Current Status Bill Number:4597 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19980210 Primary Sponsor:Harrison All Sponsors:Harrison Drafted Document Number:gjk\20989sd.98 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Administrative procedures, judicial review of contested cases, final decisions; Regulations, Courts, Law Judge Division
Body Date Action Description Com Leg Involved
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House 19980210 Introduced, read first time, 25 HJ
referred to Committee
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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.