Johnston v. SC Department of Labor, Licensing and Regulation

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

James F. Johnston, III,       
Respondent,

v.

South Carolina Department of Labor, Licensing, and Regulation, South
Carolina Real Estate Appraisers Board,       
Appellant.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-688

Heard October 7, 2003 – Filed November
24, 2003

AFFIRMED

Kenneth P. Woodington and Wendy Bergfeldt Cartledge, of Columbia,
for Appellant.

John S. Nichols, of Columbia, for Respondent.

STILWELL, J.:  The South Carolina Department
of Labor, Licensing and Regulation appeals a circuit court order that concluded
the failure of the Real Estate Appraisers Board to serve notice of its decision
in this case within the 30-day time period prescribed in S.C. Code Ann. § 40-60-150(C)(3)
rendered the ruling a nullity.  We affirm.

FACTS/BACKGROUND

By written order dated October 23, 2000, the South
Carolina Real Estate Appraisers Board suspended the real estate appraiser license
of James F. Johnston, III and penalized him $1,000 finding he violated
provisions of the Real Estate Appraisers Act, S.C. Code Ann. §§ 40-60-10 to
-260 (Supp. 2002), and the 1997 Uniform Standards of Professional Appraisal
Practice.  The Board timely mailed the order to Johnston, but he did not receive
it due to a scrivener’s error in the address.  A copy of the order was hand-delivered
to Johnston on December 7, 2000 when he inquired about the status of the Board’s
decision.

Johnston appealed to the Administrative Law Judge
Division, claiming the Board’s failure to serve him with a copy of its order
within the 30-day time period required by statute rendered the Board’s decision
a nullity.  The ALJ agreed and reversed the Board’s order, finding the statutory
language mandated strict compliance with the time frame.  On appeal, the circuit
court affirmed the ALJ’s decision.

STANDARD OF REVIEW

The South Carolina Administrative
Procedures Act (APA) governs contested proceedings before the Real Estate Appraisers
Board.  S.C. Code Ann. § 40-60-150(C)(2) (Supp. 2002).  The standard for judicial
review, after an exhaustion of administrative remedies, is also governed by
the APA.  S.C. Code Ann. § 1-23-380 (Supp. 2002).  Pursuant to the APA, a reviewing
court may reverse or modify an agency decision that is affected by error of
law.  § 1-23-380(A)(6). 

LAW/ANALYSIS

Section 40-60-150(C)(3) provides in pertinent part: 
“The board shall render a decision and shall serve notice, in
writing within thirty days, of the board’s decision to the applicant or appraiser
charged.”  S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2002) (emphasis added). 
Both the ALJ and the circuit court held the plain meaning of the statutory command
that the Board “shall” render its decision and serve notice within 30 days was
sufficient to demonstrate the legislature meant to bar further action after
that time period expired.  We agree. 

The cardinal rule of statutory interpretation is
to ascertain and give effect to the intent of the legislature.  State v.
Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002).  If a statute’s language
is plain, unambiguous, and conveys a clear meaning “the rules of statutory interpretation
are not needed and the court has no right to impose another meaning.”  Hodges
v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).  “Once the Legislature
has made [a] choice, there is no room for the courts to impose a different judgment
based upon their own notions of public policy.”  South Carolina Farm Bureau
Mut. Ins. Co. v. Mumford, 299 S.C. 14, 19, 382 S.E.2d 11, 14 (Ct. App. 1989). 

The language of section 40-60-150(C)(3) clearly
and unambiguously requires the Board to serve notice of its decision to the
appraiser charged within 30 days of its ruling.  It is well-settled that the
term “shall” in a statute ordinarily means the prescribed action is mandatory. 
Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 111, 580 S.E.2d 100,
105 (2003). 

The Department urges this court to hold
that the word “shall,” in this context, is merely directory rather than mandatory,
asserting that South Carolina Police Officers Retirement System v. City of
Spartanburg, 301 S.C. 188, 391 S.E.2d 239 (1990), justifies such a holding. 
That case is clearly distinguishable on its facts.  First, the statute in question
used the word “may” and in its opinion the court specifically stated that the
language of the statute was “devoid of mandatory words such as ‘shall’ or ‘must.’” 
Id. at 191, 391 S.E.2d at 241.  Second, the state agency involved in
the City of Spartanburg case had traditionally interpreted the statute
in a fashion to allow the more lenient, directory application and it was the
City that was attempting to have the word “may” interpreted as mandatory rather
than directory.  Id. at 189-91, 391 S.E.2d at 240-41. 

The Department additionally argues the holding
in In the Matter of Matthews, 345 S.C. 638, 550 S.E.2d 311 (2001), compels
a finding the Board’s ruling was not rendered a nullity for failing to comply
with the statutory deadline.  We disagree. 

The statute at issue in Matthews required
the state to hold a trial within 60 days of a probable cause hearing for commitment
under the Sexually Violent Predator Act, S.C. Code Ann. §§ 44-48-10 to -170
(Supp. 2000).  The statute provided, however, that a continuance could be granted
and the time period extended for good cause shown.  Matthews, 345 S.C.
at 644, 550 S.E.2d at 314.  Our supreme court ruled this statutory time frame
was mandatory, but not jurisdictional.  Id. at 644-45, 550 S.E.2d at
313-314.  The court found the defendant should have filed a motion to dismiss
when the state failed to bring the case to trial within the 60 day time period
and had failed to request a continuance as provided in the statute.  Id.
at 644-45, 550 S.E.2d at 314.  The court concluded the defendant waived his
right to challenge the state’s failure to comply with the requisite time period
by not filing the motion to dismiss.  Id.

Unlike Matthews, the statute at issue here
does not set forth any terms under which the Board could render and serve notice
of its decision outside of the prescribed time limit.  Had the legislature intended
the Board to have the power to extend the 30-day time period set out in section
40-60-150(C)(3), it could have easily so provided.  It did not, so we are compelled
by the statute’s plain language to conclude that because the Board failed to
comply with the time frame required by statute, its action was ineffectual and
was rendered a nullity.  The order of the circuit court is therefore

AFFIRMED.

KITTREDGE, J., concurs.

HOWARD, J., dissents in a separate opinion.

HOWARD, J., DISSENTING:       I agree with
the conclusion of the majority that the thirty day time requirement in which
to serve notice of the decision under South Carolina Code Annotated section
40-60-150(C)(2) (Supp. 2002) is mandatory.  However, I do not agree with the
majority’s conclusion that failure to comply with the statute renders the decision
void.  Therefore, I respectfully dissent.

There is no language in the statute conveying
the intention on the part of the Legislature to render the decision void.  I
do not believe that conclusion is consistent with principles of statutory construction.

As the majority points out, the cardinal
rule of statutory construction is to ascertain and give effect to the intent
of the legislature.  State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700,
702 (2002).  The legislature did not address the issue of remedies in the statute. 
There is no declaration stating that a failure to abide by the mandates of the
statute renders the decision void. 

Furthermore, the result of the majority’s decision
is to simply void the decision.  This is an administrative process, and nothing
prevents the Board from beginning it anew and ultimately arriving at the same
conclusion.  Consequently, this view of enforcement of the statutory mandate
renders it meaningless, violating the basic rule of statutory construction that
the legislature is presumed not to have intended a futile act. TNS Mills,
Inc. v. South Carolina Dept. of Revenue, 331 S.C. 611, 620, 503 S.E.2d 471,
476 (1998) (“The Court must presume the legislature did not intend a futile
act, but rather intended its statutes to accomplish something.”).

I would construe the language to be a
mandate, thereby providing the basis to an aggrieved party for a writ of mandamus. 
By making the time requirement mandatory, the act of compliance becomes ministerial
to the extent that a decision and service of notice of it is mandated, even
though the merits of the decision are discretionary.  Plum Creek Dev. Co.,
Inc. v. City of Conway, 334 S.C. 30, 39, 512 S.E.2d 106, 111 (1999) (holding
a writ of mandamus is a coercive writ that orders a public official to perform
a ministerial duty); Redmond v. Lexington County School Dist. No. Four,
314 S.C. 431, 438, 445 S.E.2d 441, 445 (1994) (“The duty is ministerial when
it is absolute, certain, and imperative, involving merely the execution of a
specific duty arising from fixed and designated facts.  It is ministerial if
it is defined by law with such precision as to leave nothing to the exercise
of discretion.”); Fort Sumter Hotel v. South Carolina Tax Comm’n, 201
S.C. 50, 59-60, 21 S.E.2d 393, 397 (1942) (holding mandamus proper to require
return of seized liquor once bond was posted because that was a purely ministerial
act required by statute, even though the ultimate decision as to whether liquor
should be forfeited was left for further adjudication); State v. Verner,
30 S.C. 277, 279, 9 S.E. 113, 114 (1889) (“The general rule is that mandamus
goes to a public officer to enforce the performance of some plain ministerial
duty, but not for the purpose of controlling or guiding his judgment or discretion. 
It may be used for the purpose of requiring the officer to act, but it cannot
be used for the purpose of directing him how to act, in the performance of a
duty involving the exercise of judgment or discretion.”).

By construing the statute in this way, the focus
of the inquiry shifts to one of prejudice.  Absent prejudice caused by a delay
in the decision, the party seeking the writ of mandamus is entitled to notice
and a decision – nothing more and nothing less.  Here, Johnston does not claim
prejudice from the slight delay.  Therefore, I see no basis for overturning
the decision of the Board.  For the foregoing reasons, I would reverse the circuit
court and reinstate the decision of the Board.