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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Charleston County

School District, Respondent,

v.

Charleston County

Election Commission

and State of South

Carolina Election

Commission, of whom

State of South Carolina

Election Commission is Appellant.

Appeal From Charleston County

R. Markley Dennis, Jr., Circuit Court Judge

Opinion No. 24980

Heard June 23, 1999 Filed August 2, 1999

REVERSED

Attorney General Charles M. Condon, Deputy

Attorney General Treva G. Ashworth, Assistant and

Deputy Attorney General J. Emory Smith, Jr., all of

Columbia, for appellant.

Robert N. Rosen, Donald B. Clark, and Daniel F.

Blanchard, all of Rosen, Goodstein, and Hagood, of

Charleston, for respondent.

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COUNTY ELECTION COMMISSION

WALLER, A.J.: The circuit court, at the request of the Charleston

County School District (District), issued a writ of mandamus directing the

Charleston County Election Commission (County Commission) to post and

distribute a supplemental ballot handout to voters at each precinct during a

$350 million school bond referendum. The South Carolina State Election

Commission (State Commission) appeals. We reverse.

FACTS

District's Board of Trustees adopted a resolution in January 1998

calling for a $350 million bond referendum to build or renovate 76 schools.

District directed County Commission to conduct an election March 28, 1998.

The ballot form prepared by District for placement on electronic

voting machines consisted of text the length of twelve typewritten pages. The

ballot form stated the question,1 then briefly listed specific renovations and

additions that would occur at each school. County Commission, after consulting

with State Commission, informed District the ballot form as proposed was too

long to fit on the machines. Neither District nor County Commission wanted

to use paper ballots.

After further discussion, County Commission agreed to place a

summarized version of the question on the machines containing only the

question and a list of affected schools. County Commission also agreed to post

and distribute to voters at each precinct a twelve-page supplemental ballot

handout (titled "Official Ballot Handout") containing the complete list of specific

Shall the Board of Trustees of Charleston County School District,

South Carolina, be empowered to issue general obligation bonds of

the School District in the aggregate principal amount not to exceed

$350,000,000, the proceeds of which shall be used for the purpose

of repairing, renovating and adding school facilities and classrooms,

including 'specifically the projects listed below, and the

implementation of the Community Review Panel as approved by

the Board of Trustees on January 20, 1998?

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renovations and additions, along with the total estimated amount to be spent

at each school. The Charleston County seal was placed at the top of the first

page of the handout, a change that was informally approved only by County

Commission's chairman. District printed 190,000 copies of the handout at a

cost of $12,000. District also sought and obtained election pre-clearance from

the United States Department of Justice in accordance with the Voting Rights

Act of 1965.

County Commission reversed its position at a meeting March 10,

1998. County commissioners stated in affidavits that State Election

Commission Chairman Sam Howell's statements against distributing the

handout, letters and comments from state legislators opposing the handout, and

changes made by District in the handout, including the addition of the county

seal, prompted them to refuse to distribute it. Commissioners believed the

handout violated S.C. Code Ann. § 7-25-180 (Supp. 1998), which prohibits the

distribution of "campaign literature" within 200 feet of any polling place.

District filed a complaint and a motion seeking a writ of mandamus

and mandatory injunction under Rule 65(f), SCRCP. District's complaint

included a declaratory judgment action pursuant to S.C. Code Ann. º 15-53-30

(1976). County Commission and State Commission opposed District's request.

The circuit court granted the motion for a writ of mandamus and ordered

County Commission to post and distribute the handout. The order did not

address the declaratory judgment action. County Commission complied with

the order. A majority of voters rejected the bond referendum.

STANDARD OF REVIEW

"Mandamus is somewhat of a hybrid proceeding. It is not a suit in

tort, nor is it a suit in contract; it is not strictly a law case, nor is it one in

equity. It is based on the theory that an officer charged with a purely

ministerial duty can be compelled to perform that duty in case of refusal."

Lombard Iron Works & Supply Co. v. Town of Allendale, 187 S.C. 89,95-96,196

S.E. 513, 516 (1938). Whether to issue a writ of mandamus lies within the

sound discretion of the trial court, and an appellate court will not overturn that

decision unless the trial court abuses its discretion. Jolly v. Marion Nat'l Bank,

267 S.C. 681, 685-86, 231 S.E.2d 206, 208 (1976); Linton v. Gaillard, 203 S.C.

19, 23, 25 S.E.2d 896, 898 (1943). An abuse of discretion arises where the trial

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court was controlled by an error of law or where its order is based on factual

conclusions that are without evidentiary support. Tri-County Ice and Fuel Co.

v. Palmetto Ice Co., 303 S.C. 237,242,399 S.E.2d 779,782 (1990). In reviewing

a decision on a mandamus petition, an appellate court will not disturb the

factual findings of the trial court when those findings are supported by any

reasonable evidence. De Pass v. Broad River Power Co., 173 S.C. 387, 3952 176

S.E. 325, 328 (1934).

ISSUES

1. Is this appeal moot?

2. Does State Commission have standing to appeal

this case?

3. Did the circuit court err in issuing a writ of

mandamus directing County Commission to post

and distribute a supplemental ballot handout?

DISCUSSION

1. MOOTNESS

District contends the Court should not hear this appeal because the

case is moot. The handout was posted and distributed, the referendum failed,

and no one appealed the outcome of the election. We disagree.

"This Court will not pass on moot and academic questions or make

an adjudication where there remains no actual controversy. Mootness has been

defined as follows: 'A case becomes moot when judgment, if rendered, will have

no practical legal effect upon existing controversy. This is true when some

event occurs making it impossible for [the] reviewing Court to grant effectual

relief."' Byrd v. Irmo High School, 321 S.C. 426,431,468 S.E.2d 861,864 (1996)

(citations omitted). A court may take jurisdiction, despite mootness, if "the

issue raised is capable of repetition but evading review."' Id., (citing In Interest

of Darlene C., 278 S.C. 664, 6615, 301 S.E.2d 1362 137 (1983)).

We choose to decide this appeal even though this particular case is

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moot. The same situation could arise again and it is unlikely an appellate court

would resolve such a case before an election was held.

2. STANDING

District asserts State Commission lacks standing to adjudicate the

rights of County Commission, which is not a party to this appeal, before this

Court. State Commission is not responsible for conducting local elections, but

merely provides advice and technical assistance, District contends. We

disagree.

To have standing, one must have a personal stake in the subject

matter of the lawsuit, i.e., one must be a real party in interest. Glaze v.

Grooms, 324 S.C. 249, 255,478 S.E.2d 841, 845 (1996); Townsend v. Townsend,

323 S.C. 309) 474 S.E.2d 424 (1996). "A real party in interest is one who has a

real, material, or substantial interest in the subject matter of the action, as

opposed to one who has only a nominal or technical interest in the action."

Anchor Point Inc. v. Shoals Sewer Co., 308 S.C. 4222 428, 418 S.E.2d 546, 549

(1992).

State Commission has standing to pursue this appeal because it has

significant duties regarding ballot forms which give it a real and substantial

interest in this case. E. ., S.C. Code Ann.§ 7-13-320 (1976 & Supp. 1998)

(ballot standards and specifications); S.C. Code Ann. § 7-13-325 (Supp..1998)

(develop regulations and forms on candidate's name as it appears on ballot);

S.C. Code Ann. §§ 7-13-330 and -335 (1976 & Supp. 1998) (arrangement of

names and offices on ballot); S.C. Code Ann. § 7-13-340 (1976) (prepare and

distribute all state and national ballots); S.C. Code Ann. § 7-13-400 (1976) (form

of ballot for bond referendum or other question); S.C. Code Ann. § 7-13-610

(Supp. 1998) (preparation of certain primary ballots); S.C. Code Ann. § 7-13-

611 (Supp. 1998) (establishing sample "official ballot" and giving State

Commission power to promulgate regulations on county and state ballots); S.C.

Code Ann. § 7-13-1360(c) and -1370 (1976) (prescribe form and arrangement of

ballot labels and ballot cards used in vote recorders); S.C. Code Ann. § 7-13

1490 (1976) (promulgate regulations on use of vote recorders).

Furthermore, State Commission may appeal because District

named it as a party in its complaint and motion, and the circuit court named it

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as a party in its order. See Rule 201(b), SCACR ("[o]nly a party aggrieved by

an order, judgment, or sentence may appeal").

3. WRIT OF MANDAMUS

State Commission asserts the circuit court erred in issuing a writ

of mandamus because (1) no established right exists to the use of a handout in

a bond referendum; (2) any decision on the use of a handout was for County

Commission to make, not District; (3) District had an adequate remedy at law

because it could have delayed the election to resolve the handout issue; and (4)

a supplemental ballot handout on a bond referendum is not authorized by

statute or case law.

District contends mandamus was proper because (1) District has the

authority to write the question to be placed on the ballot form, and County

Commission must merely carry out its ministerial duty by conducting the

election as ordered; (2) District did not have time before the election to engage

in protracted litigation to enforce its rights; (3) no statute prohibits

supplemental ballot handouts; and (4) the handout was not forbidden

"campaign literature," but was merely the full, unbiased text of the public

measure at issue and was permissible under the statutes and this Court's

precedent.

"The writ of mandamus is the highest judicial writ known to the

law.... The primary purpose or function of a writ of mandamus is to enforce an

established right, and to enforce a corresponding imperative duty created or

imposed by law. It is designed to promote justice, subject to certain well-defined

qualifications. Its principal function is to command and execute, and not to

inquire and adjudicate." Willimon v. City of Greenville, 243 S.C. 82, 86-87, 132

S.E.2d 1691170-71 (1963).

Accordingly, to obtain a writ of mandamus requiring the

performance of an act, the applicant must show (1) a duty of the opposing party

to perform the act, (2) the ministerial nature of the act, (3) the applicant's

specific legal right for which discharge of the duty is necessary, and (4) a lack

of any other legal remedy. Redmond v. Lexington County School Dist. No. Four,

314 S.C. 431) 4371 445 S.E.2d 441) 445, (1994) (citing Willimon v. City o

Greenville, supra). In analyzing these factors, it must be emphasized that

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"[w]here for any reasons the duty to perform the act is doubtful, the obligation

is not regarded as imperative, and the applicant will be left to his other

remedies. So when the statute prescribing the duty does not clearly and

directly create it, the writ will not lie.... Mandamus will not issue to enforce

doubtful rights." Gardner v. Blackwell, 167 S.C. 313, 321, 166 S.E. 338, 341

(1932). The duty to perform an act must be indisputable and plainly defined.

Central South Carolina Chapter, Society of Professional Journalists v. United

States District Court, 551 F.2d 559, 562 (4th Cir. 1977).

We hold that the circuit court abused its discretion in issuing a writ

of mandamus because none of the four factors is met in this case. The circuit

court's decision was controlled by an error of law.

First, District has not shown that County Commission or State

Commission has a plainly defined duty to post and distribute a supplemental

ballot handout on a bond referendum. District has cited no statute or case, and

we have found none, requiring County Commission to distribute the handout.

See Gardner v. Blackwell, supra (this Court refused to issue writ of mandamus

in its original jurisdiction to force election officials to prepare a single ballot

listing national candidates because no statute required it).

Second, we agree with District that the general duty of organizing

and conducting the election is a ministerial act. It would have been proper for

the circuit court to issue a writ of mandamus directing County Commission to

organize and conduct a bond referendum ordered by District if County

Commission had refused to do so. See S.C. Code Ann. § 59-71-40 (1990) (after

District orders the bond referendum and notifies County Commission, " [i]t shall

thereupon become the duty of the commissioners of election to conduct the

election so ordered"); Killian v. Wilkins, 203 S.C. 74, 26 S.E.2d 246 (1943) (after

vacancy was created when no candidates were elected because citizens failed to

properly register to vote in duly called election, Court issued writ of mandamus

directing holdover town officials to organize a special election as required by

statute); Easler v. Maybank , 191 S.C. 511, 5 S.E.2d 288 (1939) (after Court

declared void an election of school trustees, Court had power to compel election

by issuing writ of mandamus to governor under statute authorizing the

election).

In this case, however, County Commission met promptly to begin

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organizing the election after District approved the resolution calling for the

bond referendum. The ministerial act at issue is not the general duty of

organizing and conducting the election; the ministerial act at issue is whether

County Commission has a specific duty to distribute a supplemental ballot

handout upon District's order.

It also would have been proper for the circuit court to issue a writ

of mandamus directing County Commission to place the question approved by

District on the ballot if County Commission had refused to do so. District has

the ultimate authority to determine the form of the ballot as it pertains to the

substantive content of the question placed on the ballot. Neither State

Commission nor County Commission has any unilateral authority to shorten or

change the wording of a question to fit a particular ballot form. State

Commission and County Commission, subject to statutory guidance, control the

form of the ballot only as it pertains to physical characteristics of the ballot such

as space limitations and the arrangement of names and issues. See 29 C.J.S.

Elections §§ 155-56 (1965) (act of having ballots printed is ministerial, and

officials must follow statutes regarding form and content of ballots).

If District had insisted on keeping the question it originally

proposed, then County Commission would have been required to conduct an

election with paper ballots because the question was too lengthy to place on the

voting machine ballot. That proved unnecessary in this instance because

District and County Commission worked together to prepare a shorter question

that would fit on the voting machine ballot.

Third, District has not cited any statute or case, and we have found

none, demonstrating it has a clearly established right to force County

Commission to distribute the supplemental ballot handout.

Fourth, District had another legal remedy. This case could have

been resolved under the Uniform Declaratory Judgments Act. S.C. Code Ann.

§§ 15-53-10 to -140 (1976 & Supp. 1998); Rule 57, SCRCP. "Any person ...

whose rights, status or other legal relations are affected by a statute ... may

have determined any question of construction or validity arising under the . .

.statute ... and obtain a declaration of rights, status or other legal relations

thereunder." S.C. Code Ann. § 15-53-30 (1976). This case presented a

justiciable controversy. See Graham v. State Farm Mut. Auto. Ins. Co., 319

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S.C. 69, 459 S.E.2d 844 (1995) Justiciable controversy exists when a concrete

issue is present, there is a definite assertion of legal rights and a positive legal

duty which is denied by the adverse party).

The only supplemental ballot handout local election officials are

explicitly authorized by statute to distribute is an explanation of a proposed

constitutional amendment. See S.C. Code Ann. § 7-13-2110 and -2120 (1976).

The record reveals that similar handouts, proper or not, have been used in other

elections.2

The Court has held that the question which appears on a voting

machine ballot is not required to contain the entire text of a proposed measure.

The summarized question must explain the measure "plainly, fairly, and in

such words that the average voter may understand its character and purpose."

Stackhouse v. Floyd, 248 S.C. 183, 193, 149 S.E.2d 437, 443 (1966); accord

Fleming v. Royal, 145 S.C. 438, 143 S.E. 162, 166 (1928) (" [i] t is not necessary

to set forth at length in the ballot the full terms of the [constitutional]

amendment, if the notice gives sufficient information to the electors"); 29 C.J.S.

Elections § 170 (question on ballot is sufficient if it identifies the matter and

shows its character and purpose without misleading or deceiving voters); 26

Am.Jur.2d Elections § 313 (1996) (same). The Court, however, has not decided

whether a governing body may force local election officials to distribute a

supplemental ballot handout containing the full text of a proposed measure

when a summary of the measure is placed on a voting machine ballot.

In light of our decision that the circuit court erred in issuing the

writ of mandamus, we decline to address the propriety of this supplemental

Hendrix to District's counsel explains that the handout proposed by District "is

similar to what we have done in general elections when there are large numbers

of amendments on the ballot and what has been done in other referenda when

the question exceeds the capacity of the voting system being used." At the

circuit court hearing on the mandamus motion, State Commission's counsel

conceded supplemental ballot handouts have "been used in the past and not just

[with] constitutional amendments, [b]ut that doesn't mean they were in

compliance with the law."

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ballot handout. This case presents a practical problem - complex or lengthy

measures that will not fit on ballot forms used in modern voting machines. We

suggest the Legislature may wish to address the matter of supplemental ballot

handouts such as the one at issue in this case.

CONCLUSION

We decide this appeal, even though this particular case is moot,

because the issue is capable of repetition yet evading review. State Commission

has standing to pursue the appeal because it has significant duties regarding

ballot forms. We reverse the circuit court because it abused its discretion in

issuing a writ of mandamus when there was no plainly defined duty or clearly

established right to post and distribute a supplemental ballot handout.

REVERSED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

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