South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
William C. McKennedy, III, #256024 vs. SCDOC

AGENCY:
South Carolina Department of Corrections

PARTIES:
Appellant:
William C. McKennedy, III, #256024

Respondent:
South Carolina Department of Corrections
 
DOCKET NUMBER:
00-ALJ-04-000699-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

This matter is currently pending before the South Carolina Administrative Law Judge Division pursuant to the Appellant's Notice of Appeal filed on September 15, 2000. The Final Agency Determination shows that the Appellant received the Determination on August 31, 2000. The Respondent filed a Motion to Dismiss on October 17, 2000. The Appellant did not file a Response.

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 South Carolina 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.

In this case, there is no evidence in the record that the Department was served with the notice of appeal within thirty (30) days of the Appellant's receipt of the Department's final decision. Consequently, Respondent moves to dismiss this matter on the grounds that Appellant's failure to serve the notice of appeal on the Respondent divests the Division of subject matter jurisdiction or, in the alternative, that this matter should be dismissed for insufficiency of process. "Subject matter jurisdiction of the court depends on the authority granted to the court by the constitution and laws of the state." Paschal v. Causey, 309 S.C. 206, 420 S.E.2d 863, 865 (Ct. App. 1992).

However, although the Division has subject matter jurisdiction over this matter under Al-Shabazz, the Department was not served with the notice of appeal within thirty (30) days, as required by Al-Shabazz and TR 57 and 62. Therefore, the Appellant has not properly invoked the jurisdiction of this tribunal. The Supreme Court has set forth 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 the 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 appeal in a timely manner). Additionally it is well established that a court does not have the authority to extend the time for taking an appeal from a decision of a state agency. E.g. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985); Burnette v. S.C. Highway Dep't, 252 S.C. 568, 167 S.E.2d 571 (1969). This tribunal recognizes the harsh result of this decision but is constrained by the rules and legal precedent in this State. See McClain v. Ingram, 314 S.C. 359, 444 S.E.2d 512 (1994). Therefore, this matter must be dismissed. For good cause shown, it is hereby

ORDERED that the Respondent's Motion to Dismiss is GRANTED.

AND IT IS SO ORDERED.



______________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





October 19, 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 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 of the finding, conclusion, or decision is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; () made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative and substantial evidence of the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.



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


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