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.
2007). The Department claims that the DMVH erroneously rescinded the driver’s
license suspension of Respondent Dwight Walker (Respondent). The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C.
Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final
Order and Decision is affirmed.
December 13, 2006, Appellant Department of Motor Vehicles sent Respondent Walker
an official notice of suspension informing him that due to three separate
convictions for driving under suspension, he was declared a habitual offender
under S.C. code Ann 56-1-1020-130 and that as a result his driving privileges
would be suspended from January 12, 2007 until January 12, 2012. The offenses
were listed on the suspension notices as follows:
to Section 56-1-1090, Respondent Walker appealed this determination on January
10, 2007 and a hearing was set for February 12, 2007 before Hearing Officer
Tracey Holland. After the hearing was held on February 21, 2007, the
Department forwarded to the DMVH a set of documents for inclusion into the Record
on Appeal, including the three Driving Under Suspension tickets, the Notice of
Hearing, the Suspension Letter and a copy of Respondent’ Walker’s certified driving
hearing was held on February 12, 2007 as scheduled at the Clemson City
Municipal Court. At the hearing, Respondent Walker represented himself. The Department
failed to appear and thus provided no evidence to the Hearing Officer
supporting its position. Accordingly, Hearing Officer Holland stated at the
hearing that: “the burden of proof is solely upon them (the Respondent), and
they have not, as of this date, submitted any documentation to prove their case
in declaring the Respondent, Mr. Walker, a habitual offender“ Therefore, she granted
an Order of Dismissal on March 13, 2008, pursuant to ALC Rule 23, in which she rescinded Respondent’s suspension.
The Department now appeals the DMVH’s Order of Dismissal.
the hearing officer err when she held a contested case hearing with less than Thirty
(30) Days Notice to the parties?
the hearing officer err when she held that the Department failed to carry its
burden of proof even though she received the Suspension Notice stating the
offenses constituting Habitual Offender status?
the hearing officer err when she held that the Department failed to carry its
burden of proof when the DMVH has electronic access to the Respondent’s driving
record which proved the offenses constituting habitual
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. 2007). 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. 2007); 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:
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. 2007).
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 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. 2007) 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, among
others, a person who, in a three-year period, accumulates three of more
convictions for “[d]riving a motor vehicle while his license, permit, or
privilege to drive a motor vehicle has been suspended or revoked, except a
conviction for driving under suspension for failure to file proof of financial
responsibility.” Pursuant to S.C. Code Ann. § 56-1-1090 (Supp. 2007), 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
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. 2007). The DMVH Act requires DMVH hearing officers
to conduct their hearings in accordance with the ALC’s rules of procedure. Id.
I. THE ISSUE OF
WHETHER THE HEARING OFFICER ERRED IN HOLDING THE HEARING WITH LESS THAN THIRTY
DAYS NOTICE TO THE PARTIES WAS WAIVED BY THE DEPARTMENT.
The Department argues that the DMVH Hearing Officer erred in holding a hearing allowing less
than thirty days’ notice in
violation of S.C. Code Ann. § 1-23-320(a). This argument was not presented to
the DMVH Hearing Officer and is not properly preserved for review. Kiawah
Resort Assocs. v. S.C. Tax Comm'n, 318 S.C. 502, 505, 458 S.E.2d 542, 544
(1995) (holding that issues that are neither raised to, nor ruled upon by, the
administrative agency are not preserved for appellate review).
II. The suspension
notice THAT THE dmvh RECEIVED ON jANUARY 12, 2007 was not prima facie evidence
of offenses constituting habitual offender status.
The Department specifically argues that the Respondent and the DMVH’s receipt
of the Suspension Notice constituted prima facie proof that Respondent had
committed a violation qualifying him as a habitual offender subject to
suspension under Section 56-1-1030. This argument is erroneous.
The crux of the Department's argument in these
cases is that the Legislature is very serious about “the problem of habitual
offenders.” Although this may be true, this fact alone is insufficient to
justify placing the burden of proof on motorists in Section 56-1-1030 hearings.
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. 2007)). 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,” this Court concludes that 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 enforcement cases).[FN6]
The Notice of Suspension, like a criminal indictment
or other notices of violation in the agency context, is a charging document,
not evidence itself. Accordingly, the DMVH’s receipt of the notice is not prima
facie evidence of Habitual Offender status.
III. The fact that the DMVH
had full electronic access to the Respondent’s driving record which SHOWED the
offenses constituting habitual offender status does not meet the department’s
burden of proVING THAT RESPONDENT WAS A HABITUAL OFFENDER.
Department claims that the DMVH was given electronic access to its records so
that these materials would be available to DMVH hearing officers. However, it
is not the duty of the DMVH or the Hearing Officers to collect evidence for
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.
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. 2007)). 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 or hearing officer 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. 2007)). 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
IS HEREBY ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IT IS SO ORDERED.
Carolyn C. Matthews
August 11, 2008
Columbia, South Carolina