SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from an Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was issued following a hearing held pursuant to S.C. Code Ann. § 56-1-1030 (Supp. 2007). The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Dwight Walker (Respondent). The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final Order and Decision is affirmed.

BACKGROUND

On December 13, 2006, Appellant Department of Motor Vehicles sent Respondent Walker an official notice of suspension informing him that due to three separate convictions for driving under suspension, he was declared a habitual offender under S.C. code Ann 56-1-1020-130 and that as a result his driving privileges would be suspended from January 12, 2007 until January 12, 2012. The offenses were listed on the suspension notices as follows:

Pursuant to Section 56-1-1090, Respondent Walker appealed this determination on January 10, 2007 and a hearing was set for February 12, 2007 before Hearing Officer Tracey Holland. After the hearing was held on February 21, 2007, the Department forwarded to the DMVH a set of documents for inclusion into the Record on Appeal, including the three Driving Under Suspension tickets, the Notice of Hearing, the Suspension Letter and a copy of Respondent’ Walker’s certified driving record.

The hearing was held on February 12, 2007 as scheduled at the Clemson City Municipal Court. At the hearing, Respondent Walker represented himself. The Department failed to appear and thus provided no evidence to the Hearing Officer supporting its position. Accordingly, Hearing Officer Holland stated at the hearing that: “the burden of proof is solely upon them (the Respondent), and they have not, as of this date, submitted any documentation to prove their case in declaring the Respondent, Mr. Walker, a habitual offender“ Therefore, she granted an Order of Dismissal on March 13, 2008, pursuant to ALC Rule 23,[1] in which she rescinded Respondent’s suspension.

The Department now appeals the DMVH’s Order of Dismissal.

ISSUES ON APPEAL

1.      Did the hearing officer err when she held a contested case hearing with less than Thirty (30) Days Notice to the parties?

2.      Did the hearing officer err when she held that the Department failed to carry its burden of proof even though she received the Suspension Notice stating the offenses constituting Habitual Offender status?

3.      Did the hearing officer err when she held that the Department failed to carry its burden of proof when the DMVH has electronic access to the Respondent’s driving record which proved the offenses constituting habitual offender status?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2007). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2007); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2007).[2] That section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996). The party challenging an agency action has the burden of proving that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

Summary of Applicable Law

S.C. Code Ann. § 56-1-1030 (Supp. 2007) provides in pertinent part:

If the [Department of Motor Vehicles] determines after review of its records that [a] person is an habitual offender as defined in Section 56-1-1020, the department must revoke or suspend the person’s driver’s license. . . . A resident of South Carolina found to be an habitual offender may appeal the decision to the Division of Motor Vehicle Hearings in accordance with its rules of procedure.

S.C. Code Ann. § 56-1-1020 (2006) defines a habitual offender to include, among others, a person who, in a three-year period, accumulates three of more convictions for “[d]riving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility.” Pursuant to S.C. Code Ann. § 56-1-1090 (Supp. 2007), the length of a habitual offender suspension is five years, unless the suspension period is reduced to two years as permitted by subsection (c) of Section 56-1-1090.

Prior to January 1, 2006, the Department’s Office of Administrative Hearings (OAH) held the hearings requested under Section 56-1-1030. However, in the summer of 2005, the Legislature enacted Act No. 128, § 22, 2005 S.C. Acts 1503 (the DMVH Act). Pursuant to the DMVH Act, the DMVH was created as a division of the ALC and, as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2007). The DMVH Act requires DMVH hearing officers to conduct their hearings in accordance with the ALC’s rules of procedure. Id.

I.                   THE ISSUE OF WHETHER THE HEARING OFFICER ERRED IN HOLDING THE HEARING WITH LESS THAN THIRTY DAYS NOTICE TO THE PARTIES WAS WAIVED BY THE DEPARTMENT.

The Department argues that the DMVH Hearing Officer erred in holding a hearing allowing less than thirty days’ notice in violation of S.C. Code Ann. § 1-23-320(a). This argument was not presented to the DMVH Hearing Officer and is not properly preserved for review. Kiawah Resort Assocs. v. S.C. Tax Comm'n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (holding that issues that are neither raised to, nor ruled upon by, the administrative agency are not preserved for appellate review).

II.                The suspension notice THAT THE dmvh RECEIVED ON jANUARY 12, 2007 was not prima facie evidence of offenses constituting habitual offender status.

The Department specifically argues that the Respondent and the DMVH’s receipt of the Suspension Notice constituted prima facie proof that Respondent had committed a violation qualifying him as a habitual offender subject to suspension under Section 56-1-1030. This argument is erroneous.

The crux of the Department's argument in these cases is that the Legislature is very serious about “the problem of habitual offenders.” Although this may be true, this fact alone is insufficient to justify placing the burden of proof on motorists in Section 56-1-1030 hearings. In enacting the DMVH Act, the Legislature specifically required DMVH hearing officers to conduct their hearings in accordance with the ALC's rules of procedure. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2007)). One of those rules, ALC Rule 29(B), expressly states: “In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.” Therefore, because an administrative suspension of a motorist's driver's license is a “sanction,” this Court concludes that the DMVH hearing officer did not err by dismissing this case based on the Department's failure to submit any evidence or otherwise participate in the proceeding. See Stephen P. Bates, The Contested Case Before the ALJD, South Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R. Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of proof in administrative enforcement cases).^[FN6]

The Notice of Suspension, like a criminal indictment or other notices of violation in the agency context, is a charging document, not evidence itself. Accordingly, the DMVH’s receipt of the notice is not prima facie evidence of Habitual Offender status.

III.             The fact that the DMVH had full electronic access to the Respondent’s driving record which SHOWED the offenses constituting habitual offender status does not meet the department’s burden of proVING THAT RESPONDENT WAS A HABITUAL OFFENDER.

The Department claims that the DMVH was given electronic access to its records so that these materials would be available to DMVH hearing officers. However, it is not the duty of the DMVH or the Hearing Officers to collect evidence for hearing purposes.

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). In ascertaining the intent of the Legislature, a court should not focus on any single section or provision but should consider the language of the statute as a whole. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Although there is no single, invariable rule for determining legislative intent, the language must be read in a sense which harmonizes with its subject matter and accords with its general purpose. Scholtec v. Estate of Reeves, 327 S.C. 551, 558, 490 S.E.2d 603, 607 (Ct. App. 1997).

Here, the statutory framework of the DMVH Act demonstrates that, by devolving the duties, functions, and responsibilities of the hearing officers and associated staff of the Department to the DMVH, the Legislature did not intend to transfer the Department’s evidence-gathering duties to the DMVH.

First, the DMVH Act requires DMVH hearing officers to abide by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2007)). Canon 3 of the Code of Judicial Conduct states: “A judge shall perform the duties of judicial office impartially and diligently.” Rule 501 SCACR, Canon 3 (emphasis added). As a fundamental matter, the impartiality requirement prohibits a judge or hearing officer from investigating the very violations that he or she is required to adjudicate. See Commentary to Rule 501 SCACR, Canon 3(B)(7) (“A judge must not independently investigate facts in a case and must consider only the evidence presented”); see also State v. Adams, 291 S.C. 132, 134, 352 S.E.2d 483, 485 (1987) (“A magistrate who participates in a general search for evidence is not neutral and detached.”); In re Marriage of Smith, 448 N.E.2d 545, 550 (Ill. App. Ct. 1983) (holding, in a marriage dissolution proceeding, that it was the responsibility of the parties, not the trial court, to obtain and present adequate information regarding husband’s pension rights). This impartiality requirement also applies to court personnel. See Rule 501 SCACR, Canon 3(C)(2) (“A judge shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.”).

Second, the DMVH Act makes the DMVH a part of the ALC, not the Department. Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2007)). By separating the DMVH from the Department, the Legislature created an independent tribunal for adjudicating license and registration suspension matters. Therefore, it is highly unlikely that the Legislature intended for the DMVH to perform the same prosecutorial-type duties that the Department’s OAH once performed. For these reasons, I hold that it was not the duty of the DMVH to gather copies of the Department’s records

ORDER

IT IS HEREBY ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

August 11, 2008

Columbia, South Carolina