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. § 56-1-1030 (Supp. 2006).
The Department claims that the DMVH erroneously rescinded the driver’s license suspension
of Respondent Kyle S. Ledford (Respondent). The Administrative Law Court (ALC
or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. §
1-23-660 (Supp. 2006). Upon review of this matter, the DMVH’s Order of
Dismissal is affirmed.
30, 2006, the Department sent Respondent a Notice of Suspension informing him that,
as of July 30, 2006, his driver’s license would be suspended pursuant to the
habitual offender statute, S.C. Code Ann. § 56-1-1090 (Supp. 2006). The Notice
of Suspension stated that Respondent had accumulated two Reckless Driving
convictions and one Driving Under Suspension conviction in a three-year period.
26, 2006, Respondent requested a hearing with the DMVH to challenge the
suspension. A hearing was held on August 28, 2006. Respondent appeared at the
hearing, but no one from the Department appeared. At no point prior to, or
after, the hearing did the Department file anything with the DMVH.
8, 2006, the DMVH hearing officer issued an Order of Dismissal, pursuant to ALC
Rule 23, in which he rescinded Respondent’s suspension. Specifically, he held that the
Department had failed to provide the DMVH with “any testimony or evidence
(i.e., traffic tickets) to corroborate that the Respondent had received or was found
guilty of any of the alleged violations that are listed on the Notice of
The Department now appeals the DMVH’s Order of Dismissal.
the DMVH hearing officer err by rescinding Respondent’s suspension when the
DMVH failed to gather copies of the Department’s records as evidence to be used
at the hearing?
the DMVH hearing officer err by placing the burden of proof on the Department
to demonstrate that Respondent was convicted of the violations listed on the
Notice of Suspension?
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.
That 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 decisions are:
(a) in violation of constitutional
or statutory provisions;
(b) in excess of the statutory
authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of
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).
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). 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
Code Ann. § 56-1-1030 (Supp. 2006) provides in pertinent part:
If the [Department
of Motor Vehicles] determines after review of its records that [a] person is an
habitual offender as defined in Section 56-1-1020, the department must revoke
or suspend the person’s driver’s license. . . . A resident of South Carolina
found to be an habitual offender may appeal the decision to the Division of
Motor Vehicle Hearings in accordance with its rules of procedure.
Code Ann. § 56-1-1020 (2006) defines a habitual offender to include a person
who, in a three-year period, accumulates three of more convictions for, among
other things, “[d]riving or operating a motor vehicle in a reckless manner” and
“[d]riving a motor vehicle while his license, permit, or privilege to drive a
motor vehicle has been suspended or revoked.” Pursuant to S.C. Code Ann. §
56-1-1090 (Supp. 2006), the length of a habitual offender suspension is five
years, unless the suspension period is reduced to two years as permitted by
subsection (c) of Section 56-1-1090.
of the issues presented in this appeal, it is important to note that, prior to
January 1, 2006, the Department’s Office of Administrative Hearings (OAH) held
the hearings requested under Section 56-1-1030. However, in the summer of
2005, the Legislature enacted 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
to Gather the Department’s Records
Department claims that 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 statutory duty, which it failed
to perform, to download the Department’s records that were 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 claim
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, 632 S.E.2d 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 review.
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, to appeal this issue, the
Department should have first 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 created a record to appeal to
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 erred by placing the
burden of proof on the Department to demonstrate that Respondent had been
convicted of the violations listed on the Notice of Suspension. Specifically,
the Department claims that the DMVH proceeding constituted an “appeal” of the
Department’s decision to suspend Respondent’s license, and that the burden was therefore
on Respondent “to allege an error of law, abuse of discretion, or lack of
substantial evidence.” For the following reasons, I disagree.
the Department’s argument that a DMVH hearing held pursuant to Section
56-1-1030 constitutes an “appeal” is unconvincing. Nothing in Section 1-23-660
suggests that DMVH hearing officers will perform appellate duties; rather, Section
1-23-660 indicates that DMVH hearing officers will preside over only contested
Therefore, although a case involving a habitual offender declaration reaches
the DMVH in the posture of an appeal, the DMVH hearing officer is not sitting
in an appellate capacity. See Reliance Ins. Co. v. Smith, 327
S.C. 528, 534, 489 S.E.2d 674, 677 (Ct. App. 1997) (holding that statute
allowing taxpayers and county assessors to “appeal” a county assessment board’s
property tax assessment by requesting a contested case hearing before the ALC
did not place the ALC in an appellate capacity).
in enacting the DMVH Act, the Legislature specifically required DMVH hearing
officers to conduct their hearings in accordance with the ALC’s rules of procedure.
Act No. 128, § 22, 2005 S.C. Acts 1503 (codified as amended at S.C. Code Ann. §
1-23-660 (Supp. 2006)). 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.” Therefore, because an administrative suspension of a
motorist’s driver’s license is a “sanction,” the DMVH hearing officer did not err by dismissing this case based on the Department’s failure to submit any evidence or
otherwise participate in the proceeding. See 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
For these reasons, the DMVH’s Order
of Dismissal is affirmed.
IS HEREBY ORDERED that the DMVH’s Order of Dismissal is AFFIRMED.
IT IS SO ORDERED.
Ralph K. Anderson, III
October 25, 2007
Columbia, South Carolina