OF THE CASE
matter is an appeal by the South Carolina Department of Motor Vehicles (the “Department”)
from an Order that was issued by Administrative Hearing Officer Robert F.
Harley, Jr. (“AHO Harley”) of the South Carolina Division of Motor Vehicle Hearings
(“DMVH”). The Order was issued following an administrative hearing held by Administrative
Hearing Officer Kevin Patterson (“AHO Patterson”) pursuant to S.C. Code Ann. §
56-5-2951(B)(2) (Supp. 2004). The Department contends that AHO Harley had no
authority to issue an order in this matter and that AHO Harley’s Order is based
on legal precedent that is no longer valid. Upon consideration of the briefs, AHO
Harley’s Order is vacated.
On December 4, 2005, Vera was arrested for driving under
the influence. In connection with the arrest, Vera’s driver’s license was
suspended pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004) for refusing
to submit to chemical testing. Pursuant to Section 56-5-2951(B)(2), Vera
requested an administrative hearing to challenge the suspension. The
Department received Vera’s request on December 8, 2005. The very next day, the
Department issued an “Order and Notice” that stated: “Due to the Hearing
Officer being unavailable within the thirty days as required by statute, it is
hereby Ordered that this matter be scheduled for the first available date.”
The Order and Notice then stated that the hearing would be held on January 9,
2006. The hearing was held, as scheduled, on January 9, 2006 by AHO Patterson. On February 9, 2006, AHO Patterson issued
a Final Order and Decision sustaining the suspension of Vera’s driver’s
license. Thereafter, on March 8, 2006, AHO Harley issued, sua sponte,
an Order that stated: “As a result of the court ruling by the South Carolina
Court of Appeals in Starnes v. South Carolina Department of Motor Vehicles, the suspension of your driver’s license is hereby rescinded.”
1. Does this Court lack the
authority to reverse AHO Harley’s Order?
2. Did AHO
Harley have the authority to issue his Order?
3. Did AHO
Harley err by rescinding Vera’s suspension based on Starnes?
STANDARD OF REVIEW
DMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the
DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review
governs appeals from decisions of the DMVH. See S.C. Code Ann. §
1-23-380 (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385
(1995). The standard used by appellate bodies, including the ALC, to review
agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).
This section provides:
The court may not
substitute its judgment for the judgment of the agency as to the weight of the
evidence on questions of fact. The court may affirm the decision of the agency
or remand the case for further proceedings. The court may reverse or modify the
decision [of the agency] if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions, or
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
S.C. Code Ann. §
1-23-380(A)(5) (Supp. 2006).
Authority to Reverse AHO Harley’s Order
an initial matter, Vera argues that this Court does not have the authority to
reverse AHO Harley’s Order because the Department has failed to argue and,
according to Vera, “nothing in this record even remotely suggests” that
substantial rights of the Department were prejudiced by AHO Harley’s Order.
disagree with Vera. Pursuant to Section 1-23-380(A)(5), the ALC may reverse a
decision of the DMVH where an error has caused (1) substantial rights of the
appellant (2) to be prejudiced. With respect to the first requirement, the
right of the Department, as a State agency, to implement the administrative
suspension of a motorist who refuses to submit to chemical testing is a
substantial right. This is because the State has a strong interest in maintaining
the safety of its roads, and the purpose of administratively suspending a motorist’s license for refusing
to submit to chemical testing is to protect those who use such roads.
in Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court
explained how, with respect to the Massachusetts implied consent law, a State’s
interest in public safety is “substantially served” by the summary suspension
of those motorists who refuse to submit to chemical testing:
First, the very
existence of the summary sanction of the statute serves as a deterrent to drunken
driving. Second, it provides strong inducement to take the breath-analysis
test and thus effectuates the Commonwealth’s interest in obtaining reliable and
relevant evidence for use in subsequent criminal proceedings. Third, in
promptly removing such drivers from the road, the summary sanction of the
statute contributes to the safety of public highways.
Montrym, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals
has also recognized the important function that such suspensions serve. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to
refuse alcohol and drug testing without suffering penalty, the current system
of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore,
as the aforementioned cases make clear, the Department’s right to implement
Vera’s administrative suspension is a substantial right.
regard to the second requirement, if, as the Department argues, AHO Harley’s
Order was invalid or erroneous, then there is no question that the Department
was prejudiced by AHO Harley’s Order. As South Carolina appellate courts have made
clear, errors that affect the outcome of a case are prejudicial. See, e.g., State v. Davis, 371 S.C. 170, 638 S.E.2d 57 (2006) (remanding case for a
new trial after determining that erroneous admission of hearsay testimony “almost
certainly affected the result of the trial”); State v. Covert, 368 S.C.
188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error
“could have reasonably affected the result of the trial”). Here, by rescinding
Vera’s suspension, AHO Harley’s Order effectively reversed AHO Patterson’s
Final Order and Decision. Therefore, AHO Harley’s Order clearly affected the
outcome of the case.
in this case, AHO Harley’s Order was issued sua sponte. No motion to
reconsider was ever filed by Vera. Thus, prior to AHO Harley’s Order, the
Department was not given the opportunity to make any arguments regarding either
the issue addressed by AHO Harley in his Order or the authority of AHO Harley to issue an order in this matter. Therefore, it
would certainly be unfair to the Department to, as Vera urges, affirm AHO
Harley’s Order without addressing the substantive issues on appeal.
contrary to Vera’s claims, this Court does have the authority to reverse AHO
Harley’s Order if it determines that the Department’s arguments for reversal have
AHO Harley’s Authority to Issue an Order
The Department argues that AHO Harley had no authority
to issue an order in this matter. For the following reasons, I agree.
First, the record demonstrates that AHO Patterson was
assigned to this matter, presided at the underlying hearing, and issued a Final
Order and Decision. There is absolutely nothing in the record that indicates
that this matter was ever transferred to AHO Harley. Pursuant to ALC Rule 9, a DMVH hearing officer possesses no authority to issue an order in a case
unless and until he is assigned to such case. See ALC Rule 9 (“Upon
assignment of a case, the administrative law judge shall rule on all
motions, preside at the contested case hearing, rule on the admissibility of
evidence, require the parties to submit briefs when appropriate, issue orders
and rulings to insure the orderly conduct of the proceedings and issue the
final order.”). (emphasis added). Therefore, because AHO Harley was never
assigned to this case, he had no authority to issue his Order.
Second, AHO Harley’s Order effectively reversed AHO
Patterson’s Final Order and Decision. It is well settled in South Carolina
that a judge may not overrule another judge of the same court. Charleston
County Dep’t of Social Services v. Father, Stepmother, and Mother, 317 S.C.
283, 288, 454 S.E.2d 307, 310 (1995); see also Tisdale v. American
Life Ins. Co., 216 S.C. 10, 13, 56 S.E.2d 580, 581 (1949) (holding that it
is “axiomatic” that a Circuit Judge does not have the power to reverse the ruling
of another Circuit Judge); Ex parte Miller, 192 S.C. 164, 175, 5 S.E.2d
865, 870 (1939) (“[O]f course, the prior order of one Circuit Judge may not be
modified, if such modification be antagonistic, by the order of another Circuit
Judge subsequently made.”).
Third, Vera never moved to have this case reconsidered.
Therefore, because 27 days had elapsed since the issuance of AHO Patterson’s
Final Order and Decision, on the date of AHO Harley’s Order, no DMVH hearing
officer, including AHO Patterson himself, had the authority to issue an order amending
AHO Patterson’s Final Order and Decision. See Heins v. Heins,
344 S.C. 146, 543 S.E.2d 224 (Ct. App. 2001) (ruling that, pursuant to Rule
59(e), SCRCP, a family court judge does not have the authority to alter or
amend a judgment, sua sponte, once the judgment is more than 10-days-old).
For these reasons, AHO Harley’s Order was a nullity and
cannot be affirmed.
AHO Patterson’s Jurisdiction to Sustain Vera’s Suspension
the Department argues that AHO Harley erred by rescinding Vera’s suspension
based on Starnes. Again, I agree.
Starnes involved the interpretation of S.C. Code Ann. § 56-5-2951(H) (Supp. 1998),
which was the precursor to S.C. Code Ann. § 56-5-2951(F) (Supp. 2004). In Starnes,
the Department of Public Safety suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp.
1998) based on the results of a breath test that the motorist submitted to
after being arrested for driving under the influence. The Department of Public
Safety’s hearing officer sustained the suspension, but the circuit court reversed.
The Department of Public Safety subsequently appealed to the Court of Appeals,
which affirmed the circuit court’s decision. In doing so, the Court of Appeals
held that the Department of Public Safety lacked subject matter jurisdiction to
sustain the motorist’s suspension since it failed to issue a written order to
the motorist within thirty days after the administrative hearing was concluded,
as was required by Section 56-5-2951(H). Id. at 222, 535 S.E.2d at
668. At the time, Section 56-5-2951(H) stated in pertinent part: “A written
order must be issued to the person upholding the suspension of the
person’s license, permit, or nonresident’s operating privilege, or denying the
issuance of a license or permit within thirty days after the conclusion of the
administrative hearing.” Id. (emphasis added). Because the
Department of Public Safety admitted that it did not meet this requirement, the
Court of Appeals affirmed the circuit court’s decision. Id.
56-5-2951(F) now sets forth the time period in which written orders must be
issued. At the time Vera’s hearing was held, Section 56-5-2951(F) stated in pertinent part: “A written order must be
issued to the person upholding the suspension of the person’s license, permit,
or nonresident’s operating privilege, or denying the issuance of a license or
permit within thirty days after the conclusion of the administrative hearing.”
S.C. Code Ann. § 56-5-2951(F) (2006) (emphasis added). Notably, this is the
exact same language that was evaluated by the Starnes court in making
its decision. Nevertheless, based on the South Carolina Supreme Court’s
decision in Johnston v. S.C. Dep’t of Labor, Licensing, and Regulation, S.C.
Real Estate Appraisers Bd., 365 S.C. 293, 617 S.E.2d 363 (2005), it is this
Court’s opinion that Starnes is no longer good law with respect to this
In Johnston, a licensed real estate appraiser was charged by the Real Estate Appraisers
Board with violating certain regulations applicable to those in his
profession. After an administrative hearing was held on the matter, the Board
found that the appraiser had committed the alleged violations, and therefore
issued a written order imposing a fine and suspending his license. Pursuant to
S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004), the Board was required to serve written notice of its decision on the appraiser
within thirty days of issuing its final order. However, notice of the Board’s
decision was not properly served on the appraiser until after the requisite
thirty-day time period had expired. Thereafter,
the appraiser appealed the Board’s decision to the ALC. The ALC reversed the
Board’s order, finding that the Board’s failure to serve notice of its decision
within the statutorily-mandated time period divested the Board of jurisdiction
to decide the matter. Both the circuit court and the Court of Appeals affirmed
the ALC’s decision. However, the Supreme Court reversed, holding that the
failure by the Board to comply with Section 40-60-150(C)(3) did not affect the
Board’s jurisdiction. Instead, the Supreme Court held that the Board’s
decision was valid, but ineffective, until it was served upon the appraiser.
In making this decision, the Supreme Court explained:
There is no
indication the Legislature intended for the time limit to prevent the Board
from having the ability to discipline an errant appraiser if the Board fails to
serve notice of the written decision within the prescribed time period.
Instead, the Legislature intended to speed the resolution of appraiser disciplinary
cases for the benefit of all parties involved. We note that, although the
thirty-day time limit is mandatory, the Legislature has not provided how that
mandate is to be enforced. There is no language regarding the consequences if
the Board misses the deadline for serving written notice of its decision on the
appraiser. Accordingly, we will not assume the Legislature intended the Board
to lose its power to act for failing to comply with the statutory time limit.
Johnston, 365 S.C. at 297-98, 617 S.E.2d at 365 (internal citations omitted).
Johnston dictates a similar result in this case. Like Section 40-60-150(C)(3),
Section 56-5-2951(F) does not set forth any consequences for the DMVH’s failure
to issue a final order within the statutory time limit. Therefore, pursuant to Johnston, it would be wrong to assume that the Legislature, in cases
such as this one, intended for the motorist to have his license reinstated.
This seems especially true here, since the Legislature, with regard to untimely hearings, did include language in Section 56-5-2951(F) mandating
the reinstatement of the motorist’s license. See S.C. Code Ann. §
56-5-2951(F) (Supp. 2004). Thus, the fact that the Legislature did not include
similar language with respect to untimely orders is indicative of the Legislature’s
intent for the DMVH to retain its power to act even in situations where the
DMVH has failed to timely issue a final order.
the recent passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”) further warrants the application of Johnston, rather than Starnes,
to the present case. Importantly, in Starnes, the Department of Public
Safety was the agency responsible for holding Section 56-5-2951(B)(2) hearings
and issuing final orders with respect to those hearings. Thus, the Department
of Public Safety was deprived of its power to enforce a Section 56-5-2951(A)
suspension as a result of its own failure to comply with a statutory
provision. Here, however, pursuant to the DMVH Act, the DMVH, and not the
Department, is now responsible for holding Section 56-5-2951(B)(2) hearings and
issuing final orders with respect to those hearings. Thus, following Starnes in cases such as this one would mean depriving the Department of its power to
enforce a Section 56-5-2951(A) suspension not because the Department failed to comply with a statutory provision, but because an unaffiliated
agency failed to comply with a statutory provision. In contrast, following Johnston in situations like this one would not create a comparable
level of unfairness for motorists. Notably, pursuant to S.C. Code Ann. §
56-5-2951(B)(1) (Supp. 2004), a motorist who requests an administrative hearing
may obtain a “temporary alcohol restricted license” by filing a form with the
Department and paying a $100.00 fee. The temporary alcohol restricted license
allows the motorist to drive without any restrictive conditions pending the outcome of the administrative hearing or the final decision or
disposition of the matter. S.C. Code Ann. § 56-5-2951(B)(1) (Supp. 2004)
(emphasis added). Thus, generally speaking, a delay in the issuance of a final
order by the DMVH has little prejudicial effect on motorists.
these reasons, I deem that Johnston, not Starnes, governs in this
case. Accordingly, even if AHO Harley had possessed the authority to issue his
Order, which he clearly did not, his Order would still merit reversal.
IT IS THEREFORE ORDERED that, to the extent
necessary to clear the Record, AHO Harley’s Order is VACATED; and
IT IS FURTHER ORDERED that Vera’s driver’s
license be suspended in accordance with AHO Patterson’s Final Order and
Decision and S.C. Code Ann. § 56-5-2951 (Supp. 2004), except that Vera shall
receive credit for the number of days, if any, his license was suspended
pursuant to AHO Patterson’s Final Order and Decision prior to the date of this
AND IT IS SO ORDERED.
John D. McLeod
April 9, 2007
Columbia, South Carolina