ORDERS:
ORDER
This matter is before me pursuant to the motion of the Petitioner, S.T.A.R. Services, for an
award of costs pursuant to S.C. Code Ann. §15-77-300 (Supp. 1996). I have carefully reviewed the
Motion and the response submitted by the Department of Revenue, as well as the pertinent statutes
and case law. For the following reasons, I conclude that the motion must be denied.
S.C. Code Ann. §15-77-300 provides, in pertinent part, as follows:
In any civil action brought by the State, any political subdivision of the
State or any party who is contesting state action, unless the prevailing
party is the State or any political subdivision of the State, the court
may allow the prevailing party to recover reasonable attorney's fees
to be taxed as court costs against the appropriate agency if:
(1) The court finds that the agency acted without substantial
justification in pressing its claim against the party; and
(2) The court finds that there are no special circumstances that
would make the award of attorney's fees unjust.
Pursuant to this section, the threshold requirement for an award of costs is that the action in
question must be a "civil action." Generally, an "action" is defined as "a lawsuit brought in a court;
a formal complaint within the jurisdiction of a court of law." Black's Law Dictionary 28 (6th ed.
1990). Proceedings before the Division differ from "actions" brought in courts, in that the Division
is an agency of the executive branch of government rather than a part of the judiciary. See S.C. Code
Ann. §1-23-500(A) (Supp. 1996). Most of the "contested cases" heard by an Administrative Law
Judge under the Administrative Procedures Act are the final administrative step prior to judicial
review. See S.C. Code Ann. §1-23-600(B); §1-23-610(B) (Supp. 1996). In McDowell v. S.C. Dept.
of Social Services, 304 S.C. 539, 405 S.E.2d 830 (1991), a case which predated the establishment
of the Division, the Supreme Court held that an action in Circuit Court for judicial review of an
agency decision was a "civil action" for purposes of §15-77-300. However, the Court further held
that the appellant was not entitled to recover attorney's fees for the proceedings before the agency,
since at that point the agency was functioning as an "administrative decision-maker." 405 S.E.2d at
833. A reading of McDowell indicates that within the context of the APA, an "action" arises only
after the conclusion of a contested case and only when the aggrieved party seeks judicial review in
the circuit court. Accordingly, §15-77-300 is not applicable to proceedings before the Division.
This conclusion is further supported by the fact that there is presently pending before the
General Assembly a bill which would amend §15-77-300 to allow an Administrative Law Judge to
award attorney's fees to a prevailing party (other than the State or a political subdivision of the State)
in "any contested administrative proceeding under the Administrative Procedures Act that is initiated
by the State, a political subdivision of the State, or a party contesting such action." H. 3383, 112th
Leg., 1st Sess. (1997). "It will be presumed that the Legislature in adopting an amendment to a
statute intended to make some change in the existing law." Vernon v. Harleysville Mut. Cas. Co.,
244 S.C. 152, 135 S.E.2d 841 (1964); 82 C.J.S. Statutes §384(b)(2) (1953). The fact that the
Legislature is considering an amendment to §15-77-300 which would bring proceedings before the
Division within the coverage of that section is a further indication that the statute, as presently
written, does not allow an award of attorney's fees in such proceedings. Therefore, the Petitioner's
Motion for Costs is hereby DENIED.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
March 17, 1997
Columbia, South Carolina. |
