C. The Administrative Law Court

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C. The Administrative Law Court²³

With disputes between citizens and government agencies becoming more numerous and significant over the past two decades, a legislative movement began to sweep the country to replace in-house mechanisms for adjudicating administrative cases with an independent, impartial and conflict-free administrative adjudicatory system. The result of such legislative efforts has been the creation of "central panels" of administrative law judges that operate as professional adjudicators independent from the agencies from which the cases originate. Central panels not only address the perception of conflict of interest or agency bias within the adjudicative process, but also provide a more efficient and professional forum for the resolution of administrative disputes.

Like many states, South Carolina utilizes a central panel of administrative law judges for adjudication of most of its state administrative hearings. South Carolina's central panel is known as the South Carolina Administrative Law Court (ALC) (formerly known as the Administrative Law Judge Division, or ALJD).²⁴ The mission of the ALC is to provide a neutral forum for fair, prompt and objective administrative hearings for persons affected by an action, or that may be impacted by a proposed action of a governmental agency.

1. Contested Cases

A contested case is initiated with the filing of a written request for a hearing with the ALC Clerk of Court. "All requests for a hearing before the [ALC] must be filed in accordance with the court's rules of procedure."²⁵ While some petitioners submit a detailed petition akin to a summons and complaint traditionally associated with the commencement of a civil action, ALC Rule 11 sets forth the minimum requirements. The written request must contain the name and contact information (address, phone number, and email) of the requesting party; the action that is the subject of the hearing; a copy of the written agency decision, if any; and the relief requested.²⁶ This typically takes the form of a letter. Additionally, "the request must be served on each party and affected agency or county official, in accordance with Rule 5. Proof of service must be included with the request."²⁷

ALC Rule 11 also provides a time frame within which a request for a contested case hearing must be filed. The applicable time period for filing and serving each party and affected agency is within 30 days after actual or constructive notice of the agency's determination, unless otherwise specified by statute. In the instance the requesting party did not receive actual or constructive notice of the agency's determination within 30 days of its issuance, the request must then be filed no more than 90 days after the date of the issuance of the agency's determination.²⁸ This Rule has been amended several times, but the intended effect of the amendments was to establish a uniform time frame and procedure for filing a request for hearing. Nevertheless, one should be wary of other agency-specific time frames that may provide a shorter time period, although many agencies' filing period provisions specifically cite the ALC Rules as controlling.

The General Assembly has authorized the Administrative Law Court to charge and collect fees for various filings with the ALC pursuant to a fee schedule prescribed by the ALC.²⁹ A filing fee is required to be paid with each request for a contested case hearing, notice of appeal, request for injunction, and certain motions.³⁰ The contested case will not be assigned until the filing fee is paid.

The amount of the filing fee depends on the type of case and the particular agency involved, and is set forth in the ALC Rules. Additionally, a filing fee is required for any non-agency filing of certain motions, including motions for summary judgment; motions to intervene; motions to dismiss; motions for injunctive relief (in a pending case); motions for reconsideration; second and subsequent motions for continuance; and motions to compel. The fee must accompany the motion when filed.³¹ A motion is not considered "filed" until the fee is paid.

Administrative law judges (ALJs) carry a diverse caseload. There are no "specialists" - each judge hears cases from all agencies. There is, however, a process by which cases are assigned. By statute, the Chief ALJ assigns cases to each of the ALJs on a general rotation and interchange basis by assigning cases based upon subject matter no less frequently than every six months.³² After a request for a contested case hearing is transmitted to the ALC, it is date-stamped as filed, assigned a docket number, and assigned to an ALJ, provided the filing fee has been paid.³³ An order is sent to the parties notifying them of the assignment.³⁴

Pre-hearing activity in a contested case is designed to allow the parties to exchange information, narrow the issues and disputed facts, educate the judge, establish a schedule, explore settlement possibilities, and prevent trial by ambush. It may take the form of pre-hearing statements, discovery, status reports, pre-hearing conferences, motion hearings, and/or pre-hearing briefs or memorandum.

Once a case is assigned to a specific ALJ, that judge has control of the case until its final disposition. The presiding ALJ will determine the procedural course of the case and handle all aspects of a case from beginning to end, including the scheduling of all hearings, conferences, and rulings on all procedural and evidentiary motions and objections. After the request for hearing and filing fee are delivered to the ALC, all documents, pleadings, and memoranda are filed directly with the presiding judge, rather than with the ALC Clerk of Court.³⁵

At any time after assignment of a contested case, the presiding ALJ may conduct a scheduling conference or issue a scheduling order.³⁶ In a complex case, a judge will typically hold a scheduling conference on his or her own initiative, but a party may request a conference in any matter. Scheduling conferences are usually informal and often conducted by teleconference pursuant to ALC Rule 17.

Pre-hearing statements assist the judge and litigants to identify and narrow the issues of dispute. Often pre-hearing statements are ordered in lieu of pleadings.³⁷ They must be filed with the presiding judge and served on all parties. The parties have a continuing duty to update and amend pre-hearing statements up until the hearing.

While generally very similar in content, pre-hearing...