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Watchdog can sue DOT over private bridge inspections.

Byline: Phillip Bantz

 

Government watchdog Edward "Ned" Sloan Jr. has scored yet another victory against a state agency, this time prevailing over the Department of Transportation in a dispute centered on public resources being used to inspect private bridges in a city councilman's gated neighborhood.

Aside from making it clear that the DOT cannot work on private property, Sloan's latest win at the South Carolina Supreme Court further strengthens the ability of residents to challenge the unconstitutional actions of state agencies in the name of the public interest.

"I think it was a good reaffirmation of the public importance standing," said Sloan's attorney, James Carpenter of Greenville. "There have been attempts on the part of lawyers for some government agencies to try to limit the effectiveness or availability of public importance standing, and this opinion reestablishes the viability of the legal theory."

In a 3-2 decision, the Supreme Court held on Sept. 14 that Sloan had standing to sue the DOT because the central issue - whether the DOT could inspect private bridges - "is one of public importance as it involves both the conduct of a government entity and the expenditure of public funds," Chief Justice Donald Beatty wrote for the majority.

Beatty determined that the bridge inspections were unconstitutional as they served no public purpose and benefitted only the homeowners in Woodside Plantation, a gated community of about 4,000 residents in Aiken.

He concluded that it is "not the public's responsibility to pay the maintenance costs of bridges located within a gated community that seeks to exclude the public from enjoying the use of the bridges."

The opinion marks the seventh time that the state's highest court has granted Sloan public importance standing. Sloan is a retired paving contractor in Greenville who created the South Carolina Public Interest Foundation and, after joining forces with Carpenter, has filed dozens of lawsuits alleging government impropriety.

The latest opinion in Sloan's favor overturned rulings from the Richland County Circuit Court and state Court of Appeals, and drew dissents from Justice John Kittredge and acting Justice Costa Pleicones.

Pleicones asserted that Sloan lacked standing under the public interest exception, because the DOT has internal policies for "addressing and remaining accountable for the decisions made within its discretion."

Kittredge contended that granting Sloan standing to go after the DOT over the bridge inspections was "tantamount to conferring standing on every citizen in every case where improper governmental activity is alleged."

Kittredge also argued that the opinion established a dangerous precedent that would prevent the state from inspecting "numerous" private bridges that are open to the public, as well as private dams.

Noting that public school buses regularly use the bridges in Woodside Plantation, Kittredge wrote that the majority's decision strips the DOT of the "authority or discretion to provide assistance to local governments on matters critical to the safety of the traveling public."

Reacting to Kittredge's dissent, Carpenter said state law makes it clear that the DOT's responsibilities do not include inspecting private property.

"So while public safety is a laudable goal," he added, "I think it's the responsibility of someone other than the DOT when these bridges are on private property."

The DOT's attorney, Beacham Brooker Jr. of Columbia, did not respond to interview requests. He argued in the agency's brief that Sloan lacked public importance standing because the DOT already acknowledged that state law bars it from working on private property.

But Brooker asserted that the DOT had done nothing wrong in this case because it was helping the local government, rather than a private entity, when it inspected the Woodside Plantation bridges in response to a request from Aiken City Councilman Reggie Ebner, a resident of Woodside Plantation. The inspections cost taxpayers $1,400.

Carpenter said in an interview that Ebner was preparing to sue the developer of Woodside Plantation for using wood rather than steel to build three bridges in his community and "put political pressure on the DOT to do something for him and maybe become his unpaid expert witness" in the suit.

"The real problem is you've got a guy who tries to use his status as a city councilman to get the DOT to do something when it really involves a private dispute between him as a citizen of that community and the developer of that community," he added.

Sloan's win at the Supreme Court should strengthen his hand in a pending lawsuit in Richland County alleging that a mid-level manager at the DOT had a state road crew work on her gravel driveway. The alleged incident came to light after a neighbor snapped photos of the crew working, according to Carpenter.

Sloan relied on public importance standing to sue over the driveway incident, Carpenter said, and the trial judge in that case had been awaiting a decision from the Supreme Court in the bridges suit before making a ruling.

The 17-page decision is South Carolina Public Interest Foundation v. South Carolina Department of Transportation (Lawyers Weekly No. 010-052-17). An opinion digest is available at sclawyersweekly.com.

Follow Phillip Bantz on Twitter @SCLWBantz

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Title Annotation:Department of Transportation; South Carolina Public Interest Foundation v. South Carolina Department of Transportation
Author:Bantz, Phillip
Publication:South Carolina Lawyers Weekly
Date:Sep 19, 2017
Words:855
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