H 3259 Session 110 (1993-1994)
H 3259 General Bill, By Sheheen, M.O. Alexander, J.L.M. Cromer, J.G. Felder,
J.H. Hodges, T.E. Huff, J.T. McElveen, T.F. Rogers and Wilkins
A Bill to amend Chapter 23 of Title 1, Code of Laws of South Carolina, 1976,
relating to state agency rule making and adjudication of contested cases by
adding Article 5 so as to establish the South Carolina Administrative Law
Judge Division the judges of which individually shall hear, determine, and
preside over contested cases of certain state agencies and commissions, and in
panels shall hear Workers' Compensation appeals from the single Commissioner
level rather than a panel of the Workers' Compensation Commission or the full
Commission, and to amend Section 42-3-20, relating to the Workers'
Compensation Commission, so as to delete references to panels of the
Commission and the authority of these panels or the full Commission to conduct
reviews of single Commissioner decisions.
01/26/93 House Introduced and read first time HJ-7
01/26/93 House Referred to Committee on Judiciary HJ-7
A BILL
TO AMEND CHAPTER 23 OF TITLE 1, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO STATE AGENCY RULE
MAKING AND ADJUDICATION OF CONTESTED CASES BY
ADDING ARTICLE 5 SO AS TO ESTABLISH THE SOUTH
CAROLINA ADMINISTRATIVE LAW JUDGE DIVISION THE
JUDGES OF WHICH INDIVIDUALLY SHALL HEAR, DETERMINE,
AND PRESIDE OVER CONTESTED CASES OF CERTAIN STATE
AGENCIES AND COMMISSIONS, AND IN PANELS SHALL HEAR
WORKERS' COMPENSATION APPEALS FROM THE SINGLE
COMMISSIONER LEVEL RATHER THAN A PANEL OF THE
WORKERS' COMPENSATION COMMISSION OR THE FULL
COMMISSION, AND TO AMEND SECTION 42-3-20, RELATING
TO THE WORKERS' COMPENSATION COMMISSION, SO AS TO
DELETE REFERENCES TO PANELS OF THE COMMISSION AND
THE AUTHORITY OF THESE PANELS OR THE FULL
COMMISSION TO CONDUCT REVIEWS OF SINGLE
COMMISSIONER DECISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 23, Title 1 of the 1976 Code is amended by
adding:
" Article 5
South Carolina Administrative
Law Judge Division
Section 1-23-500. There is created the South Carolina
Administrative Law Judge Division, which is an agency of the executive
branch of the government of this State. The division consists of a chief
administrative law judge and five associate administrative law judges.
Section 1-23-510. (A) The judges of the division must be
appointed by the Governor, with advice and consent of the General
Assembly, for a term of six years and until their successors are
appointed and qualify; provided, that of those judges initially appointed,
the chief judge (Seat 1) and the judge appointed to Seat 2 must be
appointed for terms of six years, the judges appointed to Seats 3 and 4
must be appointed for terms of four years, and the judges appointed to
Seats 5 and 6 must be appointed for terms of two years. The terms of
office of the judges of the division begin on July first of the year of
appointment.
(B) Each judicial seat on the division must be numbered.
Appointments are required to be for a specific seat. The office of chief
administrative law judge is a separate and distinct office for the purpose
of an appointment.
(C) In the event that there is a vacancy in the position of the chief
administrative law judge or for any reason the chief administrative law
judge is unable to act, his powers and functions must be exercised by the
associate administrative law judge occupying Seat 2.
Section 1-23-520. No person is eligible for the office of chief judge
or associate judge of the division who does not at the time of his
appointment meet the qualification for justices and judges as set forth in
Article V of the Constitution of this State or is not a certified public
accountant.
Section 1-23-530. The judges of the division shall qualify after the
date of their appointment by taking the constitutional oath of office.
Section 1-23-540. The chief judge and the associate judges shall
receive as annual salary ninety percent of that paid to the family court
judges of this State. They are not allowed any fees or perquisites of
office, nor may they hold any other office of honor, trust, or profit. Administrative law judges in the performance of their duties are also
entitled to that per diem, mileage, and subsistence as is authorized by
law for circuit court judges.
Each administrative law judge shall devote full time to his duties as
an administrative law judge, and may not practice law or accounting
during his term of office, nor may he during this term be the partner or
associate with anyone engaged in the practice of law or accounting in
this State.
Section 1-23-550. All vacancies in the office of administrative law
judge must be filled in the manner of original appointment. When a
vacancy is filled, the judge selected shall hold office only for the
unexpired term of his predecessor.
Section 1-23-560. No administrative law judge may sit in any case
in which he may be interested or in which he may have been counsel.
Section 1-23-570. The chief judge is responsible for the
administration of the division. The chief judge shall assign cases to the
judges of the division including himself and rotate and interchange the
judges of the division among the various state agencies or commissions
in regard to which it is responsible for hearing contested cases. The chief
judge shall also assign judges to sit in three-member panels to hear
workers' compensation appeals from the single commissioner level as
provided by this article .
Section 1-23-580. (A) A clerk of the division, to be appointed by
the judges of the division, must be appointed and is responsible for the
custody and keeping of the records of the division. The clerk of the
division shall perform those other duties as the chief judge prescribes.
(B) The other support staff of the division is as authorized by the
General Assembly in the annual general appropriations act. The division
may engage stenographers for the transcribing of the proceedings in
which an administrative law judge presides. It may contract for these
stenographic functions, or it may use stenographers provided by the
agency or commission.
Section 1-23-590. The General Assembly in the annual general
appropriations act shall appropriate those funds necessary for the
operation of the Administrative Law Judge Division.
Section 1-23-600. (A) An administrative law judge of the division
shall preside over all hearings of contested cases as defined in Section
1-23-310 involving the Department of Health and Environmental
Control, the Alcoholic Beverage Control Commission, and the Tax
Commission. The presiding administrative law judge rather than the
agency or commission involved by written order shall also render the
decision involving the contested case. These agencies or commissions
shall notify the Administrative Law Judge Division of all pending
contested cases. Upon notification, the chief administrative law judge
shall assign a judge to each contested case.
(B) Panels of three administrative law judges of the division as
assigned by the chief administrative law judge shall also hear workers'
compensation appeals from the single commissioner level rather than a
panel of the Workers' Compensation Commission or the full
commission. Appeals from the decisions of administrative law judge
panels in these matters shall be directly to the Supreme Court as
provided in Section 1-23-610. The Workers' Compensation Commission
shall notify the Administrative Law Judge Division of pending appeals
or reviews from the single commissioner level and the chief
administrative law judge upon receiving the notification shall assign a
panel of judges to each appeal.
Section 1-23-610. The hearings and proceedings concerning
contested cases and workers' compensation appeals must be transcribed
and are open to the public unless confidentiality is allowed or required
by law in cases involving the Tax Commission or the other agencies or
commissions. The presiding administrative law judge or law judge panel
shall render the decision in a written order and an appeal therefrom is
directly to the Supreme Court. The decisions or orders of these
administrative law judges or panels must not be published but are
available for public inspection unless the confidentiality thereof is
allowed or required by law.
Section 1-23-620. (A) The functions, duties, and powers of
agencies and commissions to which this article applies, in regard to
determining contested cases under Article 3 of this chapter, are devolved
upon the Administrative Law Judge Division, provided that these
agencies or commissions and the staffs thereof shall continue to retain
those powers and duties regarding the setting of the date of the hearings
on contested cases, regarding the obtaining and presentation of evidence
and testimony for and at these hearings to the extent that only the
decision-making authority and the appropriate functions, duties, and
powers in regard thereto are devolved upon the Administrative Law
Judge Division. Where the term `agency' or `commission' is used in
Article 3 of this chapter relating to functions, duties, or powers in regard
to determining contested cases, the term must be construed to mean the
presiding administrative law judge.
(B) The functions, duties, and powers of the Workers' Compensation
Commission or panels of it to review decisions made by single
commissioners are also devolved upon the Administrative Law Judge
Division. Where the term `commission' or `panel' or any similar
variation is used in Title 42 or in any other provision of law relating to
the functions, duties, or powers of the Workers' Compensation
Commission or panels of it to review decisions made by single
commissioners, these terms must be construed to mean the
administrative law judge panels assigned to the appeal.
(C) Any time periods under Article 3 of this chapter or any other
provision of law for the rendering of decisions in contested cases which
are applicable to these agencies or commissions, as well as the
applicable administrative law procedural provisions, also apply to the
presiding administrative law judge. Any time periods under Title 42 or
any other provision of law pertaining to the appeal from or rendering
reviews concerning workers' compensation decisions from the single
commissioner level also apply when these appeals and reviews are
performed by administrative law judge panels in the manner provided by
this article .
(D) Circuit court rules in these administrative law division hearings
also apply when administrative law procedural rules contained in Article
3 of this chapter, in Title 42, or in other provisions of law are not
applicable to or do not provide for the question involved.
(E) Where the court of common pleas is empowered to take certain
action under Article 3 of this chapter or under Title 42, this authority is
devolved upon the presiding administrative law judge or panel, provided
that the above provision does not apply in regard to appeals from final
decisions or orders in contested cases, to final decisions or orders
concerning workers' compensation appeals from the single commissioner
level, or to interlocutory appeals during these proceedings. Interlocutory
appeals directly to the Supreme Court from any ruling or action of the
presiding administrative law judge or panel during the hearing or
proceeding are allowed, except that the hearing or proceeding in all
other respects must not be stayed during the pendency of the
interlocutory appeal.
(F) Where appropriations to the Department of Health and
Environmental Control, the Alcoholic Beverage Control Commission,
the Tax Commission, or the Workers' Compensation Commission in the
annual general appropriations act, or where fees, fines, forfeitures or
revenues imposed or collected by these agencies or commissions were
required to be used for the hearing of contested cases involving the
Department of Health and Environmental Control, the Alcoholic
Beverage Control Commission, or the Tax Commission or for reviews
of workers' compensation decisions from the single commissioner level,
such appropriations or monies must continue to be used for these
purposes after the effective date of this article in the manner the Budget
and Control Board shall direct.
Section 1-23-630. Each of the judges of the division has the same
power at chambers or in open hearing as do circuit court judges, and to
issue those remedial writs as are necessary to give effect to its
jurisdiction.
Section 1-23-640. The division shall maintain its principal offices
in the City of Columbia. However, judges of the division shall hear
contested cases at the offices or location of the involved agency or
commission as prescribed by the agency or commission, and may hear
workers' compensation appeals from the single commissioner level at
suitable locations outside the City of Columbia as determined by the
chief administrative law judge.
Section 1-23-650. The Administrative Law Judge Division through
its judges is authorized to promulgate those regulations necessary to
effectuate the provisions of this article."
SECTION 2. Section 42-3-20 of the 1976 Code is
amended to read:
"Section 42-3-20. The commission shall consist of seven
members appointed by the Governor with the advice and consent of the
Senate for terms of six years and until their successors are appointed and
qualify. The Governor with the advice and consent of the Senate shall
designate one commissioner as chairman for a term of two years and the
chairman may serve two terms in his six-year term but not
consecutively. The commissioners shall hear and determine all
contested cases, conduct informal conferences when necessary, approve
settlements, hear applications for full commission reviews and
handle such other matters as may come before the department for
judicial disposition. Full commission reviews shall be conducted by
six commissioners only, with the original hearing commissioner not
sitting at such reviews. When one commissioner is temporarily
incapacitated or a vacancy exists on the commission, reviews may be
conducted by the five remaining commissioners but in such cases
decisions of the hearing commissioner shall not be reversed except on
the vote of at least four commissioners; provided, however, that effective
July 1, 1981 full commission reviews may be conducted by three-member panels composed of three commissioners appointed by the
chairman excluding the original hearing commissioner. The chairman,
with unanimous approval of the other commissioners, shall determine
which full commission reviews shall be assigned to panels. The
decisions of such panels shall have the same force and effect as
nonpanel full commission reviews."
SECTION 3. The administrative law judges of the Administrative Law
Judge Division established by this act shall begin hearing contested
cases and workers' compensation appeals from the single commissioner
level, as provided in this act, six months after the six judges of the
division have been appointed and qualify.
SECTION 4. This act takes effect upon approval by the Governor.
-----XX----- |