ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by the South Carolina Department of Motor Vehicles (“Department”)
from a Final Order and Decision of the South Carolina Division of Motor Vehicle
Hearings (“DMVH”) issued May 17, 2007. The DMVH’s Final Order and Decision was
issued following an administrative hearing held pursuant to S.C. Code Ann. §
56-1-1090(c) (Supp. 2007). The Department contends that the DMVH Hearing
Officer erroneously determined that Lajuenesse had made a showing of “good
cause” under S.C. Code Ann. § 56-1-1090. The Administrative Law Court (“ALC”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660
(Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and
Decision is reversed.
background
In 2003, Respondent Serge Lajuenesse was found to
be a “habitual offender” pursuant to S.C. Code Ann. § 56-1-1020 (2006). In
accordance with S.C. Code Ann. § 56-1-1090(a) (Supp. 2007), his driver’s
license was suspended for a five-year period beginning December 17, 2003, and
ending December 17, 2008. On April 18, 2005—more than a year after his
habitual offender suspension had commenced—Lajuenesse was charged with a violation
of S.C. Code Ann. § 56-1-460 (2006) (Driving Under Suspension). He was
convicted of this violation on May 19, 2005.
In
late 2005, the Department issued Department Policy VS-001, which laid out
specific conditions required to obtain a reduction in a habitual offender’s
suspension. VS-001 provides that a reduction in the
five-year suspension for habitual offenders will be granted if the following
conditions have been met:
a. The applicant
must have served at least twenty-four months of the habitual offender
suspension before submitting the application for reduction. Applications
submitted sooner than twenty-four months will be returned.
b. The applicant
must not have been considered at any previous time for a reduction of habitual
offender status.
c. The applicant
must not have driven a motor vehicle since the beginning date of the habitual
offender suspension. NOTE: The applicant will have stated under oath that
he/she has not driven at all during the habitual offender suspension. If a
review of the driving record shows that s/he drove (e.g., a traffic ticket or
accident report), the applicant will not be eligible for a reduction.
d. The applicant
must not have any other mandatory suspensions that have not yet reached their
end dates, as recorded on the applicant’s driving record. (If the applicant
remains suspended because of reinstatement fees or for manual suspensions that
can be cleared at any time, those will not necessarily bar a reduction.)
e. The applicant
must never have had a prior habitual offender suspension.
f. The
applicant must have completed any ADSAP or other required alcohol or drug
treatment program.
g. The applicant
must not have been charged with (and certainly not convicted of) any alcohol or
drug violations during the habitual offender suspension period.
On
March 30, 2007, pursuant to S.C. Code Ann. § 56-1-1090(c), Lajuenesse filed a
petition with the DMVH for a reduction of his habitual offender suspension.
Along with his petition, Lajuenesse submitted to the DMVH a copy of his
ten-year driving record, which revealed that Lajuenesse had not been convicted
of a motor vehicle violation since May 19, 2005, the date on which he was convicted
of his April 18, 2005 violation.
An
administrative hearing regarding Lajuenesse’s petition was held on May 7,
2007. On May 17, 2007, the DMVH Hearing Officer issued a Final Order and
Decision in which she ordered that Lajuenesse’s driver’s license be
reinstated. Specifically, the DMVH Hearing Officer stated:
Petitioner has shown good cause why the
suspension of his driver’s license or driving privilege should be reduced.
Petitioner did receive a driving under suspension violation after he was declared
a habitual offender, however two years and two months [sic] have pas[sed] since
he received the violation and he has not driven since that date. . . .
[Petitioner] has corrected the problems that led him to be declared a[]
habitual offender . . . .
The Department
now appeals.
ISSUE
ON APPEAL
Did the DMVH Hearing Officer err in granting Lajuenesse a
reduction in his five-year habitual offender suspension pursuant to S.C. Code
Ann. § 56-1-1090, which requires the motorist to demonstrate “good cause”?
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(A) (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). See S.C.
Code Ann. § 1-23-380(B) (Supp. 2007) (directing administrative law judges to
conduct appellate review in the same manner prescribed in § 1-23-380(A)). This 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).
The
DMVH Hearing Officer has the discretion to reduce the suspension of a habitual
offender for good cause. See S.C. Code Ann. § 56-1-1090(c) (Supp. 2007)
(stating that the hearing officer “may” restore driving privileges for good
cause shown). However, this discretion must be exercised within the confines
of § 1-23-380(A)(5)(f). An abuse of discretion occurs when a decision is based
upon an error of law, such as application of the wrong legal principle; or,
when based upon factual conclusions, the ruling is without evidentiary support;
or when the judge is vested with discretion, but the ruling reveals no
discretion was exercised; or when the ruling does not fall within the range of
permissible decisions applicable in a particular case. Ex Parte Capital
U-Drive-It, Inc., 369 S.C. 1, 5, 630 S.E.2d 464, 467 (2006). A decision is
arbitrary or capricious when no rational basis for the conclusion exists, when
it is based on one’s will and not upon any course of reasoning and exercise of
judgment. Converse Power Corp. v. S.C. Dep’t
of Health and Envtl. Control, 350 S.C.
39, 564 S.E.2d 341 (Ct. App. 2002); Deese v. S.C. State Bd. of Dentistry,
286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985). A decision may be arbitrary or capricious when it is
made at one’s pleasure without adequate determining principles, or is governed
by no fixed rules or principles. Deese, 286 S.C. at 184-85, 332 S.E.2d at 341.
Non-uniform, inconsistent, or selective application of authority can indicate
arbitrariness. See Mungo v. Smith, 289 S.C.
560, 571, 347 S.E.2d 514, 521 (Ct. App. 1986).
DISCUSSION
S.C.
Code Ann. § 56-1-1090(c) states in pertinent part:
[U]pon petition to the Division of Motor Vehicle
Hearings and for good cause shown, the hearing officer may restore to the
person the privilege to operate a motor vehicle in this State upon terms and
conditions as the department may prescribe, subject to other provisions of law
relating to the issuance of drivers’ licenses. The petition permitted by this
item may be filed after two years have expired from the date of the decision of
the department finding the person to be a[] habitual offender. At this time
and after hearing, the hearing officer may reduce the five-year period of item
(a) to a two-year period for good cause shown.
S.C. Code Ann. §
56-1-1090(c) (Supp. 2007). The Department argues that, based on Lajuenesse’s April
18, 2005 violation, the DMVH Hearing Officer’s reduction of Lajuenesse’s
habitual offender suspension was contrary to Section III(B)(4)(c) of Department
Policy VS-001 and therefore constituted error. In other words, according to
the Department, Lajuenesse failed to show “good cause” for a reduction because
he did not meet the conditions of VS-001.
The
Department concedes that the ALC has issued an en banc order specifically
addressing Department Policy VS-001. In S.C. Department of Motor
Vehicles v. Cain, 06-ALJ-21-0790-AP
(S.C. Admin. Law Ct., March 23, 2007),
the ALC held that
because the Department has not promulgated Department
Policy VS-001 as a regulation, DMVH hearing officers are not required to treat
it as anything more than a non-binding guideline. Therefore, a DMVH hearing
officer’s failure to follow any of the conditions set forth in Department
Policy VS-001 does not per se constitute reversible error.
However,
the Department argues that VS-001 should be followed in appropriate cases. In
essence, the Department contends that a DMVH Hearing Officer should accord
VS-001 deference in making a determination of what constitutes “good cause.”
Agency Deference
It is clear from Cain that DMVH Hearing
Officers are not bound by VS-001. The question thus raised by the Department
in this appeal is: what degree of deference, if any, is the DMVH Hearing
Officer required to accord the Department’s policy? The question raises an
interesting point of administrative law.
The level of deference that should be accorded
an agency’s interpretation of a statute often depends on its form—for example,
whether the interpretation is a binding norm or a general statement of policy.
When the agency’s interpretation is validly promulgated as a regulation, it has
the force and effect of law. See S.C. Code Ann. § 1-23-10(4); Gadson v. Mikasa Corp.,
368 S.C. 214, 628 S.E.2d 262 (Ct. App. 2002); Ryder Truck Lines, Inc. v. United States,
716 F.2d 1369 (11th Cir. 1983), cited in Home Health Serv., Inc. v.
S.C. Tax Comm’n, 312 S.C. 324, 440 S.E.2d 375 (1994). “[W]hether an agency’s action or statement amounts to a rule—which
must be formally enacted as a regulation—or a general policy statement—which
does not have to be enacted as a regulation—depends on
whether the action or statement establishes a ‘binding norm.’” Sloan v.
S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 475-76,
636 S.E.2d 598, 610 (2006). When the agency’s interpretation “so
fills out the statutory scheme that upon application one need only determine
whether a given case is within the rule’s criterion,” then it is a binding
norm. Sloan, 370 S.C. at 475-76, 636 S.E.2d at 610. However,
“if the agency remains free to follow or not follow the policy in an individual
case, the agency has not established a binding norm,” but rather a general
policy statement. Sloan, 370 S.C. at 475-76, 636
S.E.2d at 610. Here, Department Policy VS-001 unquestionably attempts to
establish a binding norm, as it purports to set forth specific conditions, all
of which are required to be met, before a reduction may be granted by DMVH.
Under the language of VS-001, the DMVH is not free to follow or not follow the
policy in an individual case; the conditions are not factors or balancing
guidelines from which a Hearing Officer may depart in its discretion when
confronted with appropriate facts. Thus, as the ALC has held, to have binding effect
and preclude the use of discretion by the DMVH, VS-001 must be properly promulgated
as a regulation. Cain,
06-ALJ-21-0790-AP (S.C. Admin. Law Ct., March 23, 2007).
When an agency’s interpretation is not
a binding norm, but simply a general policy statement, it is less clear what
deference, if any, it should be given. Our
appellate courts have repeatedly held that the interpretation of a statute by
the agency charged with its administration will be accorded “the most
respectful consideration” and should not be rejected absent compelling
reasons. See, e.g., Vulcan
Materials Co. v. Greenville County Bd. of Zoning Appeals, 342 S.C. 480, 496, 536 S.E.2d 892, 900 (Ct. App. 2000) (“The construction of a statute by the agency charged
with its administration should be accorded great deference and will not be overruled
without a compelling reason.”); Dorman v.
Dep’t of Health and Envtl. Control, 350 S.C.
159, 167, 565 S.E.2d 119, 123 (Ct. App. 2002). Thus, although
an agency’s interpretation of a state statute is not binding or controlling on
the court, the court gives deference to the opinion of a state agency charged
with the duty and responsibility of enforcing the statute. Georgia-Carolina
Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18,
579 S.E.2d 334 (Ct. App. 2003).
The Supreme Court has also noted that “where the
construction of a statute has been uniform for many years in administrative
practice, and has been acquiesced in by the General Assembly for a long period
of time, such construction is entitled to weight, and should not be overruled
without cogent reasons.” Etiwan Fertilizer Co. v. S.C. Tax Comm’n, 217 S.C. 354, 60 S.E.2d 682, 684 (1950). Furthermore,
courts have tended to defer more to an agency’s non-binding policy when the
issue at bar involved an ambiguous definition or the agency’s expertise. See Byerly Hosp.,
319 S.C. 225, 460 S.E.2d 383 (deferring to agency interpretation of statute
because of agency’s expertise); Bunch
v. Cobb, 273 S.C. 445, 452, 257 S.E.2d 225, 228 (1979)
(consistent application of a statute by responsible governing agency “has been
given considerable judicial deference in the construction of ambiguous
statutes”); United Seniors Ass’n, Inc. v. Soc. Sec. Admin.,
423 F.3d 397, 403-04 (4th Cir. 2005) (giving deference to agency’s
interpretation of ambiguous term in federal statute, based on agency’s
expertise); Equal Employment
Opportunity Comm’n v. Seafarers Int’l Union, 394 F.3d 197, 201 (4th Cir. 2005) (deferring to agency where issue at bar fell “squarely within the agency’s special competence”).
The United States Supreme Court has addressed
the issue of deference to an administrative agency in a situation similar to
the one at bar. In Martin v. Occupational Safety & Health Review
Committee, 499 U.S. 144 (1991), the Supreme Court was faced with
conflicting interpretations of a labor regulation. Like the statutory
relationship of the Department and the DMVH that the court faces in the case at
bar, the U.S. Supreme Court encountered the situation where the Secretary of
Labor (“Secretary”) was charged with setting and enforcing workplace health and
safety standards, while the Occupational Safety and Health Review Commission (“Commission”)
was assigned to carry out adjudicatory functions.
Faced with this division of function between two different administrative
agencies, the U.S. Supreme Court determined that it was the Secretary—who was
charged with enforcement of the statute—whose interpretation was entitled to
deference, rather than the adjudicatory Commission’s construction.
Similarly, recent amendments by the South
Carolina General Assembly have created a separation in the enforcement and
adjudicatory aspects of public highway safety, with the Department charged with
administrative enforcement and the DMVH with adjudication. See 2005
S.C. Act No. 128 (codified at S.C. Code Ann. § 1-23-660); 2006 S.C. Act No. 381
(codified at S.C. Code Ann. Title 56). As the agency charged with enforcement,
it is the Department’s interpretation and application of § 56-1-1090(c), and not
that of the DMVH, that is entitled to deference. Cf. Martin, 499
U.S. at 154-55. The DMVH, as the adjudicative body (as well as the ALC, on
appeal) should therefore accord the Department’s interpretation and application
of § 56-1-1090(c) respectful consideration and should not deviate from its interpretative
policy absent compelling reasons. Dunton v. S.C. Bd. Of Exam’rs in
Optometry, 291 S.C. 221, 353 S.E.2d 132, 133 (1987); cf. Martin,
499 U.S. at 154-55 (“Under this conception of adjudication, the Commission is
authorized to review the Secretary’s interpretations only for consistency with
the regulatory language and for reasonableness.”).
Thus, while the Department’s interpretation of
the laws which it is charged with enforcing is generally entitled to respectful
consideration, such deference is warranted only if the policy is in the nature
of a flexible guideline as opposed to a binding norm and if it merely
elaborates on the regulatory scheme and does not alter or conflict with the statute.
Bearing that in mind, the court turns to the question of whether the
Department’s interpretation of the statutory term “good cause” complies with
those requirements.
Interpretations of “Good Cause”
S.C.
Code Ann. § 56-1-1090(c) provides that the privilege to drive may be restored
by the DMVH Hearing Officer “upon terms and conditions as the department
may prescribe” if a motorist demonstrates good cause. “Good cause” is not
defined in § 56-1-1090 or in case law applying that section. The term is
subjective and implies broad discretion.
Words
in a statute are given their ordinary meaning unless the legislature clearly
intends otherwise. Etiwan, 217 S.C. 354, 60
S.E.2d at 684. Moreover, the agency’s interpretation cannot expand or
contract the language of a statute or conflict with legislative intent. Comm’rs of Pub. Works v. S.C. Dep’t of Health and Envtl.
Control, 372 S.C. 351, 641 S.E.2d 763 (Ct.
App. 2007) (citing Brown v. S.C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 515, 560
S.E.2d 410, 415 (2002)).
“Good cause” has been defined as “[a]
legally sufficient ground or reason.” Black’s Law Dictionary 692 (6th
ed. 1990). It is a “substantial reason amounting in law to a legal excuse for
failing to perform an act required by law.” Id. The term is “relative
and highly abstract,” and its meaning must be determined not only by the verbal
context of the statute in which the term is used but also by the context of the
action and procedures involved in type of case presented. Id.
In
various contexts, courts have found that “good cause” requires more than
personal circumstances or facts that are common to the population in general. See, e.g., Faile v. S.C. Employment Sec. Comm’n, 267 S.C. 536, 541-42, 230 S.E.2d 219, 222-23 (1976); S.C. Dep’t of Motor Vehicles v. Watts, 07-ALJ-21-0134-AP, at 5 (S.C.
Admin. Law Ct., Jan. 24, 2008). A determination of whether good cause exists
may require a balancing of the needs of the parties and public policy. See, e.g., Doe v. Ward Law Firm, 353 S.C. 509, 514-15, 579 S.E.2d 303,
305 (2003) (finding good cause to examine the medical records of the biological
parents based upon the compelling needs of the adopted child and balancing the
privacy rights of the parties against the best interest of the child). Good
cause must be determined on a case-by-case basis. See Watts,
07-ALJ-21-0134-AP, at 6; Black’s Law Dictionary 692 (6th ed. 1990).
The cardinal rule of statutory construction is
to give effect to the intent of legislature. Comm’rs of Pub. Works,
372 S.C. 351, 641 S.E.2d 763. The legislature stated
its intent in enacting the habitual offender statutes as follows:
(a) To provide maximum safety for all
persons who use the public highways of this State; and
(b) To deny the privilege of operating motor vehicles on such
highways to persons who by their conduct and record have demonstrated their
indifference to the safety and welfare of others and their disrespect for the
laws of this State; and
(c) To discourage repetition of unlawful acts by individuals
against the peace and dignity of this State and her political subdivisions and
to impose additional penalties upon habitual offenders who have been convicted
repeatedly of violations of the traffic laws of this State.
S.C.
Code Ann. § 56-1-1090; State ex rel. McLeod v.
Goff, 277 S.C. 511, 290 S.E.2d 238
(1982).
Even
if the court were to find that VS-001 were entitled to respectful
consideration, the Department’s policy as written is inconsistent with the
plain language of § 56-1-1090(c) in that it improperly narrows the statutory
language permitting a reduction for “good cause.” Comm’rs
of Pub. Works, 372 S.C. 351, 641 S.E.2d
763 (regulation cannot expand or contract statutory language or conflict
with legislative intent). VS-001’s
restrictive and inflexible requirements cannot be reconciled with §
56-1-1090(c)’s use of the expansive and discretionary term “good cause” as used
in its ordinary sense. See Brown
v. Bi-Lo, 354 S.C. 436, 440, 581 S.E.2d
836, 838 (2003) (rejecting and agency interpretation when it is contrary
to the plain language of the statute). By interpreting
“good cause” in absolute terms, the Department has impermissibly stripped from
DMVH the statutory discretion conveyed to it by the General Assembly.
Neither,
however, can the court accept the DMVH Hearing Officer’s overly broad application
and interpretation of “good cause.” Here, Lajuenesse offered no
reason for a reduction of his suspension beyond that which is generally common
to all drivers. His circumstances do not rise beyond the general inconvenience
of being without a driver’s license—the very penalty that the General Assembly
imposed for habitual bad driving—and therefore cannot constitute a legally
sufficient reason for reducing his suspension when balanced against the public
policy that underpins the habitual offender statute of removing dangerous
drivers from the state’s public roads. However relative and abstract the term “good
cause” may be, it certainly means more than “any cause.” An interpretation of “good
cause” that does not require justification for reducing the term of suspension
that the General Assembly chose to impose generally for habitual offenders would
read the word “good” out of the statute and permit a reduction simply for the
asking. Such a construction flies in the face of the legislative intent behind
the statute. See Comm’rs of Pub. Works, 372 S.C. 351, 641 S.E.2d 763.
CONCLUSION
The
Department’s policy is contrary to the plain language of the statute because it
is too restrictive; the Hearing Officer’s conclusion is similarly erroneous
because it is too broad. The DMVH Hearing Officer was not bound to follow or
defer to VS-001 because it is a binding norm that has not been properly
promulgated as a regulation and, even if it were merely interpretive guidance,
it conflicts with the plain language of the statute. Nevertheless, the DMVH
Hearing Officer erred in reducing Lajuenesse’s suspension in the absence of
legally sufficient reason beyond the mere inconvenience that is shared by all
habitual offenders. Accordingly, the DMVH’s Final Order and Decision must be reversed.
For
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is REVERSED and Lajuenesse’s
suspension is reinstated.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
March 4, 2008
Columbia, South Carolina
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