ORDERS:
ORDER GRANTING MOTION TO REINSTATE
This matter is before the South Carolina Administrative Law Court (“Court” or “ALC”)
pursuant to an Amended Motion to Reinstate filed by counsel for the Town of Hollywood
(“Town”). For the reasons hereinafter stated, this motion is granted.
PROCEDURAL HISTORY
On January 22, 2004, the South Carolina Department of Labor, Licensing and Regulation,
Division of Labor (“Department”) cited the Town for failing to pay wages to a former employee,
Kenneth Edwards (“former employee”) in violation of S.C. Code Ann. §§ 41-10-10 et seq. A request
for a contested case hearing was made with the Department and it was transmitted by the Department
to the Court on February 9, 2004.
When the Town failed to pay the $50.00 filing fee to this Court, which is required by Proviso
55.3 of the 2003-2004 Appropriations Act, the Clerk’s Office sent it a Memorandum on February
18, 2004 which stated:
“In order to process your case and have it assigned to an administrative law judge, you must
file the applicable $50.00 filing fee made payable to the Administrative Law court or request
a waiver, within 10 days of the date of this Memorandum.”
Notwithstanding this request, the Town failed to pay the filing fee. Thereafter, on May 7,
2004, the Clerk’s Office sent a Notice to the Town informing it that the case would not be assigned
to an administrative law judge and that the request for a hearing was being returned unprocessed.
On July 19, 2004, Allan R. Holmes, Esquire of the firm of Gibbs & Holmes, one of two
attorneys representing the Town, prepared and forwarded to the Court a Motion to Reinstate the
Case. The motion was not signed by the other attorney representing the Town, N. Steven Steinert,
Esquire, of the Porter Law Firm.
On July 22, 2004, an Amended Motion to Reinstate the Case, signed by both counsel for the
Town was filed with the Court. In the amended motion, counsel acknowledged that they “were made
aware of a request for a filing fee” but that they are “in two separate law offices and confusion
existed about the payment of the filing fee.” The filing fee was remitted to the Court when the first
motion was filed.
On August 3, 2004, the Court ordered counsel for both parties to file briefs, setting forth their
positions with regard to the Town’s motions. The Department filed a Memorandum of Law in
opposition to Respondent’s motion on August 13, 2004, and Respondent filed its brief in support
of the motion on August 18, 2004.
ISSUES
Does the failure to pay the filing fee divest the Court of subject matter jurisdiction to hear
this case?
Should this case be reinstated to the active docket notwithstanding the failure of the Town
to timely pay the filing fee as required by law?
DISCUSSION
After reviewing the memoranda filed by the parties, it seems clear that the Town itself was
unaware that the filing fee had not been paid. All correspondence and communication between the
Clerk’s Office and the Town concerning the payment of the filing fee was with the Town’s legal
counsel. Furthermore, the record is clear that both legal counsel were aware of the request for the
filing fee; however, each thought the other was arranging to have it paid, and each failed to make the
appropriate inquiry with the other to ensure its payment. Both counsel for the Town now argue that
their inactions constitute “excusable neglect, ” that the Town should not be penalized, and request
that the Court reinstate the case to the docket.
Subject Matter Jurisdiction-
Rule 11 of the Rules of Procedure for the Administrative Law Court provides that “[t]he
request for a contested case hearing shall be filed with the affected agency within thirty (30) days
after actual or constructive notice of the agency decision unless otherwise provided by statute.”
“Subject matter jurisdiction of a court depends upon the authority granted to the court by the
constitution and laws of the state.” Paschal v. Causey, 309 S.C. 206, 209, 420 S.E.2d 863, 865 (Ct.
App. 1992). It “refers to [the] court’s power to hear and determine cases of the general class or
category to which [the] proceedings in question belong....” Black’s Law Dictionary 1425 (6th Ed.
1990).
The timely filing of the request for a contested case hearing by the Town was determined by
the date it filed its request with the Department. See ALC Rule 11. There is a fixed time period.
That time period operated as the “statute of limitations” for filing the contested case request. Once
the Town complied with that time frame, it complied with the jurisdictional time period for the filing
of a case with this court.
Accordingly, the failure to timely pay the filing fee does not implicate
“statute of limitations” concerns.
Pursuant to the provisions of S.C. Code Ann. § 41-10-80(A) (Supp. 2003), the Director of
the Department, or his designee, is required to assess a penalty of not more than one hundred
($100.00) dollars against an employer for each violation of the provisions of S.C. Code Ann. § 41-10-30 (Supp. 2003). S.C. Code Ann. Regs. 71-6000 (Supp. 2003) provides that any employer
aggrieved by any citation or penalty assessed pursuant to S.C. Code Ann. §41-10-80 can file a Notice
of Protest (request for a hearing). A hearing examiner will then be appointed by the Department to
conduct a hearing. S.C. Code Ann. §1-23-600 (1986 & Supp. 2003) grants jurisdiction to this court
to preside over all hearings of contested cases involving the departments of the executive branch of
government in which a single hearing officer is authorized or permitted by law or regulation to hear
and decide such cases. Since the Department is within the executive branch of government in this
state, Section 1-23-600 (B) invokes jurisdiction with this court to conduct the contested case hearing
concerning the assessment of penalties by the Department.
The Court does not find that the failure by the Town to timely pay the filing fee deprives the
Court of jurisdiction to hear this contested case. The timely filing of the request for a contested case
hearing with the Department and the transmittal of the case to the Court by the Department was
sufficient to invoke this court’s jurisdiction. See The Esso Club, Inc., v. South Carolina Department
of Revenue, Docket No. 02-ALJ-17-0231-IJ (S.C. A.L.J.D. July 12, 2002) (Anderson, J.); and
Owens-Fisher Construction Co. v. S.C. Dep’t of Labor, Licensing and Regulation, Division of Labor,
Docket No. 02-ALJ-11-0179-IJ (S.C. A.L.J.D., Oct 15, 2002) (Anderson, J.).
Filing Fee-
The Town was required to file its request for a contested case hearing with the Department
and simultaneously file with this Court a copy of the request and the filing fee. See ALC Rules 11
and 71. Upon receipt of the notice of the request for the contested case hearing, the Department was
then required to notify this court of the request via a transmittal. S.C. Code Ann. §1-23-600(B)
(Supp. 2003); ALC Rule 12. The Town failed to send to the Court a copy of the request for the
contested case hearing and the filing fee. Both are required.
Judge Ralph King Anderson III, in Owens-Fisher Construction Company, Docket No. 02-ALJ-11-0179-IJ (Oct 15, 2002), quite ably addressed the filing fee issue from several perspectives.
He looked at several jurisdictions that have held that the untimely payment of a filing fee does not
vitiate the validity of an action before the court. Also, he looked at others which have held that the
payment of the filing fee is mandatory to invoke the court’s jurisdiction. Although Act No. 66 (R147,
H3687), Appropriations Bill, 2001-2002, Part 1B, Section 55.3 required that the request for a
contested case hearing with the court be accompanied by a filing fee, he found that the failure to pay
the filing fee did not divest the Court of jurisdiction to hear that case, notwithstanding its late
payment. I agree with the rationale of Judge Anderson in his Order and find that the failure of
counsel for the Town to timely pay the filing fee does not divest the Court of jurisdiction to hear this
case.
Reinstatement of this Case-
Although the Court finds that the failure to pay the filing fee timely does not invalidate the
jurisdiction of this Court, it must inquire into the facts to determine if they warrant the reinstatement
of the case to the docket.
The attorneys for the Town argue that their client is blameless in this matter, and that the
Town should not be punished for their error and confusion. Further, they opine that their failure to
timely remit the filing fee constitutes “excusable neglect” and that it caused no prejudice to the
Department.
The Court acknowledges counsel’s candor in accepting full responsibility for their inaction
in this matter, and agrees with them that the Town should not be punished as a result of their lack
of attention to detail. Accordingly, the Clerk is authorized to docket the case and assign it to an
administrative law judge. Nonetheless, the Court admonishes counsel to be mindful of their
responsibility to comply with the rules of procedure so that, in the future, cases are not delayed
unnecessarily and motions of this nature are not required.
Although counsel for the Town agues the merits of the case in its legal brief, the Court gives
no opinion concerning the merits and leaves that decision to the judge who hears the case on
the merits.
ORDER
Based upon the above, it is hereby:
ORDERED that this case is reinstated to the active docket and the Clerk is to assign it
to an administrative law judge for consideration on the merits.
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
October 11, 2004
Columbia, South Carolina |
