H 4597 Session 112 (1997-1998)
H 4597 General Bill, By Harrison
A BILL TO AMEND SECTION 1-23-380, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO JUDICIAL REVIEW OF CONTESTED CASES UNDER THE ADMINISTRATIVE
PROCEDURES ACT UPON EXHAUSTION OF ADMINISTRATIVE REMEDIES, SO AS TO FURTHER
PROVIDE FOR THE MANNER IN WHICH PROCEEDINGS FOR REVIEW OF FINAL DECISIONS FROM
THE ADMINISTRATIVE LAW JUDGE DIVISION AND OTHER AGENCIES SHALL BE CONDUCTED
INCLUDING A PROVISION THAT APPEALS FROM FINAL DECISIONS OF AN ADMINISTRATIVE
LAW JUDGE SHALL BE TO THE SUPREME COURT; TO AMEND SECTION 1-23-600, AS
AMENDED, RELATING TO HEARINGS AND PROCEEDINGS BEFORE THE ADMINISTRATIVE LAW
JUDGE DIVISION, SO AS TO FURTHER PROVIDE FOR THOSE CASES WHICH SHALL BE HEARD
BY THE ADMINISTRATIVE LAW JUDGE DIVISION, THE MANNER IN WHICH THESE CASES
SHALL BE HEARD, AND FOR THE PROCEDURES TO BE FOLLOWED IN THESE CASES; AND TO
AMEND SECTION 1-23-610, RELATING TO QUASI JUDICIAL AND JUDICIAL REVIEW OF
DECISIONS OF ADMINISTRATIVE LAW JUDGES, SO AS TO FURTHER PROVIDE FOR THE
MANNER OF JUDICIAL REVIEW OF FINAL DECISIONS OF AN ADMINISTRATIVE LAW JUDGE
INCLUDING A PROVISION THAT AN APPEAL AFTER REQUIRED AGENCY OR BOARD REVIEWS,
IF ANY, MUST BE TAKEN TO THE SUPREME COURT.
02/10/98 House Introduced and read first time HJ-7
02/10/98 House Referred to Committee on Judiciary HJ-8
A BILL
TO AMEND SECTION 1-23-380, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO JUDICIAL REVIEW OF
CONTESTED CASES UNDER THE ADMINISTRATIVE
PROCEDURES ACT UPON EXHAUSTION OF
ADMINISTRATIVE REMEDIES, SO AS TO FURTHER
PROVIDE FOR THE MANNER IN WHICH PROCEEDINGS FOR
REVIEW OF FINAL DECISIONS FROM THE
ADMINISTRATIVE LAW JUDGE DIVISION AND OTHER
AGENCIES SHALL BE CONDUCTED INCLUDING A
PROVISION THAT APPEALS FROM FINAL DECISIONS OF AN
ADMINISTRATIVE LAW JUDGE SHALL BE TO THE
SUPREME COURT; TO AMEND SECTION 1-23-600, AS
AMENDED, RELATING TO HEARINGS AND PROCEEDINGS
BEFORE THE ADMINISTRATIVE LAW JUDGE DIVISION, SO
AS TO FURTHER PROVIDE FOR THOSE CASES WHICH
SHALL BE HEARD BY THE ADMINISTRATIVE LAW JUDGE
DIVISION, THE MANNER IN WHICH THESE CASES SHALL
BE HEARD, AND FOR THE PROCEDURES TO BE FOLLOWED
IN THESE CASES; AND TO AMEND SECTION 1-23-610,
RELATING TO QUASI JUDICIAL AND JUDICIAL REVIEW OF
DECISIONS OF ADMINISTRATIVE LAW JUDGES, SO AS TO
FURTHER PROVIDE FOR THE MANNER OF JUDICIAL
REVIEW OF FINAL DECISIONS OF AN ADMINISTRATIVE
LAW JUDGE INCLUDING A PROVISION THAT AN APPEAL
AFTER REQUIRED AGENCY OR BOARD REVIEWS, IF ANY,
MUST BE TAKEN TO THE SUPREME COURT.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 1-23-380 of the 1976 Code, as amended by
Act 181 of 1993, 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 this article, 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.
(1) Proceedings for review of final decisions from agencies
other than the Administrative Law Judge Division are instituted
by filing a petition in the circuit court within thirty days after the final
decision of the agency or, if a rehearing is requested, within thirty
days after the decision thereon. Copies of the petition shall be served
upon the agency and all parties of record.
(2) The filing of the petition does not itself stay enforcement of
the agency decision. The agency may grant, or the reviewing court
may order, a stay upon appropriate terms.
(3) Within thirty days after the service of the petition, or within
further time allowed by the court, the agency shall transmit to the
reviewing court the original or a certified copy of the entire record of
the proceeding under review. By stipulation of all parties to the
review proceedings, the record may be shortened. A party
unreasonably refusing to stipulate to limit the record may be taxed by
the court for the additional costs. The court may require or permit
subsequent corrections or additions to the record.
(4) If, before the date set for hearing, 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 that evidence and any
modifications, new findings, or decisions with the reviewing court.
(5) The review shall be conducted by the court without a jury
and shall be confined to the record. In cases of alleged irregularities
in procedure before the agency, not shown in the record, proof
thereon may be taken in the court. The court, upon request, shall hear
oral argument and receive written briefs.
(6) The court shall not substitute its judgment for that 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 Proceedings for review by an
administrative law judge of a final decision in a contested case
decided by a professional and occupational licensing board within
the Department of Labor, Licensing, and Regulation another
agency shall be done in the same manner prescribed in (A) for
circuit court review of final agency decisions from
agencies other than the Administrative Law Judge Division, with
the presiding administrative law judge exercising the same authority
as the circuit court; provided, however, that a party aggrieved by a
final decision of an administrative law judge in such a case
an appeal is entitled to judicial review of that decision by the
circuit Supreme Court under the provisions of
(A) of this section and pursuant to Section
1-23-610(C)(B)."
SECTION 2. Section 1-23-600 of the 1976 Code, as last amended
by Act 92 of 1995, is further amended to read:
"Section 1-23-600. (A) A full and complete record shall be kept
of all contested cases and regulation hearings before an
administrative law judge. All testimony shall be reported and need
not be transcribed unless a transcript is requested by any party. The
party requesting a transcript shall be 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 these administrative law
judges are not required to be published but are available for public
inspection unless the confidentiality thereof is allowed or required by
law.
(B) An administrative law judge of the division shall preside over
all hearings:
(1) of contested cases as defined in Section
1-23-310 which are by law specifically assigned to the
jurisdiction of the division;
(2) of contested cases not specifically assigned by law or
regulations to the division, but which are otherwise required by due
process under the South Carolina or United States Constitutions; and
(3) involving the departments and agencies of the
executive branch of government in which the right to a hearing
is provided by the Administrative Procedures Act as a contested case
as defined in Section 1-23-310, for which a single hearing
officer or director is authorized or permitted by law or
regulation to hear and decide such cases or in which the right to
a hearing is required by due process under the South Carolina or
United States Constitutions, except those arising under the
Occupational Safety and Health Act, those matters which are
otherwise provided for in Title 56, or those other cases or hearings
which are prescribed for or mandated by federal law or regulation,
unless otherwise by law specifically assigned to the jurisdiction of the
Administrative Law Judge Division.
(C) Departments and agencies shall notify the
Administrative Law Judge Division of all pending contested
cases requests for a contested case hearing. Upon
notification, the chief judge shall assign an administrative law judge
to each contested case.
(D) An administrative law judge of the division also shall preside
over all hearings of appeals from final decisions of contested cases
before heard by:
(1) professional and occupational licensing boards or
commissions within the Department of Labor, Licensing, and
Regulation; and
(2) all other departments, boards, and commissions, except the
Workers' Compensation Commission, the Public Service
Commission, the Human Affairs Commission, and the Employment
Security Commission; or
(3) as otherwise provided by law, pursuant to Section
1-23-380.
(E) Notwithstanding the other provisions of this section, cases
initiated before May 1, 1994, to which an administrative law judge
would be assigned shall be heard and decided by a special hearing
officer appointed by the governing authority of the appropriate
department. A special hearing officer shall have the same duties and
authority as an administrative law judge under the provisions of this
article. Cases initiated on or after May 1, 1994, shall be All
hearings and proceedings heard and decided by an administrative
law judge pursuant to shall be governed exclusively
by the provisions of this article and the Rules of Procedure
for the Administrative Law Judge Division."
SECTION 3. Section 1-23-610 of the 1976 Code, as added by Act
181 of 1993, is amended to read:
"Section 1-23-610. (A) For quasi-judicial review of any final
contested case decision of an administrative law judge of
cases involving departments governed by a board or commission
authorized to exercise the sovereignty of the State, 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, unless the parties not in default consent
to a direct appeal to the Supreme Court on the record at the hearing
before 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 Circuit
Court under the provisions of (A) of this section and pursuant to
Section 1-23-610(C) Supreme Court. Appeals to the
Supreme Court shall be taken in the same manner as prescribed for
appeals from the Court of Common Pleas.
(B) For judicial review of any other final decision of an
administrative law judge of cases involving departments governed
by the single director, a petition by an aggrieved party must be filed
with the Circuit Court 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, an appeal must be taken to
the Supreme Court in the same manner as prescribed for appeals from
the Court of Common Pleas. Appeal in these matters is by right.
(C) For judicial review of any final decision of an
administrative law judge of cases involving professional and
occupational licensing boards within the Department of Labor,
Licensing, and Regulation, a petition by an aggrieved party must be
filed with the Circuit Court 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.
(D) The review of the administrative law judge's order
must be confined to the record. The reviewing tribunal board or
court 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.
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, such appropriations or monies must
continue to be used for these purposes after the effective date of this
article."
SECTION 4. This act takes effect upon approval by the Governor.
-----XX----- |