Williams, 032118 SCAGO, AGO 3067

• Case Date: March 21, 2018
• Court: South Carolina

John O. Williams, II, Esquire AGO 3067 No. 3067 South Carolina Attorney General Opinions State of South Carolina Office of the Attorney General March 21, 2018          John O. Williams, II, Esquire          Attorney for Berkeley County          Berkeley County Legal Department          Post Office Box 6120          Moncks Corner, SC 29461-6120          Alan Wilson, Attorney General          Dear Mr. Williams:          You seek an opinion "regarding the ability of ready SC, a division of the South Carolina Technical College system, to implement residency requirements as outlined in the South Carolina Code of Laws § 59-112-20 for the purpose of prioritizing the availability of work force development training." By way of background, you stated that Berkeley County Council voted on February 12, 2018 to request an opinion on the issue as follow:

1. South Carolina Code of Laws [§59-112-20] restricts in-state tuition rates to "...persons who reside in and have been domiciled in South Carolina for a period of no less than twelve months...". May readySC, a division of the South Carolina Technical College System, implement this residency requirement for the purpose of making work force development training available to persons who reside in and have been domiciled in South Carolina for a period of less than twelve months on a priority basis as against persons who do not meet this residency requirement? Said differently, may readySC use the requirements of the statute defining which persons are eligible for in-state tuition rates to define which persons may be given priority placement in workforce development training?

         Law / Analysis          We begin with the principle that a statute enacted by the General Assembly must be presumed constitutional. As we have previously recognized,

"[i]t is always to be presumed that the Legislature acted in good faith and within constitutional limits. . . ." Scrogeie v. Scarborough, 162 S.C. 218, 160 S.E. 596, 601 (1931). The General Assembly is "presumed to have acted within . . . [its] constitutional power____" State v. Soloman, 245 S.C. 550, 572, 141 S.E.2d 818 (1965). Moreover, our Supreme Court has often recognized that the powers of the General Assembly are plenary, unlike the federal Congress, whose powers are enumerated. State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 231, 233 (1956). Accordingly, any act of the General Assembly must be presumed valid and constitutional. A statute will not be considered void unless its constitutionality is clear beyond a reasonable doubt. Thomas v. Macklen, 186 S.C. 290, 195 S.E. 539 (1937); Townsend v. Richland Co., 190 S.C. 270, 2 S.E.2d 779 (1939). Every doubt regarding the constitutionality of an act of the General Assembly must be resolved favorably to the statute's constitutional validity. More than anything else, only, a court and not this Office, may strike down an act of the General Assembly as unconstitutional. While we may comment upon an apparent conflict with the Constitution, we may not declare the Act void. Put another way a statute "must continue to be followed until a court declares otherwise." Op. S.C. Att'y Gen., June 11, 1997.

Op. S.C. Att'y Gen., 2004 WL 2451472 (Oct. 7, 2004).          Section 59-112-20 establishes "domicile for tuition and fee purposes ... in determinations of rates of tuition and fees to be paid by students entering or attending state institutions." Pursuant to § 59-112-20(A), "[independent persons who reside in and have been domiciled in South Carolina for a period of no less than twelve months with an intention of making a permanent home therein, and their dependents, may be considered eligible for in-state rates." Moreover, § 59-112-20(B) further provides that "[independent persons who reside in and have been domiciled in South Carolina for fewer than twelve months but who have full-time employment in the State, and their dependents, may be considered eligible for in-state rates for as long as such independent person is employed on a full-time basis in the State." Section 59-112-10 defines certain terms, including the term "state institution" as including TEC schools. The term "in-state rates" is defined as "charges for tuition and fees established by State Institutions for persons who are domiciled in South Carolina. . . ." There is no doubt that attendance by a resident student to a TEC school qualifies for in-state tuition. The word "student" is also defined as "any person enrolled for studies in any state institution." The word "tuition" is not defined. The question you pose is whether this statute may be used with respect to readySC's work-force training of persons?          Turning now to this question, we note that previously we addressed the issue of so-called "durational residency" requirements in a 1985 opinion. See 1985 WL 259175 (May 7, 1985). We referenced therein the decision, Memorial Hosp. v. Maricopa County, 415 U.S. 750 (1974) and subsequent decisions of the United States Supreme Court. There, we explained as follows:

In the Maricopa County case, supra, the United States Supreme Court set forth the law governing durational residency provisions. There, the

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