License Revocation May Violate South Carolina Constitution
Administrative agencies revoke professional and occupational licenses often. The reason most of the time is some unethical or unprofessional behavior. The South Carolina Constitution ("Constitution") gives licensees the right to due process. Such privilege has two components. Substantive due process prohibits the state from depriving persons of some entitlement or property. The procedural due process lays out the course of action the state must follow in carrying out its practices.
Procedural due process may serve as an argument against a person's license revocation or cancellation. Article I, section 22 of the Constitution provides: "No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; nor shall he be subject to the same person for both prosecution and adjudication; nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review." S.C. Const. Art. I, Sec. 22. Importantly, note that the same person may not act as both a prosecutor and adjudicator.
The Supreme Court of South Carolina discussed the prohibition on prosecuting and adjudicating powers in Garris v. Governing Bd. of the State Reinsurance Facility, 333 S.C. 432 (1998). Appellant insurance agent brought a claim against the Facility alleging that the revocation of his agent status was unconstitutional. The Facility voted to revoke appellant's status for unethical behavior when underwriting.
The Court first held, in opposition to the Facility's arguments, that the facility was a state and not a private agency. The Facility is an administrative agency with rule-making abilities and is therefore subject to the state Constitution. Due process requires that a licensee be provided with a notice, an opportunity to be heard, an impartial adjudicator, and judicial review. The purpose of section 22 is to ensure adjudications are conducted by impartial bodies. In the instant case, the Court found that five of the members who voted to change the licensee's status were also present at all open and executive sessions pertaining to the licensee's case. The Facility failed to offer procedural due process.
This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.
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