ORDERS:
ORDER AND DECISION
APPEAL DISMISSED FOR LACK OF JURISDICTION
This matter comes before the Administrative Law Judge Division (ALJD) pursuant to a request
for an appeal by Carolyn Reed (Appellant). Ms. Reed appeals the decision of the Fair Hearing
Committee (Committee) of the Department of Social Services (DSS) to revoke her foster family
home license pursuant to S.C. Code Ann. §20-7-1642 (Supp. 1995). Because Appellant failed to
file her notice of appeal within thirty days of receipt of the decision, this case is dismissed for lack
of jurisdiction.
The ALJD has jurisdiction over appeals of contested cases decided by DSS. S.C. Code Ann.
§20-7-2260 (Supp.1995). This section dictates that the ALJD shall hear the appeals pursuant to
the procedures and guidelines of the Administrative Procedures Act (APA), S.C. Code Ann.
§1-23-310 et seq. (Rev. 1986 and Supp. 1995). The notice of appeal from the final decision of an
agency to be heard by the ALJD must be filed within thirty days of receipt of the decision from
which the appeal is taken. Once a notice of appeal is filed with the ALJD within the required time
period, the ALJD has proper jurisdiction over the appeal.
The timely filing of a notice of appeal is jurisdictional. Mears v. Mears, 287 S.C. 168, 337 S.E.2d
206 (1985). This general rule is applicable in the criminal, civil, and administrative contexts. See
Ko'olau Agricultural Co., Ltd. v. Commission on Water Resource Management, 868 P.2d 455
(Haw. 1994) (Agricultural firm appealed decision of commission on water resource management
to designate certain aquifer systems as ground water management areas; Supreme Court
dismissed appeal because the notice of appeal was not timely filed). As a result, the untimely
filing of a notice of appeal usually results in the dismissal of an appeal for lack of jurisdiction.
Limited exceptions to the above rule exist, however. A fundamental fairness exception has been
recognized in criminal cases where a defendant either was not informed of the right to appeal, was
not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who
failed to perfect and complete an appeal. State of Kansas v. Ortiz, 640 P.2d 1255 (Kan. 1982).
Second, a "reasonable cause" exception has been noted when the appellant demonstrates to the
court circumstances surrounding the delay which justify the relaxing of the time limits for the
filing of a notice of appeal. See Freeman v. City of Plymouth 1995 WL 228177 (Minn. 1995)
(unpublished opinion).
The Final Administrative Decision of the Committee, stating that Appellant's foster family home
license was properly revoked, was rendered on January 13, 1994. On January 16, 1994(1),
Appellant received the Decision, and a letter (dated January 14, 1994) explaining that she had
thirty days to appeal the Decision. Appellant subsequently filed her Notice of Appeal on
September 11, 1995, well after the expiration of the thirty day period. Following the filing of the
untimely notice, counsel for both parties executed a document whereby DSS consented to the
ALJD hearing the appeal, despite the expiration of the thirty day appeal period.
Appellant failed to file a notice of intent to appeal with the ALJD within thirty days of receiving
the decision of the Committee. On February 27, 1995, this Division held a hearing to determine
whether jurisdiction was proper, and if so, to determine whether the Decision of the Committee to
revoke Appellant's license should be upheld or be reversed. At the hearing, counsel for the
Appellant offered no explanation for the untimely filing of the notice.
As is expressed above, the failure to timely file a notice of appeal divests an appellate court of
jurisdiction to hear an appeal. Though limited exceptions to this rule exist, they are not applicable
in the instant case. Both parties indicated at the February 27, 1995 hearing that fundamental
fairness warrants that this Division should hear and rule on this appeal. While this tribunal has
sympathy for the plight of Appellant, and is aware that Spartanburg County DSS desires that she
retain her license, exhaustive legal research has yielded no authority enabling an appellate court to
hear an untimely appeal on fundamental fairness grounds outside of the criminal arena. As for
the reasonable cause exception, Appellant offered absolutely no explanation of why her notice
was tardy. Absent any rationale for filing a notice of appeal over a year after it was due, there
exists no reasonable cause for this Division to ignore the general rule and exercise jurisdiction
over this appeal.
"Parties cannot by consent confer jurisdiction upon a court." McCreery v. Covenant Presbyterian
Church, 299 S.C. 218, 383 S.E.2d 264 (Ct. App. 1989), rev'd on other grounds, McCreery v.
Covenant Presbyterian Church, 303 S.C. 271, 400 S.E.2d 130 (1990). Without demonstrating
that Appellant should meet one of the exceptions delineated above, the mere consent of the
parties cannot confer jurisdiction on the Division. Without an articulated and substantiated
reason to bypass an application of the general rule regarding untimely filings, this Division has no
alternative but to dismiss this appeal for a lack of appellate jurisdiction.
IT IS SO ORDERED.
_______________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
April 4, 1996
_______________
1. Appellant's Notice of Appeal provides that she received the decision of the Committee on
January 16, 1995. Given that Appellant did not file the Notice of Appeal until September 11,
1995, more than thirty days after January 16, 1995, any dispute that may exist over the date
Appellant received the Decision of the Committee is irrelevant. |
