SC Bar Administrative Law 3 — Questions and Answers
Question 1: A South Carolina agency issues an internal guidance memo interpreting its own regulation without notice and comment. A regulated party challenges an enforcement action based on the memo, arguing it is an invalid regulation. The memo is most vulnerable if it:
- Creates a binding norm of general applicability rather than merely interpreting existing law (Correct answer)
- Was signed by the agency director instead of the Governor
- Was distributed by email rather than certified mail
- Cites federal case law in addition to state law
Correct answer: Creates a binding norm of general applicability rather than merely interpreting existing law
A pronouncement that creates binding rights or obligations of general applicability is a regulation that must go through APA rulemaking to be valid.
Question 2: During a contested case before the SC Administrative Law Court, the rules of evidence:
- Are relaxed, and evidence may be admitted if it is the type reasonably relied upon by prudent persons (Correct answer)
- Apply exactly as in a criminal jury trial
- Prohibit all hearsay without exception
- Require authentication only by notarized affidavit
Correct answer: Are relaxed, and evidence may be admitted if it is the type reasonably relied upon by prudent persons
Administrative hearings follow relaxed evidentiary standards, admitting probative evidence commonly relied on by reasonably prudent persons.
Question 3: The South Carolina Department of Health suspends a hospital's license effective immediately, citing an imminent threat to public health, with a hearing to follow. This emergency action is:
- Permissible, because due process allows summary action in emergencies with a prompt post-deprivation hearing (Correct answer)
- Unconstitutional, because a license may never be suspended without a prior hearing
- Void, because only a circuit court may suspend licenses
- Valid only if the hospital consents in writing
Correct answer: Permissible, because due process allows summary action in emergencies with a prompt post-deprivation hearing
Due process permits summary administrative action to protect public health or safety so long as a prompt post-deprivation hearing is provided.
Question 4: A party appealing an ALC decision argues the court should substitute its judgment on a discretionary sanction. The appellate court will reverse the sanction only if it constitutes:
- An abuse of discretion, such as being arbitrary, capricious, or clearly excessive (Correct answer)
- Any sanction harsher than a warning letter
- A penalty the appellant subjectively believes is unfair
- A sanction imposed without legislative ratification
Correct answer: An abuse of discretion, such as being arbitrary, capricious, or clearly excessive
Discretionary agency sanctions are reviewed for abuse of discretion, including arbitrary or capricious action.
Question 5: Which South Carolina statute gives the public a right to inspect most records held by state agencies?
- The Freedom of Information Act, S.C. Code § 30-4-10 et seq. (Correct answer)
- The Uniform Commercial Code
- The Tort Claims Act
- The Setoff Debt Collection Act
Correct answer: The Freedom of Information Act, S.C. Code § 30-4-10 et seq.
The South Carolina Freedom of Information Act governs public access to agency records and meetings.
Question 6: A statute authorizes an agency to set 'reasonable fees necessary to administer the program.' A challenger claims this is an unconstitutional delegation of legislative power. Under South Carolina law, the delegation is valid if:
- The statute provides sufficient standards or guidelines to channel the agency's discretion (Correct answer)
- The agency promises to use the fees wisely
- The fee is below one hundred dollars
- The Governor personally approves each fee
Correct answer: The statute provides sufficient standards or guidelines to channel the agency's discretion
A legislative delegation is constitutional when accompanied by sufficient standards guiding the agency's exercise of discretion.
Question 7: An applicant seeks judicial review of an agency decision but files the petition after the statutory deadline in § 1-23-380. The reviewing court will most likely:
- Dismiss the appeal because timely filing is jurisdictional (Correct answer)
- Hear the appeal but limit the remedy to nominal damages
- Transfer the case to federal court
- Order the agency to waive the deadline
Correct answer: Dismiss the appeal because timely filing is jurisdictional
Statutory deadlines for serving and filing a petition for judicial review are jurisdictional, and untimely petitions must be dismissed.
SC Bar Administrative Law 3
A South Carolina agency issues an internal guidance memo interpreting its own regulation without notice and comment.
A regulated party challenges an enforcement action based on the memo, arguing it is an invalid regulation.
The memo is most vulnerable if it: