South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Renzo Jose Luis Garcia

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Renzo Jose Luis Garcia
 
DOCKET NUMBER:
07ALJ-21-0151-AP

APPEARANCES:
n/a
 

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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Renzo Luis Garcia (Respondent).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,[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 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).[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 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.[4] 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



[1] ALC Rule 23 provides:

The administrative law judge may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the judge or fails to comply with any interlocutory order of the administrative law judge. Any non-defaulting party may move for an order dismissing the case or terminating it adversely to the defaulting party.

[2] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[3] Under ALC Rule 29(D), any party may move for reconsideration of an administrative law judge’s decision in a contested case provided that a petition for judicial review has not been filed. Rule 29(D) provides that the reconsideration is subject to the grounds for relief set forth in Rule 60(B) (1 through 5), SCRCP. Nevertheless, recognizing the practical need for a general motion for reconsideration in administrative proceedings, Justice Toal set forth that “in practice, motions for reconsideration under Rule 59(e)” of the Rules of Civil Procedure may also be made. Jean H. Toal et al., Appellate Practice in South Carolina 40 (2d. ed. 2002).

[4] Although the Note to ALC Rule 29(D) states that “[t]he filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal from the final decision of an administrative law judge,” it is not this Court’s view that this provision should be interpreted, contrary to the above reasoning, to allow a default judgment-type administrative decision to be directly appealed. In other words, if an issue is not raised or a record established to support a party’s grounds for appeal, the appeal will be ineffectual.


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