ORDERS:
ORDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of Appeal filed June 29,
2000. Respondent filed a Motion to Dismiss on August 14, 2000, asserting the Division lacks jurisdiction in this appeal because
Appellant failed to serve a copy of the Notice of Appeal on Respondent. Normally the undersigned would issue an order requiring
Appellant to respond to Respondent's Motion to Dismiss. In this case, however, Appellant admits he did not serve a copy of the
Notice of Appeal on Respondent.
On the back of the Notice of Appeal form, where the instructions provide "A copy of the Notice of Appeal must also be forwarded to
the Office of General Counsel at the Department of Corrections," Appellant wrote, "S.C.D.C. Policy does not allow indigent inmate
copies of this type."
ALJDTR 62 provides, "The notice of appeal from the final decision of DOC . . . shall be filed with the Division and a copy served on
each party and DOC within thirty (30) days of receipt of the decision from which the appeal is taken." ALJDTR 62 (emphasis
added). According to this rule, Appellant must serve a copy of the Notice of Appeal on Respondent within thirty days of receiving
Respondent's final written decision. The rule does not require the inmate to make a xerox copy of the Notice of Appeal form. While
many inmates do not have access to a xerox machine, the inmates use other means to comply with the Division's rules and the
instructions given on the Notice of Appeal form itself. Some inmates obtain two Notice of Appeal forms and either use carbon paper
to produce a duplicate or handwrite two identical forms.
In this case, Appellant received the final decision on June 1, 2000. Appellant should have filed the Notice of Appeal with the
Division and should have served a copy on Respondent on or before July 3, 2000. ALJDTR 65 provides "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." Pursuant to this rule, the undersigned can dismiss this case for failure to timely serve
a copy of the Notice of Appeal on Respondent as required by ALJDTR 62.
Furthermore, a court must dismiss an appeal where the appellant fails to serve a party with the notice of appeal in a timely manner. See Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355 S.E.2d 535 (1987) (applying appellate court rules and dismissing case
for failure to serve a notice of intent to appeal in a timely manner); Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (applying
appellate court rules and finding lack of jurisdiction for failure to serve a notice of intent to appeal in a timely manner). Because the
Division acts as an appellate court in inmate cases filed pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), the
Division must dismiss an appeal where the inmate fails to timely serve a copy of the Notice of Appeal on Respondent.
IT IS HEREBY ORDERED that Respondent's Motion to Dismiss is granted and this appeal is dismissed with prejudice.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 26, 2000
Columbia, South Carolina
APPEAL RIGHTS
You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for judicial review in circuit
court and serving such petition on opposing parties within thirty (30) days after receipt of this order. S.C. Code Ann. § 1-23-610
(Supp. 1999). The petition may be filed in any circuit court as long as the chosen forum is neither arbitrary nor unreasonable, and
provided that no statute controls venue in a particular type of case. The review of the administrative law judge's order must be
confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse
or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:
(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. |
