Could a South Carolina election commissioner use personal knowledge to decide a voter-residency protest?

Plain-English summary

A mayor asked whether a municipal election commissioner who personally knew where a voter lived could use that knowledge to vote on a protested residency question, even if the protestant had presented little or no evidence. The South Carolina Attorney General's office answered no in 2008. The commissioner's vote should have rested solely on evidence properly admitted at the hearing. Using undisclosed personal knowledge would have violated due process.

The opinion also rejected judicial notice as a way to bring that personal knowledge into the decision. It distinguished facts a tribunal may properly notice, such as the fact that an election occurred, from a decision maker's individual knowledge of a disputed fact. The particular hearing mentioned in the request had already concluded and its appeal period had run; the opinion addressed the general question.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could an election commissioner vote based on personal knowledge of a voter's residence?

The AG said no. In a contested protest hearing, the vote should have rested on properly admitted evidence, even if a commissioner personally knew facts about the voter's residence.

Could judicial notice replace evidence about that voter's residence?

The opinion said the commissioner's individual knowledge was not judicial knowledge and could not be taken as judicial notice to decide the disputed residency fact.

Why did the hearing record matter?

The opinion relied on decisions holding that administrative fact finding must be based on the record. If an official relies on personal facts that parties have not presented at the hearing, the parties lose the opportunity to address the basis for the decision.

Background and statutory framework

The request concerned a municipal election protest over voter residency. Rather than analyze an election-code section, the opinion applied due-process principles from administrative hearings. It quoted Martin v. Sizemore on the hearing record as the exclusive basis for adjudicative agency action and cited Barber Pure Milk Co. for the denial of due process when board members considered facts personally known to them but not admitted at the hearing. Its judicial-notice discussion separated generally knowable public facts from an individual's knowledge of disputed circumstances.

Citations and references

• Martin v. Sizemore, 78 S.W.3d 249: administrative fact finding and the hearing record.
• Barber Pure Milk Co. of Montgomery, Inc. v. Alabama State Milk Control Board, 156 So.2d 351: reliance on board members' personal knowledge.

Official title

Questioning whether of member of a municipal election commission can vote his or her personal knowledge during a protested hearing.

Requester

The Honorable Phillip E. Clardy, Mayor, Town of Williamston

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/december-17-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/clardy-p-e-os-8705-12-17-09-municpal-election-commission-member-protested-hearing.pdf

Original opinion text

H EN RY M CM ASTER
AnORNEY G ENERA L

December 17, 2008

The Honorable Phillip E. Clardy
Mayor, Town ofWil1iarnston
P. 0. Box 70
Williamston, South Carolina 29697
Dear Mayor Clardy:

In a letter to this office you questioned whether a member of a municipal election commission can vote his or her personal knowledge during a protested hearing. You referenced a situation where a voter's residency is challenged during a protest hearing and the commission member bas personal knowledge disputing or confirming the voter's residency. In sue~ situation you have asked whether the commission member may vote his or her personal knowledge regardless of the evidence or lack thereof presented by a protestant. You also questioned whether judicial notice would apply in the situation. You indicated that this situation arose during a recent hearing but that matter has now been concluded and any appeal time from that hearing has now run. Courts have determined that relying on personal knowledge at a contested hearing does not meet the requirement of due process. In Martin v. Sizemore, 78 S.W.3d 249 at 270 (Ct.App. Tenn. 2001 ), the court stated that
... an administrative agency's fact-finding must be limited to evidence properly included in the administrative record. The record serves as the "exclusive basis for agency actions in adjudicative proceedings."...When the administrative record contains no other expert testimony, allowing the board members to base their decision on personal knowledge and opinions, especially when they are not reflected in the record, is contrary to this "exclusiveness" principle... [W]ithout the exclusiveness p1inciple, the right to be heard is a right to present only one side of the case. The hearing itself becomes only an administrative ... meeting rather than the adversary proceeding required by due process.

RlMBl!l(r C. Dr:.NN1s ButtolNG

• PosT OFFtC'E Box 11 549 • Co Ll!M!lJA. SC 29'.! 11- 1549 •

Tw.EPHONE 803-714-3970

• E("s1:-.111.E 803-'.!53-6283

The Honorable Phillip E. Clardy
Page 2
December 17, 2008

See also: Webb v. State of Arizona by the Arizona Board of Medical Examiners, 48 P.3d 505 at 510 (Ct.App. Az. 2002 )("Although the Board may establish the standard of professional care based upon its members' experience and expertise, the Board 'cannot base its findings ... upon either undisclosed evidence or personal knowledge of the facts."'); People v. Superior Court, 281 Cal. Rptr. 900 at 903 (5th Dist. Ct. App. Cal., 1991) ("Nevertheless, provided that no member of the disciplinary committee has participated or will participate in the case as an investigating or reviewing officer, or either is a witness or has personal knowledge of material facts related to the involvement of the accused inmate... , a hearing board comprised of prison officials will satisfy the due process requirement of a "neutral and detached" hearing body."; Barber Pure Milk Co. of Montgomery, Inc. v. Alabama State Milk Control Board, 156 So.2d 351 at 354 (Ala. 1963) ("That the Board, in adopting the order, considered matters within the personal knowledge of its members and not presented by evidence at the hearing on the order... was a denial of due process."). As to judicial notice, some matters are considered proper for judicial notice. For instance, it has been stated that
... a court will take judicial notice of the results of an election, ... of the reelection of
... (a particular officeholder), ... the election of new members of a board... and of the fact that an election was held in a certain city at a certain time. Jackson v. Denver Producing and Refining Co. et al., 96 F.2d 457 at 460 (101h Cir. Ct. Appeals, 1938). However, it is also generally stated that
[judicial notice is limited to what a judge may properly know in a judicial capacity, and the judge is not authorized to make his or her individual knowledge of a fact not generally or professionally known the basis of an action ... [I]t is also said that personal knowledge is not judicial knowledge, and a judge may personally know a fact of which he or she cannot take judicial notice. 3 IA C.J.S. Evidence, Section 15. Consistent with the above, in the opinion of this office, a member of a municipal election commission should not vote based upon his or her personal knowledge during a protested hearing. Instead, the vote should be based solely upon the evidence properly admitted. To vote based upon a member's personal knowledge regardless of the evidence or lack thereof presented by a protestant would violate due process. It is further the opinion of this office that such a matter of personal knowledge cannot be taken as judicial notice for the same reason as to do so would also violate principles of due process.

The Honorable Phillip E. Clardy
Page 3
December 17, 2008

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General