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SCDSS v. Polite pits pro se against the bureaucracy in a philosophical argument about the nature of justice

An aphorism first year law students are told is “bad facts make bad law.”  The January 19, 2011 Court of Appeals opinion in SCDSS v. Polite, 391 S.C. 275, 705 S.E.2d 78 (Ct. App. 2011), has particularly compelling “bad facts.”  A pro se father’s failure to comply with strict pleading requirements resulted in a seventeen month delay in adjusting his child support obligation.  The issue on appeal was whether the family court could retroactively reduce his child support obligation for these seventeen months.

Four months before the oldest of his three children were due to emancipate, Polite entered a consent order with DSS setting his child support obligation.  Aware he was entitled to a reduction when the oldest child emancipated, Polite asked DSS what he would need to do to obtain the reduction.  While negotiating with DSS, Polite claims he was told to “come back in for a reevaluation for the oldest kid [who] was going to turn 18 six months later.”  Polite phoned DSS a number of times requesting modification, with his last call taking place sometime in June 2006, a fact that DSS conceded.   However DSS didn’t complete a child support review until September 2007, and an administrative process negotiation wasn’t held until December 13, 2007.  During this time Polite continued to pay his full child support amount for three children.

At the January 2008 hearing, the family court reset Polite’s child support retroactive to July 2006.  DSS contended the support should have only been set retroactive to December 2007 and appealed.  In a 2-1 decision, the Court of Appeals reversed the family court.

The primary issue was interpretation and application of S.C. Code § 63-17-830, which sets the procedures for modifying DSS child support orders.  Subsection A requires a request for modification be sent to DSS via certified mail.  Subsection C states “Only payments accruing subsequent to the modification may be modified.”

The majority held that since Polite never sent DSS his request for modification via certified mail  he was not entitled to retroactive modification prior to the December 13, 2007 review.  The majority held that his June 2006 contact with DSS did not comply with the certified mail requirement of § 63-17-830(A) and refused to excuse his lack of compliance with this formal requirement because of his pro se status noting:

While it is regrettable Polite was unaware of proper procedure, no statute or case law places a duty upon the Division to instruct obligors how to pursue modification.  Rather, statutory law provides an obligor seeking modification may file a written request by certified mail.  Affirming the family court’s finding that a phone call was notice would abandon the statute’s specificity and replace it with a casual, circumstance-driven means of initiating a modification action.  Moreover, from a practical standpoint, allowing a modification action to be commenced by a phone call, even if in good faith, potentially opens a Pandora’s box, which we find untenable.  Upholding a rule of law that permits a phone call to be the official means of notice would be difficult, if not impossible, to verify, leaving the issue of whether notice was properly given in many instances to a swearing match.  Accordingly, we reverse the family court’s finding that Polite’s phone call to the Division was sufficient to initiate this modification action.

Judge Lockemy dissented.  In his view:

[T]he Division put upon itself a commitment to assist Polite in properly seeking modification.  Polite first encountered the Division when it served him with Notice of Financial Responsibility to establish support for his three children.  Polite appeared without representation at a conference with the Division and signed an administrative process order requiring him to pay support.  Polite expressed his concern that his oldest child would reach the age of eighteen four months later.  Polite testified the Division promised to contact him to reevaluate his support obligation after his oldest child turned eighteen.  As Judge Woods noted, if this matter was handled in court, the support order would have likely provided for an automatic reduction in Polite’s support obligation upon the oldest child’s eighteenth birthday.

Despite its assurance, the Division failed to contact Polite after his oldest child reached the age of eighteen and Polite telephoned the Division on several occasions seeking assistance.  Judge Woods found that during Polite’s last call in June or July 2006, Polite asked the Division what steps to take in order to have his support obligation modified and the Division informed him it would contact him at a later date.  Based upon the Division’s control of the situation since the beginning, and its assurances it would handle the modification, Polite reasonably relied on the Division to assist him in seeking modification.

Polite is pro se and has been since this action began.  Polite has always complied with the Division’s instructions.  Unlike the mother in Blackwell v. Fulgum, 375 S.C. 337, 652 S.E.2d 427 (Ct. App. 2007), he did not unilaterally reduce his support payments and continued to pay the full amount of his support obligation.  Judge Woods correctly observed if Polite unilaterally reduced his support obligation like the mother in Blackwell, he may have successfully reduced his support obligation earlier because the family court would have likely ordered him to appear on a rule to show cause.  In fact, Polite was not able to have his support obligation reduced until two years after his oldest child turned eighteen.  Furthermore, Judge Woods also noted because Polite continued to pay the full amount of his support obligation his other two children were assured of receiving the appropriate amount of support.  I believe Polite has suffered a serious injustice because he reasonably relied on the Division’s assurances.

How should one balance the bureaucracy’s need for formal procedures to be followed with doing justice to a pro se litigant’s dealings with that bureaucracy?  Most folks decry bureaucracies for being “bureaucratic.”   However bureaucratic uniformity is designed with efficiency and fairness as some of its primary goals. When procedures are “uniform” they require less judgment, intelligence and experience to implement them, and thus they can be implemented at a lower cost [less intelligent, less experienced and less credentialed employees command lower salaries].  This saves taxpayers money.  Further, when procedures are “uniform,” there is greater consistency and thus lower likelihood of similarly situated individuals obtaining opposite results.  Having similarly situated individuals obtain similar results is almost a definition of “justice.”  The price of this bureaucratic uniformity is, unfortunately, often borne by unsophisticated individuals such as Mr. Polite, who lack familiarity with the rules the bureaucracy operates within and lack the resources needed to hire experts (i.e. attorneys) who are familiar with the rules and able to navigate efficiently within the bureaucracy.

Balancing the need for bureaucratic uniformity against the desire to do justice for well meaning but unsophisticated individuals such as Mr. Polite is what drives both the majority and dissenting opinions in Polite.  This is ultimately a philosophical debate–one that has taken place for centuries and is incapable of a definitive resolution.  While everyone sympathizes with Mr. Polite, there are well-known dangers to loosening bureaucratic requirements.  Though Judge Lockemy’s dissent may be more compelling, the majority opinion in Polite may be better, if bad, law.

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  • Greg,

    Great post, however I find myself questioning the true “savings” created by these “uniform” procedures, which are published in places the general public usually cannot find without great assistance — especially given the fact that DSS pursued what had to be an expensive appeal in this matter. And for what? Who benefited? Certainly not the taxpayers!

    The Dissent in this case nailed it. If DSS is going to wield its power through the Appeals process, then it should have the decency to attempt to level the playing field. If the Agency insists of giving inaccurate and incomplete instructions to those who seek changes in their child support obligations, then those instructions should come with bold warnings also instructing the pro se party to seek the advice of an attorney.

    Even those without the resources to hire a private attorney should at least be directed to the nearest Pro Bono office or the SC Bar so an attorney can be enlisted to help.

  • My concern is that pro se litigants contributing to the making of bad law. Maybe we need a rule that all opinions involving pro se litigants should be unpublished so that they cannot serve as precedent in other cases.

  • I’m not sure that “bad facts make bad law” is accurate. The law is what it always was. And if the pro se litigant did not understand it, he should have enlisted help. I think maybe “stupid is as stupid does” is more appropriate.

    • In court, I think we have to hold a pro se to the standards of an attorney. I think there’s a real danger in requiring a pro se to the standards of an attorney outside of court. After all, we can’t expect citizens to have the knowledge and sophistication of an attorney in dealing with our own government. I would think that you, with your libertarian outlook, would be especially sympathetic to Mr. Polite’s predicament.

      • MJ

        No, I think he was not very bright and he should have realized his limitations and hired an attorney. It is not consistent to hold pro se litigants to an attorney’s standard in court, but not outside of court. Isn’t most of the case done outside of court? Mine are.

  • chuck Magera

    Greg and other responders, you all do not know the Paul Harvey about reductions. If you did, you would know that the OCSE’s purpose is to “establish and enforce child support orders”. We only got in the “modification” business when the Feds made us do this, on top of everything else we have to do. Trust me, we are so short staffed enough, with our main “core mission”, that there is little time to do what we are supposed to do, let alone take on a whole new process. As the Court correctly decided, it is not our job to “instruct obligors how to pursue modifications.” If they choose to utilize the IV-D method, instead of getting their own attorney, or by filing their own pro-se modification(and forms are available online for free), then they get what they pay for. Our current reviews are taking up to a year, and I try to tell everyone this going into the process. People hear what the want to hear, but it is not going to change the fact that OCSE is way understaffed(we are short 7 people with no hirings in sight) and overworked (we have some of the highest caseloads per worker in the country). It is all about the money, if we had more workers, we could do our jobs better, but we don’t.

    • Chuck:

      My blog was sympathetic to DSS’s position. Even though I appreciate Mr. Polite’s difficulties, I still believe the majority opinion was correctly decided. I don’t understand your criticism.

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