Friday, October 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Kevin Rhette Barnette

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and South Carolina Department of Public Safety

Respondents:
Kevin Rhette Barnette
 
DOCKET NUMBER:
07-ALJ-21-0464-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously suppressed testimony by a law enforcement officer regarding the arrest of Respondent Kevin Rhette Barnette for driving under the influence (DUI). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is affirmed.

BACKGROUND

On June 16, 2007, Respondent was arrested by Trooper Pruitt of the South Carolina Department of Public Safety (DPS) for DUI. Respondent was subsequently issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to a DataMaster test. In accordance with S.C. Code Ann. § 56-5-2951(B)(2) (2006), Respondent filed a request with the DMVH for an administrative hearing to challenge his suspension. Thereafter, Respondent served Trooper Pruitt with a subpoena requesting, among other things, that Trooper Pruitt produce a copy of the videotape of his arrest by July 11, 2007. According to the Certificate of Mailing attached to the subpoena, the subpoena was mailed to Respondent on July 3, 2007. A copy of the subpoena was filed with the DMVH.

The administrative hearing was held by the DMVH on July 16, 2007, and it was attended by Respondent, Respondent’s attorney, and Trooper Pruitt. Trooper Pruitt did not produce the videotape prior to the hearing, and he did not bring the videotape to the hearing. At the onset of the hearing, Respondent moved to suppress the evidence contained in the videotape based on Trooper Pruitt’s failure to produce the videotape. The hearing officer denied Respondent’s motion at that time, but ordered Trooper Pruitt to submit the videotape to Respondent within 24 hours. In doing so, the hearing officer expressly warned Trooper Pruitt that his failure to comply with her instructions would lead to the suppression of the evidence contained in the videotape.

On August 13, 2007, Respondent filed a motion to dismiss, asserting that the videotape that he received from Trooper Pruitt did not include Respondent’s arrest, but instead contained television programming. Respondent’s motion to dismiss was accompanied by a copy of the videotape that Respondent received from Trooper Pruitt. After viewing the videotape, the DMVH hearing officer issued a Final Order and Decision on August 15, 2007 in which she rescinded Respondent’s suspension. In her Final Order and Decision, the hearing officer ruled that Trooper Pruitt’s testimony regarding Respondent’s arrest was being suppressed due to his failure to comply with her instructions to submit the arrest-site videotape to Respondent. She further held that the evidence admitted into the record did not sufficiently demonstrate that Trooper Pruitt had probable cause to arrest Respondent for DUI. The Department now appeals.

ISSUE ON APPEAL

Did the DMVH hearing officer err in suppressing Trooper Pruitt’s testimony regarding Respondent’s arrest?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2007). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-505(2) (as amended by 2008 S.C. Act No. 334). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act No. 334); 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(5) (as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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;

© 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(5) (as amended by 2008 S.C. Act No. 334).

The imposition of sanctions is generally entrusted to the sound discretion of the trial court. Downey v. Dixon, 294 S.C. 42, 45, 362 S.E.2d 317, 318 (Ct. App. 1987). A trial court’s exercise of its discretionary powers with respect to sanctions imposed in discovery matters will not be interfered with by an appellate court absent an abuse of discretion. Karppi v. Greenville Terrazzo Co., Inc., 327 S.C. 538, 542, 489 S.E.2d 679, 681 (Ct. App. 1997). The burden is upon the party appealing the order to demonstrate that the trial court abused its discretion. Id. An abuse of discretion may be found where the appellant shows that the conclusion reached by the trial court was without reasonable factual support, resulted in prejudice to the rights of the appellant, and, therefore, amounted to an error of law. Id.

DISCUSSION

The Department makes several arguments regarding why it believes that the DMVH hearing officer committed error by suppressing Trooper Pruitt’s testimony. Each argument is discussed below.

The DMVH Hearing Officer’s Authority to Suppress Trooper Pruitt’s Testimony

The Department’s first argument is that the DMVH hearing officer did not have the authority, under DMVH Rules, to suppress Trooper Pruitt’s testimony. I disagree.

DMVH Rule 12(A) provides in pertinent part:

A subpoena may be served on any law enforcement officer personally or by serving the officer or his law enforcement agency by certified mail, return receipt requested. . . . For subpoenas compelling the production of documents or other tangible objects, the proponent of the subpoena must serve the subpoena at least ten days prior to the scheduled hearing date, and the person or agency served with the subpoena shall be required to produce the subpoenaed items a minimum of five days prior to the scheduled hearing date, unless otherwise ordered by the hearing officer for good cause shown. Failure to comply with this section may result in the exclusion of evidence not produced in compliance with the subpoena.

(emphasis added).

Here, Respondent served Trooper Pruitt with a subpoena directing him to provide a copy of the arrest-site videotape to Respondent by July 11, 2007. At no point did Trooper Pruitt move to quash the subpoena pursuant to DMVH Rule 12©. Nevertheless, Trooper Pruitt failed not only to provide the videotape by July 11, 2007, he also failed to provide it by July 16, 2007, the date of the hearing. Therefore, because Trooper Pruitt failed to comply with Respondent’s subpoena for the arrest-site videotape, the hearing officer had the authority, under DMVH Rule 12(A), to suppress, on the date of the hearing, Trooper Pruitt’s testimony regarding Respondent’s arrest. Despite that authority, the hearing officer granted Trooper Pruitt further latitude by allowing him to submit the videotape to Respondent within 24 hours. Trooper Pruitt’s failure to provide Respondent with the correct videotape within that time frame certainly justified the exclusion of Trooper Pruitt’s testimony.

Moreover, while Trooper Pruitt was not an employee of the Department, the Department, which did not appear at the DMVH hearing, entrusted the prosecution of the matter to Trooper Pruitt.[1] Had the Department appeared at the hearing, it would not have been bound by Trooper Pruitt’s actions. Cf. Tex. Dep’t of Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. Ct. App. 1994) (state agency that appears at expunction hearing is not bound by district attorney’s actions or agreements on expunction). However, since the Department did not appear, its interests were represented by Trooper Pruitt at the hearing. Cf. Texas Dep’t of Pub. Safety v. Butler, 941 S.W.2d 318, 320 (Tex. Ct. App. 1997) (in the absence of a separate appearance by state agency, interests of state agency are represented by district attorney at expunction hearing). Accordingly, even though the sanction imposed by the hearing officer adversely affected the interests of the Department, the sanction was not overly broad. Cf. Texas Dep’t of Pub. Safety v. Smart, 2008 WL 391300 (Tex. Ct. App. 2008) (unpublished mem. Decision) (citing Butler and holding that state agency that failed to appear at expunction hearing could not avoid consequences of actions taken by district attorney at hearing); but cf. Karppi, 327 S.C. 538, 489 S.E.2d 679 (sanction imposed in discovery matter was overly broad where it affected interests of third party that was not involved in discovery matter).

Furthermore, while the suppression of Trooper Pruitt’s testimony effectively resulted in the disposal of the action adverse to the interests of DPS and the Department, DMVH Rule 13 expressly provides:

The hearing officer may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the hearing officer or fails to comply with any interlocutory order of the hearing officer.

(emphasis added).

In this case, as discussed above, in addition to failing to comply with Respondent’s subpoena, Trooper Pruitt failed to properly comply with the interlocutory order of the hearing officer directing Trooper Pruitt to provide a copy of the videotape to Respondent within 24 hours after the hearing. Therefore, pursuant to DMVH Rule 13, the hearing officer was permitted to administer a sanction that resulted in the disposal of the case adverse to the interests of DPS and the Department.

The Department nevertheless argues that the suppression of Trooper Pruitt’s testimony was not warranted since Respondent did not first seek to enforce the subpoena pursuant to the provisions of DMVH Rule 12(B).[2] In making this argument, the Department relies on the ALC’s decision in Lowman v. S.C. Dep’t of Motor Vehicles, 06-ALJ-21-0388, 2007 WL 2707693 (August 22, 2007).

In Lowman, a motorist appealed a DMVH hearing officer’s decision sustaining his suspension under Section 56-5-2951 for refusing to submit to a breath test. The motorist argued that the hearing officer erred by failing to suppress a law enforcement officer’s testimony regarding the motorist’s arrest after the law enforcement officer failed to comply with the motorist’s subpoena for the arrest-site videotape. The ALC disagreed, and it affirmed the hearing officer’s decision. Specifically, the court concluded that, because the motorist made no attempt to enforce his subpoena pursuant to S.C. Code Ann. § 1-23-320(d) (2006)[3] prior to the hearing, the hearing officer’s decision to allow the law enforcement officer to testify at the hearing about the motorist’s arrest was “entirely appropriate.” Lowman, 2007 WL 2707693, at *4.

The Department’s reliance on Lowman is misplaced. To begin with, if the Department is seeking to invoke the doctrine of stare decisis, that doctrine is simply not so easily invoked. Rather, the doctrine of stare decisis proclaims that “where a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed in similar cases.” State v. Balance, 51 S.E.2d 731, 733 (N.C. 1949). Additionally, while ALJs should give due consideration to the decisions and reasoning of other ALJs, their rulings are not binding upon other ALJs.[4] See, e.g., Schiffner v. Motorola, Inc., 697 N.E.2d 868, 871 (Ill. App. Ct. 1998) (“Stare decisis requires courts to follow the decisions of higher courts, but does not bind courts to follow decisions of equal or inferior courts.”); Shook v. State, 244 S.W.2d 220, 221 (Tex. Crim. App. 1951) (“It is rudimentary that courts are not bound by the decisions of other courts of equal jurisdiction. The power to establish precedent is lodged in courts of superior jurisdiction.”); People v. Hill, 834 N.Y.S.2d 840, 845 (N.Y. City Crim. Ct. 2007) (“A decision of a court of co-ordinate jurisdiction is not a binding precedent.”); Nationwide Mut. Ins. Co. v. Yungwirth, 940 A.2d 523, 528 n.5 (Pa. Super. 2008) (“While the Superior Court is bound to give due consideration to the decisions and reasoning of the Commonwealth Court, this Court is not bound to follow such decisions as controlling precedent.”). Likewise, trial judges simply are not bound by the rulings of other trial judges. See State v. Riley, 698 So.2d 374, 376 n.1 (Fla. Dist. Ct. App. 1997) (“While we understand the trial court’s desire to maintain uniformity within the county court, we note that decisions of one county court are not binding precedent on another county court because ‘[t]rial court’s do not create precedent.’”); see generally 20 Am. Jur. 2d Courts § 141 (2005). Moreover, the ALC Rules provide for a method to create binding precedent in the ALC via a request for an en banc decision. See ALC Rule 70. That rule thus invokes the principle that “[f]or an opinion to have a stare decisis effect, at least a majority of the members of the court must have joined in the opinion.” 20 Am. Jur. 2d Courts § 138 (2005).

Furthermore, the present case is clearly distinguishable from Lowman. First, in Lowman, the court was reviewing the DMVH’s decision to admit the arresting officer’s testimony. Here, in contrast, the court is reviewing the DMVH’s decision to suppress the arresting officer’s testimony. As discussed above, a trial judge’s decision regarding the imposition of sanctions in discovery matters will not be reversed on appeal absent an abuse of discretion. Thus, unlike in Lowman, where the Department sought affirmance of the hearing officer’s evidentiary decision, in the present case, the Department must establish that the hearing officer’s decision was characterized by an abuse of discretion.

Second, unlike the arresting officer in Lowman, Trooper Pruitt not only failed to comply with the motorist’s subpoena, he also failed to comply with the hearing officer’s order directing him to produce the videotape, despite being warned by the hearing officer of the consequences of noncompliance. Disregarding a tribunal’s order is inherently risky. As the Florida District Court of Appeal has noted:

A party may not ignore a valid order of court except at its peril. There are avenues of redress by appellate review for orders which may be erroneous, but so long as such orders are entered by a court which has jurisdiction of both the subject matter and the parties, they cannot be completely ignored without running the risk that an appropriate sanction may be imposed.

Johnson v. Allstate Ins. Co., 410 So.2d 978, 980 (Fla. Dist. Ct. App. 1982); accord Becerril v. Skate Way Roller Rink, 184 A.D.2d 365, 366 (N.Y. App. Div. 1992) (“A certain amount of discretion is reserved to the [trial] court in crafting conditional orders to encourage the cooperation of neglectful parties so that their claims can be litigated on the merits. A plaintiff ignores such conditional orders at his peril . . .”); see also Phillips v. Insurance Co. of N. America, 633 F.2d 1165, 1168 (5th Cir. Unit B Jan. 1981) (an order compelling discovery “is to be scrupulously obeyed by the parties”).

Finally, at the time the DMVH issued its decision in Lowman, the DMVH Rules had not yet become effective.[5] DMVH Rule 12(A) now clearly grants a DMVH hearing officer the authority to exclude evidence for failing to comply with a subpoena. Moreover, nothing in the DMVH Rules makes this authority contingent upon the subpoenaing party first seeking to enforce the subpoena pursuant to DMVH Rule 12(B). Furthermore, DMVH Rule 13 grants a DMVH hearing officer the authority to dispose of a case adverse to a party’s interests if the party fails to comply with an interlocutory order of the hearing officer. Thus, the DMVH’s authority to suppress the arresting officer’s testimony is clearer here than it was in Lowman.

Existence of Bad Faith, Willfulness or Gross Indifference

Alternatively, the Department argues that, even if the hearing officer had the authority to suppress Trooper Pruitt’s testimony, she abused her discretion because the sanction was too harsh for the circumstances. I disagree.

As noted above, a trial court’s exercise of its judgment with respect to sanctions will be interfered with by an appellate court only if an abuse of discretion has occurred. Karppi, 327 S.C. at 542, 489 S.E.2d at 681 (Ct. App. 1997). An abuse of discretion exists if the conclusions reached by the court are without reasonable factual support resulting in prejudice to the rights of appellant, thereby amounting to an error of law. Id. at 542, 489 S.E.2d at 681. In determining whether to dismiss a case or issue a sanction that results in a case being dismissed, the court must recognize that such actions are harsh medicine that should not be administered lightly. Id, at 542-43, 489 S.E.2d at 682. Therefore, such a severe remedy should not be invoked absent some element of bad faith, willfulness, or gross indifference to the rights of other litigants. Id. at 543, 489 S.E.2d at 682.

Based on the record as a whole, I conclude that the Department has failed to establish that the hearing officer abused her discretion by suppressing Trooper Pruitt’s testimony. The facts of the present case are similar to those in Halverson v. Yawn, 328 S.C. 618, 493 S.E.2d 883 (Ct. App. 1997). In that case, the trial court issued an order compelling the plaintiff to answer the defendant’s interrogatories and to respond to the defendant’s document-production request within thirty days. The trial court’s order expressly provided that, in the event that the plaintiff failed to comply with the order, the plaintiff’s case would be dismissed. After the plaintiff failed to comply with the order, the trial court dismissed the plaintiff’s case. Without first filing a motion to amend or alter the judgment with the trial court, the plaintiff appealed to the Court of Appeals. The Court of Appeals affirmed the trial court’s decision, concluding that the plaintiff had failed to adequately prove that the trial court abused its discretion. In reaching that conclusion, the court acknowledged that “the sanction of dismissal is ‘harsh medicine that should not be administered lightly,’”[6] but it emphasized that the arguments made by the plaintiff on appeal either had not been raised to the trial court or were unsupported by the record.

Similar to the plaintiff in Halverson, Trooper Pruitt failed to comply with the hearing officer’s order directing him to produce the videotape, despite the fact that the hearing officer expressly warned him of the consequences of noncompliance.[7] Moreover, as discussed in more detail below, most of the arguments now being made by the Department on appeal either were never raised to the hearing officer or are unsupported by the record. Like the plaintiff in Halverson, neither DPS nor the Department filed a post-trial motion with the DMVH hearing officer after she issued her Final Order and Decision.

While the Department did file a motion with this Court to supplement the record with an affidavit by Trooper Pruitt explaining his failure to produce the videotape, the Court denied that motion. See S.C. Dep’t of Motor Vehicles v. Barnette, 07-ALJ-21-0464-AP (August 18, 2008). Furthermore, the evidence in the affidavit, even if considered, does not sufficiently demonstrate that Trooper Pruitt’s repeated failure to produce the videotape was not due to willfulness or gross indifference. For instance, according to the affidavit, Trooper Pruitt did not comply with the subpoena at or before the hearing because he did not receive the subpoena until the late afternoon of July 13, 2007 and therefore “did not have a sufficient amount of time” to comply with it before the July 16th hearing. However, the explanation provided by Trooper Pruitt at the hearing was a bit more revealing in this regard. For example, when asked by the hearing officer if he had intended to comply with the subpoena, Trooper Pruitt testified, “As far as the subpoena goes, yes, ma’am, I did have every intention to comply, but I didn’t receive it until then [July 13, 2007] and I was trying to consult with my sergeant . . . My first sergeant as to what actions to take since I hadn’t received it prior to the date that it was due.” Moreover, later on in the hearing, Trooper Pruitt testified that “I believe the solicitor sent orders down to us that if Mr. Cole [Respondent’s attorney] or if any other attorney wanted a copy of the tape, we were not to furnish the tape.” Such testimony indicates that there was more to Trooper Pruitt’s failure to produce the videotape at the hearing than the affidavit implies. Furthermore, while Trooper Pruitt claims that he did not receive the subpoena until July 13, 2007, the Certificate of Mailing attached to the subpoena indicates that it was mailed on July 3, 2007, and Respondent’s attorney further substantiated at the hearing that the subpoena was mailed to Trooper Pruitt on that date.

Additionally, Trooper Pruitt further claims in the affidavit that his submission to Respondent of the videotape containing television programming was due to a “good faith” error that he made while making a copy of the original videotape. However, Trooper Pruitt also admits in the affidavit that, despite not being familiar with the recording device that he used and despite the fact that no instructions were posted on the device, he did not review the videotape before delivering it to Respondent’s attorney. Trooper Pruitt’s carelessness in copying the videotape is significant in light of his failure to produce the videotape at or before the hearing. Accordingly, the Court concludes that, even if considered, the affidavit does not establish that reversal of the hearing officer’s decision is warranted here.

The Department, nevertheless, appears to claim that the hearing officer abused her discretion since there was not “the slightest hint” that Respondent suffered prejudice as a result of not receiving the videotape. The Department asserts that, since the Respondent was at the scene, he “could have testified if he thought the Trooper’s testimony differed with what actually happened.” This argument is without merit. First, as an initial matter, neither DMVH Rule 12 nor DMVH Rule 13 requires the hearing officer to make a finding of prejudice before imposing the sanctions authorized under those rules. Second, a videotape will generally carry more weight with a DMVH hearing officer than the testimony of a party. Finally, the General Assembly clearly considers the arrest-site videotape to be an important piece of evidence for motorists. This is demonstrated by the fact that, in criminal DUI matters, the failure by law enforcement to produce the arrest-site videotape can, under S.C. Code Ann. § 56-5-2953(B) (2006), lead to the dismissal of the DUI charge. See S.C. Code Ann. § 56-5-2953(B) (2006); City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).

Alleged Defects in the Service of the Subpoena

A. Service on Trooper Pruitt

The Department further argues that the subpoena for the videotape was not properly served on Trooper Pruitt and that, therefore, the hearing officer should not have suppressed Trooper Pruitt’s testimony for failing to produce the videotape. Specifically, the Department argues that the subpoena was served on Trooper Pruitt by regular U.S. mail rather than by certified mail, return receipt requested, as is required by DMVH Rule 12.

It is well-settled that an issue cannot be raised for the first time on appeal. Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). To be preserved for appellate review, the issue must have been: (1) raised to and ruled upon by the trial court; (2) raised by the appellant; (3) raised in a timely manner; and (4) raised to the trial court with sufficient specificity. S.C. Dep’t of Transp. V. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007) (quoting Jean Hoefer Toal et al., Appellate Practice in South Carolina 57 (2d ed. 2002)).

In the present case, at no point during the DMVH proceeding did Trooper Pruitt argue that Respondent failed to serve the subpoena on him by certified mail, return receipt requested. Additionally, Trooper Pruitt did not move to quash the subpoena pursuant to DMVH Rule 12©. Furthermore, the hearing officer did not make any rulings regarding the propriety of the service of the subpoena on Trooper Pruitt. Accordingly, the issue of whether Respondent failed to serve the subpoena on Trooper Pruitt by certified mail, return receipt requested, has not been preserved for review by this Court.

B. Service on the Department

The Department also argues that, pursuant to DMVH Rule 5, Respondent was required to serve the Department with a copy of the subpoena and that Respondent did not do so.[8] The Department contends that it “was deprived of an opportunity to object to the subpoena, or to have [an] opportunity to attempt to facilitate compliance, and was clearly prejudiced thereby when the case was dismissed.”

There are several flaws with the Department’s argument. First, the issue of whether Respondent complied with DMVH Rule 5 in serving the subpoena was never raised to or ruled upon by the hearing officer. Therefore, it has not been properly preserved for review. First Carolina Corp. of S.C., 372 S.C. at 301-02, 641 S.E.2d at 907.

Second, when Trooper Pruitt failed to comply with the subpoena by the date of the hearing, the DMVH hearing officer did not immediately impose sanctions, but rather granted Trooper Pruitt another opportunity to produce the videotape. Had the Department appeared at the hearing, it would have known about the hearing officer’s order directing Trooper Pruitt to produce the videotape. Thus, the Department could have, at that time, worked with Trooper Pruitt to ensure that he properly produced the videotape.

Finally, it is unclear whether the Department would have had standing to object to the subpoena. DMVH Rule 12© provides that “[a] person to whom a subpoena has been issued may move before the Administrative Law Court pursuant to S.C. Code Ann. § 1-23-320(d) for an order quashing or modifying the subpoena.” In this case, the subpoena was issued to Trooper Pruitt, not to the Department. While federal courts, in interpreting Rule 45 of the Federal Rules of Civil Procedure, have held that a party may object to a subpoena issued to another in certain circumstances,[9] here, the Department has not explained what its grounds for objection would have been.

For these reasons, I conclude that the hearing officer’s Final Order and Decision should not be reversed on the grounds that Respondent failed to comply with DMVH Rule 5 in serving the subpoena.

Rule 34, SCRCP

Finally, the Department argues that the hearing officer erred by suppressing Trooper Pruitt’s testimony since Trooper Pruitt was not granted the thirty-day timeframe set forth in Rule 34, SCRCP[10] to comply with Respondent’s request for the videotape. I disagree.

First, as an initial matter, this issue was never raised to or ruled upon by the DMVH hearing officer, and, as noted above, no motion was ever made to quash the subpoena pursuant to DMVH Rule 12©. Therefore, this issue has not been preserved for review. First Carolina Corp. of S.C., 372 S.C. at 301-02, 641 S.E.2d at 907.

Second, even this issue had been preserved, reversal of the hearing officer’s order would not be warranted. In this case, the time period set forth in Rule 34, SCRCP for compliance with a production request conflicts with DMVH Rule 12, which provides that “[f]or subpoenas compelling the production of documents or other tangible objects, the proponent of the subpoena must serve the subpoena at least ten days prior to the scheduled hearing date, and the person or agency served with the subpoena shall be required to produce the subpoenaed items a minimum of five days prior to the scheduled hearing date, unless otherwise ordered by the hearing officer for good cause shown.” (emphasis added). When two rules conflict, the more specific one prevails. See Avant v. Willowglen Academy, 367 S.C. 315, 319, 626 S.E.2d 797, 799 (2006). Here, DMVH Rule 12 deals specifically with subpoenas issued to law enforcement officers in DMVH proceedings, whereas Rule 34, SCRCP deals generally with production requests submitted by one party to another party in any civil proceeding. Moreover, DMVH Rule 12 implicitly recognizes that, since implied consent hearings are generally required to be held within thirty days of the DMVH’s receipt of the motorist’s hearing request,[11] there must be a shorter time frame for compliance than that allowed under Rule 34, SCRCP. Therefore, because DMVH Rule 12(A) is a more specific rule that takes into account the unique nature of implied consent hearings, I find that it, not Rule 34, SCRCP, controls. Accordingly, because Trooper Pruitt did not move to quash the subpoena, he was required to provide the subpoena by July 11, 2007, which was five days prior to the scheduled hearing date.

ORDER

IT IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

August 18, 2008

Columbia, South Carolina



[1] Pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007), the Department is not required to appear at implied consent hearings, and it routinely elects not to make such appearances. Rather, law enforcement officers typically prosecute implied consent cases on their own. This Court has previously concluded that, even though the Department chooses not to appear at implied consent hearings, it has standing to appeal the decisions of the DMVH. See S.C. Dep’t of Motor Vehicles v. Tighe, 06-ALJ-21-091 2-AP (May 15, 2008).

[2] DMVH Rule 12(B) provides:

Upon request by a party to the Administrative Law Court pursuant to S.C. Code Ann. § 1-23-320(d), the assigned administrative law judge shall enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of records, books, and papers, documents, photographs, tapes, tangible objects or any other subpoenaed item, and shall have the power to punish as for contempt of court, by fine or imprisonment or both, the unexcused failure or refusal to attend and give testimony, to produce any requested items as set forth and required by a subpoena to be produced, or to comply with any order the administrative law judge issues in the matter.

[3] S.C. Code Ann. § 1-23-320(d) (2006) is very similar to DMVH Rule 12(B). It provides in pertinent part:

The administrative law judge division shall, on application of any party to the proceeding enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records and shall have the power to punish as for contempt of court, by a fine, or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers, and records as may have been required in any subpoena issued by the agency.

[4] This Court further recognizes the holding in 330 Concord Street Neighborhood Ass’n v. Campsen, 309 S.C. 514, 424 S.E.2d 538 (Ct. App. 1992), in which the Court of Appeals held that “[a]n administrative agency is generally not bound by the principle of stare decisis but it cannot act arbitrarily in failing to follow established precedent. 424 S.E.2d at 540. Even though 330 Concord Street limits the application of the doctrine of stare decisis, it was not, however, addressing the application of doctrine to the ALC. 

[5] The DMVH Rules became effective on April 30, 2007. The DMVH issued its decision in Lowman on March 29, 2006. Lowman, 2007 WL 2707693, at *1. Prior to the effective date of the DMVH Rules, the ALC Rules of Procedure applied to DMVH proceedings. See S.C. Code Ann. § 1-23-660 (Supp. 2006). ALC Rule 22(B), which sets forth the enforcement provisions for subpoenas, is similar to DMVH Rule 12(B) and S.C. Code Ann. § 1-23-320(d) (2006).

[6] Halverson, 328 S.C. at 621, 493 S.E.2d 885 (quoting Karppi, 327 S.C. at 543, 489 S.E.2d at 682).

[7] While it is true that Trooper Pruitt was given a shorter time frame for compliance than that given to the plaintiff in Halverson, the discovery requests at issue in Halverson appear to have been more burdensome than the discovery request at issue here. Moreover, the General Assembly has demonstrated a clear intent to have implied consent matters resolved in a prompt fashion. See S.C. Code Ann. § 56-5-2951(F) (Supp. 2007) (requiring that implied consent hearings generally be held with thirty days after receipt of the motorist’s hearing request and further requiring that final decisions be issued within thirty days after the conclusion of the hearing).

[8] DMVH Rule 5 provides that “[a]ny document, pleading, motion, brief or memorandum or other paper filed with the Division, other than the request for a contested case hearing as provided in Rule 4(A), shall be served by the proponent of the document upon all parties to the proceeding.”

[9] See, e.g., Sterling Merchandising, Inc. v. Nestle, S.A., 470 F. Supp. 2d 77 (D.P.R. 2006); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588 (D. Kan. 2003); Novak v. Capital Mgmt. & Dev. Corp., 241 F.R.D. 389 (D.D.C. 2007).

[10] Rule 34, SCRCP was made applicable to the DMVH proceeding by DMVH Rule 11, which provides that “[d]iscovery shall be conducted according to the procedures in Rules 26-37, SCRCP.” Rule 34, SCRCP provides in relevant part that “[t]he party upon whom [a production] request is served shall serve a written response within 30 days after the service of the request.”

[11] See S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).


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