In Wilson v. City of Columbia,[1] the South Carolina Supreme Court held that a city ordinance mandating masks in public and private schools and daycares ran afoul of a state budget proviso prohibiting the use of state funds to enforce mask mandates in public schools.

In its 2021-2022 Appropriations Act, the South Carolina General Assembly included Proviso 1.108, which prohibits school districts and schools from using “any funds appropriated or authorized pursuant to this act to require that its students and/or employees wear a facemask at any of its education facilities.”[2] The City of Columbia later passed two ordinances[3] that “mandate facemasks for ‘all faculty, staff, children over the age of two (2), and visitors, in all buildings at public and private schools or daycares.’”[4] Attorney General Alan Wilson brought an action in the court’s original jurisdiction seeking a declaratory judgment that Columbia’s ordinances violated the state budget proviso.[5]

Writing for the majority, Justice John W. Kittredge focused closely on the language of the proviso. At the outset, the court made clear “that the wisdom or efficacy of mandating school children to wear facemasks to combat the coronavirus is not before [the court].”[6] Instead, the legal issues were whether the budget proviso was constitutional and, if so, whether the ordinances conflicted with the proviso and were thus invalid.[7]

On the first issue, Columbia argued that Proviso 1.108 violated the state constitution’s one-subject rule.[8] Under that rule, “Every Act of resolution having the force of law shall relate to but one subject.”[9] As the South Carolina Supreme Court has interpreted that rule, the “topics in the body of the act” must be “kindred in nature” and have “a legitimate and natural association with the subject of the title.”[10] The title must “convey reasonable notice of the subject to the legislature and the public.”[11] And a provision “in a general appropriations act” complies with this requirement as long as it “reasonably and inherently relates to the raising and spending of tax monies.”[12]

The court held that Proviso 1.108 met this standard for two reasons. First, the proviso “is reasonably and inherently related to the spending of tax money” because it sets limits on the use of funds allocated to the Department of Education by the act.[13] Second, the proviso “has a legitimate and natural association with the title of the Appropriations Act, as it regulates the expenditure of appropriated funds by K-12 schools.”[14] Thus, the court ruled that the proviso does not violate the state constitution and “is accorded supremacy” over local laws.[15]

Columbia also argued that its ordinances did not conflict with the state law because the city would use other funds to enforce its mask mandate—not state-appropriated funds.[16] Rejecting this argument, the court said that

[t]he notion that City employees would infiltrate the schools and, without any assistance from school personnel and without a penny of state funds, would be able to mandate masks and impose civil penalties for violations strains credulity and, in fact, is demonstrably false, as proven by the terms of the ordinances themselves.[17]

That is because the ordinances required school personnel to enforce the mandate or face sanctions and personal liability.[18] This requirement made evident the conflict between the state’s proviso and the city’s ordinances.

According to the court, in this type of “conflict between a State statute and a city ordinance,” it is a “bedrock principle” that “the ordinance is void.”[19] The court emphasized that “[l]ocal governments derive their police powers from the State,”[20] and that “the City ordinance could not make legal that which the State statute declared unlawful.”[21] Columbia argued that it had authority under the state’s Home Rule Act to unilaterally declare a state of emergency and “preserve the ‘health, peace, order and good government of its citizens.’”[22] The court rejected this argument too, explaining that the home rule doctrine does not “serve[] as a license for local governments to countermand legislative enactment by the General Assembly.”[23] Nor does the home rule doctrine narrow the preemptive scope of a state law where compliance with both the law and a local ordinance “is impossible.”[24]

Justice George C. James, Jr. issued a concurring opinion that described the diverse viewpoints on mask mandates.[25] He emphasized that “[i]n spite of the explosion of public opinion on masks and mask mandates and the sometimes unfortunate manner in which these opinions are expressed, [the court’s] focus and [the court’s] authority are limited to applying the law.”[26]

Justice Kaye G. Hearn wrote a separate opinion concurring only in the result, joined by Chief Justice Donald W. Beatty. In her view, the majority’s description of the underlying “conflict as a debate between parental choice and government mandates” placed “an unnecessary political gloss on the issue.”[27]

Wilson v. City of Columbia underscores the importance of text-driven legal analysis in resolving contentious disputes. Rather than address the underlying policy questions—questions that have engendered much discussion and disagreement—the court’s opinion focused on the text of the relevant provisions. In that respect, it echoes the court’s earlier opinion in Creswick v. University of South Carolina, which held that a state institution of higher education could impose a mask mandate because the proviso at issue only prohibited the use of state funds “to require that its students have received the COVID-19 vaccination in order to be present at the institution’s facilities without being required to wear a facemask.”[28] And in Wilson, the court underscored the precise contours of the law, pointedly refusing to hold that all local mask mandates would violate Proviso 1.108.[29] Instead, it held that Columbia’s ordinances were in violation because, as written, they necessarily involved the use of state-appropriated funds to carry out the mask mandate in schools—the very use that Proviso 1.108 prohibits.[30] This narrow holding leaves open the possibility that local mask mandates not dependent on state funds could see a different fate. Finally, a federal district court recently limited the scope of the proviso as to K-12 schools on federal law grounds, holding that “disallowing school districts from mandating masks . . . discriminates against children with disabilities.”[31] That litigation remains ongoing and could affect the proviso’s implementation.   

[1] No. 2021-000889, 2021 WL 3928992 (S.C. Sept. 2, 2021).

[2] H. 4100, 124th Leg., 1st Reg. Sess. (S.C. 2021).

[3] City of Columbia, S.C., Ordinance No. 2021-068 (Aug. 4, 2021); City of Columbia, S.C., Ordinance No. 2021-069 (Aug. 5, 2021).

[4] Wilson, 2021 WL 3928992, at *2.

[5] Id. at *1.

[6] Id. at *3.

[7] Id. at *4–5.

[8] Id. at *4.

[9] S.C. Const. art. III § 17.

[10] Wilson, 2021 WL 3928992, at *4 (quoting Westvaco Corp. v. S.C. Dep’t of Revenue, 467 S.E.2d. 739, 741 (S.C. 1995)).

[11] Id. (quoting Westvaco, 467 S.E.2d. at 741).

[12] Id. (quoting Town of Hilton Head Island v. Morris, 484 S.E.2d 104, 107 (S.C. 1997)).

[13] Id.

[14] Id.

[15] Id. at *6.

[16] Id. at *4–5.

[17] Id. at *4.

[18] Id. at *5; City of Columbia, S.C., Ordinance No. 2021-069 (Aug. 5, 2021).

[19] Wilson, 2021 WL 3928992, at *5 (quoting State v. Solomon, 245 S.C. 550, 575 (1965)).

[20] Id. (quoting City of N. Charleston v. Harper, 410 S.E.2d 569, 571 (S.C. 1991)).

[21] Id.

[22] Id.

[23] Id.

[24] Id. at *6.

[25] Id. at *7 (James, J., concurring).

[26] Id.

[27] Id. (Hearn, J., concurring).

[28] No. 2021 000833, 2021 WL 3629915, at *1 (S.C. Aug. 17, 2021).

[29] Wilson, 2021 WL 3928992, at *6.

[30] Id. at *5.

[31] Disability Rts. S.C. v. McMaster, No. CIV 3:21-02728, 2021 WL 4444841, at *11 (D.S.C. Sept. 28, 2021).

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