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Indicates Matter Stricken
Indicates New Matter
Indicates Matter Stricken
Indicates New Matter
AS PASSED BY THE SENATE
June 4, 2008
H. 3575
Introduced by Reps. Young, Harrell, Anthony, Clyburn, Lucas, J.M. Neal, Owens, E.H. Pitts, Taylor, White, Chellis, Gullick, R. Brown, Stavrinakis, Hagood and Scarborough
S. Printed 6/4/08--S.
Read the first time March 28, 2007.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-23-505 SO AS TO DEFINE CERTAIN TERMS; BY ADDING SECTION 1-23-535 SO AS TO PROVIDE THAT THE ADMINISTRATIVE LAW COURT SHALL HAVE AN OFFICIAL SEAL; TO AMEND SECTION 1-23-310, RELATING TO DEFINITIONS FOR PURPOSES OF ADMINISTRATIVE PROCEDURES, SO AS TO CHANGE A REFERENCE TO THE ADMINISTRATIVE LAW JUDGE DIVISION TO THE ADMINISTRATIVE LAW COURT; TO AMEND SECTION 1-23-320, RELATING TO CONTESTED CASE HEARINGS, SO AS TO DELETE A PROVISION REGARDING THE HANDLING OF ATTENDANCE AND TESTIMONY OF WITNESSES, PRODUCTION OF BOOKS, PAPERS, AND RECORDS, AND OTHER PROCEDURAL MATTERS AND TO PROVIDE FOR ENFORCEMENT OR RELIEF FROM AN AGENCY SUBPOENA BEFORE THE COURT; TO AMEND SECTION 1-23-380, AS AMENDED, RELATING TO JUDICIAL REVIEW AFTER EXHAUSTION OF ADMINISTRATIVE REMEDIES, SO AS TO DELETE REFERENCES TO THE ADMINISTRATIVE LAW COURT AND TO REVIEW BY AN ADMINISTRATIVE LAW JUDGE OF A FINAL DECISION IN A CONTESTED CASE TO CONFORM THE PROCEDURES TO OTHER PROCEDURAL PROVISIONS REGARDING THE COURT; TO AMEND SECTION 1-23-560, RELATING TO THE APPLICATION OF THE CODE OF JUDICIAL CONDUCT TO THE ADMINISTRATIVE LAW COURT, SO AS TO PROVIDE THAT THE CODE OF JUDICIAL CONDUCT SERVES AS THE SOLE GROUNDS FOR DISCIPLINE OF ADMINISTRATIVE LAW JUDGES AND TO ALLOW ADMINISTRATIVE LAW JUDGES AND SPOUSES TO ACCEPT INVITATIONS TO CERTAIN JUDICIAL-RELATED FUNCTIONS; TO AMEND SECTION 1-23-600, AS AMENDED, RELATING TO HEARINGS AND PROCEEDINGS OF THE ADMINISTRATIVE LAW COURT, SO AS TO CONFORM THE PROCEDURES TO OTHER PROCEDURAL PROVISIONS REGARDING THE COURT AND TO PROHIBIT THE HEARING OF CERTAIN INMATE APPEALS BY THE COURT; TO AMEND SECTION 1-23-610, AS AMENDED, RELATING TO REVIEW OF DECISIONS OF THE ADMINISTRATIVE LAW COURT, SO AS TO CONFORM THE PROCEDURES TO OTHER PROCEDURAL PROVISIONS REGARDING THE COURT AND TO DELETE THE PROVISION REQUIRING APPROPRIATED MONIES TO BE USED FOR THE SAME PURPOSE INDEFINITELY; AND TO AMEND SECTION 1-23-640, RELATING TO THE VENUE WHERE ADMINISTRATIVE LAW COURT CASES ARE HEARD, SO AS TO PROVIDE THAT CONTESTED CASES WILL BE HEARD AT THE PRINCIPAL OFFICES OR AT ANOTHER SUITABLE LOCATION UNDER CERTAIN CIRCUMSTANCES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 5, Chapter 23 of Title 1 of the 1976 Code is amended by adding:
"Section 1-23-505. As used in this article:
(1) 'Administrative law judge' means a judge of the South Carolina Administrative Law Court created pursuant to Section 1-23-500.
(2) 'Agency' means a state agency, department, board, or commission whose action is the subject of a contested case hearing or an appellate proceeding heard by an administrative law judge, or a public hearing on a proposed regulation presided over by an administrative law judge.
(3) 'Contested case' means a proceeding including, but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law or by Article I, Section 22, Constitution of the State of South Carolina, 1895, to be determined by an agency or the Administrative Law Court after an opportunity for hearing.
(4) 'License' includes the whole or part of any agency permit, franchise, certificate, approval, registration, charter, or similar form of permission required by law, but does not include a license required solely for revenue purposes.
(5) 'Party' means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.
(6) 'Person' means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency."
SECTION 2. Article 5, Chapter 23 of Title 1 of the 1976 Code is amended by adding:
"Section 1-23-535. The Administrative Law Court shall have a seal with a suitable inscription, an impression of which must be filed with the Secretary of State."
SECTION 3. Section 1-23-310(1) and (2) of the 1976 Code is amended to read:
"(1) 'Administrative law judge' means a judge of the South Carolina administrative law judge division Administrative Law Court created pursuant to Section 1-23-500;
(2) 'Agency' means each state board, commission, department, or officer, other than the legislature, or the courts, but to include the administrative law judge division or the Administrative Law Court, authorized by law to determine contested cases;"
SECTION 4. Section 1-23-320 of the 1976 Code is amended to read:
"Section 1-23-320. (a)(A) In a contested case, all parties must be afforded an opportunity for hearing after notice of not less than thirty days, except in proceedings before the Employment Security Commission, which shall be are governed by the provisions of Section 41-35-680.
(b)(B) The notice shall must include a:
(1) a statement of the time, place, and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved;
(4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall must be furnished.
(c)(C) Any A party to such these proceedings may cause to be taken the depositions of witnesses within or without the State and either by commission or de bene esse. Such depositions shall Depositions must be taken in accordance with and subject to the same provisions, conditions, and restrictions as apply to the taking of like depositions in civil actions at law in the court of common pleas; and the same rules with respect to the giving of notice to the opposite party, the taking and transcribing of testimony, the transmission and certification thereof of it, and matters of practice relating thereto shall to it apply.
(d)(D) The agency hearing a contested case may issue subpoenas in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on its own behalf or, upon request, on behalf of any other another party to the case.
The administrative law judge division shall, on application of any party to the proceeding enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records and shall have the power to punish as for contempt of court, by a fine, or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers, and records as may have been required in any subpoena issued by the agency. A person to whom a subpoena has been issued may move before the administrative law judge for an order quashing or modifying the subpoena. The agency may issue to the sheriff of the county in which any hearing is held a warrant requiring him to produce at the hearing any witness who shall have ignored or failed to comply with any subpoena issued by the agency and duly served upon such witness. Such a warrant shall authorize the sheriff to arrest and produce at the hearing such witness, and it shall be his duty to do so; but the failure of a witness so to appear in response to any such subpoena may be excused on the same grounds as provided by law in the courts of this State as to the attendance of witnesses and jurors A party to the proceeding may seek enforcement of or relief from an agency subpoena before the Administrative Law Court pursuant to Section 1-23-600(F).
(e)(E) Opportunity shall must be afforded all parties to respond and present evidence and argument on all issues involved.
(f)(F) Unless precluded by law, informal disposition may be made of any a contested case by stipulation, agreed settlement, consent order, or default.
(g)(G) The record in a contested case shall must include:
(1) all pleadings, motions, intermediate rulings, and depositions;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections, and rulings thereon on the contested case;
(5) proposed findings and exceptions;
(6) any decision, opinion, or report by the officer or administrative law judge presiding at the hearing.
(h)(H) Oral proceedings or any part thereof of the oral proceedings shall must be transcribed on request of any a party.
(i)(I) Findings of fact shall must be based exclusively on the evidence and on matters officially noticed."
SECTION 5. Section 1-23-380 of the 1976 Code, as last amended by Act 387 of 2006, is further amended to read:
"Section 1-23-380. (A) A party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under pursuant to this article, and Article 1, and Article 5. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy. Except as otherwise provided by law, an appeal is to the court of appeals.
(1) Proceedings for review are instituted by serving and filing notice of appeal as provided in the South Carolina Appellate Court Rules within thirty days after the final decision of the agency or, if a rehearing is requested, within thirty days after the decision is rendered. Copies of the notice of appeal must be served upon the agency, the Administrative Law Court, and all parties of record.
(2) Except as otherwise provided in this chapter, the serving and filing of the notice of appeal does not itself stay enforcement of the agency decision. The serving and filing of a notice of appeal by a licensee for review of a fine or penalty or of its license stays only those provisions for which review is sought and matters not affected by the notice of appeal are not stayed. The serving or filing of a notice of appeal does not automatically stay the suspension or revocation of a permit or license authorizing the sale of beer, wine, or alcoholic liquor. The agency or administrative law judge may grant, or the reviewing court may order, a stay upon appropriate terms, upon the filing of a petition under Rule 65 of the South Carolina Rules of Civil Procedure.
(3) If a timely application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file the evidence and modifications, new findings, or decisions with the reviewing court.
(4) The review must be conducted by the court and must be confined to the record. In cases of alleged irregularities in procedure before the agency or the Administrative Law Court, not shown in the record, and established by proof satisfactory to the court, the case may be remanded to the agency or the Administrative Law Court for action as the court considers appropriate.
(5) 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 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 law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(B) Review by an administrative law judge of a final decision in a contested case, heard in the appellate jurisdiction of the Administrative Law Court, must be in the same manner prescribed in subsection (A) for judicial review of final agency decisions, with the presiding administrative law judge exercising the same authority as the court of appeals; provided, that a party aggrieved by a final decision of an administrative law judge is entitled to judicial review of that decision by the court of appeals pursuant to the provisions of subsection (A) and Section 1-23-610(C)."
SECTION 6. Section 1-23-560 of the 1976 Code is amended to read:
"Section 1-23-560. Administrative law judges are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. The sole grounds for discipline and sanctions for administrative law judges are those contained in the Code of Judicial Conduct in Rule 502, Rule 7, of the South Carolina Appellate Court Rules. The State Ethics Commission, which is responsible for enforcement and administration of those rules pursuant to shall use the procedure contained in Section 8-13-320. Notwithstanding another provision of law, an administrative law judge and the judge's spouse or guest may accept an invitation to attend a judicial-related or bar-related function, or an activity devoted to the improvement of the law, legal system, or the administration of justice."
SECTION 7. Section 1-23-600 of the 1976 Code, as last amended by Act 111 of 2007, is further amended to read:
"Section 1-23-600. (A) A full and complete record must be kept of all contested cases and regulation hearings before an administrative law judge. All testimony must be reported, but need not be transcribed unless a transcript is requested by any party. The party requesting a transcript is responsible for the costs involved. Proceedings before administrative law judges are open to the public unless confidentiality is allowed or required by law. The presiding administrative law judge must render the decision in a written order. The decisions or orders of administrative law judges are not required to be published but are available for public inspection unless confidentiality is allowed or required by law.
(B) An administrative law judge shall preside over all hearings of contested cases as defined in Section 1-23-310 1-23-505 or Article I, Section 22, Constitution of the State of South Carolina, 1895, involving the departments of the executive branch of government as defined in Section 1-30-10 in which a single hearing officer, or an administrative law judge, is authorized or permitted by law or regulation to hear and decide these cases, except those arising under the:
(1) Occupational Safety and Health Act, those matters arising under the;
(2) Consolidated Procurement Code, those matters heard by the;
(3) Public Service Commission, the;
(4) Employment Security Commission, the;
(5) Workers' Compensation Commission,; or
(6) other cases or hearings which are prescribed for or mandated by federal law or regulation, unless otherwise by statute or regulation specifically assigned to the jurisdiction of the Administrative Law Court. Unless otherwise provided by statute, the standard of proof in a contested case is by a preponderance of the evidence. The South Carolina Rules of Evidence apply in all contested case proceedings before the Administrative Law Court.
(C)(B) All requests for a hearing before the Administrative Law Court must be filed in accordance with the court's rules of procedure. Any A party that files a request for a hearing with the Administrative Law Court must simultaneously serve a copy of the request on the affected agency. Upon the filing of the request, the chief judge shall assign an administrative law judge to the case. Notice of the contested case hearing must be issued in accordance with the rules of procedure of the Administrative Law Court.
(C) A full and complete record must be kept of all contested cases and regulation hearings before an administrative law judge. All testimony must be reported, but need not be transcribed unless a transcript is requested by a party. The party requesting a transcript is responsible for the costs involved. Proceedings before administrative law judges are open to the public unless confidentiality is allowed or required by law. The presiding administrative law judge shall render the decision in a written order. The decisions or orders of administrative law judges are not required to be published but are available for public inspection unless confidentiality is allowed or required by law.
(D) An administrative law judge also shall preside over all appeals from final decisions of contested cases pursuant to the Administrative Procedures Act, Article I, Section 22, Constitution of the State of South Carolina, 1895, or another law, except that an appeal from a final order of the Public Service Commission and the State Ethics Commission is to the Supreme Court or the court of appeals as provided in the South Carolina Appellate Court Rules, an appeal from the Procurement Review Panel is to the circuit court as provided in Section 11-35-4410, an appeal from the Workers' Compensation Commission is to the court of appeals as provided in Section 42-17-60, and an appeal from the Employment Security Commission is to the circuit court as provided in Section 41-35-750. An administrative law judge shall not hear an appeal from an inmate in the custody of the Department of Corrections involving the loss of the opportunity to earn sentence-related credits pursuant to Section 24-13-210(A) or Section 24-13-230(A) or an appeal involving the denial of parole to a potentially eligible inmate by the Department of Probation, Parole and Pardon Services.
(E) Review by an administrative law judge of a final decision in a contested case, heard in the appellate jurisdiction of the Administrative Law Court, must be in the same manner as prescribed in Section 1-23-380(A) for judicial review of final agency decisions with the presiding administrative law judge exercising the same authority as the court of appeals, provided that a party aggrieved by a final decision of an administrative law judge is entitled to judicial review of the decision by the court of appeals pursuant to the provisions of Section 1-23-610.
(F) Notwithstanding another provision of law, a state agency authorized by law to seek injunctive relief may apply to the Administrative Law Court for injunctive or equitable relief pursuant to Section 1-23-630. The provisions of this section do not affect the authority of an agency to apply for injunctive relief as part of a civil action filed in the court of common pleas.
(F)(G) Notwithstanding another provision of law, the Administrative Law Court has jurisdiction to review and enforce an administrative process issued by an agency or by a department of the executive branch of government, as defined in Section 1-30-10, such as a subpoena, administrative search warrant, cease and desist order, or other similar administrative order or process. A department or agency of the executive branch of government authorized by law to seek an administrative process may apply to the chief administrative law judge or his designee Administrative Law Court to issue or enforce an administrative process. A party aggrieved by an administrative process issued by a department or agency of the executive branch of government may apply to the chief administrative law judge Administrative Law Court for relief from the process as provided in the Rules of the Administrative Law Court.
(G)(H)(1) This subsection applies to timely requests for a contested case hearing pursuant to this section of decisions by departments governed by a board or commission authorized to exercise the sovereignty of the State.
(2) A request for a contested case hearing for an agency order stays the order. A request for a contested case hearing for an order to revoke or suspend a license stays the revocation or suspension. A request for a contested case hearing for a decision to renew a license for an ongoing activity stays the renewed license, the previous license remaining in effect pending completion of administrative review. A request for a contested case hearing for a decision to issue a new license stays all actions for which the license is a prerequisite; however, matters not affected by the request may not be stayed by the filing of the request. If the request is filed for a subsequent license related to issues substantially similar to those considered in a previously licensed matter, the license may not be automatically stayed by the filing of the request. If the requesting party asserts in the request that the issues are not substantially similar to those considered in a previously licensed matter, then the license must be stayed until further order of the Administrative Law Court. Requests for contested case hearings challenging only the amount of fines or penalties must be deemed not to affect those portions of orders imposing substantive requirements.
(3) The general rule of subsection (G)(H)(2) does not stay emergency actions taken by an agency pursuant to an applicable statute or regulation.
(4) After a contested case is initiated before the Administrative Law Court, any a party may move before the presiding administrative law judge to lift the stay imposed pursuant to this subsection. Upon motion by any party, the court shall lift the stay for good cause shown or if no irreparable harm will occur, then the stay shall be lifted. A hearing must be held within thirty days after the motion is filed with the court and served upon the parties to lift the automatic stay or for a determination of the applicability of the automatic stay. The judge must issue an order no later than fifteen business days after the hearing is concluded.
(5) A final decision issued by the Administrative Law Court in a contested case may not be stayed except by order of the Administrative Law Court, or the court of appeals, or in cases when Section 1-23-610(A) applies, the appropriate board or commission.
(6) Nothing contained in this subsection constitutes a limitation on the authority of the Administrative Law Court to impose a stay as otherwise provided by statute or by rule of court.
(H)(I) If a petition for judicial review of a final order of the Administrative Law Court is not filed appealed in accordance with the provisions of Section 1-23-600 1-23-610, upon request of a party to the proceedings, the clerk of the Administrative Law Court must shall file a certified copy of the final order with a clerk of the circuit court, as requested, or court of competent jurisdiction, as requested. After filing, the certified order has the same effect as a judgment of the court where filed and may be recorded, enforced, or satisfied in the same manner as a judgment of that court."
SECTION 8. Section 1-23-610 of the 1976 Code, as last amended by Act 387 of 2006, is further amended to read:
"Section 1-23-610. (A)(1) For quasi-judicial review of any final decision of an administrative law judge of cases involving departments governed by a board or commission authorized to exercise the sovereignty of the State, except the Department of Natural Resources and the Department of Health and Environmental Control, a petition by an aggrieved party must be filed with the appropriate board or commission and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right. A party aggrieved by a final decision of a board in such a case is entitled to judicial review of that decision by the court of appeals under the provisions of (A) of this section.
(B) For judicial review of a final decision of an administrative law judge of cases in which review is not governed by subsection (A), including cases involving the Department of Natural Resources and the Department of Health and Environmental Control, a notice of appeal by an aggrieved party must be served and filed with the court of appeals as provided in the South Carolina Appellate Court Rules in civil cases and served on the opposing party and the Administrative Law Court not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right.
(2) Except as otherwise provided in this chapter, the serving and filing of the notice of appeal does not itself stay enforcement of the administrative law judge's decision. The serving and filing of a notice of appeal by a licensee for review of a fine or penalty or of its license stays only those provisions for which review is sought and matters not affected by the notice of appeal are not stayed. The serving or filing of a notice of appeal does not automatically stay the suspension or revocation of a permit or license authorizing the sale of beer, wine, or alcoholic liquor. Upon motion, the administrative law judge may grant, or the court of appeals may order, a stay upon appropriate terms.
(C)(B) The review of the administrative law judge's order must be confined to the record. The court may not substitute its judgment for the judgment of the administrative law judge as to the weight of the evidence on questions of fact. The reviewing tribunal court of appeals may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner has have been prejudiced because of the finding, conclusion, or decision is:
(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 law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(D) Where appropriations in the annual general appropriations act, or where fees, fines, forfeitures, or revenues imposed or collected by agencies or commissions were required to be used for the hearing of contested cases, these appropriations or monies must continue to be used for these purposes after the effective date of this article."
SECTION 9. Section 1-23-640 of the 1976 Code is amended to read:
"Section 1-23-640. The division court shall maintain its principal offices in the City of Columbia. However, judges of the division court shall hear contested cases at the offices or location of the involved department or commission as prescribed by the agency or commission, at the division's court's offices, or at a suitable locations location outside the City of Columbia as when determined by the chief judge."
SECTION 10. This act takes effect upon approval by the Governor.
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