ORDERS:
ORDER OF REMAND
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 Phil Hayes (“AHO Hayes”) 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. Upon consideration of the
briefs, AHO Harley’s Order is vacated, and this matter is remanded to AHO Hayes
to issue an order based on the existing record.
BACKGROUND
On November 11, 2005, Respondent Amy Lou Merritt (“Merritt”)
was arrested for driving under the influence. In connection with the arrest, Merritt
was issued a written Notice of Suspension pursuant to S.C. Code Ann. §
56-5-2951(A) (Supp. 2004) for refusing to submit to chemical testing. In a
letter dated December 7, 2005, Merritt requested an administrative hearing to
challenge the suspension. The Department received Merritt’s request on December
13, 2005. On December 30, 2005, the Department issued a “Notice of Hearing”
that stated that the hearing would be held on January 31, 2006. The hearing
was held, as scheduled, on January 31, 2006 by AHO Hayes of the DMVH.
On March 10, 2006, AHO Harley, the Chief Hearing Officer for the DMVH, issued an Order, which 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v. South Carolina Department of Motor Vehicles, the suspension of your driver’s license is hereby rescinded.” The Department
now appeals.
ISSUE ON APPEAL
1. Did
AHO Harley have the authority to issue his Order?
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).
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
The Department argues that AHO Harley had no authority
to issue an order in this matter. I agree.
The record demonstrates that AHO Hayes was assigned to
this matter and presided at the underlying hearing. There is absolutely
nothing in the record that indicates that this matter was ever transferred to
AHO Harley. Pursuant to ALC Rule 9, no DMVH hearing officer, including the chief DMVH hearing officer, may issue an
order in a case unless 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. Accordingly, AHO
Harley’s Order was a nullity and cannot be affirmed.
Because AHO Harley’s Order was a nullity, this Court
need not consider its merits. See 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).
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 this case is remanded to AHO Hayes to issue an
order based on the existing record.
AND
IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
April 9, 2007
Columbia, South Carolina
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