ORDERS:
AMENDED FINAL ORDER
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 The Department claims that the DMVH erroneously rescinded the driver’s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 Renzo Luis Garcia (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
January 9, 2007, Appellant Department of Motor Vehicles sent Respondent Garcia
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 until February 8, 2012. The offenses were listed on the
suspension notices as follows:
Violation
Date |
Conviction
Date |
Ticket # |
Violation
Description |
11/29/2009 |
12/3/2006 |
3622CH |
Driving Under
Suspension |
10/22/2006 |
11/8/2006 |
28313DW |
Driving Under
Suspension |
9/05/2006 |
9/19/2006 |
C777204 |
Driving Under
Suspension |
Pursuant
to Section 56-1-1090, Respondent Garcia appealed this determination and a
hearing was set for March 7, 2007 before Hearing Officer Tracey Holland. 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 of January 9, 2007 and a
copy of Respondent’ Garcia’s certified driving record. There is no evidence in
the Record that the hearing officer received these documents or had access to these
documents during the hearing.
The
hearing was held on March 7, 2007 as scheduled at the Laurens County Court
House. At the hearing, Respondent Garcia was represented by Ray Wicker,
Esquire. The Department failed to appear and thus provided no evidence to the
Hearing Officer supporting its position. Hearing Officer Holland stated: “as of
this date, the DMVH has not received any documentation on behalf of the Petitioner
to show the burden of proof that what is written in their Notice of Suspension
did in fact occur.” Therefore, she granted an Order of Dismissal on March 20,
2007, pursuant to ALC Rule 23, 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 that the Department failed to carry its
burden of proof even though she made reference to the Suspension Notice during
the hearing?
2. Did
the hearing officer err when she held that the Department provided no
documentation of the offenses when the Department sent documentation of the traffic
notifications involved, the notice of hearing, the suspension letter, the
habitual offender warning letter and a certified driving record of the Respondent
to the DMVH prior to the hearing?
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).
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 Hearing
Officer’s reference to the suspension notice 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 of January 9, 2007 and the hearing officer’s reference
thereto during the hearing 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 hearing officer’s reference to the notice
is not prima facie evidence of habitual offender status.
II. THE ISSUE OF
WHETHER the DOCUMENTS THAT THE DEPARTMENT SENT TO DMVH PRIOR TO THE HEARING MEET
THE DEPARTMENT’S BURDEN OF PROOF WILL NOT BE REACHED BY THIS COURT.
The
Department forwarded to the Division of Motor Vehicle Hearings 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 of January 9,
2007 and a copy of Respondent’ Garcia’s certified driving record. However, there
is no evidence in the Record that the hearing officer received these documents
or had access to these documents during the hearing. Furthermore, this issue
was neither raised during the hearing or during a post trial motion. Issues
that are neither raised to, nor ruled upon by, the trial court are not
preserved for appellate review. Flowers v. S.C. Dep’t of Highways and Pub.
Transp., 309 S.C. 76, 79, 419 S.E.2d 832, 834 (Ct. App. 1992). Therefore,
this issue has not been properly preserved.
Moreover,
there is no evidence in the Record that supports the Department’s factual claim
that the hearing officer should have received these documents. Although the
hearing officer references the Notice of Suspension, she specifically states
that she did not receive any evidence to support the Department’s position. ALC
Rule 36(G) provides that an “Administrative Law Judge will not consider any
fact which does not appear in the Record.” As the appellant in this case, the Department
had the burden of proving sufficient means to analyze the merits of its
claims. See Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001,
322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996).
It
is for these reasons that the South Carolina Supreme Court has held on numerous
occasions that the issuance of a default judgment based on a party’s failure to
appear at a proceeding or to make requisite legal filings is not directly
appealable. See, e.g., Edith v. State, 369 S.C. 408, 632
S.E.2d 844 (2006) (default judgment based on failure to respond to a
conditional order of dismissal); Belue v. Belue, 276 S.C. 120, 276
S.E.2d 295 (1981) (default judgment based on failure to appear); Odom v.
Burch, 52 S.C. 305, 29 S.E. 726 (1898) (default judgment based on failure
to file answer). Instead, the court has held that the proper procedure for
challenging a default judgment is to move the trial court to set aside the
judgment pursuant to SCRCP Rule 60(b). See Winesett v. Winesett,
287 S.C. 332, 334, 338 S.E.2d 340, 341 (1985). In Winesett, the Supreme
Court explained the reasoning behind this rule:
An early
justification for this rule was that a defendant who does not appear and answer
“has no status in court which will enable him to appeal from the judgment
rendered.” An additional justification is that a party appealing a default
judgment will ordinarily be precluded from raising any issues on appeal because
they were not first presented below. Finally, the appellant will often not be
able to meet his burden of providing this Court with a record sufficient to
permit an adequate review.
Winesett, 287 S.C. at 333-34, 338 S.E.2d at 341.
Here,
the DMVH hearing officer dismissed this case pursuant to the default provisions
set forth in ALC Rule 23 after the Department failed to submit any evidence to
the hearing officer or otherwise participate in the proceeding. Therefore, to
appeal this issue the Department should have first challenged the default
judgment by filing a Rule 29(D)[3] Motion to Reconsider with the DMVH.
The DMVH’s ruling on such a motion would have created a record to appeal to
this Court.
Furthermore,
as discussed below, even if the DMVH’s Order of Dismissal were appealable,
reversal of the DMVH’s Order of Dismissal would still not be warranted.
III. The fact that the DMVH
had full electronic access to the Respondent’s driving record which proved 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, and that
because the DMVH Act transferred “the duties, functions, and responsibilities
of all hearing officers and associated staff” of the Department to the DMVH,
the DMVH had a duty, which it failed to perform, to download the Departmental
records relevant to this case.
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 5, 2008
Columbia, South Carolina
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