Publisher's Note: We do very much appreciate this fine editorial on the legal efficacy of the Boyd lawsuit against BRHS and the Beaufort County Commissioners from our friends at the Beaufort Observer.
James and Phyllis Boyd and their attorneys have made an egregious mistake...a mistake that goes to the very heart of our system of government.
They have filed a lawsuit seeking to prevent a duly elected body from voting on an issue that is prescribed by law to be that of the County Commission.
Click here to read their lawsuit.
Here's what's wrong with this lawsuit. It seeks to prevent what the plaintiffs may well deem an injurious action by preventing an action from taking place (a vote by a public body) that is clearly within the legislative authority of the governing board of the County. Woe be the day when any judge can tell an elected body how it can vote (or that it cannot vote) on an issue properly before that body. That is judicial usurpation and a violation of the Separation of Powers fundamental principle upon which our entire system of government is based.
We fought a revolution to keep the Royal Governors from preventing the legislature from acting (or even meeting.) We don't need to go through that again.
Now we should emphasize that we are not here contesting the wisdom of how the County Commission should vote. We will reserve that right for later. But we take strong exception to anyone who would try to keep them from voting in the first place, no matter how they would vote.
We understand the judicial procedure for a Temporary Injunction. And more specifically, we understand the standard of the court's authority to prevent irreparable harm. But we also understand jurisdiction. And we understand common sense.
Common sense would tell any reasonable person that there is not harm from how a County Commission votes on any issue (except perhaps the political consequences). The harm, if actual, comes from the execution of that action. And injunctive relief is appropriate only to prevent irreparable harm from the execution of a legislative body's action. But you don't prevent them from legislating.
Imagine, as an illustration, if those who opposed ObamaCare had sought injunctive relief to prevent Congress from adopting the legislation in the first place. We would dare say no court would have said that any judge has jurisdiction to predict how a legislative body will vote and then enjoin them from voting because the court "believed" there would be harm.
The injunctive process assumes that every claim made is true "viewed in the most favorable light for the moving party" and, if proven, would cause irreparable harm before the case could be heard on its merits. It would indeed be an irrational conclusion to presume a simple vote would do irreparable harm prior to the actual execution of the action that the plaintiff anticipated would be harmful to him/her.
Arguendo, it could be assumed that which health care provider the Hospital board and County Commissioners might choose could be shown by evidence to be injurious to a plaintiff. But that decision comes after the legislative body acts, not before it acts and it is based on the facts as presented in the evidence applied to the relevant law. If there is irreparable harm to be prevented it does not come from a Superior Court judge deciding in advance that a duly established legislative body should not act before the court reviews the legality of their action. After all, how does Judge Godwin know how they would have acted had he not enjoined them from doing so before they in fact made a decision?
Mr. and Mrs. Boyd complain that the proper procedures for leasing a hospital were not adhered to, specifically that the public hearings were not sufficient to meet the requirements of the statutes and that the Open Meetings law was violated. We join them in their concerns about these and even more egregious actions by both the Hospital board and the County Commission. We disdain secret meetings. There are few who are more frequently offended by such action than is the press. But we know that we must wait until after the decision is made to claim a violation. We know that we are not permitted to "predict" a violation before it happens even though we know full well that it will happen and do harm, most often to the principle of "the public's business is to be done in public."
And we paid attention when our law professor taught that the remedy for an illegal legislative act was to seek to have the prior offending decision overturned.
But we have never had a legal scholar teach us that a judicial body can tell a legislative body that it cannot vote on an issue properly before the legislative body. Courts don't have jurisdiction to predict bad legislation. They do have the authority to remediate illegal legislation based on the evidence and applicable law but that authority comes only after the legislative body has acted.
For that reason Judge Godwin should dismiss the Temporary Injunction and deny Permanent Restraint.
Then the County Commissioners should proceed and based on sound legal advice follow the proper procedures.
Then if Mr. and Mrs. Boyd, or any other aggrieved party with standing wishes to invoke judicial review of that action, so be it. But don't ever, ever accept a court of original jurisdiction telling an elected or duly appointed body not to do something that a plaintiff objects to until it reaches the point of execution of an illegal action. Courts don't prevent legislative bodies from legislating by preventing them from voting.
And in this case, we would audaciously offer our opinion by suggesting that the Boyds obtain more competent legal counsel. One that would seek to enjoin the execution of the action of a County Commission rather than seek to prevent it taking action that it is constitutionally and statutorily assigned to do based on nothing more than speculation of how the Commission might vote. After all, what if they would have voted for UHS? Would the Boyd's be complaining of process and procedure then?
