SC Administrative Law Court Decisions

STATEMENT OF THE CASE

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had no authority to issue an order in this matter and that AHO Harley’s Order is based on legal precedent that is no longer valid.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.

BACKGROUND

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Appeals in Starnes v. South Carolina Department of Motor Vehicles,[1] the suspension of your driver’s license is hereby rescinded.”

ISSUES ON APPEAL

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

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).

DISCUSSION

ALC’s Authority to Reverse AHO Harley’s Order

As 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.

I 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,[3] 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.[4]

Notably, 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.

Mackey v. 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.

With 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.

Moreover, 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[5] 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.

Accordingly, 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 merit.

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,[6] 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).[7]

For these reasons, AHO Harley’s Order was a nullity and cannot be affirmed.

AHO Patterson’s Jurisdiction to Sustain Vera’s Suspension

Additionally, 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[8] 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.

Section 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,[9] 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 issue.

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),[10] 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.

Moreover, the recent passage of Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”)[11] 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.

For 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.

order

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 Order.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

April 9, 2007

Columbia, South Carolina