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Unpublished Opinion No. 2003-UP-688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.