What’s New – Winter 2008

Case Law Update – Recent decisions affecting the South Carolina Administrative Law Court

South Carolina Court of Appeals:

Peake v. South Carolina Department of Motor Vehicles, Op. No. 4313 (S.C. Ct. App. filed November 27, 2007) (Shearouse Adv. Sh. No. 41 at 28).  This case involved the suspension of a motorist’s driver’s license for failure to submit to a blood alcohol test after being arrested for driving under the influence (“DUI”).  The motorist challenged the suspension on the ground that the Implied Consent Statute, S.C. Code Ann. § 56-5-2950 (2006), requires law enforcement to first seek the opinion of a medical professional that a motorist arrested for DUI is incapable of providing a breath sample before requesting the motorist to submit to a blood test.  The hearing officer and the circuit court upheld the suspension.  On appeal, the South Carolina Court of Appeals reversed the suspension on the ground that the record contained no evidence showing that the arresting officer had obtained the opinion of a licensed medical professional on the motorist’s inability to give a breath sample.

State v. Bennett, 375 S.C. 165, 650 S.E.2d 490 (Ct. App. 2007).  This case involved the circuit court’s revocation of a drug offender’s participation in a Community Supervision Program (“CSP”).  The offender challenged the revocation on the ground that he was originally sentenced as a first offender and thereby not required to participate in CSP.  The circuit court found that the offender should have filed an application for post-conviction relief (“PCR”) to assert his claim and that the time within which the offender could have filed a PCR application had expired.  On appeal, the South Carolina Court of Appeals reversed the circuit court's revocation order and held that the offender’s claim was not a challenge to the validity of his conviction or sentence that would force him to bring his claim under the PCR Act.  The Court held that the offender’s claim could have been raised in either a PCR action or as a non-collateral matter in the manner outlined in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000).   

James v. South Carolina Department of Probation, Parole and Pardon Services, Op. No. 4329 (S.C. Ct. App. filed January 10, 2008) (Shearouse Adv. Sh. No. 2 at 78).  In this case, an inmate brought an action in circuit court alleging he was improperly denied parole and that the Department’s decision to allow him parole review every two years rather than every year constituted an ex post facto violation.  The circuit court granted summary judgment to the Department.  On appeal, the South Carolina Court of Appeals affirmed.  First, it held that, as to the denial of parole, the inmate did not state a viable claim because a claim regarding the failure to grant parole does not implicate a liberty interest.  In addition, the inmate should have brought the claim before the ALC pursuant to Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000).   As to the inmate’s claim that the Department committed an ex post facto violation, the Court determined that this claim should have also been brought before the ALC, but that in any event, the circuit court correctly determined that the inmate did not establish an ex post facto violation.  At the time the inmate committed his crimes, there was no statute governing the frequency of parole hearings.  Instead, the frequency of parole hearings was a matter governed by Department policy.  The policy in effect when the inmate committed his crimes provided for reviews every two years for prisoners such as James who were serving sentences of thirty years or more.  Thus, the Department was properly applying the law in effect when James committed his crimes rather than retroactively applying Section 24-21-645 of the South Carolina Code. 

Recent ALC Orders of Interest

Department of Consumer Affairs:

Lexington Law Firm v. South Carolina Department of Consumer Affairs, 06-ALJ-30-0935-CC (October 15, 2007, Chief Administrative Law Judge Marvin F. Kittrell).  In this case, the South Carolina Department of Consumer Affairs had determined that the petitioner, a law firm licensed to practice law in Utah, was not exempt from the licensure requirements of the Consumer Credit Counseling Act, S.C. Code Ann. § 37-7-101 to -122.  The petitioner challenged the Department’s decision on the ground that the Act exempts attorneys at law from its licensure requirements.

Judge Kittrell held that the petitioner was automatically exempt from the Act’s licensure requirements because the provision exempting attorneys, S.C. Code Ann. § 37-7-101(2)(b)(i), does not require licensing in the State of South Carolina and because, to the extent that the petitioner’s activities constituted practicing law in South Carolina, its activities were regulated by the South Carolina Supreme Court.

Department of Health and Environmental Control:

South Carolina Coastal Conservation League v. South Carolina Department of Health and Environmental Control and South Carolina State Ports Authority, 07-ALJ-07-0107-CC (September 4, 2007, Administrative Law Judge John D. Geathers).  The petitioner in this case challenged a critical area permit issued by the South Carolina Department of Health and Environmental Control to the South Carolina State Ports Authority (“SPA”) for the construction of a marine container terminal at the site of the former Charleston Naval Base on the Cooper River.  The SPA sought to dismiss the petitioner’s contested case on the ground that the petitioner did not file its request for review by the South Carolina Board of Health and Environmental Control within the fifteen-day deadline set forth in S.C. Code Ann. § 44-1-60(E) (Supp. 2006).  The petitioner argued that the fifteen-day period runs from the date that notice of the Department’s permitting decision is received.

Judge Geathers held that section 44-1-60(E) is clear and unambiguous in requiring the fifteen-day period to run from the mailing of the notice to the permit applicant.  Judge Geathers also held that the petitioner had not been legally entitled to notice of the Department’s decision because it did not submit a request for notice as contemplated by section 44-1-60(E).  Judge Geathers concluded that, because the petitioner failed to file a request for Board review within the statutory deadline, neither the Board nor the ALC had jurisdiction over the petitioner’s permit challenge. 

Judge Geathers also concluded that the application of section 44-1-60(E) to the petitioner did not violate its due process rights.  Judge Geathers reasoned that the petitioner received the notice due to it when public notice of SPA’s permit application was provided and when the General Assembly enacted the requirement in section 44-1-60(E) that affected persons must request to be notified of the Department’s permit decisions.  Judge Geathers also noted that the petitioner had actual notice of the decision prior to the expiration of the fifteen-day deadline.

Department of Motor Vehicles:

South Carolina Department of Motor Vehicles v. Bennett, 06-ALJ-21-0756-AP (October 5, 2007, Administrative Law Judge Ralph K. Anderson, III).  In this case, a hearing officer of the Division of Motor Vehicle Hearings (“DMVH”) rescinded the suspension of a motorist's driver's license due to a perceived lack of evidence that the motorist was lawfully arrested for driving under the influence (“DUI”) and the lack of corroborating evidence showing that the motorist was advised in writing of his Implied Consent Rights prior to his refusal to submit to a breath test.  The South Carolina Department of Motor Vehicles appealed the hearing officer’s decision.

On appeal, Judge Anderson held that the hearing officer’s conclusion that the Department failed to show that the motorist was lawfully arrested was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.  Judge Anderson also held that there was no evidence that any failure of the DataMaster operator to timely advise the motorist in writing of his Implied Consent Rights prejudiced him because the DataMaster operator orally advised the motorist of his Implied Consent Rights.

The motorist argued that the ALC did not have the authority to reverse the hearing officer’s decision because the record did not show that the decision prejudiced substantial rights of the Department, as required by S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).  Judge Anderson held that the Department’s right to implement the motorist’s administrative suspension is a substantial right because the State’s interest in public safety is substantially served by the summary suspension of licenses of motorists who refuse to submit to breath testing.  Judge Anderson also held that the Department was prejudiced by the hearing officer’s errors.  Judge Anderson reasoned that errors affecting the outcome of a case are prejudicial and that the hearing officer’s erroneous conclusions were used to support the rescission of the suspension.

South Carolina Department of Motor Vehicles v. Williams, 06-ALJ-21-0729-AP (August 28, 2007, Administrative Law Judge Paige J. Gossett).  In this case, a DMVH hearing officer rescinded the suspension of a motorist's driver's license because the DataMaster operator had failed to re-check the motorist’s mouth prior to administering a second breath test.  The South Carolina Department of Motor Vehicles appealed the decision.

On appeal, Judge Gossett held that S.C. Code Ann. § 56-5-2950(e) (2006) requires a finding that the failure to comply with a SLED policy, procedure or regulation materially affected the accuracy or reliability of test results or the fairness of the testing procedure before those test results may be excluded from evidence.  Judge Gossett reversed the hearing officer’s decision because it did not include a finding that the DataMaster operator’s failure to re-check the motorist’s mouth materially affected the accuracy or reliability of the test results or the fairness of the testing procedure.

Administrative Law Judge Co-Authors Book

The South Carolina Bar’s Continuing Legal Education Division recently published The Regulation of Alcoholic Beverages in South Carolina (2007), written by Administrative Law Judge John D. Geathers and his former law clerk, Justin R. Werner.

ALC Judges and Staff Attend Conferences

Judges Carolyn Matthews and Paige Gossett attended the National Judicial College seminar “Enhancing Judicial Bench Skills” in Charleston, South Carolina on October 29-November 1, 2007.

Chief Judge Marvin Kittrell, Jana Shealy, Nancy Riley and Susan Dickerson attended the Central Panel Directors’ Conference in Greensboro, North Carolina on October 31-November 3, 2007. 

Chief Judge Marvin Kittrell attended the National Association of Administrative Law Judges Conference in Washington, D. C. on October 16-20, 2007.

New Faces at the Administrative Law Court

Matthew Aronson began work with the Administrative Law Court as Staff Counsel in October 2007.  Matthew is a 2007 graduate of the Charleston School of Law. 

Anthony Goldman began work with the Administrative Law Court as Staff Counsel in October 2007.  Anthony is a 2007 graduate of the Charleston School of Law.  Before attending law school, Anthony worked for several years as an analyst with Bank of America in Charlotte, North Carolina.      

Olivia Stafford Jones began work with the Administrative Law Court as Staff Counsel in September 2007.  Olivia is a 2007 graduate of the University of South Carolina School of Law.   

Laura C. Tesh returned to work with the Administrative Law Court as a Judicial Law Clerk to the Honorable John D. Geathers in September 2007.  She had previously served as Judge Geathers’ Judicial Law Clerk in 2000-2001.  Before returning to the Administrative Law Court, Laura served as a Law Clerk for the Honorable H. Samuel Stilwell at the South Carolina Court of Appeals and then practiced appeals from her home after her first child was born.  She is a cum laude graduate of the University of South Carolina School of Law.