Did South Carolina's 2018 dam safety joint resolution remain binding on DHEC in 2019?

Plain-English summary

In 2019, two legislators asked whether a joint resolution directing South Carolina's dam safety program to focus on high and significant hazard dams remained binding. The Attorney General concluded that a court would likely give the resolution the force of law. The opinion explained that a joint resolution can have legal effect under the state constitution after the required legislative steps and formalities.

The office traced the resolution through readings and votes in both chambers, ratification, and the Governor's signature. It could not determine whether the Great Seal and other additional formalities had been completed. Its conclusion that the resolution bound DHEC was expressly conditioned on those formalities having been satisfied.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was the 2018 dam safety resolution legally binding on DHEC?
A: The AG thought a court would likely say yes, provided the additional constitutional formalities for giving a joint resolution the force of law were satisfied.

Q: Did the AG confirm that the resolution received the Great Seal?
A: No. The opinion said the office did not know whether that and the other additional formalities were completed.

Q: Which dams did the resolution tell the program to focus on?
A: As quoted in the opinion, it directed the program to focus its resources on high and significant hazard dams and reclassification when failure or improper operation would likely cause loss of human life.

Background and statutory framework

The opinion distinguished joint resolutions, which can have the force of law, from concurrent resolutions. It relied on the constitutional requirements for a joint resolution and the recorded legislative history, while leaving the unverified formalities as a condition on its conclusion.

Citations and references

• 2018 Act No. 272: the joint resolution at issue.
• S.C. Const, art. Ill, § 18: the constitutional provision quoted in the opinion on when a joint resolution has the force of law.

Official title

On whether the Joint Resolution, 2018 Act No. 272, continues to be binding and controlling authority for the South Carolina Department of Health and Environmental Control Dam Safety and Reservoirs Program.

Requester

The Honorable David R. Hiott and James M. Burns, Members, South Carolina House of Representatives.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-15-2019/
• Original PDF: https://www.scag.gov/wp-content/uploads/2019/05/5-15-2019-HiottD-BurnsJ-OS-10358-FINAL-Opinion-5-15-2019-01967685xD2C78-01970835xD2C78.pdf

Original opinion text

•South
Alan Wilson
Attorney General

May 15,2019
The Honorable David R. Hiott

The Honorable James M. Bums

Member

Member

South Carolina House of Representatives

South Carolina House of Representatives

District No.4

District No. 17

411 Blatt Bldg.
Columbia, SC 29201

326B Blatt Bldg.
Columbia, SC 29201

Dear Representatives Hiott and Bums:

Attomey General Alan Wilson has referred your letter to the Opinions section. Your letter states:

The South Carolina General Assembly passed Joint Resolution S. 1190 (A272, R231 of 2018), which Govemor McMaster signed into law on May.17, 2018. The Joint Resolution states, "The General Assembly hereby directs the

Department of Health and Environmental Control to focus the resources of the department's Dams and Reservoirs Safety Program on regulating the state's high and significant hazard dams only and reclassifying dams when the failure or improper operation of a dam will likely result in loss of human life. The joint resolution takes effect upon approval by the Governor."

We would appreciate the Attomey General's office issuing an opinion as to whether Act 272 (S.1190, R231 of 2018) is still the binding and controlling authority for the Department of Health and Environmental Control Dam Safety and Reservoirs Program as it relates to reclassification and regulation ofthe state's high and significant hazard dams.

Law/Analysis

It is this Office's opinion that a court would likely find the Joint Resolution, 2018 Act No. 272, continues to be binding and controlling authority for the South Carolina Department of Health and Environmental Control Dam Safety and Reservoirs Program. The South Carolina Constitution establishes that joint resolutions have the force of law when the following conditions are met:

RjhmbertC. Dennis Building » Post Office Box 11549 • Columbia,SC 29211-1549 . Telephone 803-734-3970 • Facsb^ile 803-253-6283

The Honorable David R. Hiott
The Honorable James M. Burns
Page 2

May 15,2019

No Bill or Joint Resolution shall have the force of law until it shall have been read three times and on three several days in each house, has had the Great Seal of the State affixed to it, and has been signed by the President of the Senate and the Speaker of the House of Representatives: Provided, That either branch of the General Assembly may provide by rule for a first and third reading of any Bill or Joint Resolution by its title only. S.C. Const, art. Ill, § 18 (emphasis added). This Office's June 17, 1987 opinion to Senator John Courson explained the distinction between joint and concurrent resolutions and why, in South

Carolina, the former has the effect of law and the latter does not. This commentator has described joint resolutions as closely resembling statutes. Sutherland Stat. Const. §§ 29.04 & 29.05 (4th ed. 1984). Distinguishing between

joint and concurrent resolutions, this commentator has stated: Although the terms "joint" and "concurrent" are frequently used

synonymously such reference is inaccurate and leads to confusion. In those states which give the joint resolution the effect of law, it

must be signed by the governor. This requirement is not imposed with respect to concurrent resolutions, although in some states they, too, must be submitted to the governor "for his approval."

Likewise,

the

greater

procedural

safeguards

and

the

delays

intended to insure more sober judgment in the enacting of joint resolutions do not apply to concurrent resolutions. "In the current practice, concurrent resolutions have been developed as a means of expressing fact, principles, opinions and purposes of the two

houses.

Joint committees,

adjournments

and

recesses

of the

Congress are authorized by resolutions in this form."
Sutherland Stat. Const. § 29.06 (4th ed. 1984). Accord. S.C. Attv. Gen. Op.. Aug. 6, 1974 ("Although a concurrent resolution, unlike a joint resolution, does not have the force and effect of law, but is, instead, an expression of the sense of the

two Houses concurrently, it does, nevertheless, carry great weight."). Op. S.C. Atf v Gen.. 1987 WL 342683, at 5 (June 17, 1987).

The opinion will next review the legislative history regarding the Joint Resolution to determine whether a court would likely find that it meets all the conditions of S.C. Const, art. Ill,
§ 18 such that it would have the force of law. The Joint Resolution's legislative history shows that it was introduced in the Senate, amended, read three times on separate days, and approved by a vote of 43-0. See https://www.scstatehouse.gov/sess 1 22 20 1 7-20 1 8/bills/l 1 90.htm.

The Joint

Resolution was then sent to the House of Representatives, read three times on separate days, and

The Honorable David R. Hiott
The Honorable James M. Burns
Page 3
May 15,2019

approved by a vote of 101-3. Id. It was ratified on May 14, 2018 and subsequently signed by the Governor on May 17, 2018. Id.

This Office is not aware if the additional formalities, such as

affixing the Great Seal of the State, were satisfied. However, if these formalities were satisfied, it is this Office's opinion that a court would likely find the Joint Resolution has the force of law and, therefore, would be binding and controlling authority for the South Carolina Department of Health and Environmental Control. Conclusion

It is this Office's opinion that a court would likely find the Joint Resolution, 2018 Act No. 272, continues to be binding and controlling authority for the South Carolina Department of Health and Environmental Control Dam Safety and Reservoirs Program. Sincerely,

Matthew Houck

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General