AMENDED FINAL ORDER
OF THE CASE
This matter is an appeal by the South Carolina Department of
Motor Vehicles (Department) from an Order of Dismissal of the South Carolina
Division of Motor Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was
issued following a hearing held pursuant to S.C. Code Ann. § 56-10-530 (2006).
The Department claims that the DMVH erroneously rescinded the suspension of Respondent’s
driving and registration privileges. The Administrative Law Court (ALC or
Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. §§ 1-23-660
& 56-10-530 (Supp. 2006). Upon review, the DMVH’s Final Order and Decision
14, 2006, the Department sent Respondent Paul A. Dunbar, IV, written notice that,
as a result of a motor vehicle accident that occurred on April 22, 2005, his driving
and registration privileges in South Carolina would be suspended pursuant to
S.C. Code Ann. § 56-10-530, effective March 29, 2006. The Department’s notice did
not describe the vehicle involved in the accident. On May 23, 2005, pursuant
to Section 56-10-530, Kenneth C. Anthony, Jr. as attorney for Dunbar filed a
letter requesting a hearing to challenge the suspension. A hearing was held on
May 1, 2006. Anthony as attorney for Dunbar appeared with his client at the
hearing, but no one on behalf of the Department appeared. During the hearing, Anthony
moved for “dismissal of that suspension on the basis that there’s no proof that
liability insurance did not exist on the date or that an accident even occurred
on that date.” At no point prior to, or after, the hearing did the Department
file anything with the DMVH.
10, 2006, the DMVH hearing officer issued an Order of Dismissal, pursuant to
ALC Rule 23, in which he rescinded Dunbar’s suspension. Specifically, he held that “[t]here
was no evidence/testimony corroborating that the Respondent’s vehicle had been
involved in an accident/collision.” The Department now appeals the DMVH’s Order
the DMVH err in holding a hearing with less than the thirty-day notice required
by S.C. Code Ann. § 1-23-320(a) (Supp. 2006)?
the DMVH violate its statutory duties by failing to gather copies of the
Department’s records as evidence to be used against Dunbar at the hearing?
the DMVH hearing officer erroneously shift the burden of proof to the
Department to demonstrate that Dunbar’s vehicle had been involved in an accident?
STANDARD OF REVIEW
DMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the
DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review
governs appeals from decisions of the DMVH. See S.C. Code Ann. §
1-23-380 (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385
(1995). The standard used by appellate bodies, including the ALC, to review
agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).
This section provides:
The court may not
substitute its judgment for the judgment of the agency as to the weight of the
evidence on questions of fact. The court may affirm the decision of the agency
or remand the case for further proceedings. The court may reverse or modify
the decision [of the agency] if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions, or
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
S.C. Code Ann. §
1-23-380(A)(5) (Supp. 2006).
decision is supported by “substantial evidence” when the record as a whole
allows reasonable minds to reach the same conclusion reached by the agency. Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68
(Ct. App. 1984). A decision will not be set aside simply because reasonable
minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130,
136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a
whole, presents the possibility of drawing two inconsistent conclusions from
the evidence does not prevent the agency’s findings from being supported by
substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n,
321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council,
319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
In applying the substantial evidence rule, the factual
findings of the administrative agency are presumed to be correct. Rodney v.
Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200,
456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the
burden of proving convincingly that the agency’s decision is unsupported by
substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
of Applicable Law
The statute at issue
here, Section 56-10-530, was enacted by the Legislature to discourage individuals
who are involved in motor vehicle accidents from evading their financial responsibilities with respect to such accidents
and provides in pertinent part:
When it appears to the director from the records of his
office that an uninsured motor vehicle as defined in Section 56-9-20, subject
to registration in the State, is involved in a reportable accident in the State
resulting in death, injury, or property damage with respect to which motor
vehicle the owner thereof has not paid the uninsured motor vehicle fee as
prescribed in Section 56-10-510, the director shall . . . suspend such owner’s
driver’s license and all of his license plates and registration certificates
until such person has complied with those provisions of law and has paid to the
director of the Department of Motor Vehicles a reinstatement fee as provided by
Section 56-10-510 . . . with respect to the motor vehicle involved in the
accident and furnishes proof of future financial responsibility in the manner
prescribed in Section 56-9-350, et seq.
S.C. Code Ann. §
56-10-530 (2006). However, Section 56-10-530 also provides that no order of
suspension may become effective “until the director has offered the person an
opportunity for an administrative hearing to show cause why the order should
not be enforced.” Id. The presentation by such person of either: (i) a
certificate of insurance, executed by an agent or representative of an
insurance company qualified to do business in this State, showing that on the
date and at the time of the accident the vehicle was an insured motor vehicle;
or (ii) evidence that the additional fee applicable to the registration of an
uninsured motor vehicle had been paid to the Department before the date and
time of the accident is sufficient to bar the suspensions. Id.
of the issues presented in this appeal, it is necessary to note that, prior to
January 1, 2006, the Department’s Office of Administrative Hearings (OAH) held
the hearings requested under Section 56-10-530. However, in the summer of
2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22,
2005 S.C. Acts 1503 (the DMVH Act). Pursuant to the DMVH Act, the DMVH was
created as a division of the ALC and, as of January 1, 2006, “the duties,
functions, and responsibilities of all hearing officers and associated staff”
of the Department were transferred to the DMVH. Act No. 128, § 22, 2005 S.C.
Acts 1503 (codified as amended at S.C. Code Ann. § 1-23-660 (Supp. 2006)). The
DMVH Act requires DMVH hearing officers to conduct their hearings in accordance
with the ALC’s rules of procedure. Id.
to Gather the Department’s Records
Department claims that, “at the DMVH’s request,” the DMVH was given
electronic access to its records “specifically and precisely” so that these
materials would be available to DMVH hearing officers, and that because the
DMVH Act transferred “the duties, functions, and responsibilities of all
hearing officers and associated staff” of the Department to the DMVH, the DMVH
had a duty, which it failed to perform, to download the accident report
relevant to this case. I disagree.
Preservation and Lack of Evidence Supporting the Department’s Factual Claims
an initial matter, the Department did not raise this issue to the DMVH hearing
officer, and the hearing officer did not rule on this issue. Issues that are
neither raised to nor ruled upon by the trial court are not preserved for
appellate review. Flowers v. S.C. Dep’t of Highways and Pub. Transp.,
309 S.C. 76, 79, 419 S.E.2d 832, 834 (Ct. App. 1992). Therefore, this issue has
not been properly preserved.
there is no evidence in the Record that supports the Department’s factual
claims that either the DMVH requested access to the Department’s records or
that the DMVH was given access to the Department’s records. ALC Rule 36(G)
provides that an “Administrative Law Judge will not consider any fact which
does not appear in the Record.” As the appellant in this case, the onus was on
the Department to provide this Court with sufficient means to analyze the
merits of its claims. See Medlock v. One 1985 Jeep Cherokee VIN
1JCWB7828FT129001, 322 S.C. 127, 132, 470 S.E.2d 373, 376 (1996).
is for these reasons that the South Carolina Supreme Court has held on numerous
occasions that the issuance of a default judgment based on a party’s failure to
appear at a proceeding or to make requisite legal filings is not directly
appealable. See, e.g., Edith v. State, 369 S.C. 408, 409,
632 S.E.2d 844, 844 (2006) (default judgment based on failure to respond to a
conditional order of dismissal); Belue v. Belue, 276 S.C. 120, 276
S.E.2d 295 (1981) (default judgment based on failure to appear); Odom v.
Burch, 52 S.C. 305, 29 S.E. 726 (1898) (default judgment based on failure
to file answer). Instead, the court has held that the proper procedure for
challenging a default judgment is to move the trial court to set aside the
judgment pursuant to SCRCP Rule 60(b). See Winesett v. Winesett,
287 S.C. 332, 334, 338 S.E.2d 340, 341 (1985). In Winesett, the Supreme
Court explained the reasoning behind this rule:
An early justification for this rule was
that a defendant who does not appear and answer “has no status in court which
will enable him to appeal from the judgment rendered.” An additional
justification is that a party appealing a default judgment will ordinarily be
precluded from raising any issues on appeal because they were not first
presented below. Finally, the appellant will often not be able to meet his
burden of providing this Court with a record sufficient to permit an adequate
Winesett, 287 S.C. at 333-34, 338 S.E.2d at 341.
the DMVH hearing officer dismissed this case pursuant to the default provisions
set forth in ALC Rule 23 after the Department failed to submit any evidence or
otherwise participate in the proceeding. Therefore, the DMVH’s Order of
Dismissal is not appealable. The Department should have challenged the default
judgment by filing a Rule 29(D) motion to reconsider with the DMVH.
The DMVH’s ruling on such a motion would have been appealable to this Court.
as discussed below, even if the DMVH’s Order of Dismissal were appealable,
reversal of the DMVH’s Order of Dismissal would still not be warranted.
Transferred to the DMVH Did Not Include Evidence-Gathering Duties
cardinal rule of statutory construction is to ascertain and effectuate the
intent of the Legislature. Hodges v. Rainey, 341 S.C. 79, 85, 533
S.E.2d 578, 581 (2000). In ascertaining the intent of the Legislature, a court
should not focus on any single section or provision but should consider the
language of the statute as a whole. Mid-State Auto Auction of Lexington,
Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Although
there is no single, invariable rule for determining legislative intent, the
language must be read in a sense which harmonizes with its subject matter and
accords with its general purpose. Scholtec v. Estate of Reeves, 327
S.C. 551, 558, 490 S.E.2d 603, 607 (Ct. App. 1997).
the statutory framework of the DMVH Act demonstrates that, by devolving the
duties, functions, and responsibilities of the hearing officers and associated
staff of the Department to the DMVH, the Legislature did not intend to transfer
the Department’s evidence-gathering duties to the DMVH. First, the DMVH Act
requires DMVH hearing officers to abide by the Code of Judicial Conduct, as
contained in Rule 501 of the South Carolina Appellate Court Rules. Act No.
128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. §
1-23-660 (Supp. 2006)). Canon 3 of the Code of Judicial Conduct states: “A
judge shall perform the duties of judicial office impartially and
diligently.” Rule 501 SCACR, Canon 3 (emphasis added). As a fundamental
matter, the impartiality requirement prohibits a judge from investigating the
very violations that he or she is required to adjudicate. See Commentary to Rule 501 SCACR, Canon 3(B)(7) (“A judge must not independently
investigate facts in a case and must consider only the evidence presented”); see also State v. Adams, 291 S.C. 132, 134, 352 S.E.2d 483, 485
(1987) (“A magistrate who participates in a general search for evidence is not
neutral and detached.”); In re Marriage of Smith, 448 N.E.2d 545, 550
(Ill. App. Ct. 1983) (holding, in a marriage dissolution proceeding, that it
was the responsibility of the parties, not the trial court, to obtain and
present adequate information regarding husband’s pension rights). This
impartiality requirement also applies to court personnel. See Rule 501
SCACR, Canon 3(C)(2) (“A judge shall require staff, court officials and others
subject to the judge’s direction and control to observe the standards of
fidelity and diligence that apply to the judge and to refrain from manifesting
bias or prejudice in the performance of their official duties.”)
the DMVH Act makes the DMVH a part of the ALC, not the Department. Act No.
128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. §
1-23-660 (Supp. 2006)). By separating the DMVH from the Department, the Legislature
created an independent tribunal for adjudicating license and registration
suspension matters. Therefore, it is highly unlikely that the Legislature
intended for the DMVH to perform the same prosecutorial-type duties that the
Department’s OAH once performed. For these reasons, I hold that it was not the
duty of the DMVH to gather copies of the Department’s records.
Department also argues that the DMVH hearing officer erroneously shifted the
burden of proof to the Department to demonstrate that Dunbar’s vehicle had been
involved in an accident. Before resolving this issue, a careful analysis of
the term “burden of proof” is required. “The term ‘burden of proof’ has been
used to describe two related but distinct concepts: the burden of production
and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994); see also Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). The burden of persuasion refers to the duty to prove the truth of an issue by the quantum of evidence
the law demands in the case in which the issue arises.
Alex Sanders & John S. Nichols, Trial Handbook for South Carolina
Lawyers § 9.1 at 369 (3d ed. 2005). The burden of production, or
burden of going forward with the evidence, refers to the obligation of a party
to proceed with evidence, at any stage of the trial, to make or meet a prima
facie case. Id. § 9.1 at 369. As a trial progresses, the burden of production may
shift from one side to the other as the respective parties present evidence. Id. § 9.1 at 370. The burden of persuasion, however, does not generally shift. Id. § 9.1 at 369. The current standard practice is to use the term “burden of
proof” to refer to the burden of persuasion. Greenwich Collieries,
512 U.S. at 276. This is the meaning intended by this Court when using the
phrase “burden of proof” herein.
Section 1-23-660 specifically requires DMVH hearing officers to conduct their hearings
in accordance with the ALC’s rules of procedure. One of those rules, ALC Rule
29(B), expressly states: “In matters involving the assessment of civil
penalties, the imposition of sanctions, or the enforcement of
administrative orders, the agency shall have the burden of proof.” In Section
56-10-530 proceedings, the Department is seeking to suspend a person’s
registration privileges and/or driver’s license. Therefore, in such
proceedings, the Department bears the burden of proof with respect to
establishing that a vehicle owned by the motorist was involved in an accident in
South Carolina resulting in bodily injury, death or property damage. See S.C. Code Ann. § 56-10-530 (2006); see also Stephen P. Bates, The
Contested Case Before the ALJD, South Carolina Administrative Practice
& Procedure 161, 200-01 (Randolph R. Lowell & Stephen P. Bates
eds., 2004) (discussing generally the burden of proof in administrative
does not shift the Department’s burden of proof to the motorist. Section
56-10-530 is analogous to those statutes and court rules that require nonmoving
parties to “show cause” why a certain action should not be taken against them.
Such statutes and court rules do not shift the moving party’s burden of proof
to the nonmoving party. See, e.g., Brasington v. Shannon,
288 S.C. 183, 184, 341 S.E.2d 130, 131 (S.C. 1986) (holding that the use of a
rule to show cause to initiate a contempt proceeding did not shift the burden
of proof to the nonmoving party); State v. Saulter, 224 S.E.2d 247, 249
(N.C. Ct. App. 1976) (“Though [the habitual offender statute] provides that the
court enter an order directing the person named to show cause why he should not
be barred from operating a motor vehicle on the highways of this State, the
burden of proof is not on the defendant.”); Davis v. Commonwealth, 252
S.E.2d 299, 301 (Va. 1979) (holding, in a case involving Virginia’s habitual
traffic offender statute, that the trial court’s order requiring motorist to
show cause why he should not be barred from operating motor vehicles on
Virginia’s highways did not shift the burden of proof to the motorist); Brennan
v. Johnson, 391 A.2d 337, 339 n.1 (Me. 1978) (where, in a case involving
Maine’s habitual traffic offender law, the Maine Supreme Court stated that “we
observe that resort to a show cause order (as provided by the Legislature here)
does not relieve a plaintiff of his initial burden of going forward with
evidence nor of his ultimate burden of proof”). Similarly, Section 56-10-530
does not shift the Department’s burden of proof to the motorist. However, once the Department presents prima facie evidence to show that a vehicle owned by the motorist was involved in an accident in South Carolina resulting in bodily injury, death or property damage, the burden shifts to the motorist. If, after the Department establishes
its prima facie case, the motorist does not present any evidence, then the motorist’s
suspension must be sustained.
Here, the Department did not present any
evidence to show that a vehicle belonging to Dunbar was involved in an accident in South Carolina resulting in bodily injury, death or property damage. The Department’s contention that the Notice of
Suspension issued to Dunbar sufficiently established
the Department’s prima facie case is without merit. As a basic matter, the
Notice of Suspension does not indicate whether any bodily injury, death or
property damage occurred as a result of the referenced accident. Therefore, it
was not error for the DMVH hearing officer to dismiss this case based on the
Department’s failure to submit any evidence.
Accordingly, because it was not the duty of the DMVH to
gather the Department’s records, and because the Department failed to meet its
burden of proof, the DMVH’s Final Order and Decision must
to the Department’s motion for reconsideration, the Final Order previously
filed in this matter is VACATED and this Amended Final Order is
substituted. IT IS HEREBY ORDERED that the DMVH’s Final Order and
Decision is AFFIRMED.
IT IS SO ORDERED.
October 17, 2007 JOHN
Columbia, South Carolina Administrative
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731