisions began to focus only on the first issue (whether the issue was of public importance) while neglecting the second question (whether resolution was needed for future guidance).[124]
In Sloan v. Sanford, the supreme court allowed a citizen to challenge Governor Mark Sanford’s constitutional eligibility for office.[125] The plaintiff in that case argued that because the governor held a commission as an officer in the Air Force Reserve, he was in violation of the South Carolina Constitution’s dual office-holding restriction.[126] The court began by introducing a “balancing” rationale for the doctrine, which is worth reproducing in full, since courts frequently quote it in full when analyzing the public importance exception:[127]
An appropriate balance between the competing policy concerns underlying the issue of standing must be realized. Citizens must be afforded access to the judicial process to address alleged injustices. On the other hand, standing cannot be granted to every individual who has a grievance against a public official. Otherwise, public officials would be subject to numerous lawsuits at the expense of both judicial economy and the freedom from frivolous lawsuits.[128]
In other words, this “balancing test” taught that courts may (or must) grant public importance standing when the need to provide judicial remedy of injuries outweighs the risk of vexatious litigation.[129] The court then decided to confer public interest standing “because of the importance of the issue [the plaintiff] raise[d].”[130] Analogizing to Baird, the court said that the issue of gubernatorial eligibility “is at least as important as the proper funding for a clinical hospital.”[131] Notably, the court made no mention of whether any sort of future guidance was needed on this issue.[132] Later decisions continued to focus almost solely on whether the issue was “important” enough, in the court’s opinion, to warrant judicial commentary.[133] In practice, this meant that courts tended to grant public importance standing somewhat freely.[134]
The South Carolina Supreme Court tried to restore balance in the 2008 case of ATC South v. Charleston County.[135] In that case, the plaintiff company challenged the rezoning of nonadjacent property that had been leased to a business competitor.[136] In a unanimous opinion rejecting standing, the court emphasized that the second Baird prong—the need for future guidance—was crucial: public importance standing requires that an issue, “in the context of the case, be inextricably connected to the public need for court resolution for future guidance.”[137] According to the court, “It is this concept of ‘future guidance’ that gives meaning to an issue which transcends a purely private matter and rises to the level of public importance.”[138] Despite this, the rest of the court’s opinion focused more heavily on the word public than the word future: it explained that while zoning, like “most legislative and executive actions,” is “[o]f course” a matter of public importance, here there was “nothing public” about the plaintiff’s complaint since it pertained only to a single piece of property that had been rezoned for a “narrow purpose,” and the only complaint came from a “disgruntled competitor.”[139] Thus, the plaintiff lacked public importance standing.[140] The court warned against a “formulaic approach” to the public importance exception, saying that instead “each case must turn on ‘the competing policy concerns’ . . . expressed in Sloan v. Sanford.”[141] The court would later note (in dicta) that ATC South had “tempered the application of the public importance exception somewhat.”[142]
ATC South ushered in nearly a decade of relatively strict public interest standing decisions.[143] But in 2017, a sharply divided supreme court shifted standing jurisprudence back in plaintiffs’ favor. In South Carolina Public Interest Foundation v. South Carolina Department of Transportation, a group of citizens filed a declaratory judgment action against the South Carolina Department of Transportation (“DOT”), alleging that the agency had unconstitutionally used public funds for a private purpose when it inspected certain private bridges.[144] In a 3-2 opinion, the court explained that, “[a]lthough a close call,” the issue warranted public importance standing.[145] First, the issue was of public importance because it implicated (1) the legality of government conduct,[146] (2) the expenditure of public funds,[147] and (3) citizens’ safety.[148] Second, the issue required future guidance because (1) there was no extant judicial guidance on the issue[149] and (2) the agency had stated that it intended to engage in similar conduct again in the future if time permitted.[150] In dissent, Justice Costa Pleicones, joined by then-Justice John Kittredge, argued that the public importance exception did not apply because the fact that the challenged conduct was subjected to an internal audit[151] indicated that (1) the Department’s internal procedures rendered it accountable to the public and (2) the Department did not intend to subsequently conduct unlawful inspections of private property.[152] Dissenting separately, Justice Kittredge (the author of ATC South) protested that the majority had expanded public importance exception well beyond what his ATC South opinion allowed, causing “the exception to swallow the rule.”[153] In his view, the majority’s decision was “tantamount to conferring standing on every citizen in every case where improper governmental activity is alleged”[154]—in other words, a return to the pre-ATC South view of public standing that was concerned solely with an issue’s public interest rather than the need for future guidance.[155]
This decision seems to have (re-)opened the floodgates of standing. As illustrations of this modern approach, consider three recent South Carolina Supreme Court decisions, each finding public importance standing.
Start with Adams v. McMaster in 2020, where the supreme court unanimously allowed uninjured plaintiffs to challenge the governor’s allocation of federal COVID-19 emergency education funding to tuition grants.[156] After reiterating that the public importance exception requires no concrete or particularized injury, and reciting Sanford’s “competing policy concerns” and ATC South’s emphasis on “future guidance,”[157] the court found public interest standing in two steps. It started by describing the widespread impact of the COVID-19 pandemic, including both its effects “in every area of life” and “on education in this State.”[158] Moving to step two, the court explained that this issue implicated a need for future guidance because it involved (1) the legality of government conduct, (2) the expenditure of public funds, (3) a matter of urgency, and (4) the issue was likely to reoccur in the future “if and when” the federal government appropriated additional emergency education funding.[159]
Next, in 2022, the supreme court unanimously applied the public importance exception where a public interest organization sued to block an allegedly unlawful contingency-fee agreement between the South Carolina Attorney General and particular law firms.[160] The court laid out the law by reciting the two-prong Baird rule, repeating ATC South’s emphasis on “future guidance.” It also articulated a new balancing test: whereas Sanford instructed courts to weigh the two competing interests of (a) citizens’ need for “access to the judicial process to address alleged injustices” and (b) “judicial economy,”[161] Wilson instructed courts to balance the competing interests of (a) citizens’ “need to hold public officials accountable” and (b) “the concomitant integrity of government action.”[162] The trial court ruled against the plaintiff on standing, concluding that the case presented no “need for future guidance” since the ruling would be limited entirely to a particular contract between two parties.[163] The supreme court reversed the trial court, again tracking Baird’s two steps. It found first that the issue—the expenditure of public funds—was “indisputably” of public importance.[164] Turning then to the second prong, the court noted that the attorney general had five other litigation retention agreements with contingency fee provisions.[165] Thus this issue would “inevitably rise again” absent judicial instruction.[166]
Finally, in 2024 the supreme court conferred standing on citizens to challenge a school-choice law as unlawfully authorizing the use of public funds for private benefit.[167] The court recited the two-prong public importance exception rule and then noted that it had often found that the “future guidance” prong was satisfied in cases dealing with the expenditure of public funds. Here, “because this case concern[ed] legislation involving the annual transfer of $90 million dollars from the public treasury,” the court “did not hesitate” to find public importance standing.[168]
As it stands today, the precise contours of the public importance exception are ambiguous.[169] Only two factors seem clear-cut: the public importance exception applies only to challenges to government conduct,[170] and only to suits requesting prospective relief.[171]
There are seven popular modes of constitutional argument: “(1) appeals to text . . ., (2) constitutional structure, (3) prudence (or consequences), (4) purpose or intention, (5) judicial precedent, (6) past practice [e.g., history] . . . and (7) national ethos and political tradition.”[172] These modalities apply with equal force to the public importance exception, and this Note will discuss three in particular—history, structure, and prudence—that counsel against the public importance exception as it is used today.
South Carolina’s public importance exception, which has been in common use for less than thirty years,[173] stands in stark contrast to South Carolina’s traditional practice of requiring a plaintiff to show an injury to a legally protected interest.
South Carolina’s traditional approach to standing strictly required a showing that the plaintiff assert a concrete injury or that a significant legal interest of the plaintiff be at stake. A brief survey of some of the relevant cases demonstrates that courts routinely rejected appeals to “public interest”-style jurisdiction.
For an early example of this traditional approach to standing, consider Ex parte Florence School.[174] In that case, a school’s board of commissioners sued the county school commissioner, accusing him of withholding funds that were lawfully apportioned to the school.[175] The South Carolina Supreme Court chose not to consider the question of whether the underlying statute was constitutional because, as it explained, it is improper for a court to “listen to an objection made to the constitutionality of an act by a party whose rights it does not affect.”[176] The right to challenge a law’s constitutionality did not belong to “strangers.”[177] The court explained that:
if it is claimed that such provision is unconstitutional, and invades or infringes upon the constitutional rights of any citizen, it is for such citizen to raise the question . . ., and not for this respondent, whose constitutional rights, . . . have neither been invaded nor infringed upon by said act.[178]
Jellico v. Conner, decided in 1909, is another example.[179] In that case, the plaintiffs sued for an injunction against holding an election to determine whether Charleston alcohol dispensaries should be reopened, on the grounds that the act regulating such elections was unconstitutional.[180] Citing Florence School, the court refused to address a particular challenged provision of the act at issue because “the respondents are not proceeding to hold an election under that section; therefore the rights of the petitioner thereunder are not involved.”[181]
In 1939, the South Carolina Supreme Court published a trio of cases that further buttressed this rule. Start with Townsend v. Richland County, where the supreme court rejected the plaintiff’s argument that because a law was unconstitutional as applied to a third party, it should be struck down in its entirety.[182] The court explained that it would “refuse to determine whether or not a legislative Act is constitutional as to persons who are not shown by the agreed case to be affected,” because “[a] party cannot be permitted to harass others and take the time of the Courts in litigating matters in which they have no interest.”[183] The next case was Kirk v. Douglass, where an owner of county bonds challenged the constitutionality of a tax-collection law and asked the court to order the county sheriff to enforce existing tax liens.[184] The court stated the governing rule as follows:
Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question, in that the enforcement of the law would be an infringement on his rights. The corollary of the general rule is that one who is not prejudiced by the enforcement of an Act of the Legislature, cannot question its constitutionality.[185]
The court determined that the plaintiff had shown a sufficient interest to state a cause of action and remanded for an initial merits determination.[186] Finally, in a third case that rejected the plaintiffs’ challenges due to mootness, the court explained that “there [was] no party before the Court who c[ould] properly be heard to question the constitutionality of the [challenged statutory] provisions . . . , even if they are not constitutional, since it does not appear that they invade any right which any party . . . is entitled to assert . . . .”[187]
In 1940, the court decided the case of Culbertson v. Blatt, with nearly identical facts to Sloan v. Sanford (decided sixty-four years later), but an opposite outcome.[188] In Culbertson, the court declined to consider a citizen’s claim that certain members of a university’s Board of Trustees were appointed in violation of the constitutional prohibition on dual office-holding.[189] The court firmly rejected the plaintiff’s “capacity to bring the suit” because he had shown “no legal interest in the maintenance of the action.”[190]
Justifying its holding, the Culbertson court expressed concern for “the traditional and constitutional division of powers among the legislative, executive and judicial branches of the government.”[191] And while acknowledging that “a legislative act which . . . infringes the rights of citizens and taxpayers . . . is subject to judicial restraint and nullification,” the court rebuked the notion that “on the mere ground that a legislative act is in violation of some constitutional provision, the act may be nullified . . . at the suit of any of the tens of thousands of citizens who may have the qualifications of taxpayers.”[192] Such a lenient approach would render “[t]he holding of public office . . . a hazardous and burdensome undertaking” by exposing public figures to an avalanche of litigation levied by “dissatisfied citizens.”[193]
Finally, consider Crews v. Beattie, where the court rejected a citizen’s standing to seek an injunction against a public utility company’s paying of certain obligations because the plaintiff’s only interest was “the exceedingly small interest of a general taxpayer.”[194] According to the court, “The mere fact that the issue is one of public importance does not confer upon any citizen or taxpayer the right to invoke per se a judicial determination of the issue.”[195]
Eventually, South Carolina courts also developed a “real party in interest” requirement.[196] A real party in interest, according to the South Carolina Supreme Court, is “one who ‘has a real, actual, material or substantial interest in the subject matter of the action, as distinguished from one who has only a nominal, formal, or technical interest in, or connection with, the action.’”[197] Without delving into this line of cases, it suffices to point out that the doctrine, like the others under discussion here, requires a particularly-positioned plaintiff, unlike the public importance exception, which requires a particularly-important issue (in the court’s judgment).
In summary, South Carolina’s long history of insisting a plaintiff have a concrete interest at stake shows that public importance standing, rather than being deeply rooted in the state’s jurisprudential tradition, is a modern and ahistorical doctrine.
South Carolina’s traditional approach to public nuisance shows that it has traditionally required litigants to show injury in order to be heard in court, further confirming the ahistoricity of the public importance exception.[198]
To understand this argument, it is important to understand the tort of public nuisance. Under the common law, public nuisance was “a catch-all term for various invasions of public rights, ranging from corruption of public morals to obstruction of public highways.”[199] Courts traditionally limited the ability of private individuals to challenge public nuisances, while allowing public authorities to penalize such nuisances through either criminal prohibition or injunctions.[200] The rationale was simple: there should be “public control over public rights and private control over private rights.”[201] However, an exception to this prohibition existed where a plaintiff alleged “special damage,” damage that was different in kind than that suffered by the public generally.[202] A classic example comes from a 1535 King’s Bench case, where a justice gave the illustration of a defendant who digs a ditch across a public road, thereby obstructing it.[203] Although no citizen could bring a claim for the mere inconvenience of the blocked road, since this was a “nuisance common to all,” if a rider injured himself by falling into the ditch, he would become eligible for a private claim against the defendant since the rider “was more damaged thereby than anyone else.”[204]
As states’ jurisprudence developed, states varied in their adoption of this rule, with some more willing to allow private suits against public nuisance, and others adhering to the traditional ban.[205] South Carolina fell firmly in the latter camp: in 1915 a commentator noted that South Carolina and Massachusetts were “[t]wo of the States which go farthest in opposing . . . private action” for tortious obstruction to public right of passage.[206]
For example, in the 1833 case of Carey v. Brooks, a defendant had drained a creek, blocking the plaintiff from using it to deliver timber, and the plaintiff sued.[207] The South Carolina Supreme Court rejected the plaintiff’s claim, explaining that because the creek was a “public high way,” only a person who had suffered “special damage,” such as injury to himself or his horse, could sue.[208] Even though the plaintiff was contractually obligated to deliver the timber, and subject to penalty if he failed,[209] this injury did not suffice—a would-be plaintiff who suffered only delay was out of luck, even if the delay would “damnif[y]” him or force him to miss an “important affair.”[210] In such cases, the only legal remedy was for a prosecutor to indict the miscreant.[211] The reason for this rule: to avoid “the inconvenience of allowing a separate action to every individual who suffers an inconvenience common to many.”[212]
In South Carolina Steam-Boat Co. v. South Carolina Railway Co., a lawsuit “to recover damages for the obstruction of a navigable stream,” the court explained that a “special” injury “must differ in kind, and not merely in degree or extent, from that which the general public sustains.”[213] Because in that case, the plaintiffs merely alleged that they had been prevented from using the stream to operate their business, they alleged no such special injury and failed to state a cause of action.[214]
In 1906, the supreme court made it clear that this “special injury” rule was not confined to public-nuisance torts. That case, Duncan v. Heyward, involved a suit for injunction leveled by citizens against the South Carolina Board of Education, on the ground that a certain surcharge provision of the Board’s contracts with textbook publishers was unlawful.[215] The court found for the Board, because, inter alia, “[t]he injury which the petitioners allege they would suffer does not differ in kind from that which would be suffered by the people at large patronizing the public schools.”[216]
In Culbertson v. Blatt, discussed earlier, the court further articulated a bar against generalized grievance claims by plaintiffs, explaining that “the constitutionality of . . . legislation may not be questioned by one who fails to show . . . that he has some personal interest in the situation other than that shared in common by other members of the public.”[217] The court cited Ex parte Levitt[218] and the 1922 South Carolina case of State v. Mittle. (In the latter case, a man convicted of manslaughter was denied standing to argue that the jury selection process had unconstitutionally excluded women, because the man was “not a member of the alleged excluded class.”)[219]
Despite this rule’s tension with the public importance exception, South Carolina has carried it into modern jurisprudence, even tightening it. In the 1992 case of Citizens for Lee County, Inc. v. Lee County, the South Carolina Supreme Court decided that two citizens and a public interest group lacked standing to challenge a county’s contract for the construction of a landfill because any alleged interest of or injury suffered by them was “indistinguishable from that of other members of the general public.”[220]
In the 2002 case of St. Andrews Public Service District v. City Council of City of Charleston, the supreme court overturned a doctrine that had allowed citizens to challenge illegal annexation proceedings.[221] The court held that “the better policy is to limit ‘outsider’ annexation challenges to those brought by the State ‘acting in the public interest.’”[222] In other words, challenges to public rights were to be brought by public authorities.
In 2005, the supreme court tightened Carey v. Brooks, holding that the “special injury” required for a public nuisance suit must be an injury to one’s property, not an injury to one’s person.[223] And in 2014, the court rejected a nuisance claim against a cruise ship operator, explaining that
[c]ourts are not bodies for the resolution of public policy and generalized grievances. Harms suffered by the public at large . . . are to be remedied by the legislative and executive branches . . . . [I]t is incumbent upon the public to seek reform through their elected officials or failing that, at the ballot box.[224]
In summary, South Carolina has not only traditionally clung to an injury requirement for standing, it has at times stood out among the states for doing so.[225] The public importance exception, a comparatively recent innovation, blinks this tradition.
Not only is the public importance exception unmoored from tradition, it compromises the interbranch separation of powers. It does so by requiring courts to evaluate the challenged policy rather than the nature of the litigant—something courts are fundamentally ill-equipped to do. In his famous work Democracy in America, Alexis de Tocqueville observed three key aspects of the American judicial system. First, he noted, American courts’ job was to “serve as an arbiter;” to resolve a “dispute.”[226] Second, courts were “to pronounce on particular cases and not on general principles.”[227] Finally, courts were “able to act only when . . . appealed to.”[228] A judge “is led despite himself onto the terrain of politics;” he “judges the law only because he has to judge a case.”[229] This had a salutary effect, de Tocqueville explained. Although Americans “entrusted an immense political power to their courts” in the form of judicial review, these three characteristics “much diminished the dangers of this power.”[230]
This doctrine, by “intimately binding the case made against the law with the case made against one man” and requiring a “particular interest,” ensures “that legislation will not be attacked lightly.”[231] Although this means that some laws would never be subjected to judicial review, because they could “never give rise to the sort of clearly formulated dispute that one calls a case,” de Tocqueville concluded that this system of a restrained judiciary was “most favorable to liberty.”[232]
In other words, courts are fundamentally concerned with disputes between parties.[233] These disputes are decided against the backdrop of law; the application of law to government policy is a necessary incident but not the main thing. When a judge makes decisions divorced from these constraints, “he goes outside his sphere completely and enters that of the legislative power.”[234]
Following similar logic, the United States Supreme Court has routinely grounded standing in separation of powers principles, as noted earlier.[235] If federal separation-of-powers principles require plaintiffs to show injury in order to appear before federal courts, this should be no less true at the state level. Unlike the U.S. Constitution,[236] the South Carolina Constitution includes an express provision that “the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other.”[237] If anything, this express textual provision should heighten the importance of separation of powers in South Carolina.
The public importance exception’s derogation from the traditional understanding of judicial function—by instructing courts to evaluate the importance of an issue, separate from whether the plaintiff has an interest in the outcome—jeopardizes the separation of powers in at least three additional ways beyond invasion of the legislative power. First, the public importance exception allows “the judiciary to intentionally and unilaterally expand its role on its own,”[238] setting its own bounds of power. This makes the court more closely resemble a “continuing monitor”[239] of the other branches than a co-equal partner. Recently, the Ohio Supreme Court, in overruling its public interest standing doctrine, said that the doctrine “essentially allows this court to engage in policy-making by ruling on the legislation of the General Assembly in cases that lack an injured party.”[240] And the public importance exception could signal that the South Carolina Supreme Court is willing to violate its own rules by waiving subject-matter jurisdiction when it wishes to hear a case.[241] As one commentator noted, “to apply public interest standing, courts must go completely beyond both an injury-in-fact and the entire political process.”[242]
The second separation-of-powers violation flows from the first: public importance standing brings the court dangerously near to issuing advisory opinions. The South Carolina Supreme Court has firmly stated that it will not issue such opinions.[243] The court has elsewhere declared that it has a “limited (non-policy) role.”[244] But standing acts as a bulwark against advisory opinions;[245] when it is weakened, such opinions are more likely to slip through. If, as the public importance exception teaches, courts may deem certain issues to be of such public importance that a plaintiff with no “nexus between himself and the action[]” can trigger review,[246] then it follows that the plaintiff’s existence is simply window dressing—a meaningless formality. As an example, consider Carolina Alliance for Fair Employment v. South Carolina Department of Labor, Licensing, & Regulation, considering a challenge brought by an individual and a labor advocacy group.[247] Although the former “failed to demonstrate any injury to her based on the” defendant’s challenged action, and the latter “[n]owhere . . . allege[d] any individualized harm or injury to itself or any of its members,” the South Carolina Court of Appeals decided to consider the merits anyway in order to “edify” both the defendant and others who were not parties to the case.[248] There is not a yawing gulf between “edification” and “advice.” As another example, consider the recently-overruled[249] case of State ex rel. Ohio Academy of Trial Lawyers v. Sheward, where the Ohio Supreme Court created a version of public importance standing.[250] In dissent, one justice protested that this decision had “created a whole new arena of jurisdiction—‘advisory opinions on the constitutionality of a statute challenged by a special interest group.’”[251]
Thirdly, public importance standing infringes on the executive branch by allowing private citizens to subsume the Executive’s constitutional law enforcement duties. In Lujan v. Defenders of Wildlife, Justice Scalia pointed out that if private citizens are allowed to assume a law-enforcement function by bringing lawsuits, this could infringe the President’s prerogative to take care that the laws be faithfully executed.[252] The same rationale applies on the state level: as stated above, the South Carolina Constitution tasks the Executive, not private actors, with enforcing laws.[253]
A key prudential goal for courts is to promulgate standards that are clear, objective, and workable.[254] But the public importance exception seems to provide little room for such a bright-line test. The Ohio Supreme Court recently discussed this problem, asking, “How is a court to determine when something is of such ‘great importance and interest to the public,’ that it should allow parties to bypass the standing requirement and other normal judicial procedures?”[255] The answer: “standardless policymaking.”[256]
In practice, South Carolina’s public importance exception has created an ocean of ambiguity. Occasionally the South Carolina Supreme Court has signified that public importance standing should not be applied where another potential plaintiff could assert “constitutional standing,”[257] but elsewhere it has rejected the idea of looking to other potential plaintiffs.[258] The court claims to employ a policy-driven balancing test, but the test paradoxically purports to consider “injustice” or “grievances,” and it is rarely applied in practice.[259] Although the court has emphasized that an issue must require “future guidance,” it has given inconsistent signals as to just how imminent this need for guidance must be,[260] and it has allowed policy judgments to bleed into this prong.[261] The court has frequently implied that the exception is particularly applicable when public funds are being expended,[262] but it has been willing to find standing where no public funding is directly implicated.[263]
Public importance cases have produced a grab bag of other factors also: whether the matter is urgent,[264] whether the defendant is alleged to have acted in bad faith,[265] and whether the plaintiff is merely a “disgruntled competitor.”[266] Often, the decision simply seems to come down to a mere judgment call: does a majority of the court feel that an issue implicates important public policy concerns?[267] In other words, it comes down to “standardless policymaking.”[268] When deciding whether an issue is of sufficient public importance, South Carolina’s approach seems to be the following: “I know it when I see it.”[269]
This ambiguity has practical consequences: it harms judicial efficiency by confusing litigants.[270] As a commentator noted, “[b]ecause public interest standing is only applied when no actual injury is present, an ambiguous public interest standing doctrine provides little indication to potential litigants whether they will have standing.”[271] Not only does this likely lead to more time spent on pre-merits litigation,[272] but it causes confusion among advocates. For example, the public importance exception has become confused with taxpayer standing:[273] in a recent case before the South Carolina Court of Appeals, a plaintiff argued that he had “taxpayer standing to bring his lawsuit because his complaint raised issues of public importance [that] require resolution for future guidance.”[274] It’s hard to fault this plaintiff—the judiciary has conflated the two at times. For example, in 2008, the South Carolina Court of Appeals agreed with the plaintiff’s argument that he had both taxpayer and public importance standing to challenge a construction project.[275] Throughout its analysis, the court did not distinguish the two, treating them instead as interchangeable.[276]
In summary, nothing good can come from murky doctrine, yet that is exactly what the public importance exception generates.[277]
This Part considers two doctrinal reforms—one more blunt; the other more incremental. While any such overhaul might be perceived as using a hammer where a chisel would do, it’s not clear that a more modest tweak, such as a clarification of the criteria, would rectify any of the problems just discussed. For one, this wouldn’t solve the theoretical error underpinning the historical and structural problems discussed above: the decision to divorce a plaintiff’s interest from the alleged violation of law. For another, the court has already urged a more cabined approach to public importance standing to little avail. The supreme court has “repeatedly cautioned against [the doctrine’s] routine use” but acknowledged “the doctrine’s expansive reach” in practice.[278]
In light of the public importance exception’s flaws, the South Carolina Supreme Court should consider eliminating it entirely. It would not be the first to do so: the Ohio Supreme Court took a similar path in December 2024. In State ex rel. Martens v. Finlay Municipal Court, the Ohio Supreme Court overruled a former case that had established public interest standing, saying that the case “was wrong when it was decided and remains wrong today.”[279] First, the court appealed to the Ohio Constitution, construing its conferral of “judicial power” to limit courts to hearing “actual controversies legitimately affected by specific facts.”[280] It also explained that the injury requirement was “deeply rooted” in its caselaw.[281] Next, the court explained that its public interest doctrine was a “violation of separation-of-powers principles,” calling it an “example[ ] of abusive judicial power.”[282] Finally, the court raised a prudential concern, explaining that “the content of the doctrine is so vague and amorphous as to make principled judicial application of the doctrine nearly impossible.”[283]
The South Carolina Supreme Court should use Martens as a roadmap. As explained earlier,[284] the rationales animating Ohio’s repudiation of public interest standing apply with equal force to South Carolina. South Carolina would thereby align itself with at least some of its fellow states: even before Martens, a commentator noted that “public rights exceptions are not a trend in other jurisdictions.”[285] And the South Carolina Supreme Court has explained that “stare decisis is not an inexorable command [, because] ‘[t]here is no virtue in sinning against light or persisting in palpable error, for nothing is settled until it is settled right.’”[286]
Some have argued that public interest standing is necessary because without it, litigants will have no means of vindicating their rights or holding government accountable.[287] South Carolina courts routinely use this argument to justify the public importance doctrine. They have explained that “[t]axpayers must have some mechanism of enforcing the law”[288] and that “the purpose of public importance standing is to . . . ‘ensure[ ] . . . accountability and the concomitant integrity of government action.’”[289] Indeed, the supreme court once suggested that without the public importance exception, certain laws would be rendered “superfluous.”[290] But the assumption that the judiciary is the only forum for holding the government accountable is wrong—the most potent source of accountability is not judges; it’s the electorate.[291] Ironically, it was the South Carolina Supreme Court that said it best in 2014:
Courts are not bodies for the resolution of public policy . . . . Harms suffered by the public at large . . . are to be remedied by the legislative and executive branches. If existing laws and regulations or their enforcement fail to protect the public from harm, it is incumbent upon the public to seek reform through their elected officials or failing that, at the ballot box.[292]
Not only is the electorate free to vote out misbehaving officials, it can also press the South Carolina legislature to confer additional grounds of standing via the statutory standing rule.[293] Citizens are not less powerful at the ballot box than before the bench, and this approach contains the additional salutary effect of respecting the separation of powers and keeping the judiciary from serving as a “continuing monitor[]” of the other branches.[294]
As a middle ground, the South Carolina Supreme Court should consider adopting the rule advocated by Justice Costa Pleicones. During his time on the South Carolina Supreme Court, Justice Pleicones argued that “standing should not be conferred on a party who cannot allege a particular harm when another potential plaintiff has interests greater than the plaintiff’s.”[295] In other words, if there is a plaintiff who could assert constitutional or statutory standing, that plaintiff must bring the case.
Justice Pleicones first articulated this argument in Sloan v. Department of Transportation.[296] In that case, a South Carolina resident and frequent litigant[297] argued that the South Carolina Department of Transportation’s procurement procedures for several infrastructure products ran afoul of statutory bidding requirements.[298] The trial court conferred public importance standing, but the court of appeals reversed because the plaintiff “failed to show a nexus between himself and the actions.”[299] In a 4-1 decision, the supreme court then reversed the court of appeals, pointing to previous public importance cases, none of which had “required the plaintiff show the absence of any other potential plaintiffs with a greater interest or any other nexus.”[300]
Justice Pleicones dissented. He hearkened back to the language of Crews v. Beattie that “[t]he mere fact that the issue is one of public importance does not confer upon any citizen or taxpayer the right to invoke per se a judicial determination of the issue.”[301] Here there were companies who, under the plaintiff’s theory, wrongly lost out on bids and thus “ha[d] a strong incentive to take action if the process appear[ed] in violation of the law.”[302] But those companies were absent from the litigation. Because “[t]hird-party standing is supposed to be the exception, not the rule,” “a court should be very reluctant to confer standing upon a member of the general public who can allege no particular harm” “[w]hen there exist numerous potential plaintiffs that have been directly and significantly affected.”[303]
This incrementalist approach would have the benefit of providing limiting criteria to the court’s conferral of public importance standing, thus mitigating some of the ambiguity in the doctrine. It would also push the court toward evaluating the position of the party before it—a quintessentially judicial function—rather than the broad implication of the policy—a quintessentially legislative function. Nor would this rule render the State an extreme outlier: Alaska has adopted a similar (though not identical) rule.[304]
Despite these advantages, it is not clear that Justice Pleicones’s approach would remedy the problems with public importance standing articulated in Part III. While it would require courts to start by assessing the plaintiff’s right to be in court, it allows them to end by granting standing to a litigant who has suffered no invasion of rights if no affected litigant exists. So, in that scenario, the court would be right back where it started—allowing an unaffected third party to serve as a conduit by which a court can approve or disapprove the actions of the other two branches, guided solely by its evaluation of the issue’s importance. Thus, this approach, while an improvement to the current framework, still falls short in some respects.[305]
The doctrine of standing is not a mere technicality—it goes to the core of the judicial branch’s function, nature, and purpose. For this reason, courts articulating the doctrine must be clear, consistent, and correct. While South Carolina’s standing doctrine leaves room for improvement in all three areas, its public importance exception fundamentally misunderstands South Carolina’s robust tradition of requiring that those who approach the court do so to receive redress for an injury, not to vindicate political grievances that ought to be settled legislatively or through the ballot box. For this reason, South Carolina should tighten or eliminate its public importance exception. No matter how frequently the South Carolina Supreme Court protests that it is acting with utmost “cautio[n],”[306] this will ring hollow if it continues to confer public importance standing without “hesitat[ion.]”[307]
(As a side note, Baird was not the only case to confuse the two doctrines—several opinions have continued to apply Ashmore and Berry to standing’s public importance exception despite the incongruity. See, e.g., Evins v. Richland Cnty. Hist. Pres. Comm’n, 341 S.C. 15, 21, 532 S.E.2d 876, 879 (2000) (applying Baird to confer standing on a citizen to challenge a property conveyance and citing Berry and Ashmore to show that Baird’s holding extends beyond ultra vires acts); Vicary v. Town of Awendaw, 425 S.C. 350, 359–60, 822 S.E.2d 600, 604–05 (2018) (citing Ashmore as authority for Baird’s public importance rule); Charleston Cnty. Parents for Pub. Schs., Inc. v. Moseley, 343, S.C. 509, 514, 541 S.E.2d 533, 535 (2001) (citing Berry as authority for Baird’s public importance rule); Sloan v. Greenville County, 356 S.C. 531, 548, 590 S.E.2d 338, 347 (S.C. Ct. App. 2003) (same).)
The point is that Thompson seems to be the first South Carolina case to confer standing to plaintiffs who asserted no invasion of a legally protected right. The case itself cited no precedent, and Ashmore and Berry are a different species and were artificially grafted into the family tree by Baird. Two other possible pseudo-ancestors to Thompson could be Lee v. Clark, where the South Carolina Supreme Court deemed that “the public interest requires that the validity of [an] Act [related to school district boards and elections] be promptly determined,” 224 S.C. 138, 143–44, 548, 77 S.E.2d 485, 487 (1953), and Breeden v. South Carolina Democratic Executive Committee, where the supreme court explained that a dispute over the proper Democratic nominee was “not only of public interest, but one which should be promptly decided,” 226 S.C. 204, 208, 84 S.E.2d 723, 725 (1954). Indeed, the supreme court recently cited Breeden in a public importance exception analysis. Adams v. McMaster, 432 S.C. 225, 236, 851 S.E.2d 703, 709 (2020). But neither case fits the bill. The “public interest” language in Lee appears to be dicta, with the decision hinging instead on whether the plaintiff had suffered “the invasion of” specific rights for purpose of the Declaratory Judgments Act. See 224 S.C. at 143–44, 77 S.E.2d at 487. The court concluded the plaintiff had. Id. at 143, 77 S.E.2d at 487. And Breeden was discussing whether the plaintiff had satisfactorily invoked the supreme court’s original jurisdiction pursuant to the rule allowing the supreme court to assume original jurisdiction in matters of public interest. 226 S.C. at 208, 84 S.E.2d at 725. But the supreme court has elsewhere taught that the “the ‘public interest’ standard [for original jurisdiction] is not synonymous with the public importance necessary for the public importance exception to standing to apply.” Carnival Corp., 407 S.C. at 80, 753 S.E.2d at 853. In fact, prior to Thompson, South Carolina courts were palpably averse to conferring standing on a plaintiff who lacked a relevant interest or injury. See infra Part III.A. ↑
Second, many of the aforementioned cases actually relied on a form of the basic special injury standard, albeit at a higher level of generality. The theory was that “taxpayers of a municipal corporation . . . whose burdens of taxation are increased by the misappropriation of public funds . . . sustain such special damage as to entitle them to relief.” Manson v. S. Bound R.R. Co., 64 S.C. 120, 128, 41 S.E. 832, 834 (1902) (quoting James High, A Treatise on the Law of Injunctions, Vol II § 1298 (3d ed. 1890)). And the court clarified that the taxpayer standing doctrine did not give taxpayer plaintiffs carte blanche to “maintain an action in all cases of this nature, regardless of their personal interest, or of the degree of injury which they may sustain.” Id. at 128, 41 S.E. at 835 (quoting James High, supra at § 1301). The court produced several opinions relying on this “special injury” rationale. See, e.g., Mauldin, 33 S.C. at 19, 11 S.E. at 436 (explaining that taxpayers “constitute a class especially damaged by . . . the alleged increase of the burden of taxation”); Ellerbe, 44 S.C. at 283, 22 S.E. at 437 (McIver, C.J., dissenting) (citing, inter alia, John Dillon, Treatise On the Law of Municipal Corporations § 736 (1872), as an authority for the taxpayer standing doctrine); Kirk, 191 S.C. at 210, 4 S.E.2d at 15 (same). For the relevance of the citations to John Dillon, see Hilary P. Bradford, Municipal Taxpayers and Standing to Sue, 2 Buff. L. Rev. 140, 145 (1952), explaining that the taxpayer standing rationale relied upon by Dillon was based on an analogy to a stockholder’s interest in his corporate property. This is all a far cry from today’s freewheeling public interest standing, which requires no injury at all to be asserted by a plaintiff.
Today, taxpayer standing occupies an odd place in South Carolina standing jurisprudence—despite not being listed among the three grounds of standing, see, e.g., S.C. Pub. Int. Found. v. S.C. Dep’t of Transp., 421 S.C. 110, 117, 804 S.E.2d 854, 858 (2017), it is still invoked and analyzed as a separate ground of standing in South Carolina courts, see, e.g., Davis v. Connelly, No. 2020-001348, 2024 WL 35435, at *2 (S.C. Ct. App. Jan. 3, 2024) (analyzing taxpayer standing after finding no public importance standing). Despite being invoked as a separate category of standing, taxpayer standing in practice seems to be equated with the “constitutional standing” requirement by requiring that the taxpayer plaintiff allege a particularized injury. See, e.g., S.C. Pub. Int. Found. v. S.C. Dep’t of Transp., 421 S.C. at 125, 804 S.E.2d at 862 (Kittredge, J., dissenting) (citing Crews for the rule on taxpayer standing). In two cases, the South Carolina Supreme Court has located taxpayer standing under its “constitutional standing” rubric. See ATC S., Inc. v. Charleston County, 380 S.C. 191, 198, 669 S.E.2d 337, 341 (2008) (“We reject ATC’s claim of taxpayer standing under constitutional standing principles.”); Bodman v. State, 403 S.C. 60, 67, 742 S.E.2d 363, 366 (2013) (“In ATC, we unanimously closed the door to a litigant asserting [constitutional] standing simply by virtue of his status as a taxpayer” because such harm “is shared by all taxpayers in the State.”). Despite these holdings, courts (and litigants) have occasionally conflated taxpayer standing with the public importance exception. See infra Part III.C. ↑