ORDERS:
ORDER
This
matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to
the filing of the Notice of Appeal on June 20, 2008. Appellant William J. Clark
appeals DMVH Hearing Officer Debra M. Tippit’s June 9, 2008 decision upholding
the suspension of his driving privileges.
On
July 31, 2008, the Department filed a Motion to Dismiss in this matter. The
Department contends that Appellant failed to serve a copy of the Notice of
Appeal on the Department as required by ALC Rule 33. See ALC Rule 33
(Rev. 2007) (“The notice of appeal from the final decision of an agency to be
heard by the Administrative Law Court shall be filed with the Court and a
copy served on each party and the agency whose final decision is the subject of
the appeal within thirty (30) days of the receipt of the decision from which
the appeal is taken.”) (emphasis added). To date (September 17, 2008), the
Appellant has not filed a response to the Department’s Motion.
As
noted in the Department’s Motion, the Department is required by law to suspend
a motorist’s license when a motorist refuses to submit to testing. See S.C. Code Ann. § 56-5-2951 (Rev. 2006). Accordingly, the Department is a necessary
party to this proceeding and should have been served with a copy of the Notice
of Appeal. As a result, I find that this Court lacks jurisdiction over this
appeal. See Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 15,
602 S.E. 2d 772, 775 (2004) (“The requirement of service of the notice of
appeal is jurisdictional, i.e., if a party misses the deadline, the appellate
court lacks jurisdiction to consider the appeal and has no authority or
discretion to ‘rescue’ the delinquent party by extending or ignoring the
deadline for service of the notice.”).
Furthermore,
pursuant to ALC Rule 37, Appellant was required to file an appellate brief in
the above-referenced appeal with this Court “within thirty (30) days after the
filing of the Record on Appeal.” ALC Rule 37(A). The Division of Motor Vehicle
Hearings filed the Record on Appeal on July 24, 2008. However, to date
(September 17, 2008), Appellant has not filed an appellate brief in this
matter. ALC Rule 38 provides that:
Upon motion of any party, or on its own
motion, an administrative law judge may dismiss an appeal for failure to comply
with any of the rules of procedure for appeals, including the failure to comply
with any of the time limits provided by this section.
ALC Rule 38
(Rev. 2007).
By
virtue of his request for an appeal, Appellant had an obligation to advance his
position, and was given ample time to do so. Nevertheless, Appellant failed to
file an appellate brief in support of his appeal. “There is a limit beyond
which the court should not allow a litigant to consume the time of the court…” Georganne Apparel, Inc. v. Todd, 303, S.C. 87, 92, 399 S.E.2d 16, 19
(Ct. App. 1990).
Accordingly,
based upon the forgoing reasons, I find that the Department’s Motion should be
granted, and this matter be dismissed.
IT
IS HEREBY ORDERED that the Department’s Motion to Dismiss is GRANTED and this matter be DISMISSED, WITH PREJUDICE.
AND IT IS SO
ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
September 17, 2008
Columbia, South Carolina
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