Vol. 13, No. 1, Pg. 14. It Depends on the Question: Limits on the Jurisdiction of Administrative Agencies Over Constitutional Disputes.

• Author: By Geoffrey R. Bonham

South Carolina Lawyer

2001.

Vol. 13, No. 1, Pg. 14.

It Depends on the Question: Limits on the Jurisdiction of Administrative Agencies Over Constitutional Disputes

14IT DEPENDS ON THE QUESTION: LIMITS ON THE JURISDICTION OF ADMINISTRATIVE AGENCIES OVER CONSTITUTIONAL DISPUTESBy Geoffrey R. BonhamIn recent years, our Supreme Court has issued a number of opinions defining the jurisdiction of the Administrative Law Judge Division (ALJD) and other administrative agencies in disputes over the constitutionality of legislation or other governmental action. These same opinions also provide guidance with respect to whether and how such issues must be raised and preserved for appeal, and under what circumstances a party may be required to exhaust its administrative remedies in such disputes.

Although the Court has not yet had the opportunity to paint a complete picture, it has provided the Bench and Bar with sufficient direction to enable us to arrive at some generalized principles and to perhaps fill in the details with the help of decisions from other parts of the country. Although a large number of administrative disputes are now decided by the ALJD, the basic rules governing jurisdiction over constitutional questions and related procedural considerations are the same for other administrative agencies at both the state and local level.

The threshold issue in any judicial or quasi-judicial proceeding is whether the tribunal has jurisdiction over the subject matter, and administrative agencies are no exception. Generally speaking, an agency lacks jurisdictionto declare a law unconstitutional. Nonetheless, the mere fact that a party has challenged governmental action on constitutional grounds does not necessarily deprive the agency of the power to adjudicate the matter. Rather, an administrative tribunal's jurisdiction over such disputes depends on the precise nature of the constitutional question raised.

In Beaufort County Bd. of Education v. Lighthouse Charter School Comm., 335 S.C. 230, 516 S.E.2d 655 (1999), the Supreme Court reaffirmed the principle that an administrative agency may not pass on the facial constitutionality of statute. As the Court subsequently explained in Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 529 S.E.2d 6 (2000) and Video Gaming Consultants, Inc. v. S.C. Dep't of Revenue, 342 S.C. 34, 535 S.E.2d 642 (2000), administrative agencies, as part of the executive branch, must follow a law as written until itsconstitutionality is judicially determined. To do otherwise would violate the...