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SC Administrative Law Court Decisions

Shabaka S. Makhu #173788 vs. SCDOC

South Carolina Department of Corrections

Shabaka S. Makhu #173788

South Carolina Department of Corrections




On November 3, 2000, Respondent South Carolina Department of Corrections (Respondent or Department) filed a motion to dismiss this matter. Respondent seeks a dismissal on the basis that Appellant failed to serve Respondent with the notice of appeal within 30 days of written notice of Respondent's final decision. Respondent seeks a dismissal under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), Rule 33 of the Administrative Law Judge Division (ALJD or Division), ALJD Temporary Rule (TR) 57 (requiring service of papers on all parties in case), SCRCP 12(b)(1) for lack of subject matter jurisdiction, and SCRCP 12(b)(5) for insufficiency of service of process. Appellant's reply was not responsive to the basis for this motion.

This Division has jurisdiction to hear this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In Al-Shabazz, the S.C. Supreme Court stated that:

The inmate must file and serve a notice of appeal upon specified parties within thirty days of written notice of Department's final decision.

Id. at 33 (emphasis added). The Court in Al-Shabazz cited ALJD Rule 33 in support of this requirement. The Division has since adopted TR 62 for use in lieu of ALJD Rule 33. The language in TR 62 is virtually identical to ALJD Rule 33 (1). TR 62 states that:

The notice of appeal from the final decision of an agency to be heard by the [Division] 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.. . .

TR 62 (emphasis added). As set forth in Al-Shabazz and TR 57 and 62, the Department must be served with a copy of the notice of appeal within thirty (30) days of the appellant's receipt of the final decision of the Department.

The most expeditious manner to prove service is by having a certificate of service properly notarized at the time of mailing the Notice of Appeal and supporting materials. Alternatively, a signed certified mail receipt would provide sufficient proof of service of process to refute the Department's motion. Here, Appellant failed to provide proof that the Department was properly served. Appellant's certificate without more, such as verification by a notary, is insufficient. "The law does not trust a party to execute process or to make a return." Johnson v. Shurley, 58 Ga. 417 (1877). See also 72 C.J.S. Process §77 at 662 ("A party to the action cannot make a return."). Appellant cannot simply state or certify that the Department was served after the fact. Further, Appellant cannot prevail on the Motion to Dismiss by attempting to argue the merits of the underlying case. In this case, there is no evidence in the record that the Department was served with the notice of appeal within 30 days of Appellant's receipt of the Department's final decision. Because the notice of appeal is jurisdictional, this tribunal cannot extend the time for filing or service of process.

Consequently, Respondent moves to dismiss this matter on the grounds that Appellant's failure to serve the notice of appeal on Respondent divests the ALJD of subject matter jurisdiction or, in the alternative, that this matter should be dismissed for insufficiency of service of process. The ALJD has subject matter jurisdiction over this matter under Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000), and cannot be divested by action or inaction by the parties. "Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong." Brown v. Evatt, 322 S.C. 189, 193, 470 S.E.2d 848, 850 (1996), citing Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994). However, the Department was not served with the notice of appeal within 30 days, as required in Al-Shabazz and TR 57 and 62, and therefore Appellant has not invoked the jurisdiction of this tribunal.

The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of "appellate" jurisdiction over the case, but it does not affect the court's subject matter jurisdiction.

Great Games, Inc. v. S.C. Dept. of Revenue, 339 S.C. 79, 529 S.E.2d 6, 8 (2000).

Consequently, this matter must be dismissed for lack of jurisdiction for failure to properly perfect the appeal by providing timely notice to the Department. Case law supports the proposition that 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). (2)

While the service of process, rather than a return or proof of service, is the jurisdictional requisite, nevertheless a proper return is ordinarily necessary in order that service may be shown to have been duly made.

72 C.J.S. Process §77 at 662.

It is also well-established that a court does not have the authority to extend the time for taking an appeal from a decision of an administrative agency. E.g., Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. State Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969) (addressing an appeal from the Board of Condemnation). This tribunal recognizes the harsh result of this decision but is constrained by the rules of this tribunal and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994) (recognizing harsh result of dismissing a case where the appellant filed a summons and complaint after serving the other party instead of filing the summons and complaint before such service, as required by SCRCP 5(d)).

In this instance, Appellant requested that this tribunal stay the Motion to Dismiss and apprise him of "how to or when to respond to" to Department's motion. It is fundamental that this tribunal, as a neutral arbiter, cannot provide either party with legal assistance or advice. The rules of procedure governing appeals before the ALJD are clearly set forth and available to parties from the clerk's office upon request. Thus, because Appellant's objection did not properly address the issues underlying the Department's Motion to Dismiss, the motion must be granted.

IT IS THEREFORE ORDERED that Respondent's motion to dismiss is hereby GRANTED.




Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

November 17, 2000

Columbia, South Carolina

1. Pursuant to the opinion of the Supreme Court in Al-Shabazz, temporary rules were adopted by the ALJD to apply exclusively to appeals from final decisions of the Department of Corrections. These rules are virtually identical to corresponding ALJD appellate rules 33-41.

2. James E. MacDonald v. S.C. Dep't of Labor, Licensing and Regulation, Real Estate Comm'n, Dkt. No. 99-ALJ-11-0527-AP (Hon. Marvin F. Kittrell, Oct. 27, 1999) (citing Mears and Southbridge decisions and dismissing case for lack of jurisdiction where notice of appeal was not filed and served in a timely manner); see Rama Simun, Director, Early Years Learning Center v. S.C. Dep't of Social Services, Dkt. No. 98-ALJ-18-0427-AP (Hon. Marvin F. Kittrell, August 17, 1998) (citing Mears decision and dismissing case for lack of jurisdiction where notice of appeal was not filed in a timely manner).

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