Monday, April 23, 2018

SC Administrative Law Court Decisions

SCDMV vs. Mark Edward White

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Mark Edward White





This 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 his Order. The ALC has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon review of this matter, AHO Harley’s Order is vacated.


On December 4, 2005, Respondent Mark Edward White (“White”) was arrested for driving under the influence. In connection with the arrest, White’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. Thereafter, pursuant to Section 56-5-2951(B)(2), White requested an administrative hearing to challenge the suspension. The Department received White’s request on December 28, 2005. The very next day, the Department issued a “Notice of Hearing” that stated that the hearing would be held on January 17, 2006. The hearing was held, as scheduled, on January 17, 2006 by AHO Patterson. On February 17, 2006, AHO Patterson issued a Final Order and Decision sustaining the suspension of White’s driver’s license. Thereafter, on March 1, 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Appeals in Starnes v. South Carolina Department of Motor Vehicles,[1] the suspension of your driver’s license is hereby rescinded.”


1. Did AHO Harley have the authority to issue his Order?


The 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).[2] 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 decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary 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).


The Department argues that AHO Harley had no authority to issue his Order. 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 nothing in the record that indicates that this matter was ever transferred to AHO Harley. Therefore, AHO Harley had no authority to issue his Order. 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).[3]

Second, AHO Harley’s Order effectively reversed AHO Patterson’s Final Order and Decision. It is well settled in South Carolina that one 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); Dinkins v. Robbins, 203 S.C. 199, 202, 26 S.E.2d 689, 690 (1943) (“The rule is well settled that the prior order of one Circuit Judge may not be modified by the subsequent order of another Circuit Judge, except in cases when the right to do so has been reserved to the succeeding Judge, when it is allowed by rule of court or statute, or when the subsequent order does not alter or substantially affect the ruling or decision represented by the previous order.”).

Third, there is nothing in the record that indicates that White ever moved to have this case reconsidered. Therefore, because more than ten 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).[4] Thus, AHO Harley’s Order was invalid for this reason as well.

Because AHO Harley’s Order was a nullity, this Court need not consider its merits. See Dinkins, 203 S.C. at 203, 26 S.E.2d at 690 (reversing order of Circuit Judge because it substantially altered a previous order of another Circuit Judge despite finding that the order would have otherwise been “fully warranted”); see also Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive). Furthermore, addressing the merits of AHO Harley’s Order is also made unnecessary by the fact that this Court has previously examined the merits of a virtually identical DMVH order. See S.C. Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP, 2006 WL 2827728 (Admin. Law Ct. September 11, 2006). For these reasons, this Court declines to consider any of the other issues raised by this appeal.


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 White’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 White 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 Order.



John D. McLeod

Administrative Law Judge

April 4, 2007

Columbia, South Carolina

[1] The Court assumes that AHO Harley was referring to Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).

[2] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[3] ALC Rule 9 was applicable to the underlying hearing pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005).

[4] The ALC rule of procedure that most closely corresponds to Rule 59(e), SCRCP, is ALC Rule 29(D), which states that “[w]ithin ten (10) days after notice of the order concluding the matter before the administrative law judge, a party may move for reconsideration of the decision.” (emphasis added).